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Safari Club International v. Jewell

United States District Court, District of Columbia

September 30, 2016

SAFARI CLUB INTERNATIONAL, et al, Plaintiffs,
v.
SALLY M. R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al, Defendants, and FRIENDS OF ANIMALS, et al, Defendant-Intervenors.

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH District Judge.

         Plaintiffs Safari Club International and the National Rifle Association challenge the federal government's suspension of imports of trophies from elephants sport-hunted in Zimbabwe. On April 4, 2014, the U.S. Fish and Wildlife Service ("the Service") suspended imports of these trophies on an interim basis. On July 31, 2014, the Service published notice finalizing the April decision, prohibiting imports of trophies from elephants sport-hunted from April 4, 2014 through the remainder of the year. And on March 26, 2015, it announced a suspension of imports for the 2015 hunting seasons and future hunting seasons. The Service explained that it suspended imports because it could no longer make the finding required under its regulations "that the killing of the animal whose trophy is intended for import would enhance survival of the species" - referred to as an enhancement finding. Plaintiffs assert that the three decisions are invalid due to a number of procedural defects and because they are arbitrary and capricious. For the reasons set forth below, the Court will grant plaintiffs' motion for summary judgment in part on the issue that the Service failed to comply with its commitment not to change the enhancement finding before publishing notice in the Federal Register. It will deny plaintiffs' motion on all other issues. The Court will grant defendants' motion for summary judgement in part on all issues except it will deny the motion on the issue of its commitment to publish notice of changes in the Federal Register. The Court will also order that the effective date of the April 2014 interim suspension is May 12, 2014, not April 4, 2014.

         LEGAL FRAMEWORK AND BACKGROUND

         Importation into the United States of threatened species such as African elephants is governed by international convention and U.S. law.

         I. 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 and plants. The treaty establishes requirements for importing and exporting covered species and categorizes them into three appendices, depending on the level of protection each species requires. Relevant here, Appendix I covers species threatened with extinction, see CITES art. II. 1, and Appendix II covers species for which trade is controlled to avoid trade incompatible with the species' survival. Id., art. II.2.[1] Signatories to the treaty, including the United States and Zimbabwe, agree that they "shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of CITES. Id., art. II.4.

         A. Appendix I

         Under the treaty, a species listed on Appendix I may only be traded if both the importing and the exporting countries issue import and export permits, respectively. In issuing these permits, each country's designated authority must make a number of findings, including that the trade of the species "will be for purposes which are not detrimental to the survival of the species." Id., art. 111.2(a), 111.3(a). This determination is sometimes referred to as a "non-detriment finding, " and both the importing and the exporting countries must separately make this finding before each can issue the required permit. Id.

         Before 1994, the treaty required importing countries to also determine that the import of an Appendix I species "would enhance the survival of the species." This determination is sometimes referred to as an "enhancement finding." CITES Res. Conf. 2.11. (Annex 1), AR 249 at 5563;[2] see also Endangered and Threatened Wildlife and Plants; Retention of Threatened Status for the Continental Population of the African Elephant, 57 Fed. Reg. 35, 473, 35, 485 (Aug. 10, 1992). But the enhancement finding requirement was eliminated from the treaty in 1994. See Res. Conf 2.11 and CITES Doc. 9.50, AR at 5559-61, 5563.

         B. Appendix II

         A species listed on Appendix II requires the exporting country to issue an export permit, including making the non-detriment finding described above. CITES, art. IV. The importing country is not required to issue an import permit or make a non-detriment finding, and the treaty has never required enhancement findings for Appendix II species. Id.

         II. U.S. Law

         A. The Endangered Species Act

         Described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation, " Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978), the Endangered Species Act ("ESA") is a federal statute that seeks "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." ESA, 16 U.S.C. § 1531(b) (2010). The Act implements CITES into U.S. law. §§ 1532(4), 1537a, 1538(c).

         Separately, the Act also provides federal protection to species listed as endangered or threatened pursuant to its provisions, and the listing of a species as endangered or threatened does not depend on whether or how it is categorized under CITES. See §§ 1533(a)(1), 1533(d), 1538(a).

         With respect to endangered species, section 9(a) of the Act prohibits a number of activities, including "taking"[3] them and importing or exporting them into or from the United States, except as authorized by the statute. §§ 1538(a)(1)(A); § 1532(19).

         With respect to threatened species, the Act mandates:

Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.

16 U.S.C. § 1533(d). The Act also gives the Secretary authority to promulgate regulations to "prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) . . . with respect to endangered species." Id.

         The Secretary has exercised the authority under section 1533(d) by issuing a regulation that extends the Act's prohibitions on endangered species to all threatened species, 50 C.F.R. § 17.31(a), unless the agency has issued a special rule to govern a specific species. § 17.31(c) ("Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.").

         B. The Special Rule Governing African Elephants

         In 1978, the Service listed African elephants as a threatened species under the Endangered Species Act and simultaneously issued a special rule for them. Listing of the African Elephant as a Threatened Species, 43 Fed. Reg. 20499 (May 12, 1978); 50 C.F.R. §17.11(h); 50 C.F.R. § 17.40(e) ("Special Rule"). The Special Rule allows imports of sport-hunted trophies of African elephants under the following conditions:

(A) The trophy originates in a country for which the Service has received notice of that country's African elephant ivory quota for the year of export;
(B) All of the permit requirements of 50 CFR parts 13 and 23 have been complied with;
(C) A determination is made that the killing of the animal whose trophy is intended for import would enhance survival of the species; and
(D) The trophy is legibly marked [as set forth in the regulation]. 50CFR§17.40(e)(3)(iii).[4]

         Subpart (C) of the Special Rule contains an enhancement finding requirement that was added to the Special Rule in 1992, when all African elephants were on Appendix I and CITES required both non-detriment and enhancement findings to trade an Appendix I species. 57 Fed. Reg. at 35, 473-01. Although CITES no longer requires enhancement findings for Appendix I species, the enhancement finding requirement remains in U.S. law in the Special Rule governing African elephants. See id.

         III. Changes to Import Requirements under CITES and the Endangered Species Act

         A. The 1997 Downlisting of African Elephants

         Signatories to CITES hold regular meetings called the Conference of the Parties to review the treaty's operation and the listing of species under its appendices. When CITES was first implemented, African elephants appeared on Appendix I. In 1997, signatories to the treaty transferred three African elephant populations - from Zimbabwe, Botswana, and Namibia - from Appendix I to Appendix II. Changes in List of Species in Appendices to the CITES, Proposed Rule, 62 Fed. Reg. 44627, 44629 (proposed Aug. 22, 1997) ("1997 Proposed Rule"). The consequence of this downlisting is that under the treaty, a hunter need obtain only an export permit issued by the exporting country to bring home a sport-hunted elephant trophy from one of those three countries. Import permits were no longer required.

         After this downlisting and other changes to the CITES appendices, the Service published the 1997 Proposed Rule advising the public of these changes and proposing to amend U.S. regulations to incorporate "all changes in CITES Appendices I and II that were approved by the Conference of the Parties." 62 Fed. Reg. at 44, 634.

         Because of "the complexity of the terms of the CITES downlistings" and "the high public interest" in the species, the Service specifically explained how these changes affected the treatment of African elephants under U.S. law. Id. at 44, 633. First, it reiterated the four requirements under the Special Rule to import a sport-hunted trophy. Id., citing 50 C.F.R. § 17.40(e) (stating that an import will be authorized when the trophy "has (1) originated in a country for which the Service has received notice for that country's African elephant ivory quota for the year of export; (2) the permit requirements of the regulations for CITES permits (50 CFR 13 and 23) have been met; (3) the Service has determined that the take of the trophy for import would enhance the survival of the species; and (4) the ivory has been marked as outlined in the special rule"). It explained that a species' downlisting under CITES does not alter requirements under U.S. law:

Changes in the CITES listing status of species as a consequence of actions taken at [the tenth Conference of the Parties] do not supersede import or export requirements pursuant to other wildlife conservation laws. For example, import or export of species listed as Threatened or Endangered under the U.S. Endangered Species Act (ESA) still must meet the provisions of that law and its implementing regulations in 50 CFR Part 17, even if those species have been transferred to a less protective CITES Appendix or removed from the Appendices entirely.

Id. In other words, the conditions of the Special Rule - including the enhancement finding requirement - would continue to apply after the Appendix II listing for elephants from Botswana, Namibia, and Zimbabwe took effect, even though the requirement was no longer imposed by the treaty. See Id. The Service then stated that it reviews "the status of the population and the total management program for the elephant in each country to ensure the program is promoting the conservation of the species" when making an enhancement finding under the Special Rule. Id.

         The "practical effect" of the CITES downlistings was that "an import permit will no longer be required for non-commercial imports of African elephant sport-hunted trophies from these countries only. Only a CITES export permit from the country of origin . .. [would] be required." Id.[5] The enhancement findings for Botswana, Namibia, and Zimbabwe - which would be made "on a periodic basis upon receipt of new information on the species' population or management" - were "on file in the Office of Management Authority." Id. They would remain in effect until the Service found, "based on new information, that the conditions of the special rule [were] no longer met" and it "published a notice of any change in the Federal Register." Id.; see Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe, AR 20 at 2557-60 ("1997 Finding").

         The 1997 Finding for Zimbabwe remained in effect until April 4, 2014, when the Service announced it could no longer make the finding for imports from that country. It is this changed enhancement finding that plaintiffs challenge.

         B. The Challenged Enhancement Findings

         1. April 2014 Finding

         On April 4, 2014, the Service announced a suspension of imports of sport-hunted African elephant trophies taken from Zimbabwe. Service Suspends Import of Elephant Trophies from Tanzania and Zimbabwe, April 2014, AR 196 at 3021-22 ("Service Bulletin"). It stated that "[i]n Zimbabwe, available data, though limited, indicate a significant decline in the elephant population. Anecdotal evidence, such as the widely publicized poisoning last year of 300 elephants in Hwange National Park, [6] suggests that Zimbabwe's elephants are [ ] under siege." Id. at 1.

         In its finding, the Service cited an International Union for Conservation of Nature ("IUCN") Elephant Database Report ("2013 Africa Report")[7] as showing the elephant population in Zimbabwe in 2007 was 84, 416 but in 2013 it was "reduced to 47, 366." Enhancement Finding for African Elephants Taken as Sport-Hunted Trophies in Zimbabwe during 2014 (April 17, 2014), AR 102 at 3820 ("April 2014 Finding").[8] It noted that despite this, the government of Zimbabwe continued to provide population estimates of 100, 000 elephants. Id., AR at 3821 (explaining that most estimates are based on 2001 figures and that for a substantial part of the country, no recent surveys have occurred). The finding also expressed concern about the management, funding, and resources of the Zimbabwe Parks and Wildlife Management Authority ("ZPWMA") and its process for determining the country's hunting quotas, given the lack of recent population surveys. Id., AR at 3821-22 ("[T]he government's belief that they have a population of 100, 000 elephants may result in the over-estimation of the sustainable offtake."). Finally, it noted that the "current poaching problem does not appear to be under control or even acknowledged." Id., AR at 3823. The agency stated the "most significant aspect of [its] analysis is the lack of recent data on what is occurring in Zimbabwe." Id. It said it would gather additional information but until then, it was "unable to make [a] positive finding." Id.

         On May 12, 2014, the Service published notice of the suspension in the Federal Register. Notice of Interim Suspension on Importation of Zimbabwean Elephant Trophies, 79 Fed. Reg. 26, 986 (May 12, 2014). The Service Bulletin stated that the suspension applied to elephants taken in all of 2014, but the Federal Register notice changed the effective date to elephants taken on or after April 4, 2014. Id. The Service also stated, "[W]e recognize that our inability to make a finding is based primarily on a lack of information, not on specific information that shows that Zimbabwe's management is not enhancing the survival of the species, " and it indicated that it was "actively pursuing additional information from the Government of Zimbabwe" and other sources to make a final determination. 79 Fed. Reg. at 26, 987.

         The agency requested information from the government of Zimbabwe on April 4, 2014. Letter to ZPWMA Director, Apr. 4, 2014, AR 74 at 3604-05.

         2. July 2014 Finding

         After receiving information from the government, the Service issued its final enhancement determination on July 22, 2014. Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe during 2014 (July 22, 2014), AR 206 at 4505-1517 ("July 2014 Finding").[9] The July 2014 Finding "supersede[d]" the April 2014 Finding. M, AR at 4505. The Service published notice of the finding on July 31, 2014. Notice of Suspension of Imports of Zimbabwe Elephant Trophies Taken in 2014 On or After April 4, 2014, 79 Fed. Reg. 44, 459, 44, 460 (July 31, 2014).

         With respect to population, the Service cited data from the 2013 Africa Report, which showed the 2007 total population estimate at 99, 107. July 2014 Finding, AR at 4510. The report categorized data into the categories of definite, probable, possible, and speculative to reflect the level of certainty associated with particular counts within the total population estimate. May 30, 2014 email string, AR 151 at 4166. Of the 99, 107 total elephants in 2007, eighty-five percent or 84, 416 were classified as "definite, "[10] compared to the 2012 population total estimate of 100, 291 elephants, of which only forty-seven percent or 47, 366 was classified as "definite." July 2014 Finding, AR at 4510. Noting that the data for 2012 was more than ten years old and that "[v]ery few new surveys have been conducted since 2007, " the Service said the government of Zimbabwe's population estimates of more than 100, 000 elephants was "clearly based on outdated information." Id. Without more current population data and "a better understanding of the offtake from other sources, like poaching and problem animal control, " the Service found it could not determine if the government was meeting its management plan goals and objectives. Id., AR at 4511.

         The Service received a number of documents regarding the management plan, including the Policy and Plan for Elephant Management in Zimbabwe (1997) and Elephant Management in Zimbabwe, third edition (July 1996). See id., AR at 4507. The documents presented "well- articulated, but general, goals and objectives, " and the government of Zimbabwe provided no information on implementation. Id., AR at 4509. "Without management plans with specific goals and actions that are measurable, the Service cannot determine if ZPWMA is implementing" the plan. Id.

         Regarding Zimbabwe's applicable laws and regulations, the agency found that they provided for sufficient penalties for poaching "[i]f properly enforced." AR at 4511. The Service, however,

[did] not have a good understanding of the ZPWMA's annual operational budget, how much money is generated by elephant hunting, or how these funds (or the lack of these funds) impacts the ability of ZPWMA to adequately enforce the Parks and Wild Life Act, day-to-day management, or anti-poaching efforts ....

Id.

         With respect to the country's annual hunting quota, the Service found that while the methodology for determining the quota was based on "sound wildlife management principles used globally, " 79 Fed. Reg. at 44, 461, it did not receive "specific information on how quotas are established" or whether they were "reasonable or beneficial to elephant populations and, therefore whether sport hunting is enhancing the survival of the species." July 2014 Finding, AR at 4515.

         The finding also discussed the CAMPFIRE project, a program that "has been the model for community-based conservation efforts in several other African countries and identified as an innovative program in the past." Id. The agency found that CAMPFIRE has been criticized for "excessive retention of generated funds by district councils, " reducing the program's effectiveness. Id. It stated that information the program provided to a CITES panel of experts in 2002 indicated this problem was improving, but the Service had no current information on the situation. "[W]ithout current information on how [CAMPFIRE] funds are utilized and the basis for hunting off-takes, " the Service stated it could not assess whether sport-hunting would enhance the survival of the species. Id., AR at 4515-16.

         The Service acknowledged some "bright spots" in elephant conservation by nongovernmental entities and individuals in the country but did not change its finding. Id., AR at 4517. It stated the finding would be re-evaluated in December 2014. Id., AR at 4505.

         3. March 2015 Finding

         The Service received more information from the government of Zimbabwe on December 10, 2014, as well as information from plaintiffs Conservation Force and Safari Club International in late 2014 and early 2015. Enhancement Finding for African Elephants Taken ) as Sport-Hunted Trophies in Zimbabwe On or After January 1, 2015, AR 344 at 7256-73, 7258 ("2015 Finding").

         On March 26, 2015, the Service issued the 2015 Finding for trophies of elephants taken in Zimbabwe as of January 1, 2015. Id., AR at 7256-73. The Service again determined that it was unable to make an enhancement finding and extended the import suspension to the 2015 hunting season and future seasons. Id., AR at 7256. It said that the suspension could be lifted if the agency received addition information on the status and management of the species that satisfied the Special Rule. See id.

         As with the July 2014 Finding, the Service found no "specific measurable outcomes" against which to review implementation of the government's elephant management plan. Id., AR at 7259 (stating it had "not received sufficient information to indicate ... which objectives are being met or how they are being met"). ZPWMA explained that it does not have a "prescriptive management plan" because it uses an "adaptive management approach" and is "devolving wildlife management authority" to local authorities, private conservancies, and CAMPFIRE. Id., AR at 7260. But because the government of Zimbabwe previously told the Service that elephants were managed on a national level, the Service found "there needs to be a national approach and understanding of the basis of this adaptive management and that the country ... is taking a logical, scientifically based approach to reach the agreed upon end result." Id. And while the government was preparing a new management plan, the agency stated that the government provided no information on recent or future hunting seasons to indicate it was implementing the existing plan. See id., AR at 7261.

         Regarding the elephant population, ZPWMA provided information about two surveys conducted in 2012-13, one in Save Valley Conservancy and the other in Gonarezhou National Park and the surrounding areas. Id., AR at 7262. The first survey counted 1, 538 elephants in an aerial survey. Id. Based on nine years of aerial surveys, the Service noted a short-term increase in population density of 9.5 percent, but also found that the trend in the last three years of survey was only a 2.2 percent increase and noted that "conditions were such that double counting may have occurred." Id.

         The second survey estimated 10, 151 elephants in the surveyed area - "the highest estimate since sample surveys began there in 1975." Id. The Service stated that while the apparent population increase was "excellent news, " the reported carcass ratio was low and could indicate that the survey did not accurately detect all the carcasses. Id., AR at 7263.

         The Service cited the 2014 Pan African Aerial Elephant Survey as reporting a provisional population estimate of 82, 000-83, 000 elephants, a six percent decline since 2001 surveys. Id. Further, figures presented at the March 2013 CITES conference indicated that from 2002-2010, the percentage of illegally killed elephants ("PIKE") in the Chewore area was twenty-four percent but in 2011, it was sixty-seven percent. Id. The Service explained that a PIKE level of fifty percent higher or means "half or more of all carcasses were the result of illegally killed elephants, " indicating "that the elephant population is very likely to be in net decline." Id.

         With regard to Zimbabwe's laws, it found that the Parks and Wildlife Act "includes sections on virtually every aspect of ZPWMA, including requirements for annual financial audits and reporting to the central government, " along with substantial penalties for the unlawful possession of or trading in ivory. Id. But again, the Service did not receive adequate information on enforcement. Id.

         While ZPWMA reported that "elephant hunting contributes in excess of US$14 million annually and that approximately 30% of [its] revenue is from hunting, of which the elephant is the major contributor, " the Service was concerned it did not have information on how much money is generated by elephant hunting specifically, how the funds are distributed, or how they impacted enforcement of the country's laws and regulations, day-to-day management, or anti-poaching efforts. Id., AR at 7264.

         The Service considered information from third parties about ZPWMA's budget and resources, and noted press reporting that Zimbabwean politicians and military personnel were involved in illicit wildlife trade with Chinese nationals. Id., AR at 7264-65. The Service also cited reports about increasing illegal ivory trade. Id., AR at 7265. Although it received information from Zimbabwean safari outfitters and hunting guide organizations suggesting that the presence of hunters is the major deterrent to poaching, the Service said it received "no evidence" that poaching would significantly increase without hunters generally or U.S. elephant hunters specifically. Id. Rather, it concluded that legal hunting is "not widespread enough or at a high enough density level to reduce significantly poaching in and of itself." Id. It was also concerned with a "lack of sufficient information" about ZPWMA's "funding levels or any indication that [the agency's] financial base, management skills, equipment, or infrastructure have improved." Id., AR at 7266.

         Regarding sustainable use, the Service stated it had not received adequate information about offtake in Zimbabwe. Id. The export quota in 2014 and 2015 was 500 elephants per year, and it had been at that number since 2004. Id. The Service noted that for the April and July 2014 Findings, it had not received information on the number of trophies exported annually or of elephants killed by categories of offtake[11] but, based on third party and press sources, the Service found that poaching was on the rise. Id.; see also Id. n. 1 (highlighting the poisoning of 105 elephants in Hwange National Park 2013, which the agency initially stated in the Service Bulletin involved 300 elephants). For the 2015 Finding, ZPWMA provided percentage information on offtake categories and reported a five-year average of 190 poached elephants, id. at 7266, then a three-year average of 180 poached elephants, excluding the Hwange poisonings. Id. at 7267. But the Service questioned ZPWMA's percentages because they reflected a natural mortality rate "far below the likely natural morality rate" of healthy populations. Id.

         The Service also highlighted the lack of information on how the government sets quotas and allocates them spatially. Id., AR at 7267. It noted that quotas are set to "maximize the sustainable production of high-quality trophies, " which caused the Service to question if quotas are set for each hunting area based on the overall quota or to facilitate management goals for each area. Id., AR at 7268. The Service ...


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