On June 3, 2016, the United States District Court for the Eastern District of California dismissed litigation by the Center for Environmental Science, Accuracy, and Reliability (CESAR) against the Sacramento Regional County Sanitation District (Regional San) due to the plaintiff’s failure to comply with the notice requirement of the Endangered Species Act’s (ESA), 16 U.S.C. §§ 1531-1544, citizen suit provision.  CESAR’s first amended complaint alleged that Regional San’s discharge of treated wastewater to the lower Sacramento River contains ammonia in amounts that indirectly cause the take of delta smelt due to adverse effects on the food supply for the species.  (Regional San disputes this contention, and is, in any event, in the midst of major wastewater treatment modifications that will reduce ammonia discharges by over 95 percent.)

CESAR sued under the ESA citizen suit provision, 16 U.S.C. § 1540(g), which authorizes private citizen plaintiffs to step into the shoes of the federal government to enforce, among other things, the statute’s prohibition against the take of listed species.  This provision requires, however, that private citizens, at least sixty days prior to filing suit, give written notice of their intent to sue to both the alleged violator and the Secretary of either the United States Department of the Interior or the United States Department of Commerce, depending on the species at issue.  16 U.S.C. § 1540(g)(2)(A)(i).  Strict compliance with the notice provision is a jurisdictional prerequisite to maintaining a citizen suit under the ESA.  See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 28 (1989); Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 650 (9th Cir. 2015).

Regional San moved to dismiss CESAR’s citizen suit on the grounds that CESAR failed to give notice of its intent to sue to the Secretary of the Interior.  Regional San presented evidence to the court that the Secretary never received written notice, and thus argued that CESAR had failed to comply with the notice requirement of the ESA citizen suit provision.  In response, CESAR argued that it had taken action to mail the requisite notice, and made several arguments that actual receipt by the Secretary was not necessary to satisfy the notice requirement.  The district court disagreed, interpreting the requirement that notice be “given to the Secretary” to mean that an ESA notice be “received.”  Based on the evidence presented by Regional San that the Secretary had never received CESAR’s notice, and the lack of evidence that notice was given, the court found CESAR had failed to comply with the ESA citizen suit notice provision and granted Regional San’s motion to dismiss for lack of subject matter jurisdiction without leave to amend the complaint.  Order Granting Motion to Dismiss Without Leave to Amend, Center for Environmental Science, Accuracy & Reliability v. Sacramento Regional County Sanitation District, U.S. District Court for the Eastern District of California, No. 1:15-cv-01103 LJO-BAM (June 3, 2016).

For more information, please contact Jason Canger at jcanger@somachlaw.com.

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