United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE
2017, the U.S. Fish and Wildlife Service (the
"Service") issued two new findings with respect to
elephants and lions in Zimbabwe. By determining that
permitted hunting of these animals will enhance the survival
of each species, the country-wide findings paved the way for
U.S. importation of sport-hunted trophies of these animals.
After the D.C. Circuit held in December 2017 that two earlier
country-wide enhancement findings by the Service were
legislative rules requiring public notice and comment
pursuant to the Administrative Procedure Act
("APA"), see Safari Club Int'l v.
Zinke, 878 F.3d 316, 331-35 (D.C. Cir. 2017)
("Safari Club II'), the Service withdrew
the 2017 Zimbabwe elephant and lion findings, along with
other prior country-wide enhancement and non-detriment
findings. Moving forward, the Service announced that it would
instead make these findings on a case-by-case basis upon
application to import a sport-hunted trophy.
plaintiffs Center for Biological Diversity (the
''Center"), Humane Society International
("HIS"), Humane Society of the United States
("HSUS"), and Born Free USA, along with individual
plaintiff Ian Michler (collectively, "plaintiffs")
bring an eight-count complaint challenging the actions of the
government Second Am. Compl., ECF No. 41. Upon motion, Safari
Club International and the National Rifle Association of
America were permitted to intervene as defendants (the
"intervenor-defendants"). Order, ECF No. 24. In
claims one through six, plaintiffs challenge the
now-withdrawn 2017 Zimbabwe elephant and lion findings.
Second Am. Compl. ¶¶ 171-201. In claim seven,
plaintiffs allege the Service violated the APA by withdrawing
the various enhancement and non-detriment findings without
soliciting public notice and comment. Id.
¶¶ 202-07. And in claim eight, plaintiffs claim the
Service violated the APA by changing from country-wide
findings to case-by-case determinations without soliciting
public notice and comment. Id. ¶¶ 208-11
both the government and the intervenor defendants move to
dismiss the complaint in its entirety. See Federal
Defs.' Mot. Dismiss, ECF No. 44;
Intervenor-Defendants' Mot. Dismiss, ECF No. 42. For the
reasons set forth herein, those motions will be
The Convention on International Trade in Endangered Species
of Wild Fauna and Flora and the Endangered Species
into the United States of threatened species such as African
elephants and lions is governed by international convention
and U.S. law.
Convention on International Trade in Endangered Species of
Wild Fauna and Flora ("CITES"), Mar. 3, 1973, 27
U.S.T. 1087, is a multilateral treaty to which both the
United States and Zimbabwe are parties. See 16
U.S.C. § 1538(c)(1) (incorporating CITES into U.S.
domestic law through the Endangered Species Act). CITES
regulates the international trade of protected plants and
wildlife by establishing requirements for importing and
exporting covered species categorized into three appendices
based on the level of protection each requires. See
Id. §§ 1537a-1539. Signatories to CITES,
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 the treaty. CITES, art. II.4.
in Zimbabwe were listed on Appendix I until 1997 and now are
listed on Appendix II. Changes in List of Species in
Appendices to the [CITES], 62 Fed. Reg. 44, 627, 44, 628-29
(Aug. 22, 1997). African lions in Zimbabwe are also listed on
Appendix II. While Appendix I lists species "threatened
with extinction which are or may be affected by trade,"
CITES, art. II(1), Appendix II includes species that are not
necessarily currently threatened but that may become
threatened with extinction unless trade of specimens of such
species is regulated. Id. art. II(2). Under CITES, a
species listed on Appendix II may be traded if the exporting
countries issue export permits. Id. art. IV. In
issuing permits, the exporting country must make certain
findings, including that the specimen was legally acquired,
and that trade of the specimen will not be detrimental to the
survival of the species (a non-detriment finding).
Id. art. IV.2(a)-(b).
is undisputed that the proscriptions in [CITES] are a floor,
not a ceiling, for protection of Appendix II species."
Safari Club Int'l v. Zinke, 878 F.3d 316, 321
(D.C. Cir. 2017). In fact, the treaty makes clear that it
"in no way affect[s] the right of Parties to adopt...
stricter domestic measures regarding the conditions for
trade, taking possession or transport of specimens of species
included in Appendices I, II, and II, or the complete
prohibition thereof." CITES, art. XIV(1).
end, Congress passed the Endangered Species Act
("ESA") to provide for the conservation of
"endangered" and "threatened" species. 16
U.S.C. § 1531(b). 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
ESA not only implements CITES into U.S law but also provides
federal protection to species listed as endangered or
threatened pursuant to its provisions. See 16 U.S.C.
§§ 1533(d), 1538(a). Furthermore, the listing of a
species as endangered or threatened does not depend on
whether or how it is categorized under CITES. See
Id. § 1533(a)(1)(A).
the ESA generally forbids the importation of endangered
species into the United States, id. §
1538(a)(1)(A); 50 C.F.R. § 17.21(b), the Act empowers
the Service to issue regulations pertaining to threatened
species "deem[ed] necessary and advisable to provide for
the conservation of such species." 16 U.S.C. §
1533(d). Pursuant to this authority, the Service has issued a
regulation that extends the ESA's prohibitions on
endangered species to all threatened species unless the
Service has issued a special rule to govern a particular
species. 50 C.F.R. §§ 17.31(a), (c); see also
Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt,
1 F.3d 1, 5 (D.C. Cir. 1993).
elephants and lions in Zimbabwe are listed as threatened
species under the ESA, 50 C.F.R. § 17.11(h), and both
are the subject of special species-specific rules for
importation. Id. §§ 17.40(e) (elephants),
the species-specific rule, sport-hunted elephant trophies may
only be imported into the United States if, among other
things, a "determination is made that the killing of the
trophy animal will enhance the survival of the species and
the trophy is accompanied by a threatened species permit
issued under § 17.32." Id. §
17.40(e)(6)(i)(B). The required enhancement finding is
"communicated through the threatened species permitting
process." 80 Fed. Reg. 45, 154-01, 45, 165.
for African elephants, the species-specific rule for African
lions requires a hunter to apply for and receive a threatened
species import permit before importing a sport-hunted African
lion trophy from countries like Zimbabwe. 80 Fed. Reg. 80,
000, 80, 043-44; 50 C.F.R. § 17.40(r)(2)-(3). Although
the rule does not explicitly mention enhancement findings,
the enhancement of propagation or survival is one of the
purposes for which a threatened species import permit may be
issued. See 50 C.F.R. § 17.32 (listing
enhancement along with scientific purposes, economic
hardship, zoological exhibition, educational purposes, and
incidental takings as the acceptable purposes for issuing a
permit). Because of the nature of sport-hunted trophy
importation, a permit for lions may only be issued if the
Service determines that the killing and importation enhances
the survival of the species. 'The Service has the
discretion to make the required findings on sport-hunted
trophy imports of [African lions] on a country-wide basis,
although individual import permits [are] evaluated and issued
or denied for each applicant." 80 Fed. Reg. at 80, 046.
Factual and Procedural Background
2014, the Service suspended importing of sport-hunted African
elephant trophies from Zimbabwe, as the Service was
"unable to determine that the killing of the animal . .
. would enhance the survival of the species in the
wild." 79 Fed. Reg. 44459-01. In 2015, the Service
reaffirmed this decision, extending its effect indefinitely.
80 Fed. Reg. 42524-03. The intervenor-defendants challenged
the 2014 and 2015 elephant findings in a case before this
Court. Safari Club Int'l v. Jewell, Case No.
1:14-cv-670-RCL. Although this Court upheld the 2014 and 2015
elephant findings, see Safari Club Int'l v.
Jewell, F.Supp.3d 48, 81 (D.D.C. 2016), the D.C. Circuit
held that the findings were legislative rules that the
Service failed to subject to public notice and comment under
the Administrative Procedure Act. Safari Club II,
878 F.3d at 333. It therefore ordered this Court to remand
the case to the Service to initiate proper rulemaking to
address enhancement findings for the relevant time periods.
Id. at 336.
prior to the D.C. Circuit's opinion, the Service had
issued the new enhancement findings at issue in this case. On
October 11, 2017, the Service announced that made positive
enhancement findings and would allow the import of African
lion trophies hunted in Zimbabwe in calendar years 2016,
2017, and 2018. Second Am. Compl. ¶ 144. And on November
16, 2017, the Sendee similarly concluded that hunting
elephants in Zimbabwe enhances the survival of the species,
opening the door for the importation of elephant trophies
hunted in 2016, 2017, and 2018. See 82 Fed. Reg. 54,
November 20, 2017, the Center filed this suit, asserting
these new findings were arbitrary and capricious. See
generally Compl., ECF No. 1. The D.C. Circuit issued its
Safari Club II opinion regarding the 2014 and 2015
elephant findings in December 2017, and not long after, the
Center amended the complaint to add plaintiffs HSI, HSUS,
Born Free USA, and Ian Michler, and to add claims that the
2017 findings also failed to comply with the APA public
notice and comment requirements. See generally Am.
Compl, ECF No. 20.
March 1, 2018, the Principal Deputy Director of the Service
signed a memorandum (the "March Memo") announcing
the withdrawal of the 2014 and 2015 Zimbabwe elephant
findings in response to Safari Club II. Second Am.
Compl. ¶ 168; Intervenor-Defendants' Mot. Dismiss
Ex. 1. ECF No. 42-1. "Consistent with this approach,"
the Service also withdrew the 2017 Zimbabwe lion and elephant
enhancement findings challenged in this case, along with
various country-wide enhancement and non-detriment findings.
Intervenor-Defendants' Mot. Dismiss Ex. 1; Second Am.
Compl. ¶ 168. Moreover, the March Memo announced that
"[a]t this time, when the Service processes [permit
application for the importation of sport-hunted trophies of
these species], the Service intends to do so on an individual
basis, including making ESA enhancement determinations, and
CITES non-detriment determinations when required, for each
application." Intervenor-Defendants' Mot. Dismiss
Ex. 1. In other words, the Service announced an intention
"to grant or deny permits to import a sport-hunted
trophy on a case-by-case basis." Id. However,
the March Memo makes clear that the Service intends to use
the information cited in the 2017 Zimbabwe lion and elephant
findings and other withdrawn findings "as appropriate,
in addition to the information it receives and has available
when it receives each application, to evaluate individual
permit applications." Id.; Second Am. Compl.
¶ 169. The March Memo was not published in the Federal
Register and the Service did not solicit public comments on
the Memo. Second Am. Compl. ¶ 170.
response to the March Memo, plaintiffs amended the complaint
to add two counts: a claim challenging the Service's
failure to employ notice-and-comment rulemaking to withdraw
the 2017 Hon and elephant findings and a claim that the
Service violated the APA by changing to a case-by-case
approach for making enhancement and non-detriment findings
without soliciting public notice and comment. Id.
¶¶ 202-211. Both the government and the
defendant-intervenors move to dismiss the Second Amended
Complaint in its entirety. The defendants argue that
plaintiffs' claims challenging the 2017 lion and elephant
findings-claims one through six- should be dismissed under
Rule 12(b)(1) for lack of subject matter jurisdiction, while
the new claims-claims six and seven-should be dismissed
either under Rule 12(b)(1) for lack of subject matter
jurisdiction or under Rule 12(b)(6) for failure to state a
evaluating a motion to dismiss under either Rule 12(b)(1) or
12(b)(6), the Court must "treat the complaint's
factual allegations as true . . . and must grant plaintiff
'the benefit of all inferences that can be derived from
the facts alleged.'" Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979) (citations omitted)); see also Am.
Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011). Nevertheless, the Court need not accept
inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the
Court accept a plaintiffs legal conclusions. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Subject Matter Jurisdiction
Rule 12(b)(1), the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); Shekoyan v. Sibley Int'l Corp., 217
F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of
limited jurisdiction and the law presumes that "a cause
lies outside this limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448
(D.C.Cir.2004) ("As a court of limited jurisdiction, we
begin, and end, with an examination of our
jurisdiction."). "[B]ecause subject-matter
jurisdiction is 'an Art[icle] III as well as a statutory
requirement ... no action of the parties can confer
subject-matter jurisdiction upon a federal court.'"
Akinseye v. District of Columbia, 339 F.3d 970, 971
(D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Lid. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
considering a motion to dismiss for lack of jurisdiction,
unlike when deciding a motion to dismiss under Rule 12(b)(6),
the court "is not limited to the allegations of the
complaint." Hohri, 782 F.2d at 241. Rather,
"a court may consider such materials outside the
pleadings as it deems appropriate to resolve the question
[of] whether it has jurisdiction to hear the case."
Scolaro v. D.C. Bd. of Elections & Ethics, 104
F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v.
Nat'l Acad. of Scis., 914 F.2d 192, 197 (D.C. Cir.
1992)); see also Jerome Stevens Pharm., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).
Failure to State a Claim
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal,556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the
pleaded factual content "allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678. "The
plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. (quoting Twombly, 550 U.S. at 566). A
pleading must offer more than '"labels and
conclusions'" or a '"formulaic recitation
of the elements of a cause of action, '"