Conservation Force, Inc. v. Jewell

• Decision Date: 20 August 2013
• Docket Number: No. 11–5316.,11–5316.
• Citation: 733 F.3d 1200
• Parties: CONSERVATION FORCE, INC., et al., Appellants v. Sally JEWELL, Secretary of the Interior, in her Official Capacity, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

733 F.3d 1200

CONSERVATION FORCE, INC., et al., Appellants

v.Sally JEWELL, Secretary of the Interior, in her Official Capacity, et al., Appellees.

No. 11–5316.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 1, 2012.

Decided Aug. 20, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–00495).

John J. Jackson III argued the cause and filed the briefs for appellants.

James S. Pew and Emma C. Cheuse were on the brief for amicus curiae Sierra Club in support of appellants.

Michael T. Gray, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

This appeal concerns the straight-horned markhor, an impressive subspecies of wild goat that inhabits an arid, mountainous region of Pakistan. Appellants are safari clubs, hunters, and international conservationists. For more than a decade, they pressed the United States Fish and Wildlife Service to take certain administrative actions regarding the markhor. They allege that the agency's failure to take those actions was—among other things—arbitrary and capricious.

As tempting as it may be to consider an arbitrary and capricious claim in a case involving a goat,¹ an array of justiciability problems—mootness, ripeness, and standing—require us to decline the opportunity.

I

The Endangered Species Act directs the Secretary of the Interior to determine whether any species is “endangered” or “threatened.” 16 U.S.C. § 1533. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” Id. § 1532(6). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).

In 1976, the Fish and Wildlife Service (FWS) classified the straight-horned markhor as endangered. 50 C.F.R. § 17.11(h); seeEndangered Status for 159 Taxa of Animals, 41 Fed.Reg. 24,062, 24,067 (June 14, 1976). By the early 1980s, the population of straight-horned markhor had reached a “critical level,” estimated at fewer than two hundred in their primary habitat, the Torghar Hills along the Pakistan–Afghanistan border. Reclassifying the Straight–Horned Markhor with Special Rule, 77 Fed.Reg. 47,011, 47,017 (Aug. 7, 2012).

In response to the depletion of the markhor population, local tribal leaders formed the Society for Torghar Environmental Protection (STEP) and reached out to wildlife biologists in the United States for support. 77 Fed.Reg. at 47,016–17. The result was the Torghar Conservation Project (TCP), which, according to the Fish and Wildlife Service, effectively eliminated poaching of the straight-horned markhor and led to a greater than ten-fold increase in the subspecies' population over the past three decades. Id. at 47,017. The program works by sanctioning a limited number of sport hunts by primarily foreign hunters, who pay large sums for the privilege of chasing this wild goat across its rocky and forbidding terrain. Those revenues benefit the local tribes and pay the salaries of local game guards, encouraging the community to invest in the animal's recovery. Id.

In 1999, the Fish and Wildlife Service received a petition from one of the individuals involved in the local markhor conservation effort, Sardar Naseer A. Tareen, who requested that the straight-horned markhor be reclassified from endangered to threatened. See16 U.S.C. § 1533(b)(3)(A) (outlining mandatory procedures for responding to petitions to “add a species to, or remove a species from,” the endangered and threatened lists). The Service issued a favorable initial finding on the petition and noted that it would commence a status review of the entire markhor species. 90–day Finding on Petition to Reclassify the Straight-horned Markhor, 64 Fed.Reg. 51,499, 51,500 (Sept. 23, 1999). But the Service took no further action, despite its statutory obligation to make a final finding on the petition's merit “[w]ithin 12 months” after it was received. 16 U.S.C. § 1533(b)(3)(B). In 2010, several of the appellants, including Conservation Force, filed a new petition requesting the “same action” as Tareen's 1999 petition—the issuance of a rule to downlist the straight-horned markhor from endangered to threatened. Reply Br. 8.

In the instant suit, Tareen, Conservation Force, and STEP have joined with an array of safari clubs and individual hunters to level two sets of claims against the Fish and Wildlife Service.² The first set challenges the Service's failure to act on Tareen's 1999 petition to downlist the markhor by issuing a finding on the merits of that request within the statutorily-required 12–month period. The second set of claims challenges the Service's allegedly unreasonable delay in processing applications to import parts of the bodies of slain straight-horned markhor, which the appellants describe as “trophies.” We address each in turn.

II

The appellants' first set of claims challenges the Fish and Wildlife Service's “failure to consider and proceed with” Tareen's 1999 petition for a rule downlisting the straight-horned markhor. Second Am. Compl. 25. Specifically, the appellants argue that the Service violated both the Administrative Procedure Act (APA) and the Endangered Species Act by failing to issue a 12–month finding on that petition. See id. at 24–26 (alleging violations of 5 U.S.C. §§ 706(1), (2), and 16 U.S.C. §§ 1533, 1537(b)). The district court dismissed those claims as time-barred under 28 U.S.C. § 2401(a), which states that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” See Conservation Force v. Salazar, 811 F.Supp.2d 18, 27–28 (D.D.C.2011). On appeal, the parties extensively briefed the issue of whether the claims can and should be heard notwithstanding the statute of limitations. Unfortunately—in light of the effort the parties have invested—resolution of the statute of limitations issue will have to await another day because the claims themselves have become moot.

In general, a case becomes moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Larsen v. U.S. Navy, 525 F.3d 1, 3 (D.C.Cir.2008) (internal quotation marks omitted). This occurs when, among other things, the court can provide no effective remedy because a party has already “obtained all the relief that [it has] sought.” Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C.Cir.1984). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983).

On August 7, 2012—seven days after the reply brief in this appeal was filed—the Service issued a “12–month finding” (albeit, not within 12 months) on Conservation Force's 2010 petition for a rule to downlist the markhor. ³Reclassifying the Straight–Horned Markhor with Special Rule, 77 Fed.Reg. 47,011 (Aug. 7, 2012). That finding was favorable to the appellants. Indeed, it was accompanied by a proposed rule to downlist the species, “based on a review of the best available scientific and commercial data which indicates that the endangered designation no longer correctly reflects the status of the straight-horned markhor.” Id. The finding included a lengthy background section that referenced Tareen's 1999 petition and acknowledged that a “12–month finding was never completed” on that earlier petition. Id. at 47,012–13.

The Service's publication of a 12–month finding on Conservation Force's 2010 petition renders moot the appellants' challenges to the Service's failure to publish such a finding with respect to Tareen's 1999 petition. It is true that the Service never technically completed a 12–month finding on Tareen's petition. But that alone cannot preserve appellants' claims for our review. Both Tareen's and Conservation Force's petitions sought precisely the same thing: a rule to downlist the straight-horned markhor. By taking action with respect to the latter petition, the Service effectively took action with respect to the former petition as well. See Oral Arg. Recording at 12:55–13:20 (statement by FWS counsel that the agency “considered the information brought in [the 1999] petition,” that the recent finding “resolve[s] everything that was brought in the 1999 petition,” and that “any decision at this point on the 1999 petition would be the same”). Accordingly, because the appellants have “obtained all the relief that they sought,” their claims relating to the 1999 downlisting petition are moot. Monzillo, 735 F.2d at 1459.⁴

III

The appellants' second set of claims concerns the alleged failure of the Fish and Wildlife Service to timely process four applications to import straight-horned markhor trophies. Although the Endangered Species Act generally prohibits the importation of an endangered species, see16 U.S.C. § 1538(a)(1)(A); see also id. § 1532(8), (6), individuals may apply for a permit if importation furthers “scientific purposes” or “enhance[s] the propagation or survival of the affected species,” id. § 1539(a)(1)(A); 50 C.F.R. § 17.22.

Appellants Barbara Lee Sackman, Alan Sackman, Jerry Brenner, and Steve Hornady each hunted and killed a straight-horned markhor and filed an application with the Service to import his or her trophy. See Second Am. Compl. 9–11. They allege that the Service's unreasonable delay in processing their applications violated the APA and the Endangered Species Act (and related agency regulations). See id. at 29–30 (alleging violations of 5 U.S.C. §§ 706(1), (2); 16...