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Lawrence A. Franks, Steve Sellers, George J. Brown, Charles F. v. Ken Salazar

October 6, 2011

LAWRENCE A. FRANKS, STEVE SELLERS, GEORGE J. BROWN, CHARLES F. ROBBINS, JESSE R. FLOWERS, JR., JACK ATCHESON, AND CONSERVATION FORCE, INC., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY, UNITED STATES SECRETARY OF INTERIOR, ROWAN GOULD, ACTING DIRECTOR OF UNITED STATES FISH & WILDLIFE SERVICE, AND UNITED STATES FISH & WILDLIFE SERVICE, DEFENDANTS.



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

MEMORANDUM OPINION

Thrill-seeking safari hunters willingly pay thousands of dollars for the privilege of shooting an African elephant. Sport hunting is legal in many African countries and can often benefit threatened elephant populations where the practice is carefully managed and revenue from hunting licenses is recycled into conservation programs. Without an effective wildlife management plan, however, the haphazard sport-killing of elephants may-intuitively enough- be detrimental to their survival as a species. For this and other reasons, the United States Fish & Wildlife Service ("the Service") determined that sport hunting in Mozambique would not "enhance" the survival of African elephants in that country-a prerequisite for allowing the import of a sport-hunted trophy into the United States. See 50 C.F.R. 17.40(e)(3)(iii)(C). Accordingly, the Service denied plaintiffs' request for permission to import their elephant trophies from Mozambique into the United States. The agency's decision is rational and is supported by the administrative record, and defendants are therefore entitled to summary judgment.

I.BACKGROUND

Owing in large part to a violent civil war that plagued the country from 1977 to 1992, Mozambique has struggled to maintain a healthy population of African elephants since the mid-1970's. The number of elephants in Mozambique appears to have declined from between 50,000 and 65,000 in 1974 to an estimated 11,000 to 13,000 in 2002, though accurate population numbers during this time are somewhat elusive. Administrative Record ("AR") 13, 725. Much of the decline is directly attributable to illegal poaching for ivory, which the country has been unable to control effectively due to a lack of adequate resources. AR 942-44, 1993-95. But elephant populations have also suffered from defensive killings (to protect crops and property) and from the destruction of habitat. Id. Although Mozambique banned sport hunting in 1990, the ban was lifted in 1999 to allow a limited number of hunting licenses. AR 947, 1998.

Mozambique and the United States are both parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249, which governs the import and export of threatened species between signatories. CITES divides the species it governs into three Appendices; the African elephant is listed under Appendix I, the most protective category, which authorizes trade only in "exceptional circumstances." Id. art. II(1). "Trade" in Appendix I specimens requires a permit from the designated Scientific Authority of both the importing and exporting nations. Id. art. III.

Before issuing an export permit for an Appendix I specimen, the Scientific Authority of the exporting country-here, Mozambique's National Directorate of Forestry and Wildlife ("DNFFB")-must find that the export of such a trophy "will not be detrimental to the survival of that species." Id. art. III(2)(a). Similarly, before issuing an import permit, the Scientific Authority of the importing country-here, the Service-must make a separate, independent determination that the import of an African elephant trophy "will be for purposes which are not detrimental to the survival of the species involved." Id. art. III(3)(a); see 50 C.F.R. § 23.61(a). These are commonly known as "non-detriment" findings.

The United States implements CITES through the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., which prohibits "trade in any specimens contrary to the provisions of the Convention." 16 U.S.C. § 1538(c)(1). Exercising its authority under § 1540(f), the Service has promulgated regulations setting out the various factors it considers in making non-detriment findings. See 50 C.F.R. § 23.61. The Service considers, for example, whether removal of an animal from the wild represents "sustainable use," id. § 23.61(c)(1), is part of a "management plan that is designed to eliminate over-utilization of the species," id. § 23.61(c)(2), or would "stimulate additional trade in the species," id. § 23.61(e)(3). These findings are based on the "best available biological information," and in cases where "insufficient information is available," the Service "take[s] precautionary measures and [is] unable to make the required finding of non-detriment." Id. § 23.61(f)(4).

A special rule for African elephants-created pursuant to 16 U.S.C. §§ 1533(d) and 1539(a)(1)(A)-flatly prohibits the "[i]mport or export [of] any African elephant," with a narrow exception for sport-hunted trophies. 50 C.F.R. § 17.40(e)(3)(iii). The sport-hunted trophy exception requires the Service to determine that "the killing of the animal whose trophy is intended for import would enhance survival of the species." Id. § 17.40(e)(3)(iii)(C). This is commonly known as an "enhancement" finding. Thus, in addition to the permit requirements of 50 C.F.R. § 23.61 regarding non-detriment findings, a successful permit application must comply with the special "enhancement" rule for African elephants. See id. § 17.40(e)(3)(iii)(C).

The Service periodically receives permit applications from hunters seeking to bring home their trophies from African safaris. In November 1998, several years after the end of hostilities in Mozambique, the Service opened a line of communication with officials in the DNFFB, Mozambique's wildlife agency, requesting their help in assessing the status of the country's elephant population. Over the next several years, the Service sent Mozambique officials a series of written requests for information about the existence of an elephant management plan, domestic legislation related to elephant conservation, current population figures and sport-hunting quotas, the status of protected areas since the end of the civil war, and current estimates of illegal poaching activity. AR 84-91, 500-03, 688-89. Though Mozambique officials responded to these requests, the Service found their responses to be superficial and lacking in specific detail and scientific support. See AR 92-96, 569-72, 851-53. After several attempts to verify the requested information, the Service concluded that it did not have sufficient information to determine whether Mozambique had an elephant management plan, an accurate estimate of its elephant population, or the resources to control illegal poaching. AR 627-35, 725-27.

These findings acquired significance for the plaintiffs in this case. Lawrence A. Franks, Steve Sellers and George J. Brown each shot and killed at least one elephant in Mozambique between 2000 and 2006. With the help of Conservation Force (a nonprofit organization acting as the hunters' "authorized representative"), they applied for permits to import their trophies into the United States. Am. Compl. ¶ 99 (Doc. 29); see AR 318-19, 608-09, 671-72, 1047-48. Charles F. Robbins and Jesse R. Flowers, Jr., who both intended to hunt elephants in Mozambique between 2003 and 2005, filed similar permit applications prospectively. AR 490-91, 736-37.*fn1

The Service did not act on these requests for several years. While the administrative record reflects that the delay was caused in part by the DNFFB's failure to provide adequate responses to the agency's written questionnaires, the record also establishes that the Service did not "prioriti[ze]" these permit applications. AR 504. The Service eventually apologized for the "extreme delay in responding to [plaintiffs'] request[s]" when it ultimately denied most of these applications in July 2006. AR 1021-24.*fn2 The Service explained that after repeated attempts to obtain information from Mozambique on the benefits of sport hunting, it was unable to make the required enhancement and non-detriment findings. Id.

The Service gave several reasons for this conclusion. First, it had been unable to verify whether Mozambique had an effective elephant management plan. Though the plaintiffs had accompanied their permit applications with a copy of the DNFFB's National Strategy for the Management of Elephants in Mozambique, AR 97-122, the Service concluded that this was merely the "first step" in the process of implementing an effective wildlife management plan. AR 1022. Second, the Service had been unable to obtain adequate information from Mozambique regarding its elephant population. For example, the DNFFB could not provide an accurate headcount of elephants in Mozambique or quantify the extent of illegal poaching and defensive killings, and its sport-hunting quotas were irrational and without scientific basis. Id.

Finally, the Service expressed its view that Mozambique simply did not have the resources to enforce its existing conservation laws. Id.

After exhausting their administrative appeals, plaintiffs sued for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq., seeking judicial review of the denial of their import permit applications. Shortly after the plaintiffs filed their complaint in May 2009, the Service denied Brown's remaining permit applications on September 3, 2009. AR 1974-77. Plaintiffs then filed an amended complaint raising nine claims, including additional claims related to the denial of Brown's remaining permit applications. Am Compl. ¶ 162-206. The parties then moved for judgment on the administrative record, and the case is now ripe for summary judgment. See Mem. Supp. Pls.' Mot. Summ. J. ("Pls.' Mem.") at 41-42 (Doc. 48-1); Defs.' Mem. at 45. For the reasons that follow, the Court will deny plaintiffs' motion for summary judgment and grant defendants' cross-motion for summary judgment.

II.STANDARD OF REVIEW

Plaintiffs face a steep climb in challenging the Service's denial of their import permit applications, as the applicable standard of review is a formidable one. The APA-which governs judicial review of agency decisions under the ESA, Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982)-provides that a reviewing court may set aside agency action only when it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §706(2)(A). Review under this standard is "highly deferential" and "presumes the agency's action to be valid." Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (citations omitted).

In applying this standard, a federal court may not "substitute[e] its judgment for that of the agency." Costle, 657 F.2d at 283. Instead, the court's only role is to determine whether the agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Resource Defense Council, Inc., 462 U.S. 87, 105 (1983) (citations omitted). Accordingly, the arbitrary and capricious standard "mandates judicial affirmance if a rational basis for the agency's decision is presented, even though [the court] might otherwise disagree." Costle, 657 F.2d at 283 (citations omitted).

To make matters worse for plaintiffs, federal courts are particularly deferential toward agency findings that involve "scientific determination[s]," Baltimore Gas, 462 U.S. at 103, since these findings are presumed to be the product of agency expertise. In such cases, the court "must look at the decision not as the chemist, biologist or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimum standards of rationality." Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc).

Summary judgment is an appropriate mechanism for deciding the question of whether agency action is supported by the administrative record. Occidental Engineering Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). In such cases, a federal district court "sits as an appellate tribunal" to review the purely legal question of whether the agency acted in an arbitrary and capricious manner. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Thus, in the special context of reviewing agency factfinding, judicial review is limited to the administrative record, see 5 U.S.C. § 706, and the burden is on plaintiffs to prove the particular manner in which the Service's actions are arbitrary and capricious. City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).

III.ANALYSIS

Defendants are entitled to summary judgment because the administrative record demonstrates that the Service acted rationally in denying plaintiffs' permit applications. The Court will begin with several claims in plaintiffs' amended complaint that confront insurmountable procedural obstacles. For the remaining claims, application of the arbitrary and capricious standard leads to the ...


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