Safari Club Int'l v. Jewell, 15-5170

Decision Date06 December 2016
Docket NumberNo. 15-5170,15-5170
Citation842 F.3d 1280
Parties Safari Club International and National Rifle Association of America, Appellants v. Sally Jewell, In her official capacity as Secretary of the Department of the Interior, et al., Appellees
CourtU.S. Court of Appeals — District of Columbia Circuit

Douglas S. Burdin argued the cause for appellants. With him on the briefs were Christopher A. Conte, Michael T. Jean, Anna M. Seidman, and Jeremy E. Clare.

Erika B. Kranz, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were John C. Cruden, Assistant Attorney General, and Matthew Littleton and Meredith L. Flax, Washington, DC, Attorneys.

Anna E. Frostic was on the brief for amici curiae The Humane Society of the United States, et al. in support of appellees.

Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Tatel, Circuit Judge:

Although the African elephant is protected under both domestic and international law, the Interior Department's Fish and Wildlife Service has long allowed American hunters who shoot Tanzanian elephants to repatriate their trophies because, according to the Service, doing so "would not be detrimental to the survival of the species." 50 C.F.R. § 23.61(a). In 2014, however, the Service changed course and indefinitely suspended issuance of import permits due in part to a "significant decline in Tanzania's elephant population." 2014 Non-Detriment Finding, at Deferred Appendix 123. Two organizations representing hunters challenged the suspension in district court as substantively and procedurally flawed. Because no member of either group had applied for a permit, the court dismissed the case for lack of final agency action and for failure to exhaust administrative remedies. For the reasons set forth below, we reverse.

I.

The Fish and Wildlife Service, part of the U.S. Interior Department, is tasked with regulating the import of species protected under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U.S.T. 1087, which includes African elephants, or Loxodonta africana , from Tanzania. See, e.g. , CITES art. III(3) & App'x I; 16 U.S.C. §§ 1537a –1539 ; 50 C.F.R. §§ 17.11, 17.22. Among its duties, the Service determines whether and under what conditions hunters may receive permits to import "sport-hunted trophies," which "means a whole dead animal or a readily recognizable part or derivative of an animal." 50 C.F.R. § 23.74(b).

The Service's permitting scheme is somewhat intricate, but because it has faced many legal challenges, the particulars have been thoroughly described in numerous opinions of this court. See , e.g. , Marcum v. Salazar , 694 F.3d 123, 124–25 (D.C. Cir. 2012). An abridged summary will do here.

For threatened species, like African elephants, the Service must ensure that two conditions are satisfied before it may grant a permit. First, the Service's Division of Scientific Authority must find that the "import will be for purposes which are not detrimental to the survival of the species." CITES art. III(3)(a); see 50 C.F.R. § 23.61. This determination is known as a "non-detriment" finding. Second, the Service's Division of Management Authority must find—the "enhancement" finding—"that the killing of the trophy animal will enhance the survival of the species." 50 C.F.R. § 17.40(e)(6)(i)(B). For example, sport hunting might enhance the survival of a species where it causes no measurable impact on its population and where "revenues generated by sport hunting[ ] ha[ve] the potential to provide conservation benefits to the species." January 3, 2014, Information Memorandum, at Deferred Appendix 122.

For the African elephant, along with a handful of other species, the Service makes annual, blanket non-detriment and enhancement findings that cover all applications filed for sport-hunted trophies "taken" during that year. Although the Service had long granted permits for sport-hunted Tanzanian elephant trophies—meaning it had consistently made positive non-detriment and enhancement findings—it reversed course in 2014. On February 21 of that year, the Division of Scientific Authority completed its non-detriment finding for trophies taken during calendar year 2014. Acknowledging its history of finding sport hunting non-detrimental to the survival of Tanzanian elephants, the Division explained that it could no longer do so given the availability of more current information demonstrating a significant decline in elephant populations. The Division of Management Authority soon followed suit, concluding that it could no longer find that sport hunting would enhance the survival of the species. As a result, the Service announced a "suspension on imports of sport-hunted African elephant trophies taken in Tanzania ... during calendar year 2014." See April 4, 2014, Press Release, at Deferred Appendix 161.

Challenging the Service's suspension, two industry groups, Appellants Safari Club International and the National Rifle Association (collectively, "Safari Club"), filed suit on behalf of their members, which include disappointed elephant hunters, several of whom had planned hunts in Tanzania for the fall of 2014. In its second amended complaint, Safari Club alleged that the Service's decisionmaking suffered from three flaws. First, it asserted that the 2014 non-detriment and enhancement findings were legislative rules requiring notice-and-comment rulemaking (Count VI). Second, it claimed that the Service failed to justify its decision to require an enhancement finding for African elephants (Count VII). And third, it alleged that the Service's non-detriment finding rested on an incorrect standard (Count VIII).

The district court dismissed the suit under Federal Rule of Civil Procedure 12(b)(6). Bypassing the Service's argument that Safari Club lacked Article III standing, the court concluded that the non-detriment and enhancement findings were not final agency action and that, by failing to apply for an import permit, Safari Club's members had failed to exhaust their administrative remedies. See Safari Club International v. Jewell , 76 F.Supp.3d 198, 207–08 (D.D.C. 2014).

Safari Club appeals, arguing that the Service's decision to suspend import permits—including the two 2014 findings—was final, and that its members had no obligation to exhaust administrative remedies. The Service defends the district court's dismissal for lack of finality and exhaustion, adding that Safari Club lacks standing and that its claims are moot. Our review is de novo. See Cohen v. United States , 650 F.3d 717, 722 (D.C. Cir. 2011) (reviewing de novo questions of subject matter jurisdiction and failure to state a claim).

II.

The parties devote the bulk of their briefing to finality and exhaustion, but this puts the cart before the horse, for we must begin with our own jurisdiction. Bender v. Williamsport Area School District , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review...." (citation and internal quotation marks omitted)). To determine whether we and the district court have Article III jurisdiction, we must decide whether Safari Club has standing and whether its claims are moot. See, e.g. , Worth v. Jackson , 451 F.3d 854, 857 (D.C. Cir. 2006) (explaining that standing and mootness, along with ripeness, define the constitutional bounds of our subject-matter jurisdiction).

A.

To demonstrate Article III standing, plaintiffs must "establish, as an ‘irreducible constitutional minimum,’ that they face ‘injury in fact’ caused by the challenged conduct and redressable through relief sought from the court." Shays v. Federal Election Commission , 414 F.3d 76, 83 (D.C. Cir. 2005) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). An organization, like Safari Club, has Article III standing if one of its members has standing. See Summers v. Earth Island Institute , 555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("[O]rganizations can assert the standing of their members."). The Service argues that Safari Club lacks standing because none of its members filed a permit application, meaning that the Club's injury stems from its members' inaction rather than from any decision by the Service. For its part, Safari Club insists that seeking a permit would have been futile given that the Service had determined and publicly announced that no permits would issue for Tanzanian elephants killed in 2014. According to the Service, however, futility can never excuse a nonapplicant's failure to seek a permit, adding that even were there a futility exception, Safari Club has failed to show futility here. We disagree with the Service on both counts.

It is true that "a plaintiff must generally ... submit to a [government] policy to establish standing" to challenge it. Grid Radio v. FCC , 278 F.3d 1314, 1319 (D.C. Cir. 2002) (citation and internal quotation marks omitted). In the context of applications for government benefits, however, " [t]his threshold requirement ... may be excused ... where a plaintiff makes a substantial showing that the application for the benefit ... would have been futile.’ " Id. (quoting Prayze FM v. FCC , 214 F.3d 245, 251 (2d Cir. 2000) ); see United States v. Decastro , 682 F.3d 160, 161, 164 (2d Cir. 2012) (recognizing futility exception for nonapplicant for firearm permit but finding no futility on summary-judgment record). Even our decision in Albuquerque Indian Rights v. Lujan , 930 F.2d 49 (D.C. Cir. 1991), on which the Service itself relies, supports the existence of a futility exception. There, we held that a nonapplicant lacked Article III standing because the summary-judgment record contained no "evidence relating to the asserted futi...

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