ELR Citation: 42 ELR 20042
No(s). 10-17059 (9th Cir. Feb 17, 2012)

The Ninth Circuit affirmed a lower court decision dismissing a conservation group's claims that the State Department violated its NEPA and ESA obligations in conducting annual certifications of countries exempted from the general ban on shrimp imports. Section 609(b) of Public Law No. 101-162 prohibits the importation of shrimp harvested with technology that may adversely affect sea turtles, except from countries certified to employ a turtle protection program comparable to that of the United States. The group argued that the State Department violated NEPA by failing to prepare an EA or EIS evaluating the impact of the country certifications, and failed to provide for public notice and comment. It also claimed that the State Department violated the ESA by failing to consult with other agencies to confirm that the certifications would not jeopardize threatened and endangered species or their habitats. But because group's current challenge arises from the same transactional nucleus of facts as those litigated in the group's earlier lawsuits challenging the State Department's regulations implementing the certification process, res judicata bars its claims. The court, however, noted that because the legal question of whether NEPA and ESA apply to §609(b)(2) has yet to be litigated on the merits, another plaintiff—not in privity with group—is still free to bring this challenge.