Born Free Usa v. Norton

• Decision Date: 08 August 2003
• Docket Number: No. Civ.A.03-1497 JDB.,Civ.A.03-1497 JDB.
• Citation: 278 F.Supp.2d 5
• Parties: BORN FREE USA, et al., Plaintiffs, v. Gale NORTON, Secretary, Department of the Interior, et al., Defendants, and The Zoological Society of San Diego, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Columbia

Page 5

278 F.Supp.2d 5

BORN FREE USA, et al., Plaintiffs, v. Gale NORTON, Secretary, Department of the Interior, et al., Defendants, and The Zoological Society of San Diego, et al., Intervenor-Defendants.

No. Civ.A.03-1497 JDB.

United States District Court, District of Columbia.

August 8, 2003.

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Katherine A. Meyer, Meyer & Glitzenstein, Washington, DC, for Plaintiffs.

Teresa Patrick, Wayne Douglas Hettenbach, Department of Justice, Ann D. Navaro, U.S. Department of Justice, Natural Resources Division/Litigation, Washington, DC, for Defendants.

James Craig Potter, Gary Charles Adler, George J. Mannina, Jr., O'Connor & Hannan, LLP, Washington, DC, for Intervenor-Defendants.

MEMORANDUM OPINION

BATES, District Judge.

Plaintiffs, who include several organizations and two individuals interested in the welfare of elephants, bring this case against the United States Department of the Interior and the Fish and Wildlife Service ("FWS") (collectively, the "federal defendants"), challenging FWS's decision to issue permits to the San Diego Zoo and the Lowry Park Zoo (collectively, the "zoos") for the importation of eleven African elephants from Swaziland. Presently before the Court is plaintiffs' motion for a preliminary injunction to prevent the import of the elephants until this Court reaches a final determination on the merits. Although the expedited briefing on plaintiffs' motion was completed only on August 6, 2003, the parties require a decision on the motion for a preliminary injunction by today, August 8, because the zoos, who have intervened as defendants, represent that it is imperative that the process to import the elephants commence immediately, before the beginning of Swaziland's rainy season. This case raises novel issues and evokes considerable emotion —in part because the record supports the conclusion that if the elephants are not exported to these zoos promptly, they will be killed. For the reasons set forth below, the motion for a preliminary injunction is denied.

II. Factual and Procedural Background

The Court will only briefly summarize the relevant background. In 1987 and 1994, the Kingdom of Swaziland imported African elephants from Kruger National Park in South Africa as part of an effort to reintroduce the species to Swaziland after a hiatus of several decades. The elephants have since been located within the Hlane and Mkhaya reserves in Swaziland. Both reserves are managed by Terence "Ted" Reilly, who is the government official responsible for managing Swaziland's threatened and endangered big game.

The population of elephants within the Hlane and Mkhaya reserves has now grown to approximately 30 adults plus six calves. Mr. Reilly, as the head of the reserves, has become concerned about impacts upon biodiversity as a result of the elephant population. Elephants can severely deplete vegetation, cause significant damage to trees that are the homes to certain species of birds, and compete for resources with the black rhinoceroses located in the reserves, which are even more endangered than the elephants. Mr. Reilly, on behalf of Swaziland, has determined that the removal of eleven elephants is required in order to maintain a biologically diverse ecosystem within the reserves. Mr. Reilly has further stated unequivocally that if he is unable to export the elephants now, he will cull them—i.e., kill them.

The San Diego Zoo, in California, and Lowry Park Zoo, in Tampa, Florida, have made arrangements to import eleven elephants from Swaziland. The zoos will pay approximately $133,000 for the elephants, which they will use not just for display but also in an attempt to revive captive breeding. Zoos have historically had difficulty breeding captive elephants, and the elephant population in the United States is declining; the San Diego and Lowry Park Zoos hope that the import of wild captured elephants that have already established some social bonds will allow for more successful breeding and will also increase the genetic diversity of the U.S. captive elephant population. The zoos have already made and will continue to make considerable efforts to provide expanded and improved areas for housing the elephants. Swaziland, for its part, intends to use the proceeds from the elephant sale to enhance anti-poaching protections and expand available habitat for the remaining elephants.

Under the Convention on International Trade In Endangered Species ("CITES"), T.I.A.S. No. 8249 (1973), and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., zoos seeking to import African elephants, which are protected as a threatened species on "Appendix I" under CITES, must apply to FWS for a permit. The zoos here first applied to FWS for permits in June 2002. Import permits were issued to each zoo in September 2002. Export permits have been issued by Swaziland as also required under CITES. See CITES, T.I.A.S. No. 8249, Art. III, ¶ 2.

In March 2003, counsel for plaintiffs wrote to FWS that the zoos had misrepresented certain information in their permit applications, such as the specific locations of the elephants within Swaziland. Plaintiffs thereafter filed suit in this Court to halt the import of the elephants. That suit was dismissed by joint stipulation when the zoos agreed to return their permits on April 24, 2003. The zoos then provided additional information requested by FWS in response to concerns raised by plaintiffs and sought permit reissuance.

In connection with the zoos' new permit applications, FWS made certain findings required under CITES and ESA, and issued an Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI") pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. On July 11, 2003, FWS reissued the import permits to the zoos. Plaintiffs filed the complaint in this case on July 10, 2003, and on July 18, 2003, moved for a preliminary injunction to stop the importation.

Plaintiffs' complaint asserts a number of claims against the U.S. Department of Interior and FWS under CITES, the ESA, and NEPA. Plaintiffs' amended complaint, filed only a few days ago, asserts additional ESA claims against the zoos, which appear as intervenor-defendants in this action. Through their preliminary injunction request, plaintiffs seek to enjoin the issuance of the permits by the federal defendants, which under CITES would effectively halt the importation. The procedural vehicle for plaintiffs' claims against the federal defendants is the judicial review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, which requires the Court to determine whether an agency action—here, issuance of the import permits—is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

An important consideration for the preliminary injunction is the anticipated disposition of the elephants in the event a preliminary injunction were granted. The elephants are currently located in a "boma" or corral, where they have been awaiting export to the zoos for several months. Mr. Reilly has submitted an affidavit that states that he "cannot hold these elephants beyond the middle of this August" and "if the permits are not issued by this time, these elephants will be culled." Declaration of Terence (Ted) E. Reilly ¶ 68. Although plaintiffs challenge Mr. Reilly's representation, as the Court will explain later in its discussion, plaintiffs have little to undercut Mr. Reilly's representation, and, in any event, it must be given credence.

III. Preliminary Injunction Standard

In order to prevail on their application for a preliminary injunction, plaintiffs must demonstrate (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent the relief requested; (3) that other parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C.Cir.1995); Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). In determining whether to grant urgent relief, the Court must "balance the strengths of the requesting party's arguments in each of the four required areas." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Id. It is particularly important for plaintiffs to demonstrate a substantial likelihood of success on the merits; where a plaintiff cannot show a likelihood of success on the merits, "it would take a very strong showing with respect to the other preliminary injunction factors to turn the tide in plaintiff['s] favor." Davenport v. Int'l Brotherhood of Teamsters, AFL-CIO, 166 F.3d 356, 366-67 (D.C.Cir.1999).

Because preliminary injunctions are extraordinary forms of judicial relief, courts should grant them sparingly. The Supreme Court has stated that "`[i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997).

IV. Likelihood of Success on the Merits

It appears from plaintiffs' amended complaint that they are bringing claims that they have not pressed for the purposes of the motion for a preliminary injunction— for example a claim against the federal defendants under Section 7(a)(1) and (a)(2) of the ESA, and the claims against the zoos under the ESA. The Court will limit its discussion of the likelihood of success to the particular claims that have been briefed by the parties—the claim that the permit applications should have been denied because of misrepresentations; the...