Dall. Safari Club v. Bernhardt, Case No. 19-cv-03696 (APM)

• Decision Date: 09 April 2020
• Docket Number: Case No. 19-cv-03696 (APM)
• Citation: 453 F.Supp.3d 391
• Parties: DALLAS SAFARI CLUB, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

453 F.Supp.3d 391

DALLAS SAFARI CLUB, et al., Plaintiffs,

v.David BERNHARDT, et al., Defendants.

Case No. 19-cv-03696 (APM)

United States District Court, District of Columbia.

Signed April 9, 2020

George L. Lyon, Jr., Bergstrom Attorneys, Washington, DC, for Plaintiffs.

Devon Lea Flanagan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

Plaintiffs in this case are the Dallas Safari Club, the Namibian Ministry of the Environment and Tourism, the Namibian Association of Community Based Natural Resource Management Support Organizations, and a group of individual elephant sport hunters seeking to import their sport-hunted elephant trophies into the United States (together, "Plaintiffs"). They bring this lawsuit to challenge Defendant United States Fish and Wildlife Service's failure to act on pending elephant trophy import permit applications. Now before this court is Plaintiffs' Motion for a Preliminary Injunction, in which Plaintiffs ask the court to require the Service to process pending and subsequently filed permit applications. See Pls.' Mot. for Prelim. Inj., ECF No. 11. Because Plaintiffs have failed to show that Defendant's inaction has irreparably harmed the organizational Plaintiffs, their members, or the individual hunter Plaintiffs, the court denies the motion for a preliminary injunction.

I.

A. Statutory and Regulatory Background

Two legal regimes govern the importation of sport-hunted African elephant trophies: the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. , and the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249. CITES is a multilateral treaty that aims to protect wildlife that is vulnerable to or adversely affected by commercial or non-commercial trade, which Congress has implemented into domestic law through the ESA. 16 U.S.C. §§ 1537a, 1538(c).

The ESA prohibits, among other things, importing into the United States species of fish and wildlife listed as endangered. Id. § 1538(a)(1). The ESA also authorizes the United States Fish and Wildlife Service ("Service") to extend those prohibitions to species of fish or wildlife listed as threatened through species-specific rulemaking. See id. § 1533(d); 50 C.F.R. § 17.31(c). The Service has established a permitting process to grant exceptions to some protections for threatened species. See 50 C.F.R. § 17.32.

The African elephant is listed as a threatened species under the ESA, see 43 Fed. Reg. 20,499 (May 12, 1978) ; 50 C.F.R. § 17.11(h), and the Service has promulgated a species-specific rule extending certain protections to the African elephant, 50 C.F.R. § 17.40(e). Notwithstanding these protections, the Service permits a sport-hunted African elephant trophy to be imported into the United States if various conditions are satisfied. 81 Fed. Reg. 36,388 (June 6, 2016) ; 50 C.F.R. § 17.40(e). One of these conditions is that the Service has determined "that the killing of the trophy animal will enhance the survival of the species"—this is known as an "enhancement finding"—and issued a threatened species permit under 50 C.F.R. § 17.32(a). 50 C.F.R. § 17.40(e)(6)(i)(B). This enhancement finding is made by the Branch of Permits within the Division of Management Authority, which is part of the Service's International Affairs Program. Federal Def.'s Resp. to Pls.' Mot. for Preliminary Inj., ECF No. 16 [hereinafter Def.'s Opp'n], Ex. A, ECF No. 16-1 [hereinafter Alvarez Decl.], ¶ 7.

The ESA also prohibits any trade in animal specimens that violates CITES, a multilateral treaty—of which the United States is a signatory—that regulates international trade of various species through a system of permits and certificates. 16 U.S.C. § 1538(c)(1) ; CITES, Art II. The African elephant is included among the species whose trade is regulated by CITES. Though the process differs slightly depending upon the country of origin, generally speaking, African elephant specimens may be shipped internationally under CITES so long as the exporting country issues a permit and the permit accompanies the specimen and is presented for validation at the time of trade. CITES, Art. IV, ¶¶ 2, 4. In some instances, an import permit is also required. The import permit requires the importing country to find that trade in the specimen will be for purposes which are not detrimental to the survival of the species involved ("non-detriment finding"), Art. III, ¶ 3(a), and that the specimen is not to be used for primarily commercial purposes, Art. III, ¶ 3(c); see also 50 C.F.R. § 23.61 (listing factors to be considered in issuing a non-detriment finding); id. § 23.62 (listing factors to be considered in making a finding of not for primarily commercial purposes). The Branch of Permits within the Service is responsible for making the required findings and issuing or denying the CITES import permit. Alvarez Decl. ¶ 11.

B. Factual Background

To recap, all African elephant trophy imports require the Service to make an enhancement finding and issue an ESA permit. In addition, certain African elephant trophy imports also require a non-detriment finding and CITES import permit. Historically, the Service made periodic countrywide enhancement findings and non-detriment findings, as appropriate, which applied to all sport-hunted elephant trophies taken in the particular country during specific time periods. See Alvarez Decl. ¶ 16.

Such periodic determinations came to a halt, however, according to Plaintiffs, due to a "Presidential tweet[ ]." Pls.' Mem. of P. & A in Support of Mot. for Prelim. Inj., ECF No. 11-1 [hereinafter Pls.' Mot.], at 5. The tweet at issue was preceded by the Service's decision to lift the suspension on Zimbabwe's ESA enhancement finding, which had been imposed in 2014. Pls.' Mot. at 10–11, 14. In a Federal Register Notice dated November 17, 2017, the Service announced the enhancement finding as to Zimbabwe for elephants taken on or after January 21, 2016; indicated it would make a new enhancement finding at the start of 2019 for, at least, the 2019 hunting season; and stated that it would review import applications "on a case-by-case basis." 82 Fed. Reg. 54,405, 54,405 –08 (Nov. 17, 2017). According to Plaintiffs, "[t]he decision to lift the suspension on elephant imports gathered spontaneous criticism in the media." Pls.' Mot. at 15. The media storm prompted President Trump to tweet on the same day, November 17, 2017: "Put big game trophy decision on hold until such time as I review all conservation facts. Under study for years. Will update soon with Secretary Zinke. Thank You!" Donald J. Trump (@realDonaldTrump), Twitter (Nov. 17, 2017).¹ Two days later, President Trump again tweeted: "Big-game trophy hunting decision will be announced next week but will be very hard pressed to change my mind that this horror show in any way helps conservation of Elephants or any other animal." Donald J. Trump (@realDonaldTrump), Twitter (Nov. 19, 2017).² As a result of the President's proclamations, Plaintiffs contend, "[n]o elephant import permit from any country has been processed, issued or renewed since that first tweet on November 17, 2017." Pls.' Mot. at 16.

Meanwhile, the Service's prior negative enhancement findings for Zimbabwe in 2014 and 2015 were under attack in litigation. In 2016, a district court rejected the argument that those findings were invalid because they were adopted without notice and comment. See Safari Club Int'l v. Jewell , 213 F. Supp. 3d 48, 62 (D.D.C. 2016). But in December 2017, the D.C. Circuit reversed, finding that the countrywide enhancement findings at issue constituted rules under the Administrative Procedure Act ("APA") and thus were subject to the requirement of notice and comment. See Safari Club Int'l v. Zinke , 878 F.3d 316, 332–36 (D.C. Cir. 2017). The court "remand[ed] the case to the Service so that it [could] initiate rule making to address enhancement findings for the time periods at issue." Id. at 336. In response to that ruling, the Service issued a memorandum announcing withdrawals of various countrywide findings and explaining that "[a]t this time ... [the Service] intends to grant or deny permits to import a sport-hunted trophy on a case-by-case basis." Def.'s Opp'n at 7–8 (quoting Def.'s Opp'n, Ex. B, ECF No. 16-2, at 2–3). The Service concedes that, since issuing this memorandum, it has "worked on reviewing [trophy permit] applications, but has not issued any final determination on these pending applications." Id. at 8.

C. Procedural History

Plaintiffs filed this suit on December 11, 2019. Compl., ECF No. 1. Two months later, Plaintiffs moved for preliminary injunctive relief. See Pls.' Mot. for Prelim. Inj., ECF No. 11. Specifically, they ask this court to "issue an injunction requiring [Defendant] to expeditiously and in no event later than 90 days process all pending applications for elephant import permits and subsequently received applications." Pls.' Mot. at 43. For the reasons that follow, the court denies Plaintiffs' motion.

II.

Preliminary injunctive relief is an "extraordinary and drastic remedy" that is "never awarded as [a matter] of right." Munaf v. Geren , 553 U.S. 674, 689–90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (citations and internal quotation marks omitted). A court may only grant the "extraordinary remedy ... upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam)). The movant's burden is still higher where, as here, the movant's requested "injunction is mandatory—that is, [ ] its terms would alter, rather than preserve, the status quo by commanding some positive act." Singh v. Carter , 185 F. Supp. 3d 11, 17 (D.D.C. 2016) (quoting Elec...