Marcum v. Salazar
| Decision Date | 05 October 2012 |
| Docket Number | No. 11–5303.,11–5303. |
| Citation | 694 F.3d 123 |
| Parties | Ralph M. MARCUM, et al., Appellants v. Kenneth Lee SALAZAR, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–01912).
John J. Jackson, III was on the brief for appellants.
Andrew C. Mergen, Allen M. Brabender, and Matthew Littleton, Attorneys, U.S. Department of Justice, were on the brief for appellees. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge EDWARDS.
On October 8, 2009, Appellants filed a law suit in the United States District Court for the District of Columbia claiming that the Fish and Wildlife Service (“FWS”) had unlawfully denied their requests for permits to import hunting trophies taken from elephant hunts in Zambia in 2005 and 2006. The District Court rejected Appellants' claims and granted summary judgment to the Government. Because this matter was unripe for review when the District Court heard the case and issued its decision, the record on appeal is incomplete. We therefore vacate the judgment of the District Court and remand the case for further consideration.
The facts underlying the parties' dispute are succinctly set forth in a Memorandum Opinion issued by the District Court on August 30, 2011:
In 2005 and 2006, [Appellants] Ralph Marcum, Walt Maximuck, Earl Slusser, and Dean Mori each killed at least one elephant in Zambia for sport and then applied to FWS for an import permit to import the trophy into the United States. To import their trophies, [Appellants] needed a CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] export permit from Zambia and a CITES import permit from FWS. Before issuing an import permit for sport-hunted elephants, FWS must find, among other things, that: (1) the import “is for purposes that would not be detrimental to the survival of the species,” and (2) “the killing of the animal whose trophy is intended for import would enhance survival of the species.”
FWS's Division of Scientific Authority (“DSA,” the designated CITES “Scientific Authority” for the United States) makes the regulatory “non-detriment” finding and sends it to FWS's Division of Management Authority (“DMA,” the designated CITES “Management Authority” for the United States). This DSA finding is referred to as an “Advice.” DMA considers the DSA “non-detriment” finding and its own assessment as to whether the import would “enhance the survival of the species” in deciding whether or not to issue permits. On May 11, 2005, DSA sent DMA its “General Advice” on sport-hunted elephants in Zambia for calendar year 2005. After considering [Appellants'] applications as well as materials submitted by ZAWA [the Zambian wildlife agency], DSA found several obstacles to making a non-detriment finding.... DSA also relied on the findings of the 2002 CITES Panel, and found no evidence that the situation in Zambia had materially improved since the CITES Panel issued its findings about ZAWA's [efforts] to control poaching. In light of these findings, DSA concluded that it was unable to make the non-detriment finding required to permit import of sport-hunted elephant trophies.
Just over a week later, FWS informed ZAWA that it would be unable to issue import permits for sport-hunted elephants on the basis of the information ZAWA provided to date, and requested additional information to address these concerns. In June 2005, ZAWA sent FWS more information about Zambian elephants. Although FWS did receive this additional information from Zambia, it was insufficient for FWS to change [its] mind[ ] on the possibility of issuing import permits for elephants. FWS gave ZAWA a third chance to address the outstanding concerns.
By March 2008, although ZAWA had sent a responsive report, FWS still hadn't received the information necessary to support the required non-detriment and enhancement findings. It gave ZAWA a fourth opportunity to provide the necessary information. In September 2008, ZAWA responded with three additional pages. The following year, at the biannual Conference of the Parties to CITES, Zambia again petitioned to downlist its elephant population to Appendix II, which was again voted down by the Parties. FWS asked ZAWA a fifth time for further information to support a non-detriment finding on May 27, 2009. Having received no further response, FWS proceeded to process plaintiffs' permit applications.
Marcum v. Salazar, 810 F.Supp.2d 56, 62–64 (D.D.C.2011) (citations and alterations omitted).
Appellants filed suit in District Court on October 8, 2009, while FWS was still soliciting additional information on their permit applications. In 2010, while Appellants' suit was pending in District Court, DSA and DMA completed their evaluations of Appellants' applications. DSA declined to make a non-detriment determination and DMA declined to make an enhancement determination. On March 10, 2010, FWS denied Appellants' permit applications. On April 14, 2010, Appellants applied for reconsideration of FWS's permit denials. The request for reconsideration was denied on June 28, 2010. The District Court was aware of these developments and recounted these various actions in its decision. See Marcum, 810 F.Supp.2d at 64–65.
On August 11, 2010, while the case was still before the District Court, Appellants submitted an administrative appeal to the FWS Director pursuant to 50 C.F.R. § 13.29(e), which states that “[a] person who has received an adverse decision following submission of a request for reconsideration may submit a written appeal to the Regional Director for the region in which the issuing office is located, or to the Director for offices which report directly to the Director.” Neither Appellants nor the Government advised the District Court that, because Appellants still had an administrative appeal pending with the FWS Director, the agency had yet to take final action on Appellants' permit applications.
On February 24, 2011, Appellants filed a motion for summary judgment with the District Court. Pls.' Mot. for Summ. J. (Feb. 24, 2011) (ECF No. 35). In their memorandum in support of the motion, Appellants intimated that FWS's June 28, 2010, denial of their request for reconsideration was a “final agency action” and claimed that they were entitled to judicial review of that action because they were “adversely affected” by it. Mem. in Supp. of Pls.' Mot. for Summ. J., 9 (Feb. 24, 2011) (ECF No. 35–1). However, Appellants' motion for summary judgment and the associated memorandum failed to mention that their administrative appeal before the FWS Director was still pending.
On March 28, 2011, the Government filed a motion for summary judgment with the District Court. Defs.' Mot. for Summ. J. (Mar. 28, 2011) (ECF No. 37). The Government asserted that FWS “completed its processing” of Appellants' applications on March 10, 2010. Defs.' Mem. in Supp. of Mot. for Summ. J. & in Opp'n to Pls.' Mot. for Summ. J., 16 (Mar. 28, 2011) (ECF No. 37). The Government also intimated that final agency action was taken when FWS denied Appellants' request for reconsideration. See id. at 11–12. The Government's motion for summary judgment mirrored Appellants' previously-filed motion in that it failed to indicate that Appellants still had an administrative appeal pending before the Director of FWS.
On August 30, 2011, after reviewing the parties' respective motions for summary judgment, the District Court upheld FWS's denial of Appellants' permit applications. Marcum, 810 F.Supp.2d at 56. In its decision, the District Court addressed six claims raised by Appellants: Claims I and III involved various allegations regarding FWS's alleged failures to properly consider and process Appellants' import permit applications. See id. at 66–68. Claims II and VI involved Appellants' attempt to challenge the import permit denials through the citizen-suit provision of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g)(1). See id. at 68–71. Claim V involved Appellants' assertion that, “in denying their permit applications, FWS applied certain ‘requirements or criteria’ in such a way as to create a ‘new policy’ or a new rule requiring formal public notice and comment rulemaking under the APA [Administrative Procedure Act], 5 U.S.C. § 553(b), and publication in the Federal Register.” Id. at 71 (citation omitted); see also id. at 71–72. Claim IV involved Appellants' allegation “that FWS's denial of their import permit applications was ‘arbitrary and capricious' because the imports wouldn't be detrimental to the survival of the species, and would enhance the survival of the species.” Id. at 72 (citation omitted); see also id. at 72–78.
The District Court determined that: Claims I and III were moot, see id. at 66–68; Claims II and VI were not cognizable under the citizen-suit provision of the ESA, see id. at 68–71; Claim V failed because agency adjudications like permittingdecisions do not require notice-and-comment rulemaking, see id. at 71–72; and Claim IV was unmeritorious because the agency's actions were not arbitrary and capricious, see id. at 72–78. Appellants' assertions that DSA and DMA had issued new non-detriment and enhancement findings in 2011 which, according to Appellants, suggest that the import of elephants taken in Zambia in 2011 would be acceptable, see Appellants' Opp'n & Resp. to Mot. of Defs.–Appellees Req. Judicial Notice & Cross–Mot. for Add'l Judicial Notice, 4–5 (June 11, 2012); Appellants' Supplement to Opp'n & Resp. (June 13, 2012), were not addressed by the District Court.
On appeal, Appellants have raised a number of issues contesting the District Court's summary judgment in favor of the Government. Appellan...
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