Policy Preference: An Unreasonable Means to Advance Moot Claims Under the Endangered Species Act

Citizen plaintiffs play a vital role in the enforcement of the Endangered Species Act (“ESA”). In Strahan v. Roughead, the United States District Court for the District of Massachusetts opened the possibility for expansion of a citizen’s ability to impose its own policy preference upon federal agencies working to comply with their statutory requirements under the ESA. Although the District Court properly denied the defendant’s motion to dismiss on the basis of mootness, it erred in its rationale. A plaintiff’s claim under the ESA may survive a mootness challenge, even after the violating agency has reinitiated consultation with its overseeing agency, if the potential for relief on alternative grounds remains. Valid alternate bases for relief include award of an injunction when a compliance plan does not encompass the full range of an agency’s activities, or when an agency fails to demonstrate compliance with an existing plan. A citizen’s mere suggestion that an agency’s compliance plan adopt alternate protective measures, however, should not extend the life of an otherwise moot claim