Fund for Animals v. Norton
| Decision Date | 31 July 2003 |
| Docket Number | No. CIV.A.01-813 (GK).,CIV.A.01-813 (GK). |
| Citation | 295 F.Supp.2d 1 |
| Parties | The FUND FOR ANIMALS, et al., Plaintiffs, v. Gale NORTON, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Keith William Razzardi, Wayne Douglas Hettenbach, U.S. Department of Justice, Wildlife & Marine Resources Washington, DC, for defendants.
Katherine Anne Meyer, Jonathan Russell Lovvorn, Howard Mesnikoff Crystal, Meyer & Glitzenstein, Washington, DC, for plaintiffs.
Anna M. Seidman, Vienna, VA, for movant.
Plaintiffs, four conservation organizations committed to preserving animal species in their natural habitats and three individuals involved in argali sheep conservation efforts,1 bring this action under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Plaintiffs challenge the granting of permits by the Department of Interior and its Fish and Wildlife Service ("FWS" or "Service") to sport hunters for the importation from Kyrgyzstan, Mongolia, and Tajikistan of argali sheep "trophies."2 Plaintiffs also challenge the Service's 2002 Withdrawal of its Proposed Rule to list the argali sheep in those countries as endangered, rather than threatened, under the ESA.
Defendants are Gale Norton, Secretary of the Interior ("Secretary"), who has ultimate responsibility for implementing the ESA, and Steven Williams, Director of FWS, the agency that has been delegated the day-to-day responsibility for implementing the ESA. On September 4, 2001, the Court granted the Motion of Safari Club International and U.S. Sportsmen's Alliance Foundation (collectively "Safari Club") to intervene on behalf of Defendants. That same day, the Court also permitted the Foundation for North American Wild Sheep, Grand Slam Club/OVIS, Conservation Force, Dr. Paul Valdez, Dr. Bart O'Gara, Dr. James Teer, Douglas C. Stromberg, Ron Bartels, Ben Seale, Clark S. Ullom, and Lee. G. Lipscomb (collectively "FNAWS"), to also intervene on behalf of Defendants.3
The matter is now before the Court on the Motions for Summary Judgment filed by Plaintiffs, Defendants, Intervenors Safari Club, and Intervenors FNAWS. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, for the reasons discussed below Plaintiffs' Motion for Summary Judgment is denied, Defendants' Motion for Summary Judgment is denied as moot, Intervenors Safari Club's Motion for Summary Judgment is granted, and Intervenors FNAWS' Motion for Summary Judgment is granted.
The ESA is the "`most comprehensive legislation for the preservation of endangered species ever enacted by any nation.'" Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)). When Congress enacted the statute in 1973, it intended to bring about the "better safeguarding, for the benefit of all citizens, [of] the Nation's heritage in fish, wildlife, and plants." 16 U.S.C. § 1531(a)(5). Having found that a number of species of fish, wildlife, and plants in the United States had become extinct "as a consequence of economic growth and development untempered by adequate concern and conservation," Congress intended the ESA to "provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species." Id. § 1531(a)(1), (b).
In particular, the legislative history of the statute reflects a "consistent policy decision by Congress that the United States should not wait until an entire species faces global extinction before affording a domestic population segment of a species protected status." Southwest Ctr. for Biological Diversity v. Babbitt, 926 F.Supp. 920, 924 (D.Ariz.1996); see H.R.Rep. No. 412, 93d Cong., 1st Sess. 10 (1973), reprinted in 1978 U.S.C.C.A.N. 2989, 2998.
The Act imposes certain responsibilities on the Secretary of the Interior who has in turn delegated day-to-day authority for implementation of the ESA to FWS, an entity within the Department of the Interior. 16 U.S.C. § 1531(b); 50 C.F.R. § 402.01(b). The ESA's protection of a species and its habitat is triggered only when FWS "lists" a species in danger of becoming extinct as either "endangered" or "threatened." 16 U.S.C. § 1533. The Act defines a "species" as "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16).
A species is "endangered" when it is in "danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A species is "threatened" when it is "likely to become an endangered species within the foreseeable future." Id. § 1532(20).
The ESA treats the importation of endangered and threatened species differently. The Act expressly prohibits the importation of "endangered" species, Id. § 1538(a), but authorizes a limited exception. A person seeking to import an endangered species may do so only Id. § 1539(a)(1)(A),(B). An applicant must apply for a permit, and satisfy specific criteria. Id. § 1539(a)(2)(A),(B). Further, the Secretary is required to publish notice in the Federal Register of each application for an exemption or permit, and to afford interested parties an opportunity to comment on the application. Id. § 1539(c).
By contrast, the ESA contains no express prohibition on the importation of "threatened" species. It does, however, contain a provision that requires the Secretary to ensure that all regulations issued concerning "threatened" species are issued for "the conservation of such species;"4 the ESA also allows the Secretary to afford threatened species the same protections afforded to endangered species regarding, inter alia, imports. Id. § 1533(d). Specifically, the ESA provides that:
d) Protective regulations
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as [s]he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title [i.e., "Prohibited Acts" including imports], in the case of fish or wildlife....
Id. § 1533(d).
Consistent with this authority, the Secretary has issued regulations providing threatened species some of the same protections afforded endangered species. 50 C.F.R. § 17.31(a). For example, ESA regulations prohibit the importation of both threatened and endangered species, unless certain permit criteria apply. Id. § 17.21(b); Id. § 17.31(a).5
The particular permit criteria for endangered and threatened species, however, are different from one another and are set forth in separate regulations. The permit criteria for endangered species are set forth in 50 C.F.R. § 17.22. The permit criteria for threatened species are set forth at 50 C.F.R. § 17.32.
Section 17.32, the regulation governing threatened species, provides that, while the importation of threatened wildlife is generally prohibited, a person may apply for a permit to import such wildlife for certain limited purposes as long as the listed criteria are met.6 Id. § 17.32. The regulations also provide that if the Secretary has issued a "Special Rule" applicable to a particular threatened species, the issuance of permits for that species is governed by the Special Rule.7 Id. §§ 17.31(c), 17.32.
The Secretary has issued a Special Rule governing issuance of import permits for the argali, which is set forth at 50 C.F.R. § 17.40(j). The Special Rule provides that in order to obtain an import permit for the argali, an applicant has two options. She can either satisfy the permit requirements applicable to threatened species provided in § 17.32. Id. § 17.40(j)(1).8 Or, in the alternative, if the countries from which argali trophies are imported provide certain "certification" and documentation regarding the argali populations in their country, "the Director may, consistent with the Act, authorize ... the importation of personal sport-hunted argali trophies, taken legally in Kyrgyzstan, Mongolia, and Tajikistan ... without a Threatened Species permit pursuant to 17.32." Id. § 17.40(j)(2).9
The argali sheep is an Asian relative of the North American bighorn sheep, and is the largest species of wild sheep in the world. It weighs between 210-310 pounds, and has spiral horns that can grow to 75 inches in length and 20 inches in circumference.
The historic range of the argali includes Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan, southern Siberia, Mongolia, north-central and western China (including Tibet), Nepal, and the Himalayan portions of Afghanistan, Pakistan, and India. 57 Fed.Reg. 28014 (June 23, 1992).
In 1992, the Service published its Final Rule listing the argali as an endangered species throughout its historic range, except for Kyrgyzstan, Mongolia, and Tajikistan, where it is listed as threatened. Id. One year later, the Service published a Proposed Rule to list the argali as endangered in those three countries as well. 58 Fed.Reg. 25595-25600 (April 27, 1993). In 2002, the Service withdrew the Proposed Rule to list the argali as endangered in...
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