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Conservation Force v. Salazar

United States District Court, District of Columbia

January 2, 2013

CONSERVATION FORCE, et al., Plaintiffs,
Kenneth SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants.

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John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Hao-Chin Hubert Yang, U.S. Department of Justice, Washington, DC, for Defendants.


JOHN D. BATES, District Judge.

Defendants, the Secretary of the Department of the Interior and the Fish and Wildlife Service (together " FWS" ), have filed a Rule 60(b)(5) motion to partially vacate the Court's April 5, 2012, Order. They argue that subsequent events have rendered prospective application of the order inequitable. For the reasons explained below, the Court will deny the motion.

The facts of this case are laid out in full in the Court's earlier opinion. See Conservation Force v. Salazar, 851 F.Supp.2d 39 (D.D.C.2012). Plaintiffs are individuals who support sustainable hunting of the

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Canadian wood bison. When they applied for permits to import their wood bison hunting trophies, and at the time of the Court's opinion, the Canadian wood bison was classified as " endangered" under the Endangered Species Act of 1973 (" ESA" ), 16 U.S.C. § 1531 et seq. The ESA generally prohibits the importation of endangered species in any form, including hunting trophies. See 16 U.S.C. § 1538(a)(1)(A); 50 C.F.R. § 17.21(b). But the Secretary may permit the importation of endangered species in certain circumstances, including " to enhance the propagation or survival of the affected species." See 16 U.S.C. § 1539(a)(1)(A); see also 50 C.F.R. § 17.22(a)(1). Plaintiffs applied for permits under the ESA. See, e.g., Administrative Record at 44 [Docket Entry 23-1] (Nov. 2, 2010). FWS denied all four applications, explaining that it was unable to determine that the importation would enhance the survival or the propagation of the wood bison. See, e.g., id. at 318. Plaintiffs then brought this action, challenging FWS's decision as arbitrary and capricious. The Court agreed that the agency's explanation was inadequate and granted summary judgment to the plaintiffs. See Conservation Force, 851 F.Supp.2d at 54. As is standard in such circumstances, the Court remanded the claim " to the Secretary of the Department of the Interior for further consideration of plaintiffs' permit applications." Amended Order [Docket Entry 46] (Apr. 5, 2012). The Court entered judgment on April 5, 2012. See Fed.R.Civ.P. 58(c) (" judgment is entered" " when the judgment is entered in the civil docket" and " is set out in a separate document" ).[1]

After judgment was entered, FWS reclassified the wood bison from endangered to threatened status, effective June 4, 2012. See 77 Fed. Reg. 26191, 26191 (May 3, 2012). Importation of threatened species, like that of endangered species, is generally prohibited under the ESA. See 50 C.F.R. § 17.31(a) (directing that the general prohibition on importation of endangered species " shall apply" to threatened species). A person seeking to import a threatened species, however, has more options. First, just as for importing an endangered species, FWS can grant a permit in various circumstances, including upon finding that the action would be for " the enhancement of propagation or survival" of the affected species. 50 C.F.R. § 17.32(a)(1). Second, the ESA contains an exemption allowing importation of certain threatened species without an ESA permit. See 16 U.S.C. § 1538(c)(2). The exemption applies to species listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and requires that the importer obtain a CITES permit by demonstrating that the specimens were legally obtained under the exporting nation's laws and that export will not be detrimental to the species' survival. See id.; see also 77 Fed. Reg. at 26203. The wood bison is listed in CITES Appendix

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II, and a Canadian export permit will satisfy the requisite showing of CITES compliance. See id. at 26207 (when reclassified, wood bison trophies will be able to " be imported if the required CITES Foreign Export Permits are obtained from Canada prior to the import" ).

On May 17, 2012, defendants filed a motion for relief under Rule 60(b)(5), arguing that " the continued application of the Court's remand instructions— ordering the Service to reconsider whether the individual Plaintiffs should be issued import permits under the enhancement permit provision in [16 U.S.C. § 1539(a)(1)(A) ]— is wholly unnecessary because [§ 1539(a)(1)(A) ] applies only to endangered species." Defs.' Mot. to Partially Vacate Am. Order [Docket Entry 49-1] at 9-10 (May 17, 2012) (" Defs.' Mot." ). Defendants acknowledge that " there is an analogous enhancement permit provision for threatened species in 50 C.F.R. § 17.32." Id. at 10. But they contend that plaintiffs would not need to obtain these enhancement permits because plaintiffs' trophies will be eligible for importation under the ESA's exemption for species listed in CITES Appendix II, 16 U.S.C. § 1538(2)(A). See 77 Fed. Reg. at 26207 (" When the wood bison is reclassified to threatened ..., import of trophies legally taken and properly [CITES-]permitted can also occur." ).

Rule 60(b)(5) allows the Court to " relieve a party ... from a final judgment" because, among other things, " applying it prospectively is no longer equitable." Fed.R.Civ.P. 60(b)(5). " [T]he Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest." Horne v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (internal quotation marks omitted).

A judgment can be modified under this portion of Rule 60(b)(5) " only to the extent that it has ‘ prospective application.’ " Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988). The standard " in determining whether an order or judgment has prospective application within the meaning of Rule 60(b)(5) is whether it is executory or involves the supervision of changing conduct or conditions." Id. at 1139 (internal quotation marks omitted). The Supreme Court's decision in State of Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1856), provides the definitive example of an executory decree. There, a court order directed that a bridge be either elevated or removed. The Supreme Court held that the part of the decree directing abatement of the construction had prospective application, explaining that, unlike a " judgment ...

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