United States District Court, D. Columbia.
For FRIENDS OF ANIMALS, Plaintiff: Michael Ray Harris, FRIENDS OF ANIMALS, Centennial, CO.
For SALLY JEWELL, in her official capacity as Secretary of Interior, U.S. FISH AND WILDLIFE SERVICE, an Agency of the United States, Defendant: Travis James Annatoyn, UNITED STATES DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division, Washington, DC.
For SAFARI CLUB INTERNATIONAL, Intervenor Defendant: Anna Margo Seidman, Douglas Scott Burdin, LEAD ATTORNEYS, SAFARI CLUB INTERNATIONA, Washington, DC.
BERYL A. HOWELL, United States District Judge.
Friends of Animals, an animal advocacy organization, brings suit against the National Fish and Wildlife Services (" FWS" ) and United States Department of Interior (collectively " the Federal Defendants" ), for a judgment declaring Title I, Section 127 of the Consolidated Appropriations Act, 2014 (" Section 127" ) unconstitutional or, alternatively, declaring that the Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (" Reinstatement Rule" ), 79 Fed.Reg. 15,250 (March 19, 2014), violates the Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act (" APA" ), 5 U.S.C. § 551 et seq. See First Amended Compl. for Injunctive and Declaratory Relief (" Am. Compl." ), ECF No. 10. Now pending before the Court is the plaintiff's Motion for Summary Judgment, ECF No. 16, the Federal Defendants' Cross Motion for Summary Judgment, ECF No. 17, and the Defendant-Intervenor Safari Club International's Cross-Motion for Summary Judgment, ECF No. 20. For the reasons stated below, summary judgment is granted in favor of the Federal Defendants and the Defendant-Intervenor.
The factual background of this dispute has been explained in great detail by this Court in Safari Club International v. Jewell, 960 F.Supp.2d 17, 22--46 (D.D.C. 2013), a related case in which all the present parties participated. Accordingly, the Court will summarize below only those issues most relevant to the present dispute.
This case involves issues surrounding the most effective method 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. As of June 2013, " [t]he oryx is believed to be extirpated in the wild, the addax numbers fewer than 300, and the dama gazelle numbers fewer than 500." 12-Month Findings on Petitions to Delist U.S. Captive Populations of the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed.Reg. 33,790 (June 5, 2013). Despite dwindling wild populations, captive populations of the three antelope species exist in the United States and other parts of the world. As of 2013, 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." Id. at 33,791; see also Final Rule to List the Scimitar-Horned Oryx, Addax, and Dama Gazelle as Endangered (" Listing Rule" ), 70 Fed.Reg. 52,319, 52,322 (Sept. 2, 2005).
The FWS, which is vested with the authority to designate the three antelope species as endangered under the ESA, has spent two decades considering the three antelope species 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 (the " Listing Rule" ) and the other of which provided a blanket exemption for U.S. captive-bred herds of the same species (the " Captive-bred Exemption" ). See Listing Rule, 70 Fed.Reg. 52,319; Exclusion of U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (" Captive-bred Exemption" ), 70 Fed.Reg. 52,310 (September 2, 2005). The Captive-bred Exemption permitted " 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.
The Captive-bred Exemption was almost immediately challenged in court. Two sets of plaintiffs--including the plaintiff in the present dispute, Friends of Animals--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. The lawsuits were consolidated in this jurisdiction. 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 National Environmental Policy Act, 42 U.S.C. § 4321, et seq. See id. at 106. In ruling on the parties competing motions for summary judgment, the court first determined that the plaintiffs had standing only " 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) of the ESA, 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). 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 " remanded" the consolidated cases to the FWS " for further proceedings consistent with the memorandum opinion[,]" leaving the decision of how best to proceed to the agency's discretion. See Order, No. 04-cv-01660, ECF No. 85-1, at 1; Order, No. 06-cv-02120, ECF No. 44-1, at 1.
In response to the court's decision declaring the Captive-bred Exemption invalid, various organizations sought to delist the three antelope species, while the FWS took steps to revoke the Captive-bred Exemption. On July 7, 2011, the FWS published a proposed rule to withdraw in full the Captive-bred Exemption. See Removal of the Regulation that Excludes U.S. Captive--Bred Scimitar--Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions, 76 Fed.Reg. 39,804 (July 7, 2011) (" Proposed Removal Rule" ). On January 5, 2012, the FWS issued its final rule removing the Captive-bred Exemption, effective April 4, 2012. 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 (January 5, 2012). The agency issued the Removal Rule as a necessary step to comply with the 2009 decision in Friends of Animals. The Removal Rule explained that:
This change to the regulations is in response to a court order that found that the rule for these three species violated section 10(c) of the [ESA]. These three antelope species remain listed as endangered under the [ESA], and a person will need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to conduct any prohibited activities.
Removal Rule, 77 Fed.Reg. at 431.
Shortly after the FWS issued the Proposed Removal Rule, but before issuance of the final Removal Rule, Safari Club International (" SCI" ) filed suit in this jurisdiction alleging that the Federal Defendants violated the ESA and the APA by including U.S. captive-bred herds of the three antelope species in the 2005 listing determination in the first instance, failing to remove U.S. captive-bred herds from endangered species status after the 2009 decision in Friends of Animals, and failing to respond in a timely manner to SCI's 2010 petition for delisting. See Safari Club Int'l, 960 F.Supp.2d at 40. Thereafter, the Exotic Wildlife Association filed suit in this Court on March 2, 2012, to invalidate and set aside the Removal Rule. See id. at 41.
Following consolidation of these two actions, this Court granted Friends of Animals' motion to intervene as a defendant, as well as the motion of one other animal conservation organization. See Safari Club Int'l v. Salazar, 281 F.R.D. 32 (D.D.C. 2012). Following extensive briefing, this Court upheld the Removal Rule as a " rational response" to the court's 2009 ruling in Friends of Animals holding the Captive-bred Exemption invalid. See Safari Club Int'l v. Jewell, 960 F.Supp.2d at 84.
This Court's ruling did not conclude the litigation, however. On January 17, 2014, President Obama signed into law the Consolidated Appropriations Act, 2014. Title I, Section 127 of the Act provides:
Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed.Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule.
Pub. L. No. 113-76, 128 Stat. 5, § 127. In other words, Congress mandated that the Secretary of the Interior re-issue the Captive-bred Exemption. On March 19, 2014, FWS complied with Section 127 and reinstated the Captive-bred Exemption. See Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From ...