The Endangered Species Act (ESA), like many environmental statutes, allows for citizen suits but requires Notice Letters be sent to the alleged violator and the government. The Notice Letter requirement provides the government an opportunity to review the allegations and determine if the government should bring enforcement. If after 60 days the government does not initiate enforcement, the citizen can sue the alleged violator.
Notice Letter Is Privileged
The Animal Legal Defense Fund (ALDF) alleged a Landry’s restaurant in Houston was violating ESA in the way four Bengal tigers were being treated at the restaurant. ALDF sent a Notice Letter to Landry’s and to the federal government.
Landry’s viewed statements in the Notice Letter and statements ALDF made in a press release as defamatory; Landry’s sued. In Landry’s v. Animal Legal Defense Fund, the Texas Supreme Court determined the Notice Letter could not provide the basis for a defamation claim because Notice Letters are protected by the judicial proceedings privilege. Although this privilege generally covers statements made in court or court filings, the Court ruled the privilege also applied to statements made “preliminary to a proposed judicial proceeding,” such as Notice Letters required for environmental citizen suits.
Other ALDF Actions Not Privileged
In addition to sending the Notice Letter, ALDF disseminated the Notice Letter to the media and issued a press release. The Court ruled these actions were not covered by the privilege because they were neither part of a judicial proceeding nor preparatory in any formal sense. The Court remanded the case to the intermediate court of appeals to determine if Landry’s had met its burden to establish that dissemination of the Notice Letter to the media and issuance of the press release were defamatory.
To see the Court’s opinion https://www.txcourts.gov/media/1452225/190036.pdf