Judge Susan Illston of the U.S. District Court for the Northern District of California dismissed the case for lack of jurisdiction on Aug. 13, determining that Richard Max Strahan failed to provide proper notice before filing suit against the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

Strahan, who runs a San Francisco-based environmental business called Man Against Extinction, filed the suit on March 18, just days after the agencies revoked the 1969 listing of the northern right whale as a listed species under the Endangered Species Act and allegedly listed as endangered two "phony species" of whales not recognized by scientific experts in taxonomy.

He claimed that the North Atlantic right whale and the North Pacific right whale are "completely fictional" and said the National Marine Fisheries Service has no authority under the ESA to "create" a biological species.

"Under the ESA, it is only authorized to recognize biological species of wildlife that have been already recognized to exist by organized scientific bodies in systematic biology and taxonomy," the complaint said.

The complaint alleged that the fishing agencies failed to conduct the proper consultation under the ESA and improperly denied Strahan's petition to recognize a single global species of right whales.

The judge, however, sided with the defendants, saying that Strahan had failed to comply with the 60-day notice requirement of the citizen-suit provisions of the ESA.

Under that provision, citizen suits seeking to enjoin a violation of the ESA may not be initiated until 60 days have elapsed following written notice of the violation.

The fishing agencies argued that Strahan had not filed any notice after the two separate whale species were listed as endangered on March 6.

The court noted that Strahan did file a letter with the Department of Commerce and the National Oceanographic and Atmospheric Administration regarding its decision to list the northern right whale as two separate species in February 2007, but that was well before the defendants denied Strahan's petition in May 2007.

Strahan did not challenge the defendants' motion, and Judge Illston concluded that jurisdiction was lacking.

Judge Illston said she did not think the defendants' decision "to bifurcate one endangered species into two separate endangered species would constitute an 'emergency posing a significant risk to the well-being of any species of fish or wildlife or plants,'" such that the 60-day notice requirement should be waived.

Strahan did not return a call seeking comment on Wednesday.

Richard Max Strahan is representing himself in this matter.

The case is Richard Max Strahan v. H. Dale Hall, case number 3:08-cv-01488-si, in the U.S. District Court for the Northern District of California.