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<br />ENDANGERED SPECIES ACT OF 1973, Endangered Sp... 002591 Page 40 of 44 <br /> <br />(g) CITIZEN SUITS.- <br />(I) Except as provided in paragraph (2) of this subsection any person may commence <br />a civil suit on his own behalf- <br />(A) to enjoin any person, including the United States and any other governmental <br />instrumentality or agency (to the extent permitted by the eleventh amendment to the <br />Constitution), who is alleged to be in violation of any provision of this Act or <br />regulation issued under the authority thereof; or <br />(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii) of this Act, the <br />prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(l)(B) of <br />this Act with respect to the taking of any resident endangered species or threatened <br />species within any State; or <br />(C) against the Secretary where there is alleged a failure of the Secretary to perform <br />any act or duty under section 4 which is not discretionary with the Secretary. <br />The district courts shall have jurisdiction, without regard to the amount in <br />controversy or the citizenship of the parties, to enforce any such provision or <br />regulation or to order the Secretary to perform such act or duty, as the case may be. In <br />any civil suit commenced under subparagraph (B) the district court shall compel the <br />Secretary to apply the prohibition sought if the court finds that the allegation that an <br />emergency exists is supported by substantial evidence. <br />(2)(A) No action may be commenced under subparagraph (I)(A) of this section- <br />(i) prior to sixty days after written notice of the violation has been given to the <br />Secretary, and to any alleged violator of any such provision or regulation; <br />(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection <br />(a) of this section; or <br />(iii) if the United States has commenced and is diligently prosecuting a criminal <br />action in a court of the United States or a State to redress a violation of any such <br />provision or regulation. <br />(B) No action may be commenced under subparagraph (l)(B) of this section- <br />(i) prior to sixty days after written notice has been given to the Secretary setting forth <br />the reasons why an emergency is thought to exist with respect to an endangered <br />species or a threatened species in the State concerned; or <br />(ii) if the Secretary has commenced and is diligently prosecuting action under section <br />6(g)(2)(B)(ii) of this Act to determine whether any such emergency exists. <br />(C) No action may be commenced under subparagraph (I)(C) of this section prior to <br />sixty days after written notice has been given to the Secretary; except that such action <br />may be brought immediately after such notification in the case of an action under this <br />section respecting an emergency posing a significant risk to the wellbeing of any <br />species of fish or wildlife or plants. <br />(3)(A) Any suit under this subsection may be brought in the judicial district in which <br />the violation occurs. <br />(B) In any such suit under this subsection in which the United States is not a party, <br />the Attorney General, at the request of the Secretary, may intervene on behalf of the <br />United States as a matter of right. <br />(4) The court, in issuing any final order in any suit brought pursuant to paragraph (I) <br />of this subsection, may award costs of litigation (including reasonable attorney and <br />expert witness fees) to any party, whenever the court determines such award is <br />appropriate. <br /> <br />http://www.fws.gov/-r9endspp/esa.html <br /> <br />9/30197 <br />