Conservation Force v. Salazar

• Decision Date: 01 September 2011
• Docket Number: Nos. 1:09–cv–00495 BJR,1:10–cv–01262 BJR.,s. 1:09–cv–00495 BJR
• Citation: 811 F.Supp.2d 18
• Parties: CONSERVATION FORCE, et al., Plaintiff–Petitioner v. SALAZAR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

811 F.Supp.2d 18

CONSERVATION FORCE, et al., Plaintiff–Petitioner

v.SALAZAR, et al., Defendants.

Nos. 1:09–cv–00495 BJR

1:10–cv–01262 BJR.

United States District Court, District of Columbia.

Sept. 1, 2011.

John J. Jackson, III, Metairie, LA, for Plaintiff–Petitioner.

Bradley Howard Oliphant, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS CONSERVATION FORCE I, STRIKING PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT ON CONSERVATION FORCE I, DENYING DEFENDANTS' MOTION TO STAY CONSERVATION FORCE II, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS CONSERVATION FORCE II

BARBARA JACOBS ROTHSTEIN, District Judge.

This matter comes before the court on: (1) Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and (2) Defendants' Motion to Dismiss or, Alternatively, to Stay Litigation.¹ The motions were filed in Conservation Force, et al. v. Salazar, et al., 1:09–cv–00495 (BJR) ( Conservation Force I ) and Conservation Force, et al. v. Salazar, et al., 1:10–cv–01262(BJR) ( Conservation Force II ). The facts that gave rise to Conservation Force I also form the basis for Conservation Force II. These cases concern the markhor, a wild goat species that lives in the rugged mountainous areas of Afghanistan, India, Pakistan, Turkmenistan and Uzbekistan. The sub-species at issue is the straight-horned markhor or Capra falconeri jerdoni, which inhabits the Torghar Hills of the Balochistan Province of Pakistan. In 1976, the United States Fish and Wildlife Service (“Service” or “FWS”) listed the straight-horned markhor as endangered under the Endangered Species Act 16 U.S.C. §§ 1531– 1534 (“ESA” or the “Act”). 41 Fed.Reg. 21,062, 24,067 (June 14, 1976).

The parties to Conservation Force I and II are identical. The plaintiffs describe themselves as a group of hunter/conservation organizations (Conservation Force, Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, Wild Sheep Foundation, Grand Slam Club/OVIS and the Conklin Foundation), individual permit applicants (Jerry Brenner, Steve Hornady, Barbara Lee Sackman and Alan Sackman), and international conservationists (Sardar Naseer A. Tareen of the International Union for Conservation of Nature (“IUCN”) and the Society for Torghar Environmental Protection (“STEP”). Defendants are Kenneth Salazar, Secretary of Interior (the “Secretary”); Rowan Gould, Acting Director of the United States Fish and Wildlife Service (the “Director”); and the FWS.

For the reasons outlined below, the court will GRANT Defendants' Motion to Dismiss Conservation Force I. The court will also DENY Defendants' Motion to Stay Litigation and GRANT in part and DENY in part Defendants' Motion to Dismiss Conservation Force II.

I. BACKGROUND

A. Statutory Background

The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). It is intended to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species.” Hill, 437 U.S. at 180, 98 S.Ct. 2279 (quoting 16 U.S.C. § 1531(b)). The Act directs the Secretary to classify species whose survival is in danger as “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.” 16 U.S.C. § 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.” 16 U.S.C. § 1532(20).

The ESA permits individuals to petition the Secretary to list, downlist, or delist species. 16 U.S.C. § 1533(b)(3). After receiving a petition, the Secretary is obligated to, “[t]o the maximum extent practicable,” make a finding within 90 days “as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted” (“90–day finding”). 16 U.S.C. § 1533(b)(3)(A). Further, “[w]ithin 12 months after receiving a petition that is found ... to present substantial information indicating that the petitioned action may be warranted,” the Secretary must determine whether the petitioned action is warranted, is not warranted, or is warranted but is precluded by pending proposals concerning other species (“12–month finding”). 16 U.S.C. § 1533(b)(3)(B).

The ESA also generally prohibits the importation of endangered and threatened species, and this prohibition explicitly includes hunting trophies. 16 U.S.C. § 1538(a)(1)(A), (c)(2); 50 C.F.R. §§ 17.21(b), 17.32. However, certain species may be imported under limited circumstances, such as “for scientific purposes or to enhance the propagation or survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A). Individuals requesting permission to import a listed species must apply for a permit and satisfy the application requirements. 16 U.S.C. § 1539(a); 50 C.F.R. §§ 17.22, 17.31(a).

In addition, the ESA implements the participation of the United States in an international agreement called the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). CITES is designed to prevent the extinction of species due to international trade, providing that “[t]rade in specimens of [Appendix I] species must be subject to particularly strict regulation in order to not endanger further their survival and must only be authorized in exceptional circumstances.” CITES, art. II(1).

B. Factual Background and Procedural History

Markhor populations have generally declined as a result of hunting, habitat modification, and competition with domestic livestock. 64 Fed.Reg. 51,499 (Sept. 23, 1999). However, the Torghar Hills population of the straight-horned markhor has increased substantially from approximately 100 animals in the mid–1980s to more than 2,000 today.² 64 Fed.Reg. at 51,500. The vitality of the population is attributed to the Torghar Conservation Project (“TCP”), a community-based conservation program initiated in early 1985 through the efforts of the local Pathan tribal chieftain and STEP, in consultation with professional wildlife biologists from the United States. ( Conservation Force I, Dkt. No. 10 at 5–6.). TCP provides an incentive to conserve markhor and its habitat by providing economic benefit to the local community. See 64 Fed.Reg. at 51,500. Specifically, TCP limits the number of permits available for sport-hunted markhor trophies; the purchase of the permits provides significant economic benefit to the local community. ( Conservation Force I, Dkt. No. 10 at 22–23.). In addition, TCP employs local Pathan tribesmen as game guards to protect the Straight-horned markhor from unauthorized hunting in the project area (an area of approximately 1,500 square kilometers). 64 Fed.Reg. at 51,500. Many of the game guards are former hunters who stopped killing markhor at the behest of the local Pathan tribal chieftain. Id. The game guards have virtually eliminated unauthorized hunting within the project area. Id. TCP is entirely self-sufficient, depending solely on revenues derived from trophy hunting fees from international hunters. 64 Fed.Reg. at 51,500.

The success of TCP has been recognized internationally. On August 18, 2003, the Service issued a Federal Register Notice announcement in which it found that TCP had “significantly enhanced” the markhor survival. 68 Fed.Reg. 49,512 (Aug. 18, 2003) (“[T]he Torghar Hills region of Pakistan has a successful community-based management program that has significantly enhanced the conservation of local markhor populations.”). In addition, the 178 Parties of CITES have authorized and established a special trade quota for Pakistan of 12 markhors annually. Res. Conf. 10.15 (Rev. CoP14); 64 Fed.Reg. at 51,500. Finally, the Service has actively supported TCP through a grant program managed by the Division of International Conservation. ( Conservation Force I, Dkt. No. 20, Ex. 1 at 2.).

Plaintiffs contend that American hunters represent the largest market of sportsmen interested in hunting the straight-horn markhor, and most significantly, are willing to pay the highest price for the privilege of so doing. ( Conservation Force I, Dkt. No. 10 at 23.). Plaintiffs claim that markhor hunts are currently sold for $45,000, but that American hunters, if they were able to import markhor trophies, would be willing to pay at least $150,000 per hunt. Id.

1. Petition to downlist the straight-horned markhor

On March 4, 1999, the Service received a petition filed by Plaintiff Tareen on behalf of STEP and the IUCN Sustainable Use Specialist Group of Asia, requesting that the straight-horned markhor be reclassified from endangered to threatened. 64 Fed.Reg. 51,499. On September 23, 1999, the Service published its 90–day finding that the petition presented substantial information indicating that the action may be warranted (a positive substantial information finding) and that a status review of the entire species was being initiated. Id. To date, a 12–month finding has not issued. ( Conservation Force II, Dkt. No. 1 at 12.).

While waiting for the Service to issue the 12–month finding, Plaintiff Tareen alleges that he met with officials from the Services' Division of Scientific Authority on several occasions in the summer of 2004. Id. He alleges that during these meetings he was assured that despite the Service's delay in issuing the 12–month finding, the Service was continuing its comprehensive status review of the entire species Capra falconeri, and that downlisting the straight-horned markhor population of the Torghar Region was warranted. Id. Plaintiff Tareen also alleges that the Service represented...