Defendants (USFWS and rancher owners) filed a motion to dismiss the 'Alala bird and strike its name from the plaintiffs' complaint as well a motion for Rule 11 sanctions. The District Court held that, as a matter of first impression, the endangered 'Alala bird was not a 'person' within the meaning of the Endangered Species Act's (ESA) citizen suit provision. However, the Court declined to impose Rule 11 sanctions on the ground that plaintiffs' counsel acted improperly in filing a complaint that named the ‘Alala as a party, finding that there is no evidence plaintiffs named the ‘Alala for an improper purpose. Defendant's motion for a more definite statement was granted to provide greater specificity to pinpoint those areas within the essential habitat locations that may be affected.
ORDER GRANTING THE McCANDLESS DEFENDANTS' MOTION TO DISMISS THE ‘ALALA AND TO STRIKE ITS NAME FROM THE CAPTION, DENYING THEIR MOTION FOR SANCTIONS, GRANTING THEIR MOTION FOR MORE DEFINITE STATEMENT, AND GRANTING McCANDLESS PROPERTIES' MOTION TO DISMISS THE COMPLAINT AS AGAINST IT
DAVID ALAN EZRA, District Judge.
The motion to dismiss, for sanctions, and for more definite statement of defendants McCandless Properties, McCandless Land & Cattle Company (“ML & C”), Cynthia M. Salley (“Salley”), and Elizabeth M. Stack (“Stack”) (collectively “the McCandless defendants”) was set for determination by this court on September 16, 1991. The court determined this matter to be appropriate for submission on the briefs without the need for oral argument. Edwin Oyarzo, Esq. appeared on the briefs for the McCandless defendants; Denise E. Antolini, Esq. appeared on the briefs on behalf of plaintiffs Hawaiian Crow (“the ‘Alala”), Hawaii Audubon Society, and National Audubon Society (collectively “plaintiffs”). Defendants Manuel Lujan, Jr. and John F. Turner (“federal defendants”) did not file briefs with regard to the instant motion. The court having reviewed the motion and the memoranda submitted in support thereof and in opposition thereto, and being fully advised as to the premises herein, GRANTS the McCandless defendants' motion to dismiss the ‘Alala as a plaintiff and to strike its name from the complaint, DENIES their motion for sanctions, GRANTS their motion for more definite statement, and GRANTS McCandless Properties' motion for dismissal of the complaint as against it.
The ‘Alala is a bird protected by the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”). See 50 C.F.R. § 17.11. It is believed unique to the Hawaiian islands, where plaintiffs allege a total of only twenty-one birds survive. Complaint at ¶ 6, 14. Eleven ‘Alala survive in a captive breeding population on the Island of Maui; approximately ten more survive on the Island of Hawaii. Id. at ¶ 6. Of those ten ‘Alala remaining in the wild, nine allegedly live on certain property known as McCandless Ranch, located in the South Kona district on the Island of Hawaii. Id. at ¶ 16. Plaintiffs allege the McCandless defendants either own or lease the McCandless Ranch property. Id. at ¶ 13.
I. Whether the ‘Alala is a Proper Plaintiff
FN2. Plaintiffs make much of the following language in Palila:
As an endangered species under the Endangered Species Act ..., the bird ( Loxioides bailleui ), a member of the Hawaiian honeycreeper family, also has legal status and wings its way into federal court as a plaintiff in its own right.
852 F.2d at 1107 (italics in original). However, this language is dictum; the defendants in Palila never challenged the bird's standing, so the Ninth Circuit had no occasion to address it. Read in context, the quoted language appears to be merely an acknowledgment by the Ninth Circuit that the bird itself had in fact been named as a party.
All of the relief sought in this action can be obtained by the Audubon Societies, regardless whether the ‘Alala itself remains a named plaintiff. Plaintiffs do not argue otherwise. Moreover, apart from asserting that animals and inanimate objects commonly appear as named plaintiffs in suits under a variety of statutes, plaintiffs offer no explanation as to why the ‘Alala must appear as a named plaintiff in this particular suit. Therefore, the court grants the McCandless defendants' motion to dismiss the ‘Alala as a plaintiff in this action. FN3 Further, the court hereby orders the ‘Alala's name stricken from the caption.
FN3. Because the court dismisses the ‘Alala as a plaintiff, the court reaches neither the McCandless defendants' argument that the ‘Alala has no right to sue because it failed to give the sixty-day notice required by 16 U.S.C. § 1540(g)(2)(A)(i), nor plaintiffs' rebuttal that the McCandless defendants lack standing to raise that argument. See Plaintiffs' Memorandum in Opposition at 7.
The court applies an objective standard to determine whether a filing is frivolous or submitted for an improper purpose. Id. A filing is frivolous under Rule 11 if it is unreasonable when viewed from the perspective of a competent attorney admitted to practice before the district court. Zaldivar, 780 F.2d at 830.
The court cannot conclude either that plaintiffs' counsel failed to conduct a reasonable inquiry into the facts and the law or that they harbored an improper purpose when they named the ‘Alala as a party. Although they have cited no controlling case law directly supporting the ‘Alala's right to appear as a named plaintiff, neither have the McCandless defendants presented any direct authority to the contrary. Numerous cases have permitted species to appear as named parties, albeit without an analysis of the standing question. Therefore, under all the circumstances of this case, a competent attorney admitted to practice before this court would not have concluded that naming the *553 ‘ Alala was contrary to existing law. There is no evidence plaintiffs named the ‘Alala for an improper purpose. Accordingly, the court denies the McCandless defendants' request for sanctions.
II. Motion for More Definite Statement
The Plan describes the ‘Alala's various roosting locations on the Island of Hawaii in terms of “essential habitat.” Complaint, Exhibit “B” at 38-42. The McCandless defendants are entitled to know whether plaintiffs intend to demand access by the federal defendants only to essential habitat locations within the McCandless Ranch's boundaries or to all portions of the Ranch. The court notes that the specificity the McCandless defendants request could obviate the need for this lawsuit, since they may be willing to provide access voluntarily if the affected area is limited. Therefore, the court grants the motion for more definite statement under Rule 12(e).
III. Whether McCandless Properties is a Proper Defendant
FN5. In their Memorandum in Opposition, plaintiffs offered to stipulate to dismissal of McCandless Properties, provided the remaining McCandless defendants would waive all right to later demand McCandless Properties' rejoinder under Rule 19. Memorandum in Opposition at 10. To date, the parties have been unable to agree on the terms of any stipulation to dismiss McCandless Properties. See McCandless Defendants' Supplemental Reply Memorandum at 2.
FN6. Defendant Salley is ML & C's general partner. McCandless Defendants' Memorandum in Support, Salley Affidavit at ¶ 2.
For the reasons stated above, the court: (1) GRANTS the McCandless defendants' motion to dismiss the ‘Alala and strike its name from the complaint; (2) DENIES the McCandless defendants' motion for sanctions; (3) GRANTS the McCandless defendants' motion for more definite statement; and (4) GRANTS defendant McCandless Properties' motion to dismiss the complaint as against it.
IT IS SO ORDERED.