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Safari Club International v. Jewell

United States District Court, District Circuit

August 9, 2013

SAFARI CLUB INTERNATIONAL, Plaintiff,
v.
SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior, [1]., Defendants. EXOTIC WILDLIFE ASSOCIATION, ., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ., Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge.

This case involves issues surrounding the most effective ways under the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., to conserve three antelope species – the scimitar-horned oryx, dama gazelle, and addax – whose herds have dwindled, if not disappeared, from their native environments in North Africa. The U.S. Fish and Wildlife Service (“FWS”), which is vested with the authority to designate the three antelope species as endangered under the ESA, has spent two decades considering these issues with input from both commercial and non-profit groups interested in conserving the species for different ends. These efforts culminated with the issuance, in 2005, of two rules, one of which listed the three antelope species as endangered and the other of which provided a blanket exemption for U.S. captive-bred herds of the same species. In 2009, another judge in this jurisdiction found the blanket exemption rule to be invalid under the ESA, prompting the FWS to issue a new rule repealing the exemption in 2012. Pending before the Court are challenges brought by two commercial groups to both the original 2005 listing rule and the 2012 repeal of the 2005 blanket exemption. For the reasons set forth below, the Court concludes that the agency rules will stand.[2]

This is a consolidated case with two sets of plaintiffs challenging two separate, but related, FWS final rules regarding the U.S. captive-bred populations of the three antelope species at issue.[3] The plaintiff in Safari Club International v. Jewell, 11-cv-01564 (“SCI Action”), brought suit, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), and the ESA, 16 U.S.C. §§ 1531, 1533, to challenge the listing, in 2005, of U.S. captive populations of the three antelope species as endangered species. See Final Rule to List the Scimitar-Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70 Fed. Reg. 52, 319 (Sept. 2, 2005) (codified at 50 C.F.R. pt. 17); SCI Compl. (“SCI Compl.”), 11-cv-01564, ECF No. 1, Counts I-IV.[4]

The plaintiffs in Exotic Wildlife Association v. United States Department of the Interior, 12-cv-00340 (“EWA Action”), brought suit under the APA to challenge a final rule, see Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Removal Rule”), 77 Fed. Reg. 431 (Jan. 5, 2012), which removed a 2005 regulation, see Exclusion of U.S. Captive-bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Captive-bred Exemption”), [5] 70 Fed. Reg. 52, 310 (Sept. 2, 2005) (to be codified at 50 C.F.R. pt. 17).[6] See EWA Compl. (“EWA Compl.”), 12-cv-00340, ECF No. 1. The Captive-bred Exemption was issued the same day as the Listing Rule and carved out a special exemption to the prohibitions normally applicable to endangered species specifically for U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle. See id. Since the Captive-bred Exemption was issued at the same time as the Listing Rule, the 2012 removal of the Captive-bred Exemption means that the three antelope species are subject, for the first time, to full enforcement of the regulations for endangered species.

This Court denied the plaintiffs’ motions for a preliminary injunction in the SCI Action and the EWA Action that would have essentially enjoined enforcement of the endangered species listing of the three antelope species pending the outcome of this litigation. See Safari Club Int’l v. Salazar, 852 F.Supp.2d 102, 103-04 (“SCI P.I. Decision”).[7] The Court later granted the motions to intervene, as defendant-intervenors, of several organizations: Friends of Animals, Defenders of Wildlife, the Humane Society of the United States, and Born Free USA (collectively, the “defendant-intervenors”).[8] See Safari Club Int’l v. Salazar, 281 F.R.D. 32, 42 (D.D.C. 2012) (“SCI Intervenors Decision”).

Pending before the Court are ten motions: four motions in the SCI Action, namely (1) SCI’s Motion for Summary Judgment, ECF No. 45, (2) Federal Defendants’ Cross-Motion for Summary Judgment, ECF No. 68, (3) DOW Intervenor-Defendants’ Cross-Motion for Summary Judgment, ECF No. 70, and (4) Defendant-Intervenor Friends of Animals’ Cross-Motion for Summary Judgment, ECF No. 73; and six motions in the EWA Action, namely (1) EWA’s Motion to Supplement the Administrative Record (“AR”), ECF No. 76, (2) EWA’s Motion for Summary Judgment, ECF No. 78, (3) Defendant-Intervenor Friends of Animals’ Motion to Dismiss, ECF No. 47, (4) Defendant-Intervenor Friends of Animals’ Cross-Motion for Summary Judgment (Lack of Standing), ECF No. 87, (5) Federal Defendants’ Cross-Motion for Summary Judgment, ECF No. 84, and (6) DOW Intervenor-Defendants’ Cross-Motion for Summary Judgment, ECF No. 83.[9]

The Court will address each set of motions in turn, first addressing the motions pending in the SCI Action and then proceeding to the motions pending in the EWA Action.[10] For the reasons explained below, in the SCI Action, the Court denies SCI’s Motion for Summary Judgment, ECF No. 45, and grants the cross-motions for summary judgment of the federal defendants, the DOW defendant-intervenors, and the defendant-intervenor Friends of Animals. ECF Nos. 68, 70, 73. As to the EWA Action, the Court denies EWA’s Motion for Summary Judgment, ECF No. 78, the Defendant-Intervenor Friends of Animals’ Cross-Motion for Summary Judgment (Lack of Standing), ECF No. 87, the Defendant-Intervenor Friends of Animal’s Motion to Dismiss, ECF No. 47, and the Plaintiff’s Motion to Supplement the AR, ECF No. 76, and grants the cross-motions for summary judgment of the federal defendants and the DOW defendant-intervenors. ECF Nos. 83, 84.

I. FACTUAL AND PROCEDURAL BACKGROUND[11]

A. Statutory And Regulatory Background Of The Endangered Species Act

The Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., enacted in 1973, is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation” in the world. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Indeed, it is landmark legislation, the purpose of which is “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). A brief review of the history of the ESA is helpful in understanding the context of the plaintiffs’ challenges to the Listing and Removal Rules.

The legislative history of the ESA reveals “[t]he long and painstaking development of the Federal endangered and threatened species program[.]” S. Rep. No. 97-418, at 3 (1982). The development of the program began in earnest in the 1960s, with the Endangered Species Preservation Act of 1966, which was the first comprehensive attempt at species conservation. See S. Rep. No. 97-418, at 1. That Act “[d]eclar[ed] the preservation of endangered species a national policy[.]” Tenn. Valley Auth., 437 U.S. at 174-75. While “the 1966 Act was an important step toward conserving endangered species, it had serious drawbacks including its failure to prohibit the taking of endangered species.” S. Rep. No. 97-418, at 2. Thus, Congress subsequently enacted the Endangered Species Conservation Act of 1969 to “correct[ ] several of the weaknesses of the 1966 Act.” Id.; see also Tenn. Valley Auth., 437 U.S. at 175 (noting that the 1969 legislation, for example, “empowered [the Secretary] to list species threatened with worldwide extinction” (citation and internal quotation marks omitted)).

Yet, “[e]ven with the 1966 and 1969 Acts, the endangered species program was far from adequate [because] [t]here still were no prohibitions on the taking of endangered species, and the habitat protection provisions were limited[.]” S. Rep. No. 97-418, at 2; see also Tenn. Valley Auth., 437 U.S. at 176 (explaining that while “the 1966 and 1969 legislation represented ‘the most comprehensive of its type to be enacted by any nation’ . . . a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized” (footnote omitted) (citation omitted)). Thus, although “the Acts of 1966 and 1969 [had] laid the framework for an increasingly effective endangered species conservation program, . . . the Department of the Interior ha[d] indicated some difficulties in expanding the practical effect of the program to the spirit of the original legislation[.]” S. Rep. No. 93-307, at 3 (1973).

Responding to these difficulties, Congress promulgated the ambitious ESA, creating a statutory framework to effectuate Congress’s goal of protecting vital and endangered species of animals. Indeed, the ESA “correct[ed] the shortcomings of its previous legislative efforts, ” S. Rep. No. 97-418, at 2, by “construct[ing] a comprehensive means to balance economic growth and development with adequate conservation measures[, ]” H.R. Rep. No. 97-567, pt. 1, at 10 (1982) (explaining that the ESA is a “multi-faceted measure . . . designed to restore species that are so depleted in numbers that they are in danger of, or threatened with, extinction”).

Congress enacted the ESA for reasons “beyond the aesthetic[, ]” including to ensure the continued existence of species to “perform vital biological services to maintain a ‘balance of nature’ within their environments” and provide “for biological diversity for scientific purposes.” S. Rep. No. 93-307, at 2. By the time the ESA was enacted in 1973, there had been “‘a dramatic rise in the number and severity of the threats faced by the world’s wildlife.’” Tenn. Valley Auth., 437 U.S. at 177 (quoting Endangered Species: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Env’t of the H. Comm. on Merchant Marine and Fisheries, 93rd Cong. 202 (1973) (statement of Nathaniel P. Reed, Ass. Sec. for Fish and Wildlife and Parks, Dept. of the Interior)). Wary that continued threats would result in future species extinction, Congress determined that endangered “species and their preservation is of value and a matter of concern to the United States for educational and scientific reasons and because the nation has made sovereign commitments . . . to protect such species of fish and wildlife facing extinction.” S. Rep. No. 93-307, at 6; see also H.R. Rep. No. 97-567, at 9. Underpinning the promulgation of the ESA was the belief that “‘it is in the best interest of mankind to minimize the losses of genetic variations’” because endangered species “‘are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.’” Tenn. Valley Auth., 437 U.S. at 178 (quoting H.R. Rep. No. 93-412, at 5 (1973)). There was also apprehension that loss of endangered species would impact “the unknown uses that endangered species might have and . . . the unforeseeable place such creatures may have in the chain of life on this planet[, ]” Tenn. Valley Auth., 437 U.S. at 178-79 (emphasis in original), and there was recognition that “species do not exist in isolation, but evolve and fluctuate in abundance because of their relationships with other species and the physical environment[, ]” Eugene H. Buck et al., Cong. Research Serv., R41608, The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices (“CRS – ESA – 112th Congress”), at 3 (2012). It was these interests that led to the creation of the ESA.

As noted, the ESA has three purposes, as enumerated in 16 U.S.C. § 1531(b):

[1] to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [2] to provide a program for the conservation of such endangered species and threatened species, and [3] 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).

“A major goal of the ESA is the recovery of species to the point at which the protection of the ESA is no longer necessary.” M. Lynne Corn et al., Cong. Research Serv., RL31654, The Endangered Species Act: A Primer (“CRS – ESA Primer”), at 5 (2012).[12] To reach this goal, as is relevant here, the ESA “authorizes the Department of the Interior to take measures to protect species at risk of extinction.” Otay Mesa Prop., L.P. v. U.S. Dep’t of Interior, 646 F.3d 914, 915 (D.C. Cir. 2011). The ESA’s comprehensive scheme includes, as discussed below: (1) a mechanism for listing a species as endangered in section 4, 16 U.S.C. § 1533, (2) prohibitions that protect an endangered species in section 9, 16 U.S.C. § 1538(a), and (3) exemptions to these prohibitions in section 10, 16 U.S.C. § 1539. While the ESA, on one hand, provides strict guidelines for the preservation of animal species, it also provides the Secretary of the Interior some flexibility in how the agency regulates endangered species once they are designated as endangered. Since the parties disagree with respect to how the agency decided to regulate the three antelope species, the Court will examine these statutory provisions in some detail.

1.Section 4 – Listing Species As Endangered Under The ESA

In promulgating the ESA, Congress recognized that, in order to be successful, the ESA must in particular “provide the Secretary[13] with sufficient discretion in listing and delisting animals so that he may afford present protection to those species which are either in present danger of extinction or likely within the foreseeable future to become so endangered[.]” S. Rep. No. 93-307, at 3. Thus, section 4 of “[t]he ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are ‘threatened’ or ‘endangered’ under specified criteria, and to designate their ‘critical habitat.’” Bennett v. Spear, 520 U.S. 154, 157-58 (1997) (citing 16 U.S.C. § 1533).

In order to make a listing determination, “the [FWS] must first define the species so the agency can estimate its population.” Am. Wildlands v. Kempthorne, 530 F.3d 991, 994 (D.C. Cir. 2008). The ESA explains that the term “species” “includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16).0

As used in this definition, the term “distinct population segment” (“DPS”) is not itself defined. See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (“DPS Policy”), 61 Fed. Reg. 4722, 4722 (Feb. 7, 1996). The FWS thus promulgated its own policy, in 1996, to define this term and detail the myriad of factors – including the “[d]iscreteness of the population segment[, ]” the “[s]ignificance of the population segment[, ]” and the “population segment’s conservation status” – that the agency must consider in designating a population as a DPS. See id at 4725.[14]

In promulgating the DPS Policy, the FWS acknowledged Congress’s direction that the Secretary should use its authority with respect to designating DPSs “‘sparingly’” and only in instances “‘when the biological evidence indicates that such action is warranted.’” Id. at 4722 (quoting S. Rep. No. 96-151, at 1397 (1979)). While Congress recognized “that there may be instances in which FWS should provide for different levels of protection for populations of the same species[, ]” S. Rep. No. 96-151, at 1397, it did not intend for this exception to swallow the general rule of listing species as a whole under the ESA. Indeed, Congress expressed its reluctance to allow the DPS authority to be used widely, and noted that it was “aware of the great potential for abuse of this authority.” Id. The FWS, in promulgating the policy, noted specifically that “[t]he Services have used this authority relatively rarely; of over 300 native vertebrate species listed under the Act, only about 30 are given separate status as DPS’s.” DPS Policy, 61 Fed. Reg. at 4722.

An endangered species is a species that “is in danger of extinction throughout all or a significant portion of its range[.]” 16 U.S.C. § 1532(6). While “[s]pecies may be listed on the initiative of the appropriate Secretary or by petition from an individual, group, or state agency[, ]” CRS – ESA Primer at 8, and “[t]he public may play an active role in this process. . . . [t]he final decision on whether or not to list the species as endangered or threatened rests with the Secretary[, ]” H.R. Rep. No. 97-567, at 10; see also 16 U.S.C. § 1533(b)(3).

The ESA states that “[t]he Secretary 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 a listing 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); see also Am. Wildlands, 530 F.3d at 994.

Determining “[w]hether a species has declined sufficiently to justify listing is a biological, not an economic, question[, ]” H.R. Rep. No. 97-567, at 12, and thus listing decisions must be made “without reference to economic costs or private property impacts[, ]” Robert Meltz, Cong. Research Serv., RL31796, The Endangered Species Act (ESA) and Claims of Property Rights “Takings” (“CRS – ESA – Takings”), at 2 (2013); see also CRS – ESA Primer at 18 (“[T]he ESA makes clear that the question of whether a species is endangered or threatened is a scientific decision in which economic factors must not play a part.”).

Under the ESA’s listing requirements, “[a]s of February 28, 2012, a total of 1, 199 species of animals and 797 species of plants were listed as either endangered or threatened under the ESA[.]” CRS – ESA – 112th Congress at 2; see also 50 C.F.R. § 17.11(h) (“List of Endangered and Threatened Wildlife”). Such listings are made without “distinction between wild or captive populations, populations of native or non-native species or species that are bred in captivity.” SCI AR 135.0004 (FWS Letter to Hunter Schuele, dated May 7, 1993). Indeed, out of all listed species of animals, the FWS has represented to the Court that there is only one instance “in which members of a species held in captivity are designated differently than members of the species in the wild.” Fed. Defs.’ Notice of the Publication of a Proposed Rule and 12-Month Finding on Chimpanzees, ECF No. 118, at 1. That one instance is the chimpanzee, and recently, on June 12, 2013, the FWS has proposed a rule to list all chimpanzees – captive and wild – as endangered. See id. (citing Listing All Chimpanzees as Endangered, Proposed Rule and 12-month Petition Finding, 78 Fed. Reg. 35, 201 (June 12, 2013) (to be codified at 50 C.F.R. pt. 17)). If the FWS finalizes the rule governing chimpanzees, there will be no instances of members of a listed species held in captivity designated differently than members of the species in the wild. See id.

2. Section 9 Prohibitions

“When a species . . . is listed as either ‘threatened’ or ‘endangered’ under the [ESA], it is then subject to a host of protective measures designed to conserve the species.” Safari Club Int’l v. Salazar (In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig. - MDL No. 1993), 709 F.3d 1, 2 (D.C. Cir. 2013). The species are subject, for example, to the section 9 prohibitions, which make it unlawful “for any person subject to the jurisdiction of the United States” to, inter alia, “import[, ]” “export[, ]” “possess, sell, deliver, carry, transport, or ship, by any means whatsoever[, ]” “take any such species within the United States or the territorial sea of the United States[, ]” “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[, ]” or to “sell or offer for sale in interstate or foreign commerce any such species[.]” 16 U.S.C. § 1538(a); see also Humane Soc’y of U.S. v. Kempthorne, 527 F.3d 181, 182 (D.C. Cir. 2008); CRS – ESA – Takings at 2 (“Listing and critical habitat designation trigger . . . Section 9’s prohibitions[.]”).

The prohibition on “take” means that it is unlawful “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). In particular, the term “harm” refers to “an act which actually kills or injures wildlife[, ]” while the term “harass” means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.” 50 C.F.R. § 17.3. When applied to captive animals, the definition for “harass” does not include the “generally accepted” practices of animal husbandry, breeding, or aspects of veterinary care. Id.

3. Section 10 Permitting Exemptions

While the ESA contains strict guidelines when it comes to determining whether a species should be listed as endangered, the ESA provides more flexibility to the FWS in assessing how to conserve a species after it has been listed.

Section 10 of the ESA grants authority to the FWS to make certain exceptions to the section 9 prohibitions described above. See 16 U.S.C. § 1539(a)(1)(A). While the “taking” of an endangered species is generally prohibited, the ESA allows some “taking” of endangered species through its permitting program, limited to take that “is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity[, ]” 16 U.S.C. § 1539(a)(1)(B), or “for scientific purposes or to enhance the propagation or survival of the affected species, ” 16 U.S.C. § 1539(a)(1)(A); see also CRS – ESA Primer at 14 (“For actions by private parties that might take a listed species, but without any federal nexus such as a loan or permit, the Secretary may issue permits to allow ‘incidental take’ of species for otherwise lawful actions.”).

Section 10(c) requires the FWS to “publish notice in the Federal Register of each application for an exemption or permit which is made under this section, ” and further provides that “[e]ach notice shall invite the submission from interested parties . . . of written data, views, or arguments with respect to the application[.]” 16 U.S.C. § 1539(c). “Information received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.” Id. Section 10(d) additionally provides for “exceptions under subsections 10(a)(1)(A) and (b)” if the Secretary finds and publishes in the Federal Register that the exceptions are (1) “in good faith, ” (2) “will not operate to the disadvantage of such endangered species, ” and (3) “will be consistent with the purposes and policy” of the ESA. 16 U.S.C. § 1539(d).

The FWS has promulgated regulations detailing the application requirements for individual permits as well as the criteria for the issuance of permits. See 50 C.F.R. § 17.22. Under the authority of section 10, the FWS has also promulgated a permitting program aimed at “enhanc[ing] the propagation or survival” of captive-bred wildlife. See 50 C.F.R. § 17.21(g). Pursuant to this regulation, a 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[, ]” inter alia, “[t]he purpose of such activity is to enhance the propagation or survival of the affected species[.]” Id.

B. Statutory Background Of The National Environmental Policy Act

The plaintiffs in the EWA Action claim that the FWS violated not only the APA and ESA but also the National Environmental Policy Act (“NEPA”) in promulgating the Removal Rule. NEPA represents “a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989) (citing 42 U.S.C. § 4331). It was created to advance “three major purposes[, ]” namely:

(1) to declare protection of environmental quality to be a national policy and provide a mandate to all Federal agencies to effect that policy; (2) to create a Council on Environmental Quality to insure that the mandate is carried out; and (3) to establish a set of ‘action forcing’ procedures requiring an environmental impact statement on any proposed major Federal action which could significantly affect the quality of the environment.

S. Rep. No. 94-152, at 3 (1975).

NEPA requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (“EIS”) 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); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 15-16 (2008). The EIS is a “detailed statement of environmental consequences[.]” Kleppe v. Sierra Club, 427 U.S. 390, 394 (1976). “The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA’s ‘action-forcing’ purpose in two important respects[, ]” Robertson, 490 U.S. at 349, by (1) “‘ensur[ing] that the agency, in reaching its decision, will have available and will carefully consider, detailed information concerning significant environmental impacts’” and (2) “‘guarantee[ing] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision[, ]’” Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 188 (D.C. Cir. 2013) (quoting Robertson, 490 U.S. at 349).

There are exceptions to the NEPA requirement that agencies prepare an EIS, however, including that an agency need not prepare an EIS (1) “if it finds, on the basis of a shorter ‘environmental assessment’ (EA), that the proposed action will not have a significant impact on the environment[, ]” Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2750 (2010) (citing 40 C.F.R. §§ 1508.9, 1508.13 (2009)), (2) “[w]here an agency lacks discretion concerning the action to be taken, ” see EWA Fed. Defs.’ Mem. in Supp. of Cross-Mot. for Summ. J. and in Opp’n to Pls.’ Mot. for Summ. J. (“EWA Fed. Defs.’ Mem.”), ECF No. 84, at 25 (citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C. Cir. 2001) (explaining that where “the agency does not have sufficient discretion to affect the outcome of its actions, and its role is merely ministerial, the information that NEPA provides can have no affect [sic] on the agency’s actions, and therefore NEPA is inapplicable”)), and (3) where the agency action falls under a “categorical exclusion, ” Reed v. Salazar, 744 F.Supp.2d 98, 103 (D.D.C. 2009).

C. Overview Of The FWS’s Regulatory Efforts To Conserve The Three Antelope Species And Legal Challenges To Those Efforts

The history of the FWS’s regulatory efforts with respect to the three antelope species reaches back more than two decades, and litigation over those efforts reaches back nearly as long. The Court reviews this complex web of regulatory efforts and litigation challenges below.

As a preliminary matter, however, the Court first briefly describes the three antelope species, all native to the continent of Africa, at the center of these regulatory efforts. The scimitar-horned oryx, which once had an extensive range in North Africa, stands about 47 inches tall and weighs about 450 pounds with a generally pale coat and dark reddish brown neck and chest. See Listing Rule, 70 Fed. Reg. at 52, 319. Adult oryx possess a pair of horns curving back in an arc up to 50 inches. See id. The addax, which once existed throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River, stands about 42 inches tall and weighs around 220 pounds with a grayish white coat and spiral horns which twist up to 43 inches long. See id. The dama gazelle, the largest of the gazelles and the smallest of the three antelope species at issue in this suit, was once common and widespread in arid and semi-arid regions of the Sahara. This animal is about 39 inches tall at the shoulder and weighs about 160 pounds with a mostly reddish brown body, but a white head, rump, and underparts. See id. The dama gazelle’s horns extend back and up, reaching a length of about 17 inches long. See id.

“Wild numbers of the three antelopes have declined drastically over the past 50 years” as a result of “habitat loss, uncontrolled killing, and the inadequacy of existing regulatory mechanisms.” Captive-bred Exemption, 70 Fed. Reg. at 52, 310. As of the 2005 Listing Rule, there had been no sightings of wild scimitar-horned oryx since the mid-1980s, and there were estimates that the addax “probably numbers fewer than 600 in the wild[, ]” and the dama gazelle numbers “fewer than 700 in the wild.” Id.[15]

Captive populations of the three antelope species exist in the United States and other parts of the world, including on ranches owned by some of the plaintiffs in this consolidated case. As of the Listing Rule in 2005, the FWS cited estimates from the Sahelo-Saharan Interest Group that there were “about 4, 000-5, 000 scimitar-horned oryx, 1, 500 addax, and 750 dama gazelle in captivity worldwide.” Listing Rule, 70 Fed. Reg. at 52, 322. As to the captive populations within the United States, a 2004 study conducted by Dr. Elizabeth Mungall for the EWA regarding population and habitat conditions of the three antelope species indicated that the population of these animals held privately in Texas had soared over time, with the population of scimitar-horned oryx increasing from 32 in 1979, to 1, 006 in 1994, to 2, 145 in 1996; the population of addax increasing from 2 in 1971, to 587 in 1994, to 1, 824 in 1996; and the population of dama gazelle increasing from 9 in 1979, to 149 in 1994, to 91 in 1996, to 369 in 2003. See SCI Mem. in Supp. of Mot. for Summ. J. (“SCI Mem.”), ECF No. 45, at 4-5 (citing SCI AR 221.0005, Ex. A, ECF No. 45-2, Elizabeth Cary Mungall, Submission for the Comment Period on Proposed Listing of Scimitar-Horned Oryx, Addax, and Dama Gazelle Under the Endangered Species Act 2 (2004)).

1. FWS Regulatory Efforts From 1991-2004

It is in the context of dwindling numbers of the three antelope species in the wild that, in 1991, the FWS began a decades-long pursuit to protect the three antelope species under the ESA by proposing an endangered status listing for these animals. See Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 56 Fed. Reg. 56, 491 (Nov. 5, 1991) (to be codified at 50 C.F.R. pt. 17). That proposal recognized that the three antelope species “were declining in numbers and had been eliminated in much of their range[, ]” and sought feedback as the agency considered alternatives such as listing the species “as endangered, as threatened with special regulations, or as threatened by reason of similarity of appearance.” Id. at 56, 491-92.

As a critical part of the deliberations, the FWS opened comment periods on the proposed rule on three additional occasions: on June 8, 1992, July 24, 2003, and November 26, 2003. See Reopening of Comment Period on Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 57 Fed. Reg. 24, 220 (June 8, 1992) (to be codified at 50 C.F.R. pt. 17); Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle, 68 Fed. Reg. 43, 706 (July 24, 2003) (to be codified at 50 C.F.R. pt. 17); Endangered Status for Scimitar-Horned Oryx, Addax, and Dama Gazelle, 68 Fed. Reg. 66, 395 (Nov. 26, 2003) (to be codified at 50 C.F.R. pt. 17). Over the course of those comment periods, the agency received a total of 56 comments, mostly from U.S. game ranchers (who accounted for 62.5% of the comments), as well as zoos and zoo organizations (8.9% of comments), governments of range countries (7.1%), hunting organizations (7.1%), exotic wildlife breeding organizations (5.4%), the general public (5.4%), and international scientific organizations (3.6%). See Listing Rule, 70 Fed. Reg. at 52, 320. In summarizing the comments from that period, the FWS found that “[n]o comments were submitted that demonstrate that the three antelope species do not qualify as endangered under the [ESA].” Id. (emphasis added).

As early as 1991, the FWS considered that “[c]aptive and free-roaming groups, outside of the natural ranges of the species, may be covered separately from natural populations in any final rule.” Proposed Endangered Status for Scimitar-horned Oryx, Addax, and Dama Gazelle, 56 Fed. Reg. at 56, 491; SCI AR 56.0001. Indeed, over the next decade, the FWS debated this issue internally, entertained possibilities within the agency of listing the captive members of the species differently than wild members of the species, and “drafted a number of final listing rules based on these alternatives.” SCI Fed. Defs.’ Mem. in Opp’n to Pl.’s Mot. for Summ. J. and in Supp. of Cross-Mot. for Summ. J. (“SCI Fed. Defs.’ Mem.”), ECF No. 68, at 14 (citing SCI AR 65.0005 (draft rule to list only wild members of the three antelope species as endangered); SCI AR 83-109 (draft rule to list captive and wild members of the three antelope species in their native ranges as endangered); SCI AR 109.002 (draft rule to list only wild members of the three antelope species as endangered); SCI AR 135.0014, 135.0044, 135.0071 (draft rule to list wild members of the three antelope species as endangered and captive animals as threatened); SCI AR 140.0013 (draft rule to list all members of the three antelope species as endangered)).

The agency was keenly aware that, while there was widespread agreement that the three antelope species were endangered in the wild, commenters largely opposed inclusion of captive members of the species within an endangered listing. Of the comments submitted over the course of the comment periods, scientific authorities in two African countries, which encompass native ranges of the three antelope species, supported the proposed rule listing as endangered all members of the three antelope species. Listing Rule, 70 Fed. Reg. at 52, 320. All of the other commenters, however, including the zoo community and the exotic animal ranching community, opposed listing the captive members of the species, which, unlike the three antelope species in the wild, were “relatively robust.” Id. Indeed, the exotic ranching community voiced “uniform” opposition to the rule, expressing concern that it would provide a disincentive for continuing to breed the animals. Id. The ranchers were concerned, in particular, about “the need to go through potentially lengthy and cumbersome permit processes to continue their longstanding activities with these species, in accordance with the regulations at 50 CFR 17.21(g)(1).” Id.

The Listing Rule’s drafting period appears to have stretched over a period of fourteen years for two primary reasons. First, the agency engaged in an active debate during which the “proposal was never finalized due to issues about how best to address captive populations of these species under a Section 4 listing.” SCI AR 153 (Note from Eleanora Babij, Division of Scientific Authority (“DSA”) to Reviewer, dated Oct. 28, 2002). The SCI AR indicates that the agency was sensitive to the concerns of the exotic ranchers, noting the “legitimate desire to avoid imposing unnecessary restrictions on U.S. ranchers with large populations of these three species and at the same time not creating unnecessary permit issuance work.” SCI AR 136.0004 (Memorandum from Charles Dane, Chief of the Office of Scientific Authority (“OSA”) to Chief, Division of Endangered Species, dated Mar. 14, 1994, stating “extreme[ ] frustrat[ion]” with “efforts to provide appropriate protection to the obviously endangered African antelopes”); see also SCI Mem. in Supp. of Mot. for Summ. J. (“SCI Mem.”), ECF No. 45, at 12 (“The [FWS’s] protracted deliberation over the listing status of the three species was due in great part to the agency’s dilemma as to how to protect the species in the wild without severely undermining the trade and use that had so benefitted the U.S. population numbers and health of the captive herds.”). Indeed, the SCI AR is replete with documents asserting proposed means to deal with the U.S. captive-bred three antelope species in the face of the need to list the wild three antelope species as endangered. See, e.g., SCI AR 135.0008 (Memorandum from Ronald Nowak, OSA, to Charles Dane, Chief, OSA, dated Oct. 25, 1993, discussing various “alternatives for proceeding (or not proceeding)” with a final listing rule).

Second, a lack of funding for the FWS, beginning in 1995, resulted in a work backlog. See Biodiversity Legal Found. v. Norton, 285 F.Supp.2d 1, 5-6 (D.D.C. 2003); SCI Fed. Defs.’ Mem. at 1 (“In the years following [the initial 1991] proposal, the [FWS] deliberated over the proper listing status for the species in light of the large numbers of the species held in captivity, including in the United States, and then took no further action on the proposed listing rule due to funding constraints.”). Beginning in April 1995, “a number of spending moratoria . . . prohibit[ed] the [FWS] from listing species as endangered or threatened and prohibit[ed] the designation of critical habitats for species already listed.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1183 (10th Cir. 1999); see also Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-6, 109 Stat. 73 (1995). In enacting these moratoria, Congress “‘prohibited the expenditure of the remaining appropriated funds for final determinations to list species or to designate critical habitat which, in effect, placed a moratorium on those activities.’” Biodiversity Legal Found., 285 F.Supp.2d at 5-6 (citation omitted). When “President Clinton waived the moratorium the day he signed the [1996 appropriations bill] into law, ” the FWS had “a backlog of 243 proposed species listings on which it was required to make a final determination, ” “182 candidate species whose conservation status needed determination, numerous court orders to take various actions under Section 4 of the ESA, and 57 petitions to list species under the ESA.” Forest Guardians, 174 F.3d at 1183 & n.7 (citing Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321 (1996)). The FWS continued to operate with a backlog for years after the moratorium was lifted. Forest Guardians, 174 F.3d at 1183. As the SCI AR indicates, the moratorium evidently contributed to the delay in issuing the Listing Rule. See SCI AR 143 (Memorandum from Charles Dane, OSA, to Director, FWS, dated Oct. 12, 1995, noting that “further action” in listing the three antelope species was “deferred during moratorium”); SCI AR 149 (Note to file from Pamela Hall, DSA Biologist, signed by Susan Lieberman, Chief, DSA, dated Jan. 23, 2001, stating that the “Division of Scientific Authority decides NOT to move forward with a final rule at this time, as other issues and species listing proposals are of higher priority” (emphasis in original)); SCI AR 216 (Email from Roddy Gabel, Chief, DSA, to Peter Galvin, dated Dec. 15, 2003, noting that the DSA was “still pushing along on [its] efforts to address [its] ESA backlog”).

2.2005 Listing Rule

After environmental and animals rights groups sued the FWS for failing to complete the rulemaking process for the three antelope species, see SCI Fed Defs.’ Mem. at 1, 16, the agency, on September 2, 2005, listed the three antelope species as a whole, including wild and captive populations worldwide, as endangered under the ESA. See Listing Rule, 70 Fed. Reg. at 52, 321-22. As noted, species may be listed as endangered or threatened based on one or more of the five listing factors in ESA section 4(a)(1). In the case of the three antelope species, the FWS determined that the three antelope species were in danger of extinction based on four of the five factors, namely: (1) present or threatened destruction, modification, or curtailment of habitat or range, (2) overutilization for commercial, recreational, scientific, or educational purposes, (3) inadequacy of existing regulatory mechanisms, and (4) other natural or manmade factors. See id. Of the five factors, the FWS determined that the three antelope species were not in danger of extinction based on disease or predation. See id.

The Listing Rule, citing relevant scientific research, summarized in detail how these factors applied to the three antelope species, and concluded that “[b]ecause these threats place the species in danger of extinction throughout all or a significant portion of their ranges (in accordance with the definition of ‘endangered species’ in section 3(6) of the Act), we find that the scimitar-horned oryx, addax, and dama gazelle are endangered throughout their ranges, pursuant to the [ESA].” Id. at 53, 322-23. Accordingly, the Listing Rule applied an endangered classification to the species “wherever they occur[, ]” including in the captive-breeding programs which had documented success in “increas[ing] the numbers of these animals while genetically managing their herds.” Id.

With respect to the question of whether the captive members of the species would be listed separately or with some other designation, the FWS recognized “the role of captive breeding in the conservation of these species, ” but noted that “continued habitat loss and wonton killing have made reintroduction nonviable in most cases[, ]” and concluded, consistent with its policy and practice of listing species as a whole as endangered, that “[i]t would not be appropriate to list captive and wild animals separately.” Id. at 52, 320, 52, 322; see, e.g., SCI AR 155.0001 (Note to reviewers, dated Aug. 28, 2002, explaining that “[i]n order to be consistent in the way with which other listed species are treated, we propose in this notice that our most viable option is not to treat captive populations differently from the wild populations and to list all 3 antelopes species as Endangered”).[16]

3. 2005 Captive-bred Exemption

While the FWS determined that the three antelope species must be classified as endangered and that “[i]t would not be appropriate to list captive and wild animals separately[, ]” Listing Rule, 70 Fed. Reg. at 52, 320, the agency simultaneously promulgated a Captive-bred Exemption, codified at 50 C.F.R. § 17.21(h), that would permit “otherwise prohibited activities that enhance the propagation or survival of the species[, ]” including “take; export or re-import; delivery, receipt, carrying, transport or shipment in interstate or foreign commerce, in the course of commercial activity; or sale or offering for sale in interstate or foreign commerce.” See Captive-bred Exemption, 70 Fed. Reg. at 52, 311, 52, 317.[17]

The FWS recognized that subjecting the captive-breeders of the three antelope species to the normal permitting process under ESA’s section 10 could deter the breeders from continuing their breeding operations. The FWS explained that “[i]t was critical that development of a rule that provides an incentive to continue captive breeding of these species proceed concurrently with the determination of their legal status under the [ESA] to ensure that no breeding programs would be disrupted by a final listing determination[.]” Id. at 52, 313. Indeed, in the Record of Compliance the FWS prepared for the Captive-bred Exemption, the agency acknowledged that “[l]isting the species without exempting the U.S. captive-bred population could be a deterrent to further captive breeding.” SCI AR 237.0122, Ex. S, ECF No. 45-20, at 2 (United States Department of the Interior, Record of Compliance for a Rulemaking Document, dated Jan. 7, 2005). The Economic Analysis of the Proposed Rule, an Appendix to the Record of Compliance, explained that listing the entire species of the three antelope without an exemption from permitting requirements “is possible, but it would remove all economic incentive to conserve the species by discouraging captive-breeding” and that “[w]ithout the ability to cover all costs of captive breeding there is no economic incentive to continue.” SCI AR 237.0128, Ex. T, ECF No. 45-21, at 3 (Appendix to Record of Compliance for a Rulemaking Document, Economic Analysis of the Proposed Rule). Under this exemption, “each person claiming the benefit of the exception” was required to “maintain accurate written records of activities, including births, deaths, and transfers of specimens, and make those records accessible to [FWS] officials for inspection at reasonable hours[.]” Captive-bred Exemption, 70 Fed. Reg. At 52, 319. Additionally, any export of the three antelope species was required to meet certain “marking and reporting requirements for export . . ., general permit requirements and conditions . . ., and all [Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”)] requirements.” Id. at 52, 317.

In promulgating the exemption of the U.S. captive-bred three antelope species from certain prohibitions, on September 2, 2005, the FWS acknowledged that captive breeding in the U.S. had been helpful for the survival of the three antelope species, noting that “[c]aptive breeding in the United States has enhanced the propagation or survival” of the three antelope species “by rescuing these species from near extinction and providing the founder stock necessary for reintroduction.” Id. at 52, 310. The FWS elaborated, explaining, inter alia, that “[c]aptive-breeding programs operated by zoos and private ranches have effectively increased the numbers of these animals while genetically managing their herds” and that “[a]s future opportunities arise for reintroduction in the antelope range countries, captive-breeding programs will be able to provide genetically diverse and otherwise suitable specimens.” Id. at 52, 310-11. Thus, although the Listing Rule deemed the three antelope species to be endangered, the FWS specifically responded to commenters’ concerns by proposing, and ultimately issuing, the Captive-bred Exemption, to provide a blanket exemption from the enforcement of endangered species status for U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle.

The FWS explained in response to a comment that while it “typically authorizes activities under section 10(a)(1)(A) of the [ESA] on a case-by-case basis through the issuance of individual permits or authorizations, there is no requirement that we may do so only via this process” and that “[t]he requirements for notification and opportunity for public comment under section 10(c) and publication of final determinations under section 10(d) have been satisfied through this rulemaking process.” Id. at 52, 313. It commented that exempting the U.S. captive-bred members of the three antelope species from the prohibitions of section 9 of the ESA would “reduce the regulatory impacts on captive-breeding operations” and “reduce economic costs of the listing” and that the “economic effect of the rule is a benefit to the captive-breeding operations for the three antelope species because it allows the take and interstate commerce of captive-bred specimens.” Id. at 52, 317. Thus, recognizing the contributions of captive-breeders, the agency attempted to accommodate the concerns of commercial breeders and others that the agency’s default permitting system would be too burdensome by providing a blanket exemption from otherwise prohibited activities.

4. 2009 District Court Challenge To The Captive-bred Exemption (“2009 Decision”)

The Captive-bred Exemption was almost immediately challenged in court by two sets of plaintiffs, including all of the defendant-intervenors in this case as well as an individual plaintiff, who filed lawsuits in the United States District Court for the Northern District of California and the United States District Court for the District of Columbia. Those lawsuits were consolidated in this jurisdiction, and SCI and EWA intervened as defendants. See Friends of Animals v. Salazar, 626 F.Supp.2d 102, 105-06 (D.D.C. 2009). In the consolidated lawsuit, the plaintiffs alleged that the FWS unlawfully promulgated the Captive-bred Exemption in violation of several sections of the ESA and the NEPA. See id. at 106.

The Court first determined that the plaintiffs only had standing “to pursue their claim that the FWS violated subsection 10(c) of the [ESA] when it promulgated the [Captive-bred Exemption.]” Id. at 114-15. The Court then granted summary judgment in favor of the plaintiffs because the Captive-bred Exemption violated section 10(c), which provides that “[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section.” 16 U.S.C. § 1539(c) (emphasis added). Specifically, the Court determined “that the text, context, purpose and legislative history of [section 10] make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application” rather than in the form of a blanket exemption. Friends of Animals, 626 F.Supp.2d at 115. The Court provided several reasons for its decision. First, the Court considered the plain language of the statute, concluding that “Congress clearly contemplated that the FWS would exercise its authority to grant exceptions under ‘this section’ (i.e., section 10) by responding to individual applications.” Id. at 117. Second, the Court found that the Captive-bred Exemption undermines the purpose of section 10(c) by “hinder[ing] the ability of individuals and groups to participate in the meaningful way contemplated by the ESA” by not engaging in a case-by-case issuance of permits and thus rendering it “impossible to evaluate whether each permitted act will enhance the propagation or survival of the species.” Id. at 118-19 (explaining that under the Captive-bred Exemption, the “plaintiffs are deprived of the information they would otherwise be provided to assess whether individual facilities will or are in fact maintaining the antelope species in a manner that contributes to their propagation or survival and thus are entitled to the exception” and that the Captive-bred Exemption “flies in the face of the ‘meaningful opportunity’ that subsection 10(c) was intended to provide” (citation omitted)). Finally, the Court considered the legislative history of section 10, concluding that “the FWS’s interpretation that it may permit broad exceptions, as opposed to individual permits, does appear to be at odds with this legislative history” and that “[b]lanket exemptions under regulations are anathema to this intention because they allow the FWS to permit a great number of exemptions at once without providing the detailed information to the public that would be required in an individualized analysis.” Id. at 119.

The Court recognized that the FWS issued the Captive-bred Exemption “[a]t the same time that the FWS listed the antelope as endangered” so as to exempt captive-bred members of the three antelope species from the Listing Rule regulations. Id. at 107. The Court further acknowledged that “‘[b]ased on information available to the [FWS], captive breeding in the United States has contributed significantly to the conservation of these species.’” Id. (quoting Captive-bred Exemption, 70 Fed. Reg. at 52, 315). Nevertheless, bound by the “text, context, purpose and legislative history of section 10, ” id. at 116, the Court flatly rejected the FWS’s efforts to defend the rule for a blanket exemption from ESA’s section 9 prohibitions. The Court then “remanded” the consolidated cases to the FWS “for further proceedings consistent with the memorandum opinion[, ]” see Order, 04-cv-01660, ECF No. 85-1, at 1; Order, ...


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