On July 22, 2013, the U.S. District Court for the Western District of Washington held (pdf) that plaintiffs’ claims regarding the U.S. Fish and Wildlife Service’s (Service) alleged violation of section 10 of the Endangered Species Act (ESA) were not subject to the 60 day notice of intent to sue (NOI) requirement.

In 1997, the Washington Department of Natural Resources (DNR) adopted a habitat conservation plan to govern logging in the forests of southwest Washington.  The marbled murrelet (Brachyramphus marmoratus) is one of a number of endangered and threatened species covered under the plan.  In 2012, the Service approved a “minor amendment” to the conservation plan. 

Plaintiffs brought suit against the Service, alleging that the Service violated section 10 of the ESA and the Administrative Procedure Act (APA) by processing the amendment as “minor” rather than “major.”  Major amendments require public comment and statutory findings.

The court held that violations of section 10 of the ESA are properly brought under the APA, not under section 10 – which authorizes suits for substantive violations of the ESA – because section 10 is an “implementing provision,” not a substantive one.  As a result, plaintiffs’ suit was not subject to the 60-day NOI requirement.