Alega residents’ endangered species lawsuit dismissed ‘without prejudice’

Pago Pago, AMERICAN SAMOA — A federal judge in Honolulu has “dismissed without prejudice” a federal lawsuit brought by four Alega residents against AST Telecomm LLC, dba, Bluesky Communications including current and former executives, as well as the American Samoa Government, the American Samoa Power Authority, the American Samoa Telecommunications Authority, and individuals employed by these government entities.

The complaint alleges that defendants violated the Endangered Species Act (ESA) and the Marine Protection, Research, and Sanctuaries Act (MPRSA) by improperly “leaving hazardous, unused, cable-related material and debris and pollution” within plaintiffs’ private marine preserve, thereby “harming the threatened Green Turtle . . . and harming the endangered Hawkbill Turtle” species that nest there.

Chief U.S District Court Judge, J. Micheal Seabright, who presided over the case and issued the dismissal decision on Wednesday, said that plaintiffs assert claims under the citizen suit provision of the ESA, and the citizen suit provision of the MPRSA.

In his 7-page decision, Seabright explained that the citizen suit provisions of both statutes provide that “no action may be commenced . . . prior to sixty days after written notice of the violation has been given to the [relevant agency], and to any alleged violator of any such provision or regulation.”

In their Complaint, plaintiffs stated that they “served defendants a 60 Day Notice of Intent to Sue in Federal Court,” but did not indicate whether they provided notice to the appropriate federal agencies, according to the judge.

Because it was not clear whether Plaintiffs had complied with the statutory notice requirements, the court stayed the case on April 30th, “until the court receives proof that the requisite notice has been given.”

The court explained that, as to the ESA claims, plaintiffs were required to provide adequate notice to the U.S Secretary of Interior; and, as to the MPRSA claims, plaintiffs were required to provide adequate notice to the administrator of U.S. Environmental Protection Agency (EPA).

That same day, plaintiffs submitted a statement of their intent to fully comply with the ESA and MPRSA 60-day notice requirements.

Plaintiffs on July 9th submitted a Notice that the 60-day period would expire on July 12th. And they based this determination on evidence that their notice of intent to sue (NOI) had been delivered to the US Interior Department on May 13th.

“But plaintiffs did not indicate whether they had provided notice to EPA or to any of the alleged violators, nor did plaintiffs provide any details as to the substance of their NOIs,” Seabright points out.

Accordingly, on July 12th, the court ordered Plaintiffs to “submit proof that they provided notice to the EPA and each alleged violator at least 60 days ago; and submit a copy of the notice they sent to each relevant agency . . . and to each alleged violator,” so that the court could determine whether the notice provided was sufficient.

The court, said Seabright, indicated that it would determine whether to lift the stay on the case after reviewing these documents.

The judge went on to summarize the specific set of documents submitted by plaintiffs. He said each NOI consisted of a complaint and appendices containing photographs of the alleged violations. Furthermore, the version of the complaint emailed to EPA named the AST Telecom but did not name the American Samoa Government defendants.

Seabright discussed further the 60-day notice requirement, saying that the U.S. Supreme Court has explained, that staying rather than dismissing a case until the 60-day requirement has been satisfied “flatly contradicts the language of the statute.”

According to Seabright, plaintiffs should not have filed this action when they did and the court has no authority to retain jurisdiction over the action—whether stayed or otherwise—until the 60-day notice requirements are satisfied.

“Accordingly, the action is DISMISSED without prejudice to refiling after Plaintiffs have properly complied with the applicable 60-day notice requirements,” he said.

He explained that the 60-day notice requirements contained in federal environmental laws, including the ESA and the MPRSA, are intended to “provide the agencies and the defendant with information on the cause and type of environmental laws or orders the defendant is allegedly violating so that the agencies can step in, investigate, and bring the defendant into compliance.”

For the current case, “it is doubtful that simply sending an NOI via e-mail to the EPA is sufficient to satisfy the MPRSA’s 60-day notice requirement, as there is no evidence that the notice was ever received by the appropriate actor within the agency,” he said.

While plaintiffs “may refile” their complaint “as they see fit”, plaintiffs must satisfy the ESA’s 60-day notice requirements and MPRSA’s 60-day notice requirements.

In conclusion, Seabright said plaintiffs are barred from bringing claims under the ESA and the MPRSA until its 60- day notice requirements have been satisfied.

“Because Plaintiffs commenced this action prior to fulfilling those requirements, the court cannot retain jurisdiction,” he added.

When the complaint was first filed in April this year, the plaintiffs in court records were Steven Jay Pincus Hueter, Rosalia Tisa Faamuli, Michael S. Kirk, and Faamuli Pete Faamuli. But since late last month, court records show that Rosalia Tisa Faamuli is no longer a plaintiff.