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Born Free USA v. Norton

August 8, 2003

BORN FREE USA, ET AL., PLAINTIFFS,
v.
GALE NORTON, SECRETARY, DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS, AND THE ZOOLOGICAL SOCIETY OF SAN DIEGO, ET AL., INTERVENOR-DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiffs, who include several organizations and two individuals interested in the welfare of elephants, bring this case against the United States Department of the Interior and the Fish and Wildlife Service ("FWS") (collectively, the"federal defendants"), challenging FWS's decision to issue permits to the San Diego Zoo and the Lowry Park Zoo (collectively, the"zoos") for the importation of eleven African elephants from Swaziland. Presently before the Court is plaintiffs' motion for a preliminary injunction to prevent the import of the elephants until this Court reaches a final determination on the merits. Although the expedited briefing on plaintiffs' motion was completed only on August 6, 2003, the parties require a decision on the motion for a preliminary injunction by today, August 8, because the zoos, who have intervened as defendants, represent that it is imperative that the process to import the elephants commence immediately, before the beginning of Swaziland's rainy season. This case raises novel issues and evokes considerable emotion – in part because the record supports the conclusion that if the elephants are not exported to these zoos promptly, they will be killed. For the reasons set forth below, the motion for a preliminary injunction is denied.

II. Factual and Procedural Background

The Court will only briefly summarize the relevant background. In 1987 and 1994, the Kingdom of Swaziland imported African elephants from Kruger National Park in South Africa as part of an effort to reintroduce the species to Swaziland after a hiatus of several decades. The elephants have since been located within the Hlane and Mkhaya reserves in Swaziland. Both reserves are managed by Terence "Ted" Reilly, who is the government official responsible for managing Swaziland's threatened and endangered big game.

The population of elephants within the Hlane and Mkhaya reserves has now grown to approximately 30 adults plus six calves. Mr. Reilly, as the head of the reserves, has become concerned about impacts upon biodiversity as a result of the elephant population. Elephants can severely deplete vegetation, cause significant damage to trees that are the homes to certain species of birds, and compete for resources with the black rhinoceroses located in the reserves, which are even more endangered than the elephants. Mr. Reilly, on behalf of Swaziland, has determined that the removal of eleven elephants is required in order to maintain a biologically diverse ecosystem within the reserves. Mr. Reilly has further stated unequivocally that if he is unable to export the elephants now, he will cull them – i.e., kill them.

The San Diego Zoo, in California, and Lowry Park Zoo, in Tampa, Florida, have made arrangements to import eleven elephants from Swaziland. The zoos will pay approximately $133,000 for the elephants, which they will use not just for display but also in an attempt to revive captive breeding. Zoos have historically had difficulty breeding captive elephants, and the elephant population in the United States is declining; the San Diego and Lowry Park Zoos hope that the import of wild captured elephants that have already established some social bonds will allow for more successful breeding and will also increase the genetic diversity of the U.S. captive elephant population. The zoos have already made and will continue to make considerable efforts to provide expanded and improved areas for housing the elephants. Swaziland, for its part, intends to use the proceeds from the elephant sale to enhance anti-poaching protections and expand available habitat for the remaining elephants.

Under the Convention on International Trade In Endangered Species ("CITES"), T.I.A.S. No. 8249 (1973), and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., zoos seeking to import African elephants, which are protected as a threatened species on "Appendix I" under CITES, must apply to FWS for a permit. The zoos here first applied to FWS for permits in June 2002. Import permits were issued to each zoo in September 2002. Export permits have been issued by Swaziland as also required under CITES. See CITES, T.I.A.S. No. 8249, Art. III, ¶ 2.

In March 2003, counsel for plaintiffs wrote to FWS that the zoos had misrepresented certain information in their permit applications, such as the specific locations of the elephants within Swaziland. Plaintiffs thereafter filed suit in this Court to halt the import of the elephants. That suit was dismissed by joint stipulation when the zoos agreed to return their permits on April 24, 2003. The zoos then provided additional information requested by FWS in response to concerns raised by plaintiffs and sought permit reissuance.

In connection with the zoos' new permit applications, FWS made certain findings required under CITES and ESA, and issued an Environmental Assessment ("EA") and a Finding of No Significant Impact ("FONSI") pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. On July 11, 2003, FWS reissued the import permits to the zoos. Plaintiffs filed the complaint in this case on July 10, 2003, and on July 18, 2003, moved for a preliminary injunction to stop the importation.

Plaintiffs' complaint asserts a number of claims against the U.S. Department of Interior and FWS under CITES, the ESA, and NEPA. Plaintiffs' amended complaint, filed only a few days ago, asserts additional ESA claims against the zoos, which appear as intervenor-defendants in this action. Through their preliminary injunction request, plaintiffs seek to enjoin the issuance of the permits by the federal defendants, which under CITES would effectively halt the importation. The procedural vehicle for plaintiffs' claims against the federal defendants is the judicial review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, which requires the Court to determine whether an agency action – here, issuance of the import permits – is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

An important consideration for the preliminary injunction is the anticipated disposition of the elephants in the event a preliminary injunction were granted. The elephants are currently located in a "boma" or corral, where they have been awaiting export to the zoos for several months. Mr. Reilly has submitted an affidavit that states that he "cannot hold these elephants beyond the middle of this August" and "if the permits are not issued by this time, these elephants will be culled." Declaration of Terence (Ted) E. Reilly ¶ 68. Although plaintiffs challenge Mr. Reilly's representation, as the Court will explain later in its discussion, plaintiffs have little to undercut Mr. Reilly's representation, and, in any event, it must be given credence.

III. Preliminary Injunction Standard

In order to prevail on their application for a preliminary injunction, plaintiffs must demonstrate (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent the relief requested; (3) that other parties will not be harmed if the requested relief is granted; and (4) that the public interest supports granting the requested relief. Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-06 (D.C. Cir. 1995); Washington Area Metro. Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). In determining whether to grant urgent relief, the Court must"balance the strengths of the requesting party's arguments in each of the four required areas." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995)."If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Id. It is particularly important for plaintiffs to demonstrate a substantial likelihood of success on the merits; where a plaintiff cannot show a likelihood of success on the merits,"it would take a very strong showing with respect to the other preliminary injunction factors to turn the tide in plaintiff['s] favor." Davenport v. Int'l Brotherhood of Teamsters, AFL-CIO, 166 F.3d 356, 366-67 (D.C. Cir. 1999).

Because preliminary injunctions are extraordinary forms of judicial relief, courts should grant them sparingly. The Supreme Court has stated that"'[i]t frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).

IV. Likelihood of Success on the Merits

It appears from plaintiffs' amended complaint that they are bringing claims that they have not pressed for the purposes of the motion for a preliminary injunction – for example a claim against the federal defendants under Section 7(a)(1) and (a)(2) of the ESA, and the claims against the zoos under the ESA. The Court will limit its discussion of the likelihood of success to the particular claims that have been briefed by the parties – the claim that the permit applications should have been denied because of misrepresentations; the claim that FWS incorrectly found that the importation of the elephants was not detrimental to the species within the meaning of CITES; the claim that FWS erred in concluding that the importation of the elephants was not for a primarily commercial purpose under CITES; and the claim that FWS failed to conduct an appropriate environmental evaluation under NEPA.

Each of these claims is brought under the APA, which requires that the Court"hold unlawful and set aside agency action, findings, and conclusions" that are"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The"scope of review under the'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

The Court notes, moreover, that its review of the merits is confined to the administrative record. See Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971) ("[R]review is to be based on the full administrative record that was before the Secretary at the time he made his decision."). The Court will not consider the extra-record declarations and other materials submitted by the parties except to the extent that those materials bear upon the balance of harms.

A. Standing

Before reaching an analysis of plaintiffs' claims, the Court notes that the zoos – in a brief separate from their opposition to the preliminary injunction motion – have moved to dismiss all of the claims against the federal defendants except for the NEPA claims on the ground that plaintiffs lack standing. Among other things, the zoos argue that the organizational plaintiffs lack standing under ESA and CITES because the only injury they allege is a failure to receive information – information that the zoos claim plaintiffs have no entitlement to under the ESA or CITES. The zoos also argue that the two individual plaintiffs lack standing: one plaintiff, the zoos contend, is neither a citizen nor resident of the United States and thus has no ability to sue in U.S. courts; the second plaintiff alleges only a psychological injury in connection with the translocation of the elephants to the zoos – an injury that the zoos claim is insufficient to confer Article III standing. The federal defendants asserted at the August 6, 2003, hearing on plaintiffs' motion that they fully support the zoos' position as articulated in the motion to dismiss, and may file their own motion that would additionally argue that plaintiffs do not suffer a danger to a concrete interest sufficient to confer standing for a NEPA claim.

For their part, plaintiffs largely ignore the standing arguments that have been raised, asking instead that the Court defer ruling on this jurisdictional issue at this time. Plaintiffs' substantive response to the standing arguments is confined to part of a footnote and does not directly address some of the concerns raised by the zoos.

Given the fact that plaintiffs have not had sufficient time formally to oppose the zoos' motion to dismiss, the Court will not rule on that motion at this time. The Court notes, however, that defendants have raised substantial unanswered questions about the plaintiffs' standing to pursue some of their claims. The doubts raised about plaintiffs' standing to pursue this action somewhat undermines their likelihood of ultimately succeeding on the merits of their claims.

B. ESA – Alleged Misrepresentations

50 C.F.R. § 13.21(b)(2), an implementing regulation under the ESA, precludes FWS from issuing a permit where"[t]he applicant has failed to disclose material information required, or has made false statements as to any material fact, in connection with his application." Here, there is no dispute that the initial permit applications of the zoos contained some incorrect, incomplete, or unclear information as to certain facts, such as the identity of the specific elephants to be imported and the precise location of the elephants in Swaziland. Plaintiffs contend that these flaws constitute material misstatements or omissions that provide a basis for denying the permits.

This claim is not likely to succeed. Whatever merit there may have been to the argument that the initial permit applications were defective, the permits issued as a result of those applications were returned. The agency action before the Court today involves FWS's action on re-submitted permit applications that appear to cure any material defects in the earlier applications. Moreover, contrary to plaintiffs' suggestion, the current applications do not represent applications for"renewal permits" within the meaning of 50 C.F.R. § 13.22; even if they did, the Court is not persuaded that defects in the original applications would require FWS to deny the"renewed," cured applications.

C. CITES

Plaintiffs next assert violations of CITES. For Appendix I species such as African elephants, CITES requires both an export permit – here from Swaziland officials – and an import permit – here from appropriate U.S. officials. Article 3, paragraph 3 of CITES provides, in relevant part:

An import permit [for an Appendix I species] shall only be granted when the following conditions have been met:

(a) a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved;...

(c) a Management Authority of the State of import is satisfied that the specimen is not to be used for primarily commercial purposes.

CITES, T.I.A.S. No. 8249, Art. III, ¶ 3. FWS is the designated Scientific Authority and Management Authority in the United States. Plaintiffs claim that FWS acted arbitrarily and capriciously in finding that the import was not detrimental to the survival of the species and was not primarily for commercial purposes.

1. Not Detrimental

On June 26, 2003, FWS issued a five-page finding with respect to each zoo that the proposed import is likely to be for purposes that are not detrimental to the survival of the species. AR 83, 84.*fn1 FWS reviewed Swaziland's concerns about its expanding elephant population, noting, among other things, Swaziland's concerns about conflicts and competition between elephants and black rhinos, and the elephants' destruction of nesting sites for birds. AR 83 at 1-3; AR 84 at 1-3. FWS noted that Swaziland lacks the resources to expand the elephant habitat and cannot translocate the elephants within the country. AR 83 at 2; AR 84 at 4. As FWS noted, Swaziland has decided to remove eleven elephants from its population. Id. Further, FWS stated, Mr. Reilly has noted that if the elephants cannot be exported or translocated, they will be culled. Id. Indeed, FWS found that"the specimens in this application are intended by Swaziland to be removed from the wild population as part of a wildlife management program whether they are exported or not." AR 83 at 3; AR 84 at 3.

FWS noted that the import of the specimens is consistent with the American Zoo and Aquarium Association ("AZA") African Elephant Species Survival recommendations. AR 83 at 3; AR 84 at 3. FWS also noted that the specimens will be placed in a breeding situation, consistent with AZA efforts to improve reproduction of the species in North America. AR 83 at 3-4; 84 at 3-4. Moreover, FWS noted, Mr. Reilly intends to use the revenue generated by the sale of the specimens for park operation, expansion of protected habitat, fencing, and equipment such as anti-poaching gear. AR 83 at 4; AR 84 at 4. Based on the foregoing findings, FWS concluded that the importation would"be for purposes that are not detrimental to the survival of the species." AR 83 at 4; AR 84 at 4.

Plaintiffs challenge this conclusion, arguing that the importation of the elephants will result in the removal of one-third of the total elephant population in Swaziland and, by FWS's own admission, will reduce genetic diversity. Moreover, plaintiffs assert that FWS has disregarded the detriment to the remaining elephants and their social structure. In addition, plaintiffs argue that, with respect to the non-detriment finding, as well as the other findings made under CITES and NEPA, FWS abdicated its statutory obligations by"simply accept[ing] all of the representations made by either Reilly or the Zoos – the very parties to the transaction who stand to benefit financially from the sale of the elephants." Pls.' Mem. Supp. Mot. Prelim. Inj. at 35.

Plaintiffs' central arguments – which focus on the effect of removing the elephants from their herd – miss the point. As FWS found, Swaziland has already determined that it will remove the elephants. Thus the effect on the elephants remaining in the herd – including the effect on their genetic diversity or social structure – is beyond the ability of FWS to control. All FWS may do is determine whether the elephants may be imported, given the fact that Swaziland has decided to remove them. It is this importation decision by FWS – not the removal and export decision by Swaziland – that is the proper focus of the non-detrimental analysis. This conceptualization is consistent with the two-part analysis under CITES, wherein the state of import must determine that the " import will be for purposes which are not detrimental to the survival of the species involved," and the state of export must determine that the" export will not be detrimental to the survival of that species." CITES, T.I.A.S. No. 8249, Art. III, ¶ 2(a), 3(a) (emphases added).

That being said, FWS nevertheless did consider to some extent the effects of the export on the remaining elephants – specifically noting that the number of remaining elephants will be"optimal for ensuring regeneration of the vegetation required by the elephants," that the"removal of the specimens would not affect the breeding capacity of the remaining elephants," and that the removal of the elephants"would create space for a gradual increase in the population." AR 83 at 3; AR 84 at 3. Although it is true that these findings relied heavily upon Mr. Reilly, FWS also relied upon a Senior Scientist at Kruger National Park as well as published recommendations practiced by that park. See id.

Plaintiffs argue that FWS should have considered alternatives to the export of the elephants, such as translocation to other refuges in Africa. However, not only does CITES not require a consideration of alternatives to translocation, but here the alternative translocations that plaintiffs suggest were not within the control of FWS or the zoos, which do not control the elephants. Moreover, ...


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