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Center for Biological Diversity v. Zinke

United States District Court, District of Columbia

March 29, 2019

CENTER FOR BIOLOGICAL DIVERSITY, et al, Plaintiffs,
v.
RYAN ZINKE, in his official capacity as Secretary of the United States Department of Interior, et al., Defendants, and SAFARI CLUB INTERNATIONAL, et al., Defendant-Intervenors

          MEMORANDUM OPINION

          ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

         In Fall 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.

         Organizational 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 In claims one through six, plaintiffs challenge the now-withdrawn 2017 Zimbabwe elephant and lion findings.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

         Now, 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 GRANTED.

         I. BACKGROUND

         A. The Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Endangered Species Act

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

         The 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.

         Elephants 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).

         "It 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).

         To that 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).

         While 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).

         Both 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), (r) (lions).

         Under 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.

         Like 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.

         B. Factual and Procedural Background

         In 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.

         But 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, 405.

         On 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.

         On 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.[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.

         In 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 claim.

         II. LEGAL STANDARD

         In 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).

         A. Subject Matter Jurisdiction

         Under 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 (1982).

         When 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).

         B. Failure to State a Claim

         "To 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, '" i ...


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