The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
On April 16, 2009, the non-profit animal advocacy group Friends of Animals ("FOA") filed a Complaint against Ken Salazar, Secretary of the Interior; Sam D. Hamilton,*fn1 Director of the U.S. Fish and Wildlife Service; and the U.S. Fish and Wildlife Service ("FWS") pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. § 1533 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq, seeking declaratory and injunctive relief. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, Defendants' motion will be granted in part and denied in part.
FOA petitioned FWS to list thirteen species of foreign macaws, parrots and cockatoos (the "Thirteen Species") as threatened or endangered under the ESA in January 2008.*fn2 FOA is a non-profit international advocacy organization that seeks to free animals from cruelty and exploitation around the world and engages in advocacy programs. It asserts that the Thirteen Species are highly sought after for sale in the caged-bird pet trade although they have dwindling populations and face possible extinction in their native habitats from legal and illegal harvesting. See Compl. [Dkt. # 1] ¶ 5.
By letter dated October 27, 2008, "FOA notified the Secretary that he violated Section 4(b)(3)(A) of the ESA, 1 U.S.C. § 1533(b)(3)(A) by failing to determine within 90 days whether FOA's petition presents substantial information indicating that listing the parrots, macaws, and cockatoos may be warranted," thus providing its Notice of Intent ("NOI") to sue over the 90-day failure. Compl. ¶ 28; Compl., Attach. 1 ("Sixty-day Notice of Intent to Sue") at 3. The NOI asked the Service to issue the 90-day "preliminary determination as required by § 4(b)(3)(A) of the ESA . . . and commence a twelve-month status review of the species." Id., Attach. 1 at 5. The NOI did not mention any failure to comply with the 12-month timetable because, at that point, twelve months had not passed since the petition was filed.
FOA filed this suit on April 16, 2009, seeking a declaration that FWS violated the ESA by failing to issue a timely 90-day finding on the Thirteen Species. In addition, the Complaint also seeks a declaration that FWS violated the ESA by failing to issue a timely 12-month finding on FOA's petition. Compl. ("Prayer for Relief") at 8.
On July 13, 2009, FWS placed on public inspection at the Federal Register its 90-Day Finding for the Thirteen Species. See Defs.' Mem. in Supp. of Mot. to Dismiss ("Defs.' Mem.") [Dkt. # 8] at 1. On that same day, FWS filed its motion to dismiss here. The finding was published in the Federal Register on July 14, 2009. See 90-Day Finding on a Petition to List 14 Parrot Species as Threatened or Endangered, 74 Fed. Reg. 33957 (July 14, 2009) (to be codified at 50 C.F.R. pt. 17).
When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).
A motion to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1). See Flores v. District of Columbia, 437 F. Supp. 2d 22, 25 n.4 (D.D.C. 2006). That rule imposes on the Court "an affirmative obligation to insure that it is acting within the scope of its jurisdictional authority." Jones v. Ashcroft, 321 F. Supp. 2d 1, 5 (D.D.C. 2004). Under the Constitution, federal courts are limited to deciding "actual, ongoing controversies." Honig v. Doe, 484 U.S. 305, 317 (1988). "Even where the litigation posed a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (quotation marks and citations omitted). While the movant has the burden of proving mootness, a plaintiff must defend a motion to dismiss brought under Rule 12(b)(1) by proving by a preponderance of the evidence that the court has jurisdiction to hear its claims. See Khadr, 529 F.3d at 1115.
A case is moot if a defendant can demonstrate that two conditions have been met: (1) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation; and (2) there is no reasonable expectation that the alleged wrong(s) will be repeated. Doe v. Harris, 696 F.2d 109, 111 (D.C. Cir. 1982) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). When both conditions are satisfied, the case is moot because neither party has a legally cognizable interest in the final determination of the underlying facts and law. See Harris, 696 F.2d at 111.
A. Claims Pursuant to the ESA
1. Claims for Declaratory and ...