Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department
In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.
Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.
Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.
Written By: Tina Thomas and Chris Butcher
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