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Ralph M. Marcum, et al v. Ken Salazar

August 30, 2011

RALPH M. MARCUM, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY, UNITED STATES SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth Chief United States District Judge

MEMORANDUM OPINION

Plaintiffs paid a princely sum for the opportunity to shoot African elephants in Zambia and then they wanted to import the animals' corpses back to the United States. The trouble is that plaintiffs' attempts at post-mortem importation run up against some complex law. The United States is a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), a multilateral treaty that protects wildlife vulnerable to trade, including African elephants. 27 U.S.T. 1087; T.I.A.S. 8249, Mar. 3, 1973. It implements CITES through the Endangered Species Act ("ESA")-"the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. V. Hill, 437 U.S. 153, 180 (1978). Both prioritize plaintiffs' prey as a protected species, entangling it in the sprawling machinations of international environmental law. Plaintiffs' desire to keep these corporal mementos from their African adventures doesn't trump the law, which the agency applied rationally in this case. Therefore, the Court will deny their motion for summary judgment and grant the agency's cross-motion for summary judgment for the reasons that follow.

I.Legal Background

A.CITES

CITES divides the species it governs into three appendices. 27 U.S.T. 1087; T.I.A.S. 8249, Mar. 3, 1973. It lists the African elephant in its first and most restrictive Appendix, which allows trade only in exceptional circumstances. Id. art. II; see also id. ("Trade in specimens of [Appendix I] species must be subject to particularly strict regulation in order not to endanger further their survival.").

Before issuing a CITES export permit for an Appendix I species, the designated governmental "Scientific Authority" in the exporting country must find that the export won't be "detrimental to the survival of the species involved." Id. art. III(2). The Scientific Authority of the importing country must make an independent determination that "the import will be for purposes which are not detrimental to the survival of the species involved." Id. art. III(3).

The CITES signatory countries, called parties, have resolved that "the Scientific Authority of the importing country" should "accept the finding of the Scientific Authority of the exporting country that the exportation of the hunting trophy is not detrimental to the survival of the species" under CITES Article III paragraph 2(a). CITES Res. Conf. 2.11(b). But it doesn't need to do so where "there are scientific or management data to indicate otherwise." Id. Moreover, "the scientific examination by the importing country in accordance with paragraph 3

(a) of Article III"-namely, that "the import will be for purposes which are not detrimental to the survival of the species involved"-must "be carried out independently of the result of the scientific assessment by the exporting country in accordance with paragraph 2 (a) of Article III, and vice versa." CITES Res. Conf. 2.11(c).

B.The ESA

The United States implements CITES through the ESA, which embodies Congress's commitment "to halt and reverse the trend towards species extinction, whatever the cost." Hill, 437 U.S. at 184. As part of that commitment, Congress has prohibited "trade in any specimens contrary to the provisions of [CITES]." 16 U.S.C. § 1538(c)(1). It has charged the Department of the Interior ("DOI") with enforcing the ESA, 16 U.S.C. § 1540(e)(1), and has authorized DOI to promulgate regulations necessary to enforce the ESA and CITES. Id. §§ 1537(a), 1540(f). DOI delegated certain implementation functions to the Fish & Wildlife Service ("FWS"), including functioning as the CITES Management Authority and Scientific Authority for the United States. Id. § 1537a.

Federal regulations and CITES require both a valid import permit issued by FWS and a valid export permit issued by the exporting country before any Appendix I animal-like an African elephant-may be transported into the United States. 50 C.F.R. § 23.20; CITES art. III. To grant a CITES import permit application for an Appendix I species, FWS must first determine that "a proposed import of an Appendix I specimen is for purposes that would not be detrimental to the survival of the species." Id. § 23.61(a). To determine whether an activity is "detrimental," FWS considers whether the use is "unsustainable," "would pose a net harm to the status of the species in the wild," would cause "interference with recovery efforts for a species," or would result in "stimulation of further trade." Id. § 23.61(b), (e). The permit applicant bears the burden of providing sufficient information to support a non-detriment finding. Id. § 23.61(c).

In making a non-detriment finding for an Appendix I species, FWS also considers whether the removal of the animal from the wild "is part of biologically based sustainable-use management plan that is designed to eliminate over-utilization of the species," "would not contribute to the over-utilization of the species, considering both domestic and international uses," "would pose no net harm to the status of the species in the wild," and "would not lead to long-term declines that would place the viability of the affected population in question." Id. To make this determination, FWS uses "the best available biological information," including "trade information . . . and other scientific management information." Id. § 23.61(f). In cases where insufficient information is available or the factors of Section 23.61 aren't satisfactorily addressed, FWS won't make a non-detriment finding, and a permit won't issue. See id. §

23.61(f)(4). FWS may also deny a permit application if it finds that the exporting country's non-detriment finding isn't supported by the data:

[c]onsistent with revised Conf. 2.11(c), the U.S. Scientific Authority will accept a "not-detrimental" finding of the exporting country for that year, unless there are scientific or management data to indicate otherwise. If the scientific or management data indicate a concern about the reasonableness of an exporting country's "not detrimental" finding, the Service will consult with that country's Scientific and Management Authorities.

Withdrawal of Proposed Guidelines on African Elephant Sport-Hunted Trophy Permits, 60 Fed. Reg. 12,969, 12,971 (emphasis added) (Mar. 9, 1995).

An application to import sport-hunted African elephant trophies is also subject to additional regulatory requirements beyond the non-detriment finding required by 50 C.F.R. § 17.40(e)(3). Of relevance here, such trophies may be imported only if "[a] determination is made that the killing of the animal whose trophy is intended for import would enhance the survival of the species." Id. § 17.40(e)(3)(iii)(C). This requirement derives from the ESA, which provides that FWS "may permit . . . any act otherwise prohibited by section 1538 of this title . . . to enhance the propagation of the affected species." 16 U.S.C. § 1539(a)(1)(A). Section 1538 makes it unlawful to "violate any regulation pertaining to . . . any threatened species of fish or wildlife listed pursuant to section 1533 of this title." 16 U.S.C. § 1538(a)(1)(G). Federal regulations extend the other protections of section 1538, including prohibitions on import, possession, and lethal or non-lethal "take," to "threatened" as well as "endangered" animals. 50 C.F.R. § 17.31(a).

C.The African Elephant

Elephant populations in Zambia began declining rapidly in the 1970s due in part to hunting for ivory. Administrative Record ("AR") at 718. Biologists estimated that by 1989, Zambia's elephant population had fallen below 18,000 from an estimated 200,000 in the 1970s. Id. Current estimates show no significant population increase since 1989. AR 710.

In 2002, at the 12th CITES Convention of the Parties, Zambia applied to have its elephant population downlisted from Appendix I of CITES to the less protective Appendix II, in order to facilitate sport hunting by foreign travelers and permit the sale of stockpiled ivory. AR 79. As CITES required, the CITES Secretariat convened an independent panel of scientists ("CITES Panel") to consider the application and make a recommendation as to whether it should pass. See CITES Res. Conf. 10.9; AR 79--93 (Panel report). Specifically, the CITES Secretariat tasked the Panel with assessing Zambia's elephant population, potential risks to the species, and Zambia's ability to monitor the population and implement anti-poaching measures. AR 79.

After a five-day visit in Zambia, the CITES Panel issued a "negative determination." AR 92. Among other problems, the Panel found that:

 The Zambian wildlife agency ("ZAWA") was plagued with "much political interference." AR 82.

 "[F]or a period of almost 10 months in 2000, there was virtually no law enforcement in the majority of Zambia's conservation areas. The result was that illegal hunters killed relatively large numbers of elephants. To illustrate this, during the above 10-month transition period, it was estimated that 156 elephants were killed in an area about 2,560 [square] km in the central Kafue alone." Id.

 "[M]ost conservation areas in the Kafue Region were losing wildlife at an unsustainable rate" due to a "wave of illegal activity." AR 83.

 "[T]he fact that the overall population is not increasing (and could be decreasing) suggests that there is an important illegal offtake that accounts for a substantial amount of the ivory that could in theory be produced from an elephant population of this size. The Panel estimates that this accounts for up to some 800 animals a year. In view of these factors, it must be concluded that the overall level of offtake is not sustainable." AR 84.

 "Since . . . 1998, Zambia's own capability to monitor its elephant population has been virtually non-existent." Id.

 "The current situation suggests that there has been a drastic decline in the effectiveness of the antipoaching activities. This appears to be mainly the result of a severe depletion of operational funding. . . . The insufficient and erratic supply of operational funds and logistical support has greatly affected the performance of staff. The consequence of these actions has been a substantial increase in the level of poaching of all species." AR 85.

 With respect to ivory seized from poachers, Zambia's ivory stockpile was "susceptible to fraud" due to improper storage, inadequate organization, and many tusks unaccounted for. AR 86.  Several ZAWA staff members had been arrested for illegal elephant trade. AR 88.

In light of these findings, the Parties to CITES voted to reject Zambia's downlisting proposal at the 12th Convention of the Parties. AR 120.

D.Factual Background

In 2005 and 2006, plaintiffs 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. Am. Compl. ¶¶ 7--11, 52--58 (Doc. 20); see also AR 337--45, 370--83, 386--409, 432--47. To import their trophies, plaintiffs needed a CITES 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, 50 C.F.R. § 23.61(a), and (2) "the killing of the animal whose trophy is intended for import would enhance survival of the species." 50 C.F.R. § 17.40(e)(3)(iii)(C).

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. AR 317--20. After considering plaintiffs' applications as well as materials submitted by ZAWA, AR 125--38, 186--280, DSA found several obstacles to making a non-detriment finding:

 Evidence that "areas other than the specified game management units will be used for sport hunting of elephants." AR 317.

 Inconsistencies in reported elephant population estimates. AR 318.

 Failure to comply with CITES obligations under the "Monitoring of Illegal Killing of Elephants" program. Id.  The absence of government funding for elephant management and protection. Id.  The lack of a ratified government management plan that "carries the weight of law" and outlines specific information about how it will actually be implemented. AR 319.  No reliable poaching data. Id.  The absence of any "effective" "anti-poaching measures." Id.

DSA also relied on the findings of the 2002 CITES Panel, AR 79--93 (CITES Panel report); AR 319 (DSA citing CITES Panel), and found no evidence that the situation in Zambia had materially improved since the CITES Panel issued its findings about ZAWA's to control poaching. AR 319; see also AR 287 (FWS official opining that ZAWA's quota proposal "is unsupportable in its current form and should be returned to ZAWA for considerable revision and clarification"); AR 284--87 (outlining twenty-six specific problems with ZAWA's submissions). 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. AR 317.

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. AR 327--31. In June 2005, ZAWA sent FWS more information about Zambian elephants. AR 345--63. Although FWS "did receive [this] additional information from Zambia, [ ] it was insufficient for [FWS] to change our minds on the possibility of issuing import permits for elephants." AR 472. FWS ...


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