United States District Court, W.D. North Carolina, Asheville Division
WILLIAM ORR, CHARLES ORR, CHARLES ORR, on behalf of Ina Orr his unborn daughter due mid June, and YVONNE HEGNEY, individually and on behalf of Roan Mountain, her threatened and endangered species, Plaintiffs,
U.S. EPA, U.S. FOREST SERVICE, U.S. FISH AND WILDLIFE SERVICE, FRENCH BROAD ELECTRIC MEMBERSHIP CORPORATION, and JEFF LOVEN, personally and as General Manager, Defendants.
MEMORANDUM OF DECISION AND ORDER
Reidinger, United States District Judge
MATTER is before the Court on the Plaintiffs'
"Verified Complaint for an Emergency Temporary
Restraining Order, Preliminary/Permanent Injunction and Other
Relief" [Doc. 1] and the Plaintiffs' Motion for an
Emergency Temporary Restraining Order and Preliminary
Injunction [Doc. 2].
Plaintiffs commenced this action on June 1, 2017, against the
Environmental Protection Agency (EPA), the United States
Forest Service (USFS), the United States Fish and Wildlife
Service (USFWS), the French Broad Electric Membership
Corporation (FBE), and FBE's General Manager Jeff Loven
(Loven), seeking to enjoin FBE and Loven from spraying
certain EPA-approved herbicides on or near Roan Mountain.
Specifically, the Plaintiffs contend that the spraying of
such herbicides will irreparably harm the "critical
habitats" and threatened/endangered species residing on
Roan Mountain, in violation of the Endangered Species Act, 16
U.S.C. § 1531, et seq. (ESA). The Plaintiffs
also challenge EPA's administrative approval of the use
of such herbicides in applications that would threaten
endangered species. The Plaintiffs further seek an injunction
requiring EPA, USFS, and USFWS to enforce the provisions of
the ESA in order to protect the critical habitats and
threatened/endangered species residing on Roan Mountain.
Finally, the Plaintiffs contend that FBE and Loven's plan
to spray EPA-approved herbicides on or near Roan Mountain
violate the Plaintiffs' First Amendment "religious
rights, health, lives, property, well being and
'sacred' way of life, " in violation of 42
U.S.C. § 1983. [Doc. 1 at 1-2].
STANDARD OF REVIEW
district courts are courts of limited jurisdiction.
United States ex rel. Vuwuru v. Jadhav, 555 F.3d
337, 347 (4th Cir. 2009). The lack of subject matter
jurisdiction is an issue that may be raised sua
sponte, and if the Court determines that subject matter
jurisdiction is lacking, the case must be dismissed. See
Ellenburq v. Spartan Motors Chassis, Inc., 519 F.3d 192,
196 (4th Cir. 2008); Fed.R.Civ.P. 12(h)(3).
Plaintiffs' ESA Claims
citizen may bring suit under the ESA "to enjoin any
person, including the United States and any other
governmental instrumentality or agency . . . who is alleged
to be in violation of any provision of this chapter or
regulation issued under the authority thereof." 16
U.S.C. § 1540(g)(1)(A). Prior to filing suit, however,
the plaintiff must comply with § 1540(g)(2)(A)(i), which
provides that "[n]o action may be commenced under
subparagraph (1)(A) of this section ... prior to sixty days
after written notice of the violation has been given to the
Secretary,  and to any alleged violator of such
provision or regulation." 16 U.S.C. §
1540(g)(2)(A)(i). The purpose of the 60-day notice
requirement "is to put the agencies on notice of a
perceived violation of the statute and an intent to sue. When
given notice, the agencies have an opportunity to review
their actions and take corrective measures if warranted. The
provision therefore provides an opportunity for settlement or
other resolution of a dispute without litigation."
Southwest Ctr. for Biological Diversity v. United States
Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998)
(quoting Forest Conservation Council v. Espy, 835
F.Supp. 1202, 1210 (D. Id. 1993), affd, 42 F.3d 1399
(9th Cir. 1994)).
60-day notice requirement "is a mandatory, not optional,
condition precedent for suit." Friends of Animals v.
Ashe, 808 F.3d 900, 903 (D.C. Cir. 2015) (quoting
Hallstrom v. Tillamook County, 493 U.S. 20, 26
(1989) (interpreting similar 60-day notice requirement in the
Resource Conservation and Recovery Act)). Providing 60
days' notice is a jurisdictional requirement, and a
plaintiff's "failure to strictly comply with the
notice requirement acts as an absolute bar to bringing suit
under the ESA." Southwest Ctr. for Biological
Diversity, 143 F.3d at 520; see also Hawksbill Sea
Turtle v. Federal Emergency Mqmt. Agency, 126 F.3d 461,
471 (3d Cir. 1997) ("Providing notice to the responsible
Secretary(ies)... is a prerequisite to suit.").
the Plaintiffs failed to give the Defendants the required
60-day notice. The Plaintiffs filed suit on June 1, 2017. The
exhibits attached to the Verified Complaint include a letter
dated May 26, 2017 addressed to FBE and Loven giving notice
of the alleged violations of the ESA. [Doc. 1 at 63]. According to
the Verified Complaint, this is the earliest notice provided
to the Defendants of the alleged violations. [See
j<± at 43 ¶¶ 54-56]. Indeed, the
Plaintiffs themselves admit that they only learned of
FBE's plan to spray herbicides on Roan Mountain
"within the past couple of weeks." <±
at 19]. Because the Plaintiffs failed to provide the
Defendants with the mandatory 60 days' notice, this Court
lacks subject matter jurisdiction to entertain this action,
and thus the Plaintiffs' ESA claims must be dismissed.
Court possesses the inherent authority to dismiss a complaint
sua sponte if the complaint is frivolous. See
Ross v. Baron, 493 F.App'x 405, 406 (4th Cir. 2012)
(noting that "frivolous complaints are subject to
dismissal pursuant to the inherent authority of the court,
even when the filing fee has been paid") (citing
Mallard v. United States Dist. Ct. for S.D. of Iowa,
490 U.S. 296, 307-08 (1989)). A complaint is deemed frivolous
"where it lacks an arguable basis either in law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994) ("Legally frivolous claims are based on an
'indisputedly meritless legal theory' and including
'claims of infringement of a legal interest which clearly
does not exist.'") (citation omitted).
Plaintiffs' claims asserted under 42 U.S.C. § 1983
against FBE and Loven are subject to dismissal as being