<p>American Bird Conservancy, David A. Krauss, and Susan Scioli, Plaintiffs, v. Rose Harvey, Commissioner, New York Office of Parks, Recreation, And Historic Preservation, Defendant.</p>

Attorneys: 

Goodwin Procter LLP, Attorneys for the Plaintiffs, The New York Times Building, 620 Eighth Avenue, New York, NY 10018, By: Jeffrey A. Simes, Esq., Glenn S. Kerner, Esq., Jordan D. Weiss, Esq., Shaun P. DeLacy, Esq., Of Counsel

Office of the New York State Attorney General, Attorneys for the Defendant, 120 Broadway, 26th Floor, New York, NY 10271, By: Mihir A. Desai, Norman Spiegel, Assistant Attorneys General

 Country of Origin:  United States Court Name:  United States District Court, E.D. New York Date of Decision:  Judge Name:  SPATT, District Judge Jurisdiction Level:  Federal Primary Citation:  232 F. Supp. 3d 292 (E.D.N.Y. 2017)

Summary: Plaintiff, American Bird Conservancy, is a non-profit organization that was dedicated to the conservation of the Piping Plover (a threatened species) in this case. The individual Plaintiffs, David A. Krauss and Susan Scioli were also members of the organization, who observed Piping Plovers at Jones Beach, in New York State for many years. The Plaintiffs brought an action against Defendant Rose Harvey, the Commissioner of the New York State “Parks Office”. The Plaintiffs asserted that the Commissioner failed to act while members of the public routinely fed, built shelters, and cared for the feral cats on Jones Beach. As the cat colonies flourished, the Piping Plover population decreased due to attacks by the cats. The Plaintiffs contended that by failing to take measures to decrease the feral cat population, the Commissioner was allowing the cats to prey on the Piping Plover, in violation of the federal Endangered Species Act (ESA). The Commissioner moved to dismiss the complaint. The District Court, held that: (1) the affidavit and documentary evidence provided by the Alley Cat Allies (ACA) organization was outside the scope of permissible supporting materials for the motion to dismiss. (2)The Plaintiffs had standing to bring action alleging violation of the Endangered Species Act. The Commissioners motion to dismiss was denied.

SPATT, District Judge

In this case, a wildlife conservation group claims that acts and omissions by the State Parks Commissioner have led to a situation where feral cats at Jones Beach are posing a risk to a threatened species of wild bird.

The group contends that this situation violates the federal Endangered Species Act (the “Act”), 16 U.S.C. § 1531 et seq., and requires remedial action to remove the cats and thereby restore suitably protective conditions for the birds.

Presently before the Court is a motion by the Commissioner to dismiss this action on the ground that the Plaintiffs lack standing to sue under Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 12(b)(1), or, in the alternative, that the complaint fails to state a plausible claim for relief under FED. R. CIV. P. 12(b)(6).