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Friends of Animals v. Salazar

June 22, 2009

FRIENDS OF ANIMALS, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE INTERIOR, DEFENDANT.
REBECCA ANN CARY, ET AL., PLAINTIFFS,
v.
ROWAN GOULD, ACTING DIRECTOR, FISH AND WILDLIFE SERVICE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

In these consolidated cases, two sets of plaintiffs, Friends of Animals ("FOA") plaintiffs and Rebecca Ann Cary ("Cary") plaintiffs, bring an action against the Department of Interior, the Fish and Wildlife Service of the Department of Interior, and officials of these agencies in their official capacities (collectively, the "FWS"). The Safari Club International and Exotic Wildlife Association (collectively, the "Safari Club") also intervened as defendants. Plaintiffs allege that the FWS unlawfully promulgated a rule under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (the "ESA," or the "Act") exempting three endangered antelope species, the scimitar-horned oryx, the addax, and the dama gazelle (collectively, the "antelope" or the "antelope species"), when bred in captivity in the United States, from the import, take and other prohibitions contained in the Act. Plaintiffs assert violations under several sections of the ESA and under the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"). Before the court are the parties' cross motions for summary judgment [## 61, 62, 66, 67 in Civil Action 04-1660 and ## 20, 21, 24, 25 in Civil Action 06-2120]. Upon consideration of the motions, the oppositions thereto, and the record of these cases, the court concludes that plaintiffs' motions should be granted in part and denied in part and defendants' motions should be granted in part and denied in part.

I. BACKGROUND

A. Statutory Background

The purpose of the ESA is to "provide a program for the conservation of [] endangered and threatened species." 16 U.S.C. § 1531(b). The Act established a national policy "that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of [the Act]." Id. § 1531(c).Section 4 of the ESA directs the FWS to list species that it determines are endangered or threatened. Id. § 1533(c). Once a species is listed as endangered, it receives the full protections of the Act.

Section 9 of the ESA contains several prohibitions with respect to species listed as endangered, including prohibitions on importing, exporting, and taking such species. Id. § 1538(a). "Taking" an endangered species includes harming, harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting such species. Id. § 1532(19). Section 10 of the ESA provides three exceptions to these prohibitions. Id. § 1539. First, and most relevant to this case, paragraph 10(a)(1)(A) authorizes the FWS to "permit . . . any act otherwise prohibited by [section 9] for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations . . . ." Id. §1539(a)(1)(A). In addition, paragraph 10(a)(1)(B) authorizes an exception for takes which are incidental to carrying out an otherwise lawful activity, id.§ 1539(a)(1)(B), and section 10(b) authorizes hardship exemptions in specific cases where the Act will cause undue economic hardship, id. § 1539(b). With respect to applications for permits or exemptions made under section 10, the Secretary must comply with two requirements, contained in subsections 10(c) and (d), which state:

(c) Notice and Review. The Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. Each notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application . . . . Information received by the Secretary as part of any application shall be available to the public as a matter of public record at every stage of the proceeding.

(d) Permit and exemption policy. The Secretary may grant exceptions . . . only if he finds and publishes his finding in the Federal Register that (1) such exceptions were applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy [of the Act].

Id. § 1539(c), (d).

B. Factual Background

The antelope species at issue in these cases are native to the deserts of northern Africa. Today, the scimitar-horned oryx is extinct in the wild, and there are very few addax or dama gazelle in the wild. In 1991, the FWS proposed listing the antelope species as endangered. 56 Fed. Reg. 56491-95 (November 5, 1991). It was not until 2005, following a lawsuit, however, that the FWS listed the antelope species as endangered. See 70 Fed. Reg. 52319 (Sept. 2, 2005). In that listing, the FWS found that the decline of the antelope species in their native range was due to habitat loss through desertification, human settlement and competition with livestock, and regional military activity and uncontrolled killing. Id.

Private ranches in the United States breed the antelope species in captivity. Some of these ranches allow sport hunters to kill antelopes for a fee. At the same time that the FWS listed the antelope as endangered, it also issued a rule ("Rule") under paragraph 10(a)(1)(A) of the Act excepting United States captive-bred members of the antelope species from the take and other prohibitions of section 9 of the ESA. 70 Fed. Reg. 52310 (Sept. 2, 2005). The FWS found, "[b]ased on information available to the Service, captive breeding in the United States has contributed significantly to the conservation of these species." Id. at 52315. The Rule states that: any person subject to the jurisdiction of the United States may take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce live wildlife, including embryos and gametes, and sport hunted trophies of [the antelope species under certain circumstances].

Id. at 52318.These circumstances include: (1) the purpose of the activity must be associated with the management or transfer of wildlife in a manner that "contributes to increasing or sustaining captive numbers or to potential reintroduction to range countries," (2) captive-breeding operations must be managed in a manner that maintains genetic diversity, and (3) each person claiming the benefit of the exception must maintain accurate written records of activities, including births, deaths, and transfers and make those records accessible to the FWS for inspection. Id. at 52318-19.It is this Rule that plaintiffs challenge.*fn1

II. ANALYSIS

This case comes before the court on the parties' cross motions for summary judgment.*fn2

The cross motions raise two principle issues: first, whether plaintiffs have standing to bring this lawsuit, and second, whether the Rule issued by the FWS is lawful.

A. Plaintiffs Have Standing to Bring Their Claim Under Subsection 10(c) of the ESA

"[T]he requirement that a claimant have 'standing is an essential and unchanging part of the case-or-controversy requirement of Article III.'" Davis v. FEC, - U.S.-, 128 S.Ct. 2759, 2768 (2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As the party invoking federal jurisdiction, plaintiffs bear the burden of establishing the three elements of standing. Lujan, 504 U.S. at 560-61. First, plaintiffs must establish that they have suffered an "injury in fact." Id. at 560. An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id. (internal quotations omitted). Second, plaintiffs must establish that there is a causal connection between the injury and the challenged conduct, meaning that the injury alleged is "fairly traceable to the challenged action of the ...


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