Safari Club Int'l v. Jewell, Civil Action Nos. 11–cv–01564 (BAH), 12–cv–00340 (BAH).

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: BERYL A. HOWELL
• Citation: 960 F.Supp.2d 17
• Decision Date: 09 August 2013
• Docket Number: Civil Action Nos. 11–cv–01564 (BAH), 12–cv–00340 (BAH).
• Parties: SAFARI CLUB INTERNATIONAL, Plaintiff, v. Sally JEWELL, in her official capacity as Secretary of the United States Department of the Interior, et al., Defendants. Exotic Wildlife Association, et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants.

960 F.Supp.2d 17

SAFARI CLUB INTERNATIONAL, Plaintiff,
v.
Sally JEWELL, in her official capacity as Secretary of the United States Department of the Interior,¹ et al., Defendants.
Exotic Wildlife Association, et al., Plaintiffs,
v.
United States Department of the Interior, et al., Defendants.

Civil Action Nos. 11–cv–01564 (BAH), 12–cv–00340 (BAH).

United States District Court,
District of Columbia.

Aug. 9, 2013.

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Douglas Scott Burdin, Anna Margo Seidman, Safari Club International, Nancie G. Marzulla, Roger Joseph Marzulla, Marzulla Law, LLC, Washington, DC, Paul Matthews Terrill, III, The Terrill Firm PC, Austin, TX, for Plaintiff.

Meredith L. Flax, James A. Maysonett, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.

This case involves issues surrounding the most effective ways under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., to conserve three antelope species—the scimitar-horned oryx, dama gazelle, and addax—whose herds have dwindled, if not disappeared, from their native environments in North Africa. The U.S. Fish and Wildlife Service (“FWS”), which is vested with the authority to designate the three antelope species as endangered under the ESA, has spent two decades considering these issues with input from both commercial and non-profit groups interested in conserving the species for different ends. These efforts culminated with the issuance, in 2005, of two rules, one of which listed the three antelope species as endangered and the other of which provided a blanket exemption for U.S. captive-bred herds of the same species. In

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2009, another judge in this jurisdiction found the blanket exemption rule to be invalid under the ESA, prompting the FWS to issue a new rule repealing the exemption in 2012. Pending before the Court are challenges brought by two commercial groups to both the original 2005 listing rule and the 2012 repeal of the 2005 blanket exemption. For the reasons set forth below, the Court concludes that the agency rules will stand.²

This is a consolidated case with two sets of plaintiffs challenging two separate, but related, FWS final rules regarding the U.S. captive-bred populations of the three antelope species at issue.³ The plaintiff in Safari Club International v. Jewell, 11–cv–01564 (“SCI Action”), brought suit, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), and the ESA, 16 U.S.C. §§ 1531, 1533, to challenge the listing, in 2005, of U.S. captive populations of the three antelope species as endangered species. SeeFinal Rule to List the Scimitar–Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70 Fed.Reg. 52,319 (Sept. 2, 2005) (codified at 50 C.F.R. pt. 17); SCI Compl. (“SCI Compl.”), 11–cv–01564, ECF No. 1, Counts I–IV.⁴

The plaintiffs in Exotic Wildlife Association v. United States Department of the Interior, 12–cv–00340 (“EWA Action”), brought suit under the APA to challenge a final rule, see Removal of the Regulation that Excludes U.S. Captive–Bred Scimitar Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Removal Rule”), 77 Fed.Reg. 431 (Jan. 5, 2012), which removed a 2005 regulation, see

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Exclusion of U.S. Captive-bred Scimitar–Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Captive-bred Exemption”),⁵ 70 Fed.Reg. 52,310 (Sept. 2, 2005) (to be codified at 50 C.F.R. pt. 17).⁶See EWA Compl. (“EWA Compl.”), 12–cv–00340, ECF No. 1. The Captive-bred Exemption was issued the same day as the Listing Rule and carved out a special exemption to the prohibitions normally applicable to endangered species specifically for U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle. See id. Since the Captive-bred Exemption was issued at the same time as the Listing Rule, the 2012 removal of the Captive-bred Exemption means that the three antelope species are subject, for the first time, to full enforcement of the regulations for endangered species.

This Court denied the plaintiffs' motions for a preliminary injunction in the SCI Action and the EWA Action that would have essentially enjoined enforcement of the endangered species listing of the three antelope species pending the outcome of this litigation. See Safari Club Int'l v. Salazar, 852 F.Supp.2d 102, 103–04 (“SCI P.I. Decision ”) ⁷ The Court later granted the motions to intervene, as defendant-intervenors, of several organizations: Friends of Animals, Defenders of Wildlife, the Humane Society of the United States, and Born Free USA (collectively, the “defendant-intervenors”).⁸See Safari Club Int'l v. Salazar, 281 F.R.D. 32, 42 (D.D.C.2012) (“ SCI Intervenors Decision ”).

Pending before the Court are ten motions: four motions in the SCI Action, namely (1) SCI's Motion for Summary Judgment, ECF No. 45, (2) Federal Defendants' Cross–Motion for Summary Judgment, ECF No. 68, (3) DOW Intervenor–Defendants' Cross–Motion for Summary Judgment, ECF No. 70, and (4) Defendant–Intervenor Friends of Animals' Cross–Motion for Summary Judgment, ECF No. 73; and six motions in the EWA Action, namely (1) EWA's Motion to Supplement the Administrative Record

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(“AR”), ECF No. 76, (2) EWA's Motion for Summary Judgment, ECF No. 78, (3) Defendant–Intervenor Friends of Animals' Motion to Dismiss, ECF No. 47, (4) Defendant–Intervenor Friends of Animals' Cross–Motion for Summary Judgment (Lack of Standing), ECF No. 87, (5) Federal Defendants' Cross–Motion for Summary Judgment, ECF No. 84, and (6) DOW Intervenor–Defendants' Cross–Motion for Summary Judgment, ECF No. 83.⁹

The Court will address each set of motions in turn, first addressing the motions pending in the SCI Action and then proceeding to the motions pending in the EWA Action.¹⁰ For the reasons explained below, in the SCI Action, the Court denies SCI's Motion for Summary Judgment, ECF No. 45, and grants the cross-motions for summary judgment of the federal defendants, the DOW defendant-intervenors, and the defendant-intervenor Friends of Animals. ECF Nos. 68, 70, 73. As to the EWA Action, the Court denies EWA's Motion for Summary Judgment, ECF No. 78, the Defendant–Intervenor Friends of Animals' Cross–Motion for Summary Judgment (Lack of Standing), ECF No. 87, the Defendant–Intervenor Friends of Animal's Motion to Dismiss, ECF No. 47, and the Plaintiff's Motion to Supplement the AR, ECF No. 76, and grants the cross-motions

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for summary judgment of the federal defendants and the DOW defendant-intervenors. ECF Nos. 83, 84.

I. FACTUAL AND PROCEDURAL BACKGROUND¹¹A. Statutory And Regulatory Background Of The Endangered Species Act

The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., enacted in 1973, is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation” in the world. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Indeed, it is landmark legislation, the purpose of which is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.” 16 U.S.C. § 1531(b). A brief review of the history of the ESA is helpful in understanding the context of the plaintiffs' challenges to the Listing and Removal Rules.

The legislative history of the ESA reveals “[t]he long and painstaking development of the Federal endangered and threatened species program [.]” S.Rep. No. 97–418, at 3 (1982). The development of the program began in earnest in the 1960s, with the Endangered Species Preservation Act of 1966, which was the first comprehensive attempt at species conservation. See S.Rep. No. 97–418, at 1. That Act “[d]eclar[ed] the preservation of endangered species a national policy[.]” Tenn. Valley Auth., 437 U.S. at 174–75, 98 S.Ct. 2279. While “the 1966 Act was an important step toward conserving endangered species, it had serious drawbacks including its failure to prohibit the taking of endangered species.” S.Rep. No. 97–418, at 2. Thus, Congress subsequently enacted the Endangered Species Conservation Act of 1969 to “correct[ ] several of the weaknesses of the 1966 Act.” Id.; see also Tenn. Valley Auth., 437 U.S. at 175, 98 S.Ct. 2279 (noting that the 1969 legislation, for example, “empowered [the Secretary] to list species threatened with worldwide extinction” (citation and internal quotation marks omitted)).

Yet, “[e]ven with the 1966 and 1969 Acts, the endangered species program was far from adequate [because] [t]here still were no prohibitions on the taking of endangered species, and the habitat protection provisions were limited [.]” S.Rep. No. 97–418, at 2; see also Tenn. Valley Auth., 437 U.S. at 176, 98 S.Ct. 2279 (explaining that while “the 1966 and 1969 legislation represented ‘the most comprehensive of its type to be enacted by any nation’ ... a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized” (footnote omitted) (citation omitted)). Thus, although “the Acts of 1966 and 1969 [had] laid the framework for an increasingly effective endangered species conservation program, ... the Department of the Interior ha[d] indicated some difficulties in expanding the practical effect of the program to the spirit of the original legislation[.]” S.Rep. No. 93–307, at 3, 1973 U.S.C.C.A.N. 2989, 2991 (1973).

Responding to these difficulties, Congress promulgated the ambitious ESA,

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creating a statutory framework to effectuate Congress's goal of protecting vital and endangered species of animals. Indeed, the ESA “correct [ed] the shortcomings of its previous legislative efforts,” S.Rep. No. 97–418, at 2, by ...