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Safari Club International, Plaintiff v. Ken Salazar

April 3, 2012

SAFARI CLUB INTERNATIONAL, PLAINTIFF,
v.
KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS. OWEN, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.
EXOTIC WILDLIFE ASSOCIATION, ET AL.,
PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

Judge Beryl A. Howell

Judge Beryl A. Howell

(Consolidated Cases)

MEMORANDUM OPINION

Pending before this Court are two Motions for a Preliminary Injunction, one filed by the plaintiff in Safari Club International v. Salazar, et al., Case No. 11-cv-01564 ("SCI Action"), ECF No. 26, and the other filed by the plaintiffs in Exotic Wildlife Association, et al. v. United States Department of the Interior, et al., Case No. 12-cv-00340, ECF No. 3 ("EWA Action").*fn1 The plaintiffs seek different injunctive relief. Specifically, the plaintiff in the SCI Action seeks to enjoin enforcement of endangered species status for U.S. non-native captive populations of three antelope species -- the scimitar-horned oryx, dama gazelle, and addax ("Three Antelope species"), while the plaintiffs in the EWA Action are seeking more narrow relief to enjoin enforcement of a Final Rule promulgated by the Fish and Wildlife Service ("FWS") that goes into effect on April 4, 2012 ("Final Rule"). The Final Rule would remove a regulation that has, since 2005, exempted U.S. non-native captive populations of the Three Antelope species from many of the prohibitions, restrictions, and requirements attendant to their classification as endangered species. Since the exemption regulation was issued at the same time the Three Antelope species were listed as endangered in 2005, the removal of the 2005 exemption would, for the first time, allow for full enforcement of endangered species status of the Three Antelope species. For the reasons explained below, the two pending Motions for a Preliminary Injunction are denied.*fn2

I.FACTUAL AND PROCEDURAL BACKGROUND

A.Endangered Species Act, Fish and Wildlife Service, and The National Environmental Policy Act

The Endangered Species Act ("ESA") was enacted by Congress in 1973 "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection(a) of this section." 16 U.S.C. § 1531(b).

Under the Endangered Species Act, the Secretary*fn3 "shall . . . determine whether any species is an endangered species or a threatened species because of any of the following factors:"

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a). The Secretary makes this determination "solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas." 16 U.S.C. § 1533(b)(1)(A).

Once an animal species has been listed as "endangered," it is unlawful under the ESA "for any person subject to the jurisdiction of the United States" to, inter alia, "take any such species within the United States or the territorial sea of the United States" or "sell or offer for sale in interstate or foreign commerce any such species" or "deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species." 16 U.S.C. § 1538(a)(1). To "take" under the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).

The ESA does, however, allow some "taking" of endangered species through its permitting programs. In 1979, the FWS established, pursuant to ESA section 10 authority, "a permit program for enhancement of propagation or survival of captive-bred wildlife ("CBW Regulation")." See Fed. Defs.' Mem. in Opp. to SCI Mot. for Prelim. Inj. ("SCI Opp. Mem.") at 4. The CBW regulation provides that "any person may take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife that is bred in captivity in the United States provided . . . that" a number of conditions are met, including that the "purpose of such activity is to enhance the propagation or survival of the affected species." 50 C.F.R. § 17.21(g)(1). The FWS has also set forth regulations for application for individual permits authorizing "take" that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," see 16 U.S.C. § 1539(a)(1)(B), or "for scientific purposes or to enhance the propagation or survival of the affected species," see 16 U.S.C. § 1539(a)(1)(A).

The National Environmental Policy Act ("NEPA") is a statute that, inter alia, requires preparation of an environmental impact statement in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C).

B. Three Antelope Species

This case concerns three antelope species, the scimitar-horned oryx, dama gazelle, and addax ("Three Antelope species") living on private ranches in the United States. The Three Antelope species are native to the African continent. See 70 Fed. Reg. 52,310 (Sept. 2, 2005). The three animal species at the center of this dispute are briefly described below:

The scimitar-horned oryx stands about 47 inches [in, 119 centimeters (cm)] tall and weighs around 450 pounds [lb, 204 kilograms (kg)]. It is generally pale in color, but the neck and chest are dark reddish brown. As the name suggests, adult animals possess a pair of horns curving back in an arc up to 50 in (127 cm) long. The scimitar-horned oryx once had an extensive range in North Africa throughout the semi-deserts and steppes north of the Sahara, from Morocco to Egypt.

The addax stands about 42 in (106 cm) tall at the shoulder and weighs around 220 lb (100 kg). It is grayish white and its horns twist in a spiral up to 43 in (109 cm) long.

The addax once occurred throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River.

The dama gazelle stands about 39 in (99 cm) tall at the shoulder and weighs around 160 lb (72 kg). The upper part of its body is mostly reddish brown, whereas the head, rump, and underparts are white. Its horns curve back and up, but reach a length of only about 17 in (43 cm) long. The dama gazelle, the largest of the gazelles, was once common and widespread in arid and semi-arid regions of the Sahara. 70 Fed. Reg. 52,319 (Sept. 2, 2005). Wild populations of the addax and dama gazelle still exist in Africa, while the scimitar-horned oryx is thought to have disappeared from the wild. See SCI Mem. in Support of Mot. for a Prelim. Inj. ("SCI Mem.") at 2.

Captive populations of the Three Antelope species exist in the United States and other parts of the world, including on the ranches of some of the plaintiffs in this consolidated case. SCI argues that "captive populations are growing and thriving" in the United States, see SCI Mem. at 4, or were until announcement of the Final Rule going into effect on April 4, 2012. The EWA plaintiffs argue, too, that the Three Antelope species have "thrived" thanks to "a few foresighted livestock ranchers" who decided to collect and breed the Three Antelope species. EWA Mem. in Support of Mot. for a Prelim. Inj. ("EWA Mem.") at 6. "[P]opulations of Texas-raised scimitar-horned oryx exploded from 32 in 1979 to 11,032 in 2010; addax from 2 specimens in 1971 to 5,112 in 2010; and dama gazelle from 9 individuals in 1979 to 894 in 2010." Id.

In promulgating the exemption of the Three Antelope species from certain prohibitions, on September 2, 2005, the FWS acknowledged that the captive breeding has been helpful for the survival of the Three Antelope species:

Captive breeding in the United States has enhanced the propagation or survival of the scimitar-horned oryx, addax, and dama gazelle worldwide by rescuing these species from near extinction and providing the founder stock necessary for reintroduction. The scimitar-horned oryx is possibly extinct in the wild; therefore, but for captive breeding, the species might be extinct. Addax and dama gazelle occur in very low numbers in the wild, and a significant percentage of remaining specimens survive only in captivity (71% and 48%, respectively). Captive-breeding programs operated by zoos and private ranches have effectively increased the numbers of these animals while genetically managing their herds . . . Threats that have reduced these species' numbers to current levels in the wild continue throughout most of the historic range. As future opportunities arise for reintroduction in the antelope range countries, captive-breeding programs will be able to provide genetically diverse and otherwise suitable specimens.

70 Fed. Reg. 52,310-52,311 (Sept. 2, 2005) (internal citation omitted).

C. Safari Club International and Exotic Wildlife Association

The plaintiffs bringing the Motions for Preliminary Injunctions are two private associations based in the United States. SCI is a non-profit organization with 53,000 members worldwide. SCI Mem. at 19. SCI's mission is to "protect the freedom to hunt and to promote wildlife conservation worldwide." Id. Some SCI members own captive herds of the Three Antelope species throughout the United States, while others have hunted the Three Antelope species and wish to do so in the future. Id. EWA is an association of ranchers who own the majority of Texas' exotic wildlife, which they raise on private property. EWA Mem. at 6.

The plaintiffs argue that private conservation and herding of the Three Antelope species has been helpful for increasing the population of these animals. SCI, for example, argues that "[i]n the U.S., private conservation, free trade, and the ability to hunt these animals have succeeded in establishing large, healthy U.S. populations of each of these species." SCI Mem. at 2.

D. Overview of the Consolidated Cases

The FWS Final Rule scheduled to go into effect on April 4, 2012 has a history reaching back more than two decades. In 1991, the FWS published a proposed rule to list as endangered species under the Endangered Species Act ("ESA") three antelope species, namely, the scimitar-horned oryx, dama gazelle, and addax. See 56 Fed. Reg. 56,491 (Nov. 5, 1991). The FWS opened comment periods on this proposed rule on June 8, 1992 (57 Fed. Reg. 24,220), July 24, 2003 (68 Fed. Reg. 43,706), and November 26, 2003 (68 Fed. Reg. 66,395). According to the Federal Defendants, "[f]rom the outset of the rulemaking process, the [FWS] announced that it was considering a separate regulatory scheme to cover captive-held individuals of [the Three Antelope species] outside the species' natural ranges." SCI Opp. Mem. at 7 (citing 56 Fed. Reg. at 56,491, 56,492, 56,494 & 68 ...


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