United States District Court, D. Columbia.
For SAFARI CLUB INTERNATIONAL, Plaintiff: Anna Margo Seidman, Douglas Scott Burdin, Jeremy Evan Clare, LEAD ATTORNEYS, SAFARI CLUB INTERNATIONAL, Washington, DC.
For NATIONAL RIFLE ASSOCIATION OF AMERICA, Plaintiff: Christopher A. Conte, LEAD ATTORNEY, NATIONAL RIFLE ASSOCIATION, Fairfax, VA.
For SALLY JEWELL, In her official capacity as Secretary of the Department of the Interior, U.S. DEPARTMENT OF THE INTERIOR, An agency of the United States, DANIEL ASHE, In his official capacity as Director of the U.S. Fish and Wildlife Service, U.S. FISH AND WILDLIFE SERVICE, An agency of the United States, Defendants: Andrea Gelatt, Meredith L. Flax, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
ROYCE C. LAMBERTH, United States District Judge.
Plaintiffs Safari Club International and the National Rifle Association challenge two determinations issued by the United States Fish and Wildlife Service (" the Service" ) that suspended the importation of elephant trophies of sport-hunted elephants from Tanzania and Zimbabwe in 2014. Am. Compl. [Dkt. # 13]. Plaintiffs contend that the Service's determinations violate the Endangered Species Act (" ESA" ) and the Administrative Procedure Act (" APA" ). Pending before the Court are defendants' motion to dismiss, [Dkt. # 11] (" Mot. to Dismiss" ), and supplemental motion to dismiss, [Dkt. # 36] (" Suppl. Mot. to Dismiss" ), and plaintiffs' motion for leave to file a second amended and supplemented complaint, [Dkt. # 34] (" Mot. to Amend" ). The Court will grant defendants' motion to dismiss the Tanzania claims for failure to state a claim, deny the motion to dismiss the Zimbabwe claims, and grant plaintiffs' motion for leave to file a second amended complaint.
I. Legal Framework
The importation of sport-hunted African elephants into the United States is governed by both international convention and U.S. law.
A. The Convention on International Trade in Endangered Species of Wild Fauna and Flora
International trade in African elephants and other protect wildlife is governed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (" CITES" ). 27 U.S.T. 1087; T.I.A.S. 8249, Mar. 3, 1973. This treaty, which establishes requirements for importing
and exporting covered species, categorizes species into three appendices, depending on the level of protection each species requires. Relevant here, Appendix I includes species threatened with extinction, and Appendix II includes species for which trade is controlled to avoid trade incompatible with the species' survival. African elephants from Tanzania fall under Appendix I, while African elephants from Zimbabwe fall under Appendix II.
The treaty requires signatory states to establish a " Scientific Authority" and a " Management Authority" to make a variety of determinations regarding the propriety of importing and exporting covered species. CITES Art. IX. Before a country may allow the importation of a species on Appendix I, its Scientific Authority must determine, among other things, that " the import will be for purposes which are not detrimental to the survival of the species" -- sometimes referred to as a " non-detriment advice." CITES, Art. III (3); Am. Compl. ¶ 33. Previously pursuant to CITES Res. Conf. 2.11. (Annex 1), each country's Management Authority was required to make a determination that importing a species on CITES' Appendix I would enhance the survival of the species -- sometimes referred to as an " enhancement finding." Am. Compl. ¶ ¶ 34, 77-78, citing 57 Fed.Reg. 35473, 35485 (Aug. 10, 1992); Res. Conf. 2.11. (Annex 1). The treaty no longer imposes this enhancement finding requirement, but some countries, including the United States, maintain the requirement as part of their domestic law. See Am. Compl. ¶ ¶ 78-79.
B. The Endangered Species Act
The United States has implemented the CITES treaty through the ESA. 16 U.S.C. § § 1537a; 1538(c). The Fish and Wildlife Service's Division of Scientific Authority is responsible for issuing non-detriment advices as required by CITES. Decl. of Rosemarie S. Gnam, Ex. 2 to Mot. to Dismiss [Dkt. # 11-2] ¶ 1; see also Am. Compl. ¶ 36. The Service's Division of Management Authority is responsible for issuing CITES permits and making enhancement findings as formerly required by CITES and still required by the ESA. Decl. of Timothy Van Norman, Ex. 1 to Mot. to Dismiss [Dkt. # 11-1] ¶ ¶ 1-2.
Separately, the African elephant is listed as a threatened species under the ESA, and receives protections established by that statute. 43 Fed.Reg. 20499 (May 12, 1978); 50 C.F.R. § 17.11(h). Among them, the ESA prohibits the importation of endangered species, and it authorizes the Service to extend that same prohibition to threatened species, like the African elephant, see 16 U.S.C. § § 1538(a)(1), 1533, unless the Service has issued a special rule governing the threatened species, 50 C.F.R. § 17.31. Pursuant to that authority, the Service has issued a special rule governing African elephants. 43 Fed.Reg. 20499, 20502 (May 12, 1978); 47 Fed.Reg. 31384 (July 20, 1982); 57 Fed.Reg. 35473 (Aug. 10, 1992). The special rule allows the importation of sport-hunted African elephants into the United States if a number of conditions are met, including that the Division of Management Authority has made an enhancement finding for the country from which the elephant is being imported. 50 C.F.R. § 17.40(e)(3)(iii)(C).
C. Regulatory Requirements for Importing Sport-Hunted African Elephants
Because African elephants from Tanzania are on CITES Appendix I, hunters
must obtain import permits to import sport-hunted elephants from that country. CITES Art. III(3). The Service has combined the application for a CITES non-detriment advice and an ESA enhancement finding into a single import permit application, which the Service's Division of Management Authority considers on a case-by-case basis. Defs.' Mem. in Support of Mot. to Dismiss [Dkt. # 11] (" Defs.' Mem." ) at 5; Van Norman Decl. ¶ ¶ 13, 21.
Because African elephants from Zimbabwe are on CITES Appendix II, hunters are not required obtain import permits to import sport-hunted elephants from that country. CITES Art. IV(2); see also 62 Fed.Reg. 44627, 44633 (Aug. 22, 1997) (stating that " an import permit will no longer be required for non-commercial imports of African elephant sport-hunted trophies from [Botswana, Namibia, and Zimbabwe] only" ). An enhancement finding is still required under the ESA, however, before sport-hunted elephants from Zimbabwe may be imported into the United States. 50 C.F.R. § 17.40(e)(3)(iii)(C). These enhancement findings are made on a country-by-country basis. Defs.' Mem. at 4, citing Van Norman Decl. ¶ ¶ 2-3.
II. The Challenged Determinations
Until 2014, imports of legally sport-hunted African elephants from Tanzania and Zimbabwe had been allowed into the United States. The Division of Scientific Authority had issued non-detriment advices for African elephants from Tanzania and Zimbabwe since at least 1993, and the Division of Management Authority had made enhancement findings for sport-hunted African elephants from both countries since at least 1993. Am. Compl. ¶ 37, citing 60 Fed.Reg. 12969, 12969-70 (Mar. 9, 1995); Am. Compl. ¶ 80. That changed on April 4, 2014, when the Service announced determinations suspending importations of legally sport-hunted African elephant trophies from Tanzania and Zimbabwe for the remainder of 2014.
A. The Tanzania Non-Detriment Advice and Enhancement Finding
On February 21, 2014, the Service's Division of Scientific Authority issued a memorandum stating that it could not make a non-detriment advice for imports of sport-hunted elephants from Tanzania. General Advice on Importation of Sport-hunted Trophies of African Elephants taken in Tanzania in the Calendar Year 2014, Ex. I to Mot. for Prelim. Inj. [Dkt. # 4-13] (" Tanzania Advice" ) (explaining that the finding was based on increased poaching in and a significant decline in elephant populations in Tanzania). This memorandum was provided to the Division of Management Authority. Id.
On March 27, 2014, the Division of Management Authority issued a finding that the importation of sport-hunting trophies from Tanzania is not likely to enhance the survival of the species. Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Tanzania during 2014, March 27, 2014, Ex. J. to Mot. for Prelim. Inj. [Dkt. # 4-14].
Despite these determinations, the agency continues to accept permit applications:
If permit applications are received that include new or additional information showing that elephant management practices by the Government of Tanzania have led to the sustainability of its elephant population on a nation-wide basis, these applications should be referred to the Division of Scientific Authority for consideration on a case-by-case basis.
Tanzania Advice at 1.
On April 4, 2014, the Service announced the suspension of imports of sport-hunted African ...