Friends Animals v. Zinke

• Decision Date: 08 April 2019
• Docket Number: Case No. 17-cv-2530-RCL
• Citation: 373 F.Supp.3d 70
• Parties: FRIENDS OF ANIMALS, 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
• Court: U.S. District Court — District of Columbia

373 F.Supp.3d 70

FRIENDS OF ANIMALS, et al., Plaintiffs,

v.Ryan ZINKE, in his official capacity as Secretary of the United States Department of Interior, et al., Defendants,andSafari Club International, et al., Defendant-Intervenors

Case No. 17-cv-2530-RCL

United States District Court, District of Columbia.

Signed April 8, 2019

Filed April 9, 2019

Jennifer Best, Michael Ray Harris, Friends Of Animals, Centennial, CO, for Plaintiffs.

Robert Pendleton Williams, 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. ConteMichael T. Jean National Rifle Association Of America Fairfax, VA, for Defendant-Intervenors.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District JudgeIn Fall2017. the U.S Fish and Wildlife Service (the "Service") issued a new finding with respect to African elephants in Zimbabwe, determining that the permitted hunting of these elephants will enhance the survival of the species, and thus paving the way for the importation of sport-hunted elephant trophies into the United States.After the D.C. Circuit struck down two earlier country-wide enhancement findings since the Service did not subject them to the public notice and comment required by the Administrative Procedure Act("APA"), seeSafari Club Int'l v. Zinke , 878 F.3d 316, 331–35(D.C. Cir.2017)(" Safari Club II "), the Service withdrew a slew of other findings not subject to notice and comment, including the 2017 Zimbabwe elephant findings.Moving forward, the Service announced that it would no longer make these findings on a country-wide basis, instead choosing to make its findings on a case-by-case basis upon application to import a sport-hunted trophy.

Two organizations—Friends of Animals ("FoA") and the Zimbabwe Conservation Task Force ("ZCTF")—bring a five-count complaint challenging the actions of the government.SecondAm. Compl., ECF No. 35.Upon motion.Safari Club International and the National Rifle Association of America were permitted to intervene as defendants(the "intervenor-defendants").Order, ECF No. 26.In claims one and two, plaintiffs challenge the now-withdrawn 2017 Zimbabwe elephant findings.SecondAm. Compl. ¶¶ 132–147.In their third cause of action, plaintiffs allege that the Service violated the APA by withdrawing the various enhancement and non-detriment findings without soliciting public notice and comment.Id.¶¶ 148–54.In claim four, plaintiffs argue that the Service violated the APA by withdrawing prior negative enhancement findings without following an alleged publication requirement.Id.¶¶ 155–60.And in plaintiffs' fifth cause of action, plaintiffs argue that the Service exceeded its statutory authority by creating a policy whereby enhancement findings would be made on a case-by-case basis.Id.¶¶ 161–65.

Now, both the government and the intervenor-defendants move to dismiss the complaint in its entirety.SeeFederal Defs.' Mot. Dismiss, ECF No. 38;Intervenor-Defendants' Mot. Dismiss, ECF No. 39.For the reasons set forth herein, those motions will be GRANTED.

I.BACKGROUND

A.The Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Endangered Species Act

Importation into the United States of threatened species such as African elephants 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.See16 U.S.C. § 1538(c)(1)(incorporating CITES into U.S. domestic law through the Endangered Species Act).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.Seeid.§§ 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).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 II , 878 F.3d at 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 III, 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.See16 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.Seeid.§ 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).The Service "may by regulation prohibit with respect to any threatened species [of wildlife] any act prohibited under 16 U.S.C. § 1538(a)(1)."Id.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 alsoSweet Home Chapter of Cmtys. for a Great Or. v. Babbitt , 1 F.3d 1, 5(D.C. Cir.1993).

B.Factual and Procedural Background

Since the African elephant (Loxodonta Africana ) has been listed as a threatened species under the ESA, 50 C.F.R. § 17.11(h), it has been the subject of a special species-specific rule for importation.Seeid.§ 17.40(e)(current rule).

In 1997, the rule provided for a limited exception for the importation of African elephant trophies into the United States from Zimbabwe and other countries, provided five conditions were met, including that "a determination [was] made that the killing of the animal whose trophy is intended for import would enhance survival of the species."50 C.F.R. § 17.40(e)(1992)(the "1997 Special Rule").Under this rule, the Service made positive enhancement findings in 1997 for importation of sport-hunted elephant trophies on a country-wide basis for Botswana, Namibia, and Zimbabwe.SecondAm. Compl. ¶ 74, ECF No. 35.That same year, in the proposed rule announcing the transfer of African elephants from CITES Appendix I to Appendix II, the agency wrote the following about enhancement findings:

The Service will make such findings on a periodic basis upon receipt of new information on the species' population or management.The enhancement findings for importation of sport-hunted elephant trophies from Botswana, Namibia, and Zimbabwe are on file in the Office of Management Authority and remain in effect until the Service finds, based on new information, that the conditions of the special rule are no longer met and has published a notice of any change in the Federal Register.

62 Fed. Reg. 44,627 -01, 44,633 (the "1997 Proposed Rule").

The 1997 finding that the killing of African elephants in Zimbabwe whose trophies were intended for import would enhance survival of the species remained in effect until 2014.SecondAm. Compl. ¶ 83.In April of that year, the Service announced an interim suspension of the importation of elephant trophies from Zimbabwe, citing insufficient information to make a positive enhancement finding.See79 Fed. Reg. 26,986 -01.Notice of that decision was not published in the Federal Register until May 12, 2014.Id.Because the 1997 Proposed Rule required the publication of notice, this Court held that the suspension did not actually go into effect until May 12, 2014.Safari Club v. Jewell , 213 F.Supp.3d 48, 73(D.D.C.2016)( Safari Club I ).That holding was not appealed.

In July 2014, the Service made a final determination that the import of sport-hunted African elephant trophies taken in Zimbabwe would be suspended, 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, continuing its effect indefinitely.80 Fed. Reg. 42524-03.

The 2014 and 2015 findings were all made under...