Ctr. for Biological Diversity v. Zinke
| Decision Date | 29 March 2019 |
| Docket Number | Case No. 17-cv-2504-RCL |
| Citation | 369 F.Supp.3d 164 |
| Court | U.S. District Court — District of Columbia |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Ryan ZINKE, in his official capacity as Secretary of the United States Department of Interior, et al., Defendants, and Safari Club International, et al., Defendant-Intervenors |
Anna Elizabeth Frostic, Humane Society Of The United States, Washington, DC, Sarah Uhlemann, Tanya Sanerib, Center for Biological Diversity, Seattle, WA, for Plaintiffs.
Andrea Gelatt, U.S. Department of Justice, Washington, DC, for Defendants.
Anna Margo Seidman, Douglas Scott Burdin, Jeremy Evan Clare, Safari Club International, Washington, DC, Christopher A. Conte, Michael T. Jean, National Rifle Association of America, Fairfax, VA, for Defendant-Intervenors.
ROYCE C. LAMBERTH, United States District JudgeIn Fall 2017, the U.S. Fish and Wildlife Service (the "Service") issued two new findings with respect to elephants and lions in Zimbabwe. By determining that permitted hunting of these animals will enhance the survival of each species, the country-wide findings paved the way for U.S. importation of sport-hunted trophies of these animals. After the D.C. Circuit held in December 2017 that two earlier country-wide enhancement findings by the Service were legislative rules requiring public notice and comment pursuant to the Administrative Procedure Act ("APA"), see Safari Club Int'l v. Zinke, 878 F.3d 316, 331–35 (D.C. Cir. 2017) (" Safari Club II "), the Service withdrew the 2017 Zimbabwe elephant and lion findings, along with other prior country-wide enhancement and non-detriment findings. Moving forward, the Service announced that it would instead make these findings on a case-by-case basis upon application to import a sport-hunted trophy.
Organizational plaintiffs Center for Biological Diversity (the "Center"), Humane Society International ("HIS"), Humane Society of the United States ("HSUS"), and Born Free USA, along with individual plaintiff Ian Michler (collectively, "plaintiffs") bring an eight-count complaint challenging the actions of the government. Second Am. Compl., ECF No. 41. Upon motion, Safari Club International and the National Rifle Association of America were permitted to intervene as defendants (the "intervenor-defendants"). Order, ECF No. 24. In claims one through six, plaintiffs challenge the now-withdrawn 2017 Zimbabwe elephant and lion findings. Second Am. Compl. ¶¶ 171–201. In claim seven, plaintiffs allege the Service violated the APA by withdrawing the various enhancement and non-detriment findings without soliciting public notice and comment. Id. ¶¶ 202–07. And in claim eight, plaintiffs claim the Service violated the APA by changing from country-wide findings to case-by-case determinations without soliciting public notice and comment. Id. ¶¶ 208–11
Now, both the government and the intervenor-defendants move to dismiss the complaint in its entirety. See Federal Defs.' Mot. Dismiss, ECF No. 44; Intervenor-Defendants' Mot. Dismiss, ECF No. 42. For the reasons set forth herein, those motions will be GRANTED.
Importation into the United States of threatened species such as African elephants and lions is governed by international convention and U.S. law.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, is a multilateral treaty to which both the United States and Zimbabwe are parties. See 16 U.S.C. § 1538(c)(1) (). CITES regulates the international trade of protected plants and wildlife by establishing requirements for importing and exporting covered species categorized into three appendices based on the level of protection each requires. See id. §§ 1537a–1539. Signatories to CITES, including the United States and Zimbabwe, agree that they "shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of" the treaty. CITES, art. II.4.
Elephants in Zimbabwe were listed on Appendix I until 1997 and now are listed on Appendix II. Changes in List of Species in Appendices to the [CITES], 62 Fed. Reg. 44,627, 44,628 –29 (Aug. 22, 1997). African lions in Zimbabwe are also listed on Appendix II. While Appendix I lists species "threatened with extinction which are or may be affected by trade," CITES, art. II(1), Appendix II includes species that are not necessarily currently threatened but that may become threatened with extinction unless trade of specimens of such species is regulated. Id. art. II(2). Under CITES, a species listed on Appendix II may be traded if the exporting countries issue export permits. Id. art. IV. In issuing permits, the exporting country must make certain findings, including that the specimen was legally acquired, and that trade of the specimen will not be detrimental to the survival of the species (a non-detriment finding). Id. art. IV.2(a)–(b).
"It is undisputed that the proscriptions in [CITES] are a floor, not a ceiling, for protection of Appendix II species." Safari Club Int'l v. Zinke, 878 F.3d 316, 321 (D.C. Cir. 2017). In fact, the treaty makes clear that it "in no way affect[s] the right of Parties to adopt ... stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens of species included in Appendices I, II, and II, or the complete prohibition thereof." CITES, art. XIV(1).
To that end, Congress passed the Endangered Species Act ("ESA") to provide for the conservation of "endangered" and "threatened" species. 16 U.S.C. § 1531(b). Described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the ESA not only implements CITES into U.S. law but also provides federal protection to species listed as endangered or threatened pursuant to its provisions. See 16 U.S.C. §§ 1533(d), 1538(a). Furthermore, the listing of a species as endangered or threatened does not depend on whether or how it is categorized under CITES. See id. § 1533(a)(1)(A).
While the ESA generally forbids the importation of endangered species into the United States, id. § 1538(a)(1)(A) ; 50 C.F.R. § 17.21(b), the Act empowers the Service to issue regulations pertaining to threatened species "deem[ed] necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d). Pursuant to this authority, the Service has issued a regulation that extends the ESA's prohibitions on endangered species to all threatened species unless the Service has issued a special rule to govern a particular species. 50 C.F.R. §§ 17.31(a), (c) ; see also Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 5 (D.C. Cir. 1993).
Both elephants and lions in Zimbabwe are listed as threatened species under the ESA, 50 C.F.R. § 17.11(h), and both are the subject of special species-specific rules for importation. Id. §§ 17.40(e) (elephants), (r) (lions).
Under the species-specific rule, sport-hunted elephant trophies may only be imported into the United States if, among other things, a "determination is made that the killing of the trophy animal will enhance the survival of the species and the trophy is accompanied by a threatened species permit issued under § 17.32." Id. § 17.40(e)(6)(i)(B). The required enhancement finding is "communicated through the threatened species permitting process." 80 Fed. Reg. 45,154 -01, 45, 165.
Like for African elephants, the species-specific rule for African lions requires a hunter to apply for and receive a threatened species import permit before importing a sport-hunted African lion trophy from countries like Zimbabwe. 80 Fed. Reg. 80,000, 80,043 –44; 50 C.F.R. § 17.40(r)(2)–(3). Although the rule does not explicitly mention enhancement findings, the enhancement of propagation or survival is one of the purposes for which a threatened species import permit may be issued. See 50 C.F.R. § 17.32 (). Because of the nature of sport-hunted trophy importation, a permit for lions may only be issued if the Service determines that the killing and importation enhances the survival of the species. "The Service has the discretion to make the required findings on sport-hunted trophy imports of [African lions] on a country-wide basis, although individual import permits [are] evaluated and issued or denied for each applicant." 80 Fed. Reg. at 80,046.
In 2014, the Service suspended importing of sport-hunted African elephant trophies from Zimbabwe, as the Service was "unable to determine that the killing of the animal ... would enhance the survival of the species in the wild." 79 Fed. Reg. 44459-01. In 2015, the Service reaffirmed this decision, extending its effect indefinitely. 80 Fed. Reg. 42524-03. The intervenor-defendants challenged the 2014 and 2015 elephant findings in a case before this Court. Safari Club Int'l v. Jewell, Case No. 1:14-cv-670-RCL. Although this Court upheld the 2014 and 2015 elephant findings, see Safari Club Int'l v. Jewell, 213 F.Supp.3d 48, 81 (D.D.C. 2016), the D.C. Circuit held that the findings were legislative rules that the Service failed to subject to public notice and comment under the Administrative Procedure Act. Safari Club II, 878 F.3d at 333. It therefore ordered this Court to remand the case to the Service to initiate proper rulemaking to address enhancement findings for the relevant time periods. Id. at 336.
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