Strahan v. Department of Homeland Security, Secretary et al

Filing 26

///ORDER granting 16 Motion to Dismiss. Defendants' motion to dismiss the complaint is GRANTED. This dismissal is without prejudice to Strahan filing a new citizen suit that complies with the 60-day notice requirement. All remaining motions are denied as moot. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Richard Maximus Strahan
v.

Civil No. 18-cv-161-JL
Opinion No. 2018 DNH 168

Kirstjen Nielsen, in her
official capacity as the
Secretary of Homeland Security
and the Department of Homeland
Security, et al.
MEMORANDUM ORDER
Whether plaintiff Richard Strahan may maintain his
environmental-based challenge to immigration policy turns on
whether the relevant administrative agencies received the
statutorily-required 60 days’ notice of his intent to bring this
action before he filed his complaint.

Strahan brings this

citizen suit under the Endangered Species Act (ESA), see 16
U.S.C. § 1540(g), against the Secretary of Homeland Security and
her Department (DHS), the director of the United States Fish and
Wildlife Service (FWS), and the assistant administrator of the
National Marine Fisheries Service (NMFS).

He alleges that DHS

failed to comply with the ESA when it neglected to consult with
the FWS and NMFS before implementing immigration policies that
increases the population of the United States, see id.
§ 1536(a), and that its actions implementing such policies and
issuing visas and other immigration documents under those

policies constitute a prohibited “taking” of endangered species
under § 1538(a) of the ESA.

This court has subject-matter

jurisdiction over this action pursuant to 28 U.S.C. § 1331
(federal question) and 16 U.S.C. § 1540(c) (district court
jurisdiction over actions arising under the ESA).
The defendants have moved to dismiss this action citing
Strahan’s lack of standing, see Fed. R. Civ. P. 12(b)(1), and
alleging that he failed to provide the statutorily-required 60day notice to the defendant agencies before initiating this
lawsuit.

They also contend that Strahan fails to plead a cause

of action on which this court can grant relief.
Rule 12(b)(6).

See id.

While Strahan has demonstrated an injury-in-fact

sufficient to satisfy that element of the standing analysis (and
the defendants have not provided any argument with respect to
the other two elements), based on the evidence presented by the
parties’ filings, the court concludes that the defendant
agencies did not receive Strahan’s notice of intent to sue.
Because such notice is a necessary prerequisite to the claims
Strahan seeks to assert, see 16 U.S.C. § 1540(g), the court
dismisses his action without prejudice.

And, having done so on

jurisdictional grounds, it does not reach the merits of the
defendants’ Rule 12(b)(6) challenge.

2

Applicable legal standard
When it considers a motion to dismiss for lack of standing
under Rule 12(b)(1), the court “accept[s] as true all wellpleaded factual averments in the plaintiff’s complaint and
indulge[s] all reasonable inferences therefrom in his favor.”
Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012) (internal
quotation marks omitted).

The court may also consider material

outside the pleadings, such as affidavits.

Gonzalez v. United

States, 284 F.3d 281, 287–88 (1st Cir. 2002).
“[A] suit will not be dismissed for lack of standing if
there are sufficient allegations of fact . . . in the complaint
or supporting affidavits.”

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 65 (1987) (internal
quotations omitted).

To satisfy this standard, the plaintiff

“must set forth reasonably definite factual allegations, either
direct or inferential, regarding each material element needed to
sustain standing.”

United States v. AVX Corp., 962 F.2d 108,

115 (1st. Cir. 1992).

In other words, “the facts necessary to

support standing must clearly appear in the record and cannot be
inferred argumentatively from averments in the pleadings.”

Id.

Background
Strahan, a conservation biologist, seeks to prevent what he
describes as the “6th Great Extinction of Life on Earth” -- that

3

is, a mass extinction of plant and wildlife species.1

He alleges

that an increase in the population of the United States must
necessarily contribute to the extinction of a variety of native
plant and animal species2 and that eight immigration-related
programs administered by DHS contribute to the country’s growing
population.3

Strahan contends that DHS violated Sections 7 and 9

of the Endangered Species Act of 1973 (ESA) by implementing
these immigration-related programs which, he alleges, impact a
variety of species listed as endangered in the United States.
Section 7 of the ESA obligates federal agencies to “utilize
their authorities in furtherance of the purposes of this chapter
by carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 1533
of this title.”

16 U.S.C. § 1536(a)(1).

In doing so, federal

agencies must also “insure that any action authorized, funded,
or carried out by such agency . . . is not likely to jeopardize
the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
habitat of such species . . . .”

1

Compl. (doc. no. 1) ¶ 1.

2

Id. ¶ 2.

3

16 U.S.C. § 1536(a)(2).

Id. ¶ 3.

4

Agencies must “use the best scientific and commercial data
available” in performing this evaluation.

Id.

Agencies must undertake these actions “in consultation with
and with the assistance of the Secretary” of the Department of
Commerce or the Interior.

Id. §§ 1536(a)(1)-(2).

The

Secretaries of the Departments of the Interior and Commerce have
delegated responsibility for such consultations with respect to
terrestrial and fresh-water species to the FWS and with respect
to marine species to the NMFS.

See Strahan v. Coxe, 939 F.

Supp. 963, 977 (D. Mass. 1996) (outlining delegation).
Consultation under Section 7 may be formal, see 50 C.F.R.
§ 402.14, or informal, see id. § 402.13.

“Informal consultation

occurs when the action-proposing agency determines in a
biological assessment that the action ‘is not likely to
adversely affect listed species or critical habitat,’ and the
wildlife agency concurs in writing, thereby terminating the
consultation process.”

All. for the Wild Rockies v. Savage, No.

16-35589, 2018 WL 3579873, at *2 (9th Cir. July 26, 2018)
(citing 50 C.F.R. § 402.13).

“In contrast, formal consultation

occurs when the proposed action ‘may affect’ listed species or
critical habitat, and requires the consulting agency . . . to
prepare a biological opinion” on the potential impact of the
agency’s proposed action on the relevant species or habitat.
Id. (citing 50 C.F.R. § 402.14).

5

Strahan contends that DHS failed to engage in this
consultative process mandated by § 7(a)(1) before implementing
several immigration-related programs, most of which were
established by Congress through the Immigration and
Naturalization Act.4

Such programs lead to an increase in the

United States population, he alleges, and thus negatively impact
the populations of endangered and potentially-endangered species
such as the northern right whale, the monarch butterfly, the
eastern gray wolf, and the rusty patch bumble bee.
Strahan further contends that, by engaging in these
immigration-related programs, DHS violated § 9(a) of the ESA.
That section renders it “unlawful for any person subject to the
jurisdiction of the United State to . . . take any [species of
fish or wildlife listed as endangered] within the United States
or the territorial sea of the United States,” 16 U.S.C.
§ 1538(a)(1)(B), or “to attempt to commit, solicit another to
commit, or cause to be committed, any offense defined in this
section,” id. § 1538(g).

The ESA defines “take” as, among other

actions, “to harm” a species, 16 U.S.C. § 1532(19), and further
defines “harm” to include “significant habitat modification or
degradation” that “actually kills or injures wildlife,” 50
C.F.R. § 17.3.

4

Specifically, Strahan argues that by allowing

Compl. (doc. no. 1) ¶¶ 5, 37-38.

6

the population of the United States to increase, DHS is
“incidentally taking ESA listed species of plants and animals .
. . .”5
Strahan brings this action under the citizen-suit provision
of the ESA, which authorizes “any person” to:
commence a civil suit on his own behalf-(A) to enjoin any person, including the United States
and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to
the Constitution), who is alleged to be in violation
of any provision of this chapter or regulation issued
under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to
section 1535(g)(2)(B)(ii) of this title, the
prohibitions set forth in or authorized pursuant to
section 1533(d) or 1538(a)(1)(B) of this title with
respect to the taking of any resident endangered
species or threatened species within any State;
. . . .
16 U.S.C. § 1540(g)(1)(A)-(B).

Under the only exception

relevant here, no such action may be commenced “prior to sixty
days after written notice of the violation has been given to the
Secretary, and to any alleged violator of any such provision or
regulation.”

5

Id. § 1540(g)(2)(A)(i).

Compl. (doc. no. 1) ¶¶ 97-98.

7

Analysis
A.

Standing

“Federal courts are courts of limited jurisdiction.

They

possess only that power authorized by Constitution and statute
. . . .”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994) (internal citations omitted).

The Constitution

vests “[t]he judicial Power of the United States” in the federal
courts, U.S. Const. Art. III, § 1, but extends this power only
to “Cases” and “Controversies.”

Id. Art. III, § 2.

“And ‘[n]o

principle is more fundamental to the judiciary’s proper role in
our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.’”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting
Raines v. Byrd, 521 U.S. 811, 818 (1997)).
“[T]he justiciability doctrine[ ] of standing” is one “of
the limitation’s manifestations . . . .”
F.3d 493, 499 (1st Cir. 2017).

Reddy v. Foster, 845

That doctrine “limits the

category of litigants empowered to maintain a lawsuit in federal
court to seek redress for a legal wrong.”
1547.

Spokeo, 136 S. Ct. at

Strahan, as the party asserting this court’s

jurisdiction, bears the burden of establishing his standing to
obtain the requested relief.

Id.

To do so, he must demonstrate

that he has “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and

8

(3) that is likely to be redressed by a favorable judicial
decision.”

Id. (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992)).

These standing principles apply to citizen

suits brought under the ESA.

Lujan, 504 U.S. at 561.

The defendants contend that Strahan has not demonstrated
the first of these elements -- an injury in fact.6

Strahan

brings this action as an individual, and thus must demonstrate
that he, himself, has suffered injury in fact.7

“To establish

injury in fact, a plaintiff must show that he or she suffered
‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’”
U.S. at 560).

Spokeo, 136 S. Ct. at 1547 (quoting Lujan, 504
“These requisites must be proved ‘with the manner

and degree of evidence required at the successive stages of the
litigation.’”

Maine People’s All., 471 F.3d at 283.

As such,

“[a]t the pleading stage, general factual allegations of injury

While they note in an introductory sentence that he “has not
established any of the elements of standing,” Mot. to Dismiss
(doc. no. 16) at 8, and at oral argument addressed the other two
elements, they did not develop any such arguments in their
briefing.
6

If he brought this action on behalf of his organization, Whale
Safe, he would still be required to demonstrate “that individual
members would have standing to sue in their own right.” Maine
People’s All. And Nat. Res. Def. Council v. Mallinckrodt, Inc.,
471 F.3d 277, 283 (1st Cir. 2006) (citing Friends of the Earth,
528 U.S. at 181).
7

9

resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we presume that general allegations embrace
those specific facts that are necessary to support the claim.”
Lujan, 504 U.S. at 561 (internal quotations omitted).
“[E]nvironmental plaintiffs adequately allege injury in
fact when they aver that they use the affected area and are
persons “for whom the aesthetic and recreational values of the
area will be lessened” by the challenged activity.”

Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 183 (2000).

For example, “allegations that plaintiffs have

a strong interest in viewing animals in living conditions that
do not violate the ESA and who show that they would go visit the
animals if the animals’ conditions were improved have shown
injury in fact.”

Missouri Primate Found. v. People for Ethical

Treatment of Animals, Inc., No. 4:16 CV 2163 CDP, 2018 WL
1420239, at *2 (E.D. Mo. Mar. 22, 2018) (citing Hill v. Coggins,
867 F.3d 499, 505–506 (4th Cir. 2017), cert. denied, No. 17–865,
2018 WL 942505 (U.S. Feb. 20, 2018)).
While a plaintiff cannot “satisfy the demands of” the
standing doctrine “by alleging a bare procedural violation,”
Spokeo, Inc., 136 S. Ct. at 1550, that is not all that Strahan
does here.

He alleges that he “liv[es] in the habitats of many

listed endangered species” and engages in “professional work as
a conservation scientist whose job is to stop the 6th Wave of

10

Extinction.”8

In his second verified objection to the motion to

dismiss, Strahan further alleges that he is “attempting to
reintroduce the Eastern Grey Wolf and Rusty Patched Bumble Bee
into their former range located within the political boundaries
of the northeastern United States,” where he resides.9
Accordingly, though his allegations must ultimately be proven,
Strahan has pleaded facts that establish an injury-in-fact
sufficient to maintain a citizen suit under the ESA.
B.

Notice of intent to bring suit

No citizen suit under the ESA may be commenced “prior to
sixty days after written notice of the violation has been given
to the Secretary, and to any alleged violator of any such
provision or regulation.”

Id. § 1540(g)(2)(A)(i).

Failure to

comply with this 60-day notice requirement obligates the court
to dismiss the citizen suit.10

Hallstrom v. Tillamook Cty., 493

8

Compl. (doc. no. 1) ¶ 16.

9

Second Obj. (doc. no. 18) at 2.

The First Circuit Court of Appeals has not directly addressed
whether the ESA’s notice requirement is jurisdictional, but has
concluded that an almost-identically worded requirement under
the Resource Conservation and Recovery Act “is not a technical
wrinkle or superfluous formality that federal courts may waive
at will,” but rather “is part of the jurisdictional conferral
from Congress that cannot be altered by the courts.” Garcia v.
Cecos Int’l, Inc., 761 F.2d 76, 79 (1st Cir. 1985). See also
Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988)
(construing ESA requirement as jurisdictional in part because
10

11

U.S. 20, 33 (1989); see also Maine Audubon Soc. v. Purslow, 672
F. Supp. 528, 530 (D. Me. 1987), aff’d, 907 F.2d 265 (1st Cir.
1990) (dismissing action for failure to comply with ESA’s 60-day
notice requirement).
The First Circuit Court of Appeals “read[s] the 60–day
notice requirement in environmental statute citizen suits
strictly.”

Water Keeper All. v. U.S. Dep't of Def., 271 F.3d

21, 29 (1st Cir. 2001).

It “provides agencies with an

opportunity to resolve the dispute and take any necessary
corrective measures before a resort to the courts,” and as such
“must adequately inform the agency of the exact grievances
against it, if it is to fulfill this purpose.”

Id. at 29-30

(citing Southwest Ctr. for Biological Diversity v. U.S. Bureau
of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)).
Accordingly, the 60 days’ notice must be given, as the statute’s
plain language contemplates, before the lawsuit commences.

See

Garcia, 761 F.2d at 78.

Provision of notice during the action

itself does not suffice.

See Maine Audubon, 672 F. Supp. at

530.
Strahan, as the party asserting this court’s jurisdiction,
has the burden of establishing it, Dubois v. U.S. Dep't of

its 60-day notice requirement was virtually identical to the
RCRA’s).

12

Agric., 102 F.3d 1273, 1281 (1st Cir. 1996), and thus the burden
of proving that he provided the requisite notice, Strahan v.
Coxe, 939 F. Supp. 963, 976 (D. Mass. 1996), aff’d in relevant
part and vacated on other grounds, 127 F.3d 155 (1st Cir. 1997)
(requiring Strahan to “prove that he provided notice to the
Secretary of Commerce before filing his Complaint or his suit
would be dismissed, without prejudice, for lack of
jurisdiction.”).
Because the 60-day notice functions to permit the agency to
remedy any alleged lack of compliance with or violation of the
ESA without judicial interference, it has been interpreted to
require not just that the notice be placed in the mail, but that
the relevant agency actually received it.

See Ctr. for Envtl.

Sci., Accuracy & Reliability v. Sacramento Reg'l Cty. Sanitation
Dist., No. 115CV01103LJOBAM, 2016 WL 8730775, at *3 (E.D. Cal.
June 3, 2016) (placing burden on plaintiff to prove that notice,
allegedly mailed, was actually received by agency).

The

statute’s plain language, requiring that “written notice of the
violation has been given to the Secretary, and to any alleged
violator,” id. § 1540(g)(2)(A)(i) (emphasis added), supports
that interpretation.

See Ctr. for Envtl. Sci., Accuracy &

Reliability, 2016 WL 8730775, at *4.
Strahan has attached to his second verified objection a
copy of a notice dated September 6, 2017, and addressed to the

13

Secretary of Homeland Security, the Secretary of Commerce, the
Secretary of Agriculture, the Administrator of the National
Oceanographic and Atmospheric Agency (of which NMFS is a
division) and the Deputy Director of the US Fish and Wildlife
Service.11

Strahan alleged in his complaint12 and reiterates in

his objection13 that he provided this notice to the relevant
agencies on September 6, 2017 -- more than 60 days before he
filed his complaint on February 21, 2018.
The defendants each contend that they never received this
notice.

They have attached to their motion to dismiss

declarations from employees at FWS, NMFS, and DHS, describing
the respective agencies’ processes and procedures for receiving,
logging, and reviewing notifications under § 1540(g)(2)(A)(i).14
Each employee also describes a search of the agency’s systems
and affirms that Strahan’s notification was not found therein.15
On that basis, they affirm that each respective agency, to their
knowledge, did not receive Strahan’s notice.16

11

Document no. 18-1.

12

Compl. (doc. no. 1-1) ¶ 16.

13

Second Obj. (doc. no. 18) at 1-2.

See Gilbert Decl. (doc. no. 16-1); Pawlak Decl. (doc. no. 162); Sessa Decl. (doc. no. 16-3).
14

15

Gilbert Decl. ¶¶ 7-8; Pawlak Decl. ¶¶ 3-4; Sessa Decl. ¶ 6.

16

Gilbert Decl. ¶ 9; Pawlak Decl. ¶ 5; Sessa Decl. ¶ 6.

14

Had only one agency been unable to find any record of
Strahan’s notice, the court might infer that it may have been
misplaced or misfiled.

That all three were unable to locate any

record of that notice suggests more strongly that it simply was
not received.

Accordingly, Strahan has not carried his burden

of demonstrating that he satisfied the 60-day notice requirement
of 16 U.S.C. § 1540(g)(2)(A)(i).17
Conclusion
For the reasons discussed herein, the defendants’ motion to
dismiss the complaint18 is GRANTED.

This dismissal is without

prejudice to Strahan filing a new citizen suit that complies
with the 60-day notice requirement.

Because the court dismisses

While, as Strahan explained at oral argument, it may be
difficult for him to prove that the notice reached the secretary
or director of the relevant agency, it seems to the court that
he could prove its delivery to the agency through, for example,
a return receipt from United States Postal Service or other
parcel tracking information from the USPS, Federal Express, UPS,
or similar carrier.
17

At oral argument, counsel for the defendants provided Strahan
with the following address for providing such notice to DHS:
Office of the Secretary
Department of Homeland Security
245 Murray Lane SW
Mail Stop 0350
Washington, D.C. 20528-0350
18

Document no. 16.

15

this action, Strahan’s remaining motions19 are denied as moot.
The clerk shall enter judgment accordingly and close the case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

19

August 17, 2018

Richard Maximus Strahan, pro se
Frederick H. Turner, Esq.

Document nos. 4, 20, 21, 22 and 23.

16