Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority, s. 79-2512
| Decision Date | 02 November 1981 |
| Docket Number | 80-1083 and 80-1084,80-1044,Nos. 79-2512,s. 79-2512 |
| Parties | , 212 U.S.App.D.C. 122, 11 Envtl. L. Rep. 20,306, 9 Fed. R. Evid. Serv. 608 DEFENDERS OF WILDLIFE, INC., Appellant, v. ENDANGERED SPECIES SCIENTIFIC AUTHORITY, et al. DEFENDERS OF WILDLIFE, INC. v. ENDANGERED SPECIES SCIENTIFIC AUTHORITY, et al. International Association of Fish and Wildlife Agencies (Intervenor-Defendant), Appellant. DEFENDERS OF WILDLIFE, INC. v. ENDANGERED SPECIES SCIENTIFIC AUTHORITY, et al., Raymond J. Driscoll, et al. (Intervenor-Defendant), Appellant. DEFENDERS OF WILDLIFE, INC. v. ENDANGERED SPECIES SCIENTIFIC AUTHORITY, et al., Fur Conservation Institute of America (Intervenor-Defendant), Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C.Civil Action No. 79-3060).
Brice M. Clagett, Washington, D. C., with whom Ellen Bass, John B. Douglas III, Oscar M. Garibaldi, and Lawrence N. Minch, Washington, D. C., were on the brief, for Defenders of Wildlife, Inc., appellant in No. 79-2512 and cross-appellee in Nos. 80-1044, 80-1083, and 80-1084. Jeffrey H. Howard, Washington, D. C., also entered an appearance for Defenders of Wildlife, Inc.
William A. Hutchins, Washington, D. C., with whom Paul A. Lenzini, Washington, D. C., was on the brief for International Association of Fish and Wildlife Agencies, appellee in Nos. 79-2512, 80-1083, and 80-1084, and cross-appellant in No. 80-1044.
Stephen S. Boynton, Washington, D. C., for Conservation Institute of America, et al., appellee in Nos. 79-2512 and 80-1044, and cross-appellant in Nos. 80-1083 and 80-1084.
Dirk D. Snel, Atty., Dept. of Justice, Washington, D. C., with whom Angus MacBeth, Deputy Asst. Atty. Gen., and Edward J. Shawaker, Atty., Dept. of Justice, Washington, D. C., were on the brief, for the Endangered Species Scientific Authority, et al., appellee. James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., also entered an appearance for the Endangered Species Scientific Authority, appellee.
Before McGOWAN and EDWARDS, Circuit Judges, and FRIEDMAN, * Chief Judge, United States Court of Claims.
Opinion for the Court filed by Chief Judge FRIEDMAN, United States Court of Claims.
These appeals challenge actions taken by federal agencies responsible for protecting bobcats by limiting their export, pursuant to the obligations of the United States under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature March 3, 1973, (1976) 27 U.S.T. 1087, T.I.A.S. No. 8249, --- U.N.T.S. --- (the Convention). After trial, the district court dismissed the major portions of the complaint (which sought injunctive and declaratory relief) but ruled for the plaintiff on some issues. We hold (1)
that parts of the government regulation governing the export of bobcat pelts are invalid, (2) that the district court's dismissal of certain portions of the complaint cannot stand because the court did not make findings explaining the reasons for its action, (3) that the court applied the wrong standard of review in its determinations under other portions of the complaint, and (4) that although the court did not explain or discuss the reasons for dismissing still other portions of the complaint, that action was proper since those portions of the complaint do not state claims upon which relief may be granted. Accordingly, we affirm in part and reverse in part the judgment of the district court and remand the case to that court for further proceedings.
1. More than 50 nations (including the United States) agreed upon a treaty (the Convention) to limit international trade in endangered species prior to its becoming effective on July 1, 1975. The Convention contains three appendices listing animals and plants to be protected, and provides for additions and deletions from the appendices. Appendix I covers "all species threatened with extinction." Art. II, para. 1. Appendix II, which this case involves, includes "all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival." Art. II, para. 2. Appendix III covers species that are subject to regulation by a particular country "for the purpose of preventing or restricting exploitation." Art. II, para. 3. The parties to the treaty 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 present Convention." Art. II, para. 4.
The bobcat was added to appendix II in February 1977. 50 C.F.R. § 23.23 (1979). 1
Article IV, para. 1, of the Convention provides that "(a)ll trade in specimens of species included in Appendix II shall be in accordance with the provisions of this Article." Specimens included in appendix II may be exported only pursuant to an export permit, which may be granted only if "a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species" and a "Management Authority" of the exporting state "is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora." Art. IV, para. 2. The Scientific Authority "shall monitor both the export permits granted by that State for specimens of species included in Appendix II and the actual exports of such specimens." Art. IV, para. 3. "Whenever a Scientific Authority determines that the export of specimens of any such species should be limited in order to maintain that species throughout its range at a level consistent with its role in the ecosystems in which it occurs and well above the level at which that species might become eligible for inclusion in Appendix I, the Scientific Authority shall advise the appropriate Management Authority of suitable measures to be taken to limit the grant of export permits for specimens of that species." Art. IV, para. 3.
2. In section 8(e) of the Endangered Species Act of 1973, 16 U.S.C. § 1537(e) (1976), Congress directed the President to designate the Scientific and Management Authorities under the Convention. By Executive Order No. 11,911, dated April 13, 1976, 41 Fed.Reg. 15,683, the President established the Endangered Species Scientific Authority (Scientific Authority) as the Scientific Authority under the Convention and In 1977, the Fish and Wildlife Service, as the Management Authority, published regulations governing, inter alia, the issuance of export permits for species listed in appendix II. These regulations, contained in 50 C.F.R. parts 13 and 23, describe the agency's procedures for dealing with those permits. They state the information required in applying for permits, the criteria for issuance of the permits, and the conditions upon which permits will be issued. 50 C.F.R. subpart 23B.
designated the Secretary of the Interior as the Management Authority under the Convention. 2 The Secretary delegated his authority as Management Authority to the Fish and Wildlife Service
In 1978, the Scientific Authority published the information it would "need in order to support a finding in favor of export of bobcat ... taken in 1978-1979." 43 Fed.Reg. 15,098, 15,098. It announced "Guidelines for ESSA Findings in Favor of Export." Id. The Scientific Authority stated that a Working Group had recommended the following:
MINIMUM REQUIREMENTS FOR BIOLOGICAL INFORMATION
1. Population trend information * * * the method of determination to be a matter of State choice.
2. Information on total harvest 3 of the species.
3. Information on distribution of harvest.
4. Habitat evaluation.
As an interim alternative to the above, the ESSA may rely primarily upon past reported harvest. This approach assumes that yield per unit harvest effort will decrease with population decline. Such an assumption of density dependence is intuitively reasonable, but has not been proven. Furthermore, this method by itself does not estimate the level at which the population is maintained. However, data on total harvest and yield per unit effort are relevant and can be very useful in ESSA findings, particularly if harvest is reported accurately, and if data indicate harvest effort of individual trappers, hunters and collectors, as well as total numbers engaged in harvest.
Id. 15,099. The Authority stated that in other states where "available population and harvest information is lacking, is very limited, or indicates that past harvest has been detrimental ... management practices must ensure conservation of these species, consistent with the preceding section." Id. It noted that the following "management initiatives" by a state "could weigh heavily in favor of a finding of no detriment by the ESSA:"
1. There should be a controlled harvest * * * methods and seasons to be a matter of State choice.
2. All pelts should be registered and marked.
3. Harvest level objectives should be determined annually.
From the outset, the Scientific Authority has evaluated the impact of exports of bobcats (and other species) upon the survival of the species "on a State-by-State assessment of the status of each species," because the Scientific Authority concluded that the "variation among the States in species status indicated that such an individualized approach would best give the ESSA the necessary basis for finding whether export would not be detrimental to the survival of the species." 42 Fed.Reg. 43,730, 43,730 (1977).
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