United States District Court, District of Columbia
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiffs Friends of Animals and the Zimbabwe Conservation Task Force have brought this action against federal defendants Daniel Ashe, Director of the U.S. Fish and Wildlife Service (“FWS” or “the Service”), and Sally Jewell, U.S. Secretary of the Interior. They challenge the decision by the Service to issue permits authorizing two American hunters to import the trophies they garnered in legal hunts of black rhinoceros in Namibia. Plaintiffs contend that the issuance of the permits violated the Administrative Procedure Act, the Endangered Species Act, and the National Environmental Policy Act. Am. Compl. [Dkt. # 5]. The Ministry of Environment and Tourism of the Republic of Namibia, which licensed the hunts, and the Dallas Safari Club and Conservation Force, the organizations that helped the hunters obtain the challenged permits, have all intervened in the case as defendants.
The federal defendants and the intervenors have moved to dismiss the case on the grounds that plaintiffs lack standing and that several of their counts fail to state a claim. While it is undisputed that the black rhinoceros is an endangered animal in need of the world’s protection, plaintiffs have failed to show that they have standing to pursue their claims, and the Court will grant the motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Furthermore, Count III also fails because it does not identify a final agency action subject to challenge under the APA.
Both international convention and U.S. law govern the importation of endangered species and the hunting trophies at issue in this case.
I. Legal Framework
A. The Convention on International Trade in Endangered Species of Wild Fauna and Flora
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 (“CITES”), is a multilateral treaty that regulates the international trade of protected wildlife, including the black rhinoceros. Both the United States and Namibia are signatories to the treaty. CITES categorizes covered species into three appendices depending upon the level of protection the species requires, and it sets restrictions on their import and export. The black rhinoceros falls under Appendix I of CITES, which applies to “all species threatened with extinction which are or may be affected by trade.” CITES, Art. II(1).
Before a member country may import an Appendix I species, CITES requires the importing country, among other things, to make a determination that “the import will be for purposes which are not detrimental to the survival of the species.” CITES, Art. III(3)(a); Am. Compl. ¶ 33. Correspondingly, the exporting country must make the same determination with respect to the export. CITES, Art. III(2)(a).
Pursuant to the treaty, signatories establish country-by-country provisions governing the trade of specific species. CITES signatories adopted a resolution in 2004 that set an annual export quota of five hunting trophies of adult male black rhinoceros from Namibia. Resolution Cong. 13.5 (Rec. CoP14), http://www.cites.org/eng/res/13/13-05R14C15.php. There is no claim in this case that this limit has been exceeded.
B. The Endangered Species Act
The Endangered Species Act is a U.S. law that seeks to conserve endangered and threatened species, 16 U.S.C. § 1531, and implements the CITES treaty through U.S. law. Id. §§ 1537a; 1538(c). The Act authorizes the Secretary of the Interior to list species as “threatened” or “endangered.” 16 U.S.C. § 1533. FWS, to which the Secretary has delegated the authority for administering the Act,  has listed the black rhinoceros as “endangered.” Endangered and Threatened Wildlife and Plants; Endangered Status for the Black Rhinoceros, 45 Fed. Reg. 47, 352 (July 14, 1980).
The Act makes it unlawful to “take” - defined as, 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) - any listed species “within the United States or the territorial sea of the United States” or “upon the high seas.” Id. § 1538(a)(1)(B)-(C). The Act also prohibits the import or export of endangered species to or from the United States, except under certain circumstances. 16 U.S.C. §§ 1538(a)(1)(A); 50 C.F.R. § 17.21(b). One of those circumstances is if the import or export would “enhance the propagation or survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A). The Service may issue permits authorizing the import of endangered species under this provision if it makes the necessary enhancement finding. Id. Before doing so, it must publish notice in the Federal Register of each application for an import permit and allow interested parties to submit objections. 50 C.F.R. § 17.22.
II. The Challenged Permits
Pursuant to Namibia’s annual export quota under the CITES treaty, Namibia’s Ministry of Environment and Tourism (“the Ministry”) may issue up to five sport-hunting licenses for black rhinoceros per year. Decl. of Malan Lindeque (“Lindeque Decl.”), Ex. 1 to Mot. to Dismiss for Lack of Jurisdiction by Intervenors [Dkt. # 18] (“Intervenors’ Mot.”) ¶ 9. The Ministry, which is responsible for the “management, protection and recovery” of Namibia’s black rhinoceros population, authorizes limited hunts “to remove older post reproduction bulls” or “problem animal[s]” that “disrupt or threaten the herd.” Lindeque Decl. ¶¶ 2-3, 9-10. The Ministry charges fees for the sport-hunting licenses it issues, and the fees are deposited into Namibia’s Game Products Trust Fund. Id. ¶¶ 13-14, 16. This fund pays for black rhinoceros conservation projects approved by the Fund’s Board, such as “law enforcement and anti-poaching, community benefits, and surveys.” Id.; see also Decl. of Simeon N. Negumbo, Ex. 2 to Intervenors’ Mot. ¶ 4.
Namibia’s decision to issue a hunting license does not depend on whether the United States will authorize the import of the trophy. Lindeque Decl. ¶ 11 (“Whether the United States allows the import of black rhino trophies from Namibia has no effect on [the Ministry’s] decision to certify black rhino to be hunted or to offer up to five hunting licenses for black rhino annually.”) Indeed, the decision to authorize a hunt does “not depend on the involvement of hunters from any specific country or the issuance of an import permit by a foreign country.” Id. The Ministry issues hunting licenses to citizens of countries other than the United States, and it has stated it will do so even if U.S. import permits are no longer issued. Id.
In January 2014, the Dallas Safari Club, a hunting organization, held an auction for the right to conduct one of the Ministry’s five rhinoceros hunts. See Pls.’ Consolidated Opp. [Dkt. # 21] (“Pls.’ Opp.”) at 7, citing Decl. of Corey Knowlton, Attach. 3 to Mot. to Intervene by Conservation Force and Dallas Safari Club [Dkt. # 4-10] (“Knowlton Decl.”) ¶ 3. Corey Knowlton, a member of both Dallas Safari Club and Conservation Force, won the auction with a bid of $350, 000. Knowlton Decl. ¶¶ 2-3, 5. The hunt and bid were subject to numerous conditions, one of which was that the $350, 000 would be transferred to Namibia’s Game Products Trust Fund only if the U.S. Fish and Wildlife Service issued an import permit for the trophy. Decl. of John Jackson, Attach. 2 to Mot. to Intervene by Conservation Force and Dallas Safari Club [Dkt. # 4-2] (“Jackson Decl.”) ¶ 21; Knowlton Decl. ¶¶ 3, 5; Pls.’ Opp. at 7. Conservation Force agreed to help Knowlton obtain the permit, and on April 9, 2014, it filed an application with the Service on Knowlton’s behalf for an import permit. Jackson Decl. ¶ 26; Knowlton Decl. ¶ 8; Am. Compl. ¶ 64. Separately, Conservation Force filed an import permit application on behalf of its member Michael Luzich, who sought a permit for a trophy from a hunt he completed in 2013. Am. Compl. ¶ 64.
The Service published notice of the permit applications in the Federal Register, see Endangered Species; Marine Mammals; Receipt of Applications for Permit, 79 Fed. Reg. 65, 981 (Nov. 6, 2014), Am. Compl. ¶ 65, and plaintiff Friends of Animals submitted comments in opposition to the applications. Am. Compl. ¶¶ 9, 66. In March 2015, the Service advised Conservation Force that it would grant the two permits if the funds from Dallas Safari Club’s auction were transferred to Namibia’s Game Products Trust Fund. Jackson Decl. ¶ 28. Conservation Force wired the $350, 000 to the fund in March 2015, Jackson Decl. ¶ 29, and the Service issued the import permits in April 2015. Am. Compl. ¶¶ 69, 72. Mr. Knowlton participated in the hunt and killed a black rhinoceros the following month, on or around May 19, 2015. Am. Compl. ¶ 73.
III. Procedural History
On April 29, 2015, shortly after the Service issued the permits, Friends of Animals filed this lawsuit seeking to set aside the permits as unlawful. Compl. [Dkt. # 1] ¶¶ 1-2. On May 21, 2015, plaintiff amended its complaint to add the Zimbabwe Conservation Task Force (“ZCTF”) as a plaintiff. Am. Compl. The amended complaint consists of four counts. In Count I, plaintiffs contend that the issuance of the permits was arbitrary, capricious, an abuse of discretion, and contrary to the law, in violation of the Administrative Procedure Act (“APA”). Id. ¶ 99. In Count II, plaintiffs maintain that defendants violated the APA by failing to publish their findings before issuing the permits. Id. ¶ 101. In Count III, they contend that defendants have improperly adopted a “policy and repeated practice” of issuing import permits in violation of the Endangered Species Act and the APA. Id. ¶ 103-05. And in Count IV, they assert that defendants violated the National Environmental Policy Act (“NEPA”) by failing to prepare an Environmental Assessment or an Environmental Impact Statement (“EIS”) before granting the permits. Id. ¶ 107.
Conservation Force and Dallas Safari Club filed a motion to intervene so they could defend the Service’s decision to issue the import permits to their members, which the Court granted on June 12, 2015. Mem. Op. & Order (June 12, 2015) [Dkt. # 9]. The Ministry also moved to intervene, and the Court granted that motion. Mem. Op. & Order (July 10, 2015) [Dkt. # 15].
On July 15, 2015, federal defendants moved to dismiss plaintiffs’ action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to a claim. Federal Defs.’ Mot. to Dismiss [Dkt. # 17] (“Fed. Defs.’ Mot.”). The next day, intervenors moved to dismiss for lack of jurisdiction. Intervenors’ Mot. The parties have fully briefed the motions. Pls.’ Opp.; Fed. Defs.’ Reply in Supp. of their Mot. to Dismiss [Dkt. # 23] (“Fed. Defs.’ Reply”); Reply of ...