Case Summaries

Article excerpt

1. Turtle Island Restoration Network v. U.S. Department of State, 673 F.3d 914 (9th Cir. 2012).

Turtle Island filed suit against the United States Department of State (DOS), alleging that it failed to meet obligations under the National Environmental Policy Act (NEPA) (1) and the Endangered Species Act (ESA). (2) Turtle Island alleged that the DOS's annual certifications of countries exempted from the general ban on shrimp imports failed to comply with NEPA because the DOS failed to prepare an environmental impact statement and failed to provide public notice. Turtle Island alleged that the DOS also violated the ESA because it failed to consult with other agencies in confirming that the certifications would not jeopardize threatened and endangered species or their habitats. Turtle Island Restoration Network (Turtle Island) appealed the United States District Court for the Northern District of California's decision to dismiss on res judicata grounds. The Ninth Circuit affirmed the district court's decision.

Commercial fishing trawl nets are a primary threat to sea turtles because turtles often become trapped in these nets and drown. Recognizing the insufficiency of domestic efforts alone, Congress enacted a law, (3) that prohibits shrimp imports harvested in ways that may adversely affect sea turtles. Section 609 certifies countries that employ turtle protection programs, which then enables those countries to export shrimp to the United States.

Pursuant to section 609(b), the President promulgated guidelines for the certification process through the DOS. (4) In the early 1990s, Earth Island Institute (EII), of which Turtle Island was formally a part, sued the DOS. The suit claimed that the promulgated guidelines conflicted with section 609(b)(2) because they restricted the geographical scope of the ban and failed to evaluate the actual take of sea turtles in certified countries. (5) The Court of International Trade (CIT) found that the DOS had inappropriately restricted the geographical area to which the ban applied. The DOS then amended section 609(b)(2) to permit shipment-by-shipment importation from uncertified countries. EII and Turtle Island sued again, (6) claiming that the new provision violated the amended section. The CIT sided with Turtle Island, but the federal circuit reversed, allowing the 1999 guidelines' interpretation of the statute. (7)

In this case, Turtle Island alleged that the DOS had not complied with its NEPA and ESA obligations. The DOS asserted that Turtle Island was barred by res judicata (8) because of the two previous suits. The Ninth Circuit considered whether there was an identity of claims based on four factors. (9) Here, the court focused on the final factor--whether the suits arose out of the "same transactional nucleus of facts" because the claims involved technically different legal claims than Turtle Island's previous suits. The court examined if the suits were related by the same nucleus of facts and if the suits could be tried together convenlently. (10)

The Ninth Circuit first analyzed whether the claim could have been brought in the previous actions. While a plaintiff need not bring every possible claim, all claims arising from the same factual circumstances must be brought at once, or be barred later. Turtle Island conceded that it could have brought the NEPA and ESA claims in the earlier suits. However, it had chosen to work with the DOS to alternatively resolve the dispute. The court dismissed alternative resolution as a valid defense to res judicata.

Turtle Island attempted to distinguish this suit from previous suits by arguing that it was challenging the 2009 certification decisions, which Turtle Island could not have known about in previous litigation. The Ninth Circuit noted that Turtle Island mentioned the 2009 certifications only to provide an example of DOS non-compliance with NEPA and ESA. The court ultimately concluded that Turtle Island's claims were so vague that it could bring a new. …