United States District Court, District of Columbia
C. LAMBERTH District Judge.
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.
FRAMEWORK AND BACKGROUND
into the United States of threatened species such as African
elephants is governed by international convention and U.S.
The Convention on International Trade in Endangered Species
of Wild Fauna and Flora
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. 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.
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.
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; 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.
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.
The Endangered Species Act
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).
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).
respect to endangered species, section 9(a) of the Act
prohibits a number of activities, including
"taking" them and importing or exporting them into
or from the United States, except as authorized by the
statute. §§ 1538(a)(1)(A); § 1532(19).
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
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
The Special Rule Governing African Elephants
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
(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
(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
Changes to Import Requirements under CITES and the Endangered
The 1997 Downlisting of African Elephants
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.
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.
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
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.
"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. 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").
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.
The Challenged Enhancement Findings
April 2014 Finding
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,  suggests that
Zimbabwe's elephants are [ ] under siege."
Id. at 1.
finding, the Service cited an International Union for
Conservation of Nature ("IUCN") Elephant Database
Report ("2013 Africa Report") 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"). 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."
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.
agency requested information from the government of Zimbabwe
on April 4, 2014. Letter to ZPWMA Director, Apr. 4, 2014, AR
74 at 3604-05.
July 2014 Finding
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"). 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).
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,
" 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.
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.
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
[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
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.
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.
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.
March 2015 Finding
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").
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.
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.
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."
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.
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."
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.
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.
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.
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 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.
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 ...