                                            Slip-Op. 07-69

               UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                     :
SALMON SPAWNING & RECOVERY           :
ALLIANCE, et al.,                    :
                                     :
            Plaintiffs,              :
                                     :  Before: Judith M. Barzilay, Judge
      v.                             :  Court No. 06-00191
                                     :
W. RALPH BASHAM, et al.,             :
                                     :
            Defendants.              :
____________________________________:

                                      MEMORANDUM ORDER

[Plaintiffs’ motion for reconsideration is denied.]

Heller Ehrmann LLP, Eric Redman and (Svend Arnold Brandt-Erichsen) for Plaintiffs Salmon
Spawning & Recovery Alliance, Native Fish Society, and Clark-Skamania Flyfishers.

Peter D. Keisler, Assistant Attorney General; (Jeanne E. Davidson), Director; (Stephen C.
Tosini), Commercial Litigation Branch, Civil Division, United States Department of Justice for
Defendants United States Customs & Border Protection, Dirk Kempthorne, United States
Department of Interior, United States Fish & Wildlife Service, Carlos M. Gutierrez, United
States Department of Commerce, D. Robert Lohn, National Oceanic & Atmospheric
Administration National Marine Fisheries Service, Deborah J. Spero, and H. Dale Hall.

                                                      Dated: May 9, 2007

          BARZILAY, JUDGE: Plaintiffs in the above captioned matter move pursuant to

USCIT Rule 59(a)(2) to have this court reconsider its judgment in Salmon Spawning & Recovery

Alliance v. Basham, No. 06-00191, 2007 WL 666464 (CIT Mar. 6, 2007), granting Defendants’

motion to dismiss.1 For the reasons discussed below, Plaintiffs’ motion for reconsideration is

denied.

          1
              Familiarity with Salmon Spawning & Recovery Alliance, 2007 WL 666464, is presumed.
Court No. 06-00191                                                                     Page 2
                                        I. Standard of Review

       The disposition of a motion for reconsideration lies within “the sound discretion of the

court.” United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 336, 601 F. Supp. 212, 214

(1984). A court generally will grant such a motion only to “rectify[] a significant flaw in the

conduct of the original proceeding.” Id. (quotations & citation omitted). Specifically,

       [a] rehearing may be proper when there was: (1) an error or irregularity in the
       trial; (2) a serious evidentiary flaw; (3) a discovery of important new evidence
       which was not available even to the diligent party at the time of trial; or (4) an
       occurrence at trial in the nature of an accident or unpredictable surprise or
       unavoidable mistake which impaired a party’s ability to adequately present its
       case.

Id. at 336–37, 601 F. Supp. at 214. A motion for reconsideration will not be granted merely to

give a losing party another chance to re-litigate the case or present arguments it previously raised.

See id. at 337, 601 F. Supp. at 214.

                                       II. Plaintiffs’ Contentions

       Plaintiffs set forth various arguments in support of their motion. First, they claim that the

court misconstrued the first claim in their complaint as an assertion that Customs is violating 16

U.S.C. § 1538, Section 9 (“§ 9") of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et

seq. Pls.’ Mot. Reh’g & Recons. J. 2 (“Pls. Mot.”). Rather, they aver that their claim was that

Customs is violating its duties under Section 7 (“§ 7”), id. § 1536, by allowing others to import

threatened salmon. Pls. Mot. 2. Plaintiffs also contend that the applicability of § 7(a)(2)’s

consultation requirement does not turn upon “whether an agency’s conduct is characterized as an

affirmative action or a failure to act.” Pls. Mot. 5. In the alternative, Plaintiffs construe

Customs’ failure to enforce § 9 as “‘actions’ within the meaning of the ESA” sufficient to trigger

§ 7(a)(2). Pls. Mot. 7.
Court No. 06-00191                                                                    Page 3
                                           III. Discussion

       Though Plaintiffs maintain that their first claim dealt with Customs’ violation of

§ 7(a)(2), after several careful reviews of the complaint, the court has determined that a

reasonable person would conclude that Plaintiffs sought to bring a § 9 claim against Customs.

See Compl. ¶¶ 41–46. Any confusion over the nature of the claim stemmed from the complaint’s

inartful drafting rather than the court’s misreading of the text. Tellingly, the District Court for

the Western District of Washington, which transferred this case to the Court of International

Trade, and Defendants also interpreted this claim to “allege that Defendants have violated

Section 9 of the Endangered Species Act . . . by allowing the import of threatened and

endangered salmon.” Salmon Spawning & Recovery Alliance v. Spero, No. C05-1878Z, 2006

WL 1207909, at *1 (W.D. Wash. May 3, 2006); accord Mot. Dismiss & Resp. Pls.’ Mot. J. A.R.

6. Nevertheless, assuming arguendo that both Courts and Defendants misconstrued Plaintiffs’

first claim, the claim would be subsumed by Plaintiffs’ second claim, which asserts that

Defendants must undergo the § 7(a)(2) consultation process.2 See Compl. ¶¶ 48–51; see also

§ 1536(a)(2).

        Plaintiffs’ argument that the applicability of § 7(a)(2) does not depend on whether the

disputed agency conduct constitutes action or inaction also does not withstand scrutiny. Ample

case law reiterates that “the [§ 7(a)(2)] duty to consult is triggered by affirmative actions.” W.

Watersheds Project v. Matejko, 468 F.3d 1099, 1102 (9th Cir. 2006) (emphasis added); accord


       2
         The court need not address Plaintiffs’ assertion that the Court has jurisdiction over
Defendants’ first claim pursuant to 16 U.S.C. § 1540(g)(1)(A) or, in the alternative, the
Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551–706. See Pls. Mot. 4–5. As stated
supra, if Plaintiffs’ first claim indeed concerned Defendants’ violation of § 7(a)(2), it would be
subsumed by the second claim, rendering this issue moot.
Court No. 06-00191                                                                       Page 4
§ 1536(a)(2); W. Watersheds Project, 468 F.3d at 1108; Defenders of Wildlife v. EPA, 420 F.3d

946, 962 (9th Cir. 2005) (“The two critical factors triggering this [§ 7(a)(2)] obligation are (1)

that the ‘action’ be . . . an action ‘authorized, funded or carried out’ by the agency; and (2) that

there is . . . a direct or indirect effect ‘likely to jeopardize the continued existence of any

endangered species or threatened species . . . .’”) (quoting § 1536(a)(2)), reh’g denied, 450 F.3d

394 (9th Cir. 2006), cert. granted sub nom. Nat’l Ass'n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 852 (2007), EPA v. Defenders of Wildlife, 127 S. Ct. 853 (2007).

Regulations governing the ESA buttresses this conclusion. See, e.g., 50 C.F.R. § 402.02

(“‘Action’ means all activities or programs of any kind authorized, funded, or carried out, in

whole or in part, by Federal agencies . . . .”) (emphasis added); id. § 402.03 (“Section 7 . . .

appl[ies] to all actions in which there is discretionary Federal involvement or control.”)

(emphasis added); id. § 402.14(a) (“Requirement for formal consultation. Each Federal agency

shall review its actions at the earliest possible time to determine whether any action may affect

listed species . . . .”) (emphasis added). Without an affirmative action by Customs, the court

cannot compel it to enter consultations pursuant to § 7(a)(2).

                                            IV. Conclusion

        Therefore, upon reading Plaintiffs’ motion for reconsideration; Defendants’ opposition

thereto; and upon consideration of other papers and proceedings had herein, it is hereby

        ORDERED that Plaintiffs’ motion for reconsideration is denied.



        May 9, 2007                                             /s/ Judith M. Barzilay

Dated:_____________________                                     ______________________
       New York, NY                                             Judge
