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Conservation Force, et al v. Kenneth Salazar

March 30, 2012

CONSERVATION FORCE, ET AL., PLAINTIFFS,
v.
KENNETH SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

Plaintiffs, organizations and individuals that support sustainable hunting of the Canadian wood bison, bring this lawsuit alleging that the Secretary of the Department of the Interior, acting through the Fish and Wildlife Service, has violated several provisions of the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531 et seq., in his treatment of the wood bison. Plaintiffs' core claim is that the Fish and Wildlife Service ("FWS") acted arbitrarily and capriciously in denying the individual plaintiffs' applications to import wood bison hunting trophies. Plaintiffs also challenge FWS's failure to conduct mandatory 12-month and five-year reviews of the wood bison's "endangered" status under the Act. Finally, plaintiffs claim that FWS has violated "a bundle of duties" under the ESA. Plaintiffs have moved, and FWS has cross-moved, for summary judgment on all claims. See Plfs.' Mot. for Summ. J. [Docket 33] ("Plfs.' MSJ"); Defs.' Mot. for Summ. J. [Docket 34] ("Defs.' MSJ"). For the reasons explained below, the Court will grant FWS's motion for summary judgment as to Counts I, II, and IV, and will grant plaintiffs' motion for summary judgment as to Count III.

BACKGROUND

I. Statutory and Regulatory Background

This Court has already resolved prior litigation involving the same parties and the same events, and will draw on its previous opinions here. See Conservation Force v. Salazar, 715 F. Supp. 2d 99 (D.D.C. 2010) ("Conservation Force I"); Conservation Force v. Salazar, 753 F. Supp. 2d 29 (D.D.C. 2010) ("Conservation Force II").

The ESA is "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) (internal quotation marks and citation omitted). It is intended to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). To this end, the Act directs the Secretary of the Department of the Interior ("the Secretary") to classify species whose survival is in danger as "endangered" or "threatened." See 16 U.S.C. § 1533. A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

Individuals may petition the Secretary to list, downlist, or delist species. See id. § 1533(b)(3). After receiving any such petition, the Secretary must, "[t]o the maximum extent practicable," make a finding within 90 days "as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted" ("90-day finding"). 16 U.S.C. § 1533(b)(3)(A). And "[w]ithin 12 months after receiving a petition that is found . . . to present substantial information indicating that the petitioned action may be warranted," the Secretary must determine whether the petitioned action is warranted, is not warranted, or is warranted but is precluded by pending proposals concerning other species ("12-month finding"). Id. § 1533(b)(3)(B). The Secretary must also review whether a species is correctly listed every five years, regardless of whether he receives a listing or downlisting petition ("five-year review"). Id. § 1533(c)(2).

The ESA generally prohibits the importation of endangered species in any form, including hunting trophies. See id. § 1538(a)(1)(A), (c)(2); 50 C.F.R. § 17.21(b). Importation of threatened species, with some exceptions, is also prohibited. See 16 U.S.C. § 1533(d); 50 C.F.R. §§ 17.31(a), 17.32(a). Certain endangered or threatened species may be imported, however, "for scientific purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A) (allowing Secretary to "permit, under such terms and conditions as he shall prescribe . . . any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species."). Individuals seeking to import hunting trophies of an endangered species must apply for a permit and satisfy a number of application requirements. See 50 C.F.R. § 17.22. Upon receipt of a permit application, the Secretary must publish a notice of the application in the Federal Register and allow a 30-day period for comments. Id. In determining whether to grant the application, the Secretary "shall consider" the following criteria:

(i) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;

(ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;

(iii) Whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed;

(iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit;

(v) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and

(vi) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.

50 C.F.R. § 17.22(a)(2).

In administering the ESA with respect to species found in other countries, the Secretary

must take into account certain special considerations. Under 16 U.S.C. § 1537(b), the Secretary "shall encourage . . . foreign countries to provide for the conservation of . . . wildlife . . . including endangered species." In the listing or delisting context, the Secretary must consider "th[e] efforts . . . being made by any State or foreign nation . . . to protect [endangered or threatened] species," and should allow any affected foreign nation to comment on a listing or delisting proposal. 16 U.S.C. §§ 1533(b)(1)(A), (b)(5)(B). With respect to permit determinations, however, the Secretary has no specific duty to consider or defer to a foreign country's conservation program, aside from his general duty to "encourage" such programs.

II. Factual Background

The Canadian wood bison, found in portions of northwestern Canada, was by the late 1800s hunted nearly to extinction. See 74 Fed. Reg. 5908, 5909 (Feb. 3, 2009). In 1970, it was classified as an "endangered" species in the United States under the statutory predecessor to the ESA, and it has remained so listed. Id. In Canada, a wood bison recovery plan was implemented in 1973, and the wood bison was formally listed as endangered in 1978.

Administrative Record [Docket Entries 23-25] ("AR") at 4, 83. Based on the success of the recovery plan, the wood bison was downlisted to "threatened" status in Canada in 1988. AR 83. As of today, over 4500 wood bison live in free-ranging, disease-free herds in Canada. AR 282.

Canada permits limited hunting of wood bison in some circumstances. Between 2000 and 2004, the four individual plaintiffs to this action purchased wood bison hunts in Canada, and each then successfully hunted a wood bison. Conservation Force I, 715 F. Supp. 2d at 101. With Conservation Force's assistance, they each applied to import their wood bison trophies into the United States. Id. In 2009, when the permits had still not been processed, plaintiffs filed a lawsuit. Id. FWS then denied all four permits on the ground that "there is insufficient evidence to support the concept that this import of a sport-hunted trophy would provide a 'conservation' benefit to the wood bison." Id. at 102; see also AR 305-16, AR C335-C341.

In November 2007, the Canadian National Wood Bison Recovery Team ("the Team"), which is not affiliated with Conservation Force or the plaintiffs, petitioned FWS to downlist the wood bison from endangered to threatened. Conservation Force I, 715 F. Supp. 2d at 101-02. The Team's petition stated that the wood bison's "populations are healthy," its "habitat remains plentiful," and conservation "recovery and management plans are being implemented." Id. In February 2009, FWS issued a 90-day finding. Id. The finding concluded that the Team's downlisting petition "presents substantial scientific evidence and commercial information indicating that reclassifying the wood bison from endangered to threatened may be warranted." Id. FWS failed, however, to conduct the 12-month review required by 16 U.S.C. § 1533(b)(3)(B) or the five-year review required by 16 U.S.C. § 1533(c)(2).

In the prior litigation between these parties, plaintiffs challenged FWS's failure to conduct the 12-month review. See Conservation Force I, 715 F. Supp. 2d at 102-04. This Court dismissed plaintiffs' claims because plaintiffs had not filed an adequate notice of suit, which is jurisdictional under the ESA. Id. During the course of the prior litigation, the Secretary represented to the Court that the review would be completed by September 15, 2010. Id. at 104 n.5. However, the Secretary was unable to complete the review by that time due to "competing court-ordered commitments" in other cases. Defs.' MSJ at 2-3 n.1. But on January 31, 2011, eleven days after plaintiffs filed their motion for summary judgment in the instant litigation, FWS completed the 12-month review, "which also serve[d] as the Service's five-year review." See Not. of Completion of 12-Month Finding and Five-Year Review [Docket 36] at 1-2.

III. Standard of Review

Plaintiffs' claims fall under the Administrative Procedure Act ("APA"). The APA requires that the Court "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse ...


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