MEMORANDUM OPINION
ROYCE
C. LAMBERTH, UNITED STATES DISTRICT JUDGE
In Fall
2017. the U.S Fish and Wildlife Service (the
"Service") issued a new finding with respect to
African elephants in Zimbabwe, determining that the permitted
hunting of these elephants will enhance the survival of the
species, and thus paving the way for the importation of
sport-hunted elephant trophies into the United States. After
the D.C. Circuit struck down two earlier country-wide
enhancement findings since the Service did not subject them
to the public notice and comment required by 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 a slew of other findings not subject to
notice and comment, including the 2017 Zimbabwe elephant
findings. Moving forward, the Service announced that it would
no longer make these findings on a country-wide basis,
instead choosing to make its findings on a case-by-case basis
upon application to import a sport-hunted trophy.
Two
organizations-Friends of Animals ("FoA") and the
Zimbabwe Conservation Task Force ("ZCTF")-bring a
five-count complaint challenging the actions of the
government. Second Am. Compl.. ECF No. 35. Upon motion.
Safari Club International and the National Rifle Association
of America were permitted to intervene as defendants (the
"intervenor-defendants"). Order, ECF No. 26. In
claims one and two, plaintiffs challenge the now-withdrawn
2017 Zimbabwe elephant findings. Second Am. Compl.
¶¶ 132-147. In their third cause of action,
plaintiffs allege that the Service violated the APA by
withdrawing the various enhancement and non-detriment
findings without soliciting public notice and comment.
Id. ¶¶ 148-54. In claim four, plaintiffs
argue that the Service violated the APA by withdrawing prior
negative enhancement findings without following an alleged
publication requirement. Id. ¶¶ 155-60.
And in plaintiffs' fifth cause of action, plaintiffs
argue that the Service exceeded its statutory authority by
creating a policy whereby enhancement findings would be made
on a case-by-case basis. Id. ¶¶ 161-65.
Now,
both the government and the intervenor-defendants move to
dismiss the complaint in its entirety. See Federal
Defs.' Mot. Dismiss, ECF No. 38;
Intervenor-Defendants' Mot. Dismiss, ECF No. 39. 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 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). 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 II, 878 F.3d at 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). The Service "may by regulation prohibit with
respect to any threatened species [of wildlife] any act
prohibited under 16 U.S.C. § 1538(a)(1)."
Id. 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).
B.
Factual and Procedural Background
Since
the African elephant (Loxodonta Africcana) has been
listed as a threatened species under the ESA, 50 C.F.R.
§ 17.11(h), it has been the subject of a special
species-specific rule for importation. See Id.
§ 17.40(e) (current rule).
In
1997, the rule provided for a limited exception for the
importation of African elephant trophies into the United
States from Zimbabwe and other countries, provided five
conditions were met, including that "a determination
[was] made that the killing of the animal whose trophy is
intended for import would enhance survival of the
species." 50 C.F.R. § 17.40(e) (1992) (the
"1997 Special Rule"). Under this rule, the Service
made positive enhancement findings in 1997 for importation of
sport-hunted elephant trophies on a country-wide basis for
Botswana, Namibia, and Zimbabwe. Second Am. Compl. ¶ 74,
ECF No. 35. That same year, in the proposed rule announcing
the transfer of African elephants from CITES Appendix I to
Appendix II, the agency wrote the following about enhancement
findings:
The Service will make such findings on a periodic basis upon
receipt of new information on the species' population or
management. The enhancement findings for importation of
sport-hunted elephant trophies from Botswana, Namibia, and
Zimbabwe are on file in the Office of Management Authority
and remain in effect until the Service finds, based on new
information, that the conditions of the special rule are no
longer met and has published a notice of any change in the
Federal Register.
62 Fed. Reg. 44, 627-01, 44, 633 (the "1997 Proposed
Rule").
The
1997 finding that the killing of African elephants in
Zimbabwe whose trophies were intended for import would
enhance survival of the species remained in effect until
2014. Second Am. Compl. ¶ 83. In April of that year, the
Service announced an interim suspension of the importation of
elephant trophies from Zimbabwe, citing insufficient
information to make a positive enhancement finding.
See 79 Fed. Reg. 26, 986-01. Notice of that decision
was not published in the Federal Register until May 12, 2014.
Id. Because the 1997 Proposed Rule required the
publication of notice, this Court held that the suspension
did not actually go into effect until May 12, 2014.
Safari Club v. Jewell 213 F.Supp.3d 48, 73 (D.D.C.
2016) (Safari Club I). That holding was not
appealed.
In July
2014, the Service made a final determination that the import
of sport-hunted African elephant trophies taken in Zimbabwe
would be suspended, 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,
continuing its effect indefinitely. 80 Fed. Reg. 42524-03.
The
2014 and 2015 findings were all made under the 1997 Special
Rule. Second Am. Compl. ¶ 73. In 2016, the 1997 Special
Rule for the importation of sport-hunted African elephant
trophies was amended to increase protections for elephants.
81 Fed. Reg. 36.388 (the "2016 Amendments"). The
rule left in place the requirement "that the killing of
the trophy animal will enhance the survival of the
species," while adding that the trophy must be
"accompanied by a threatened species permit under 50
C.F.R. § 17.32." 50 C.F.R. § 17.40(e)(6).
The
intervenor-defendants challenged the 2014 and 2015 elephant
findings in a case before this Court. Safari Club
Int'l v. Jewell, No. 1:14-cv-670-RCL. Although this
Court upheld the 2014 and 2015 elephant findings, see
Safari Club I, F.Supp. at 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 APA. Safari Club II, 878 F.3d at 333. It
therefore ordered this Court to remand the case to the
Service so that it could 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 issued the new
enhancement finding at issue in this case. On November 16,
2017, the Service 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.
Additionally, the Service stated that because the 2016
Amendments require that "all imports will be accompanied
by a threatened species permit evaluated through the ESA
permit application process found at 50 C.F.R. §
17.32(a), [it would] no longer publish notice of changed
enhancement findings for African elephant sport-hunted
trophies in the Federal Register." Id.
On
November 22, 2017, plaintiffs filed this suit, asserting (1)
that the Service failed to provide notice and the opportunity
to comment before making the country-wide findings; and (2)
that the Service failed to act in accordance with the APA and
the ESA . See generally Compl., ECF No. 1. Just
before the D.C. Circuit's opinion in Safari Club
II, plaintiffs added a cause action challenging import
permits granted under the 2017 findings. See Am.
Compl., ECF No. 6. Then, the D.C. Circuit issued its opinion
regarding the 2014 and 2015 elephant findings in December
2017. Safari Club II, 878 F.3d 316.
In
response to that opinion, the Principal Deputy Director of
the Service signed a memorandum on March 1, 2018, (the
"March Memo") announcing the withdrawal of the 2014
and 2015 Zimbabwe elephant findings in response to the D.C.
Circuit's opinion in Safari Club II. Second Am.
Compl. ¶ 123; Intervenor-Defendants, Mot.
Dismiss Ex. 1, ECF No. 42-1.[1]"Consistent with this
approach," the Service also withdrew the positive 2017
Zimbabwe elephant enhancement finding challenged in this
case, along with various country-wide enhancement and
non-detriment findings. Intervenor-Defendants' Mot.
Dismiss Ex. 1; Second Am. Compl. ¶ 123. 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.
¶ 127.
In
response to the March Memo, plaintiffs amended the complaint
to remove the count related to individual permits and to add
three new counts: (1) a claim challenging the Service's
failure to employ notice-and-comment rulemaking to withdraw
all previous country-wide enhancement findings; (2) a claim
that the Service failed to follow the 1997 Special Rule's
notice requirement before withdrawing the rules; and (3) a
claim that the Service violated the APA by changing to a
case-by-case approach for making enhancement and
non-detriment findings is in excess of statutory authority
and in violation of the APA. Id. ¶¶
148-65. Both the government and the defendant-intervenors
move to dismiss the Second Amended Complaint in its entirety,
challenging some claims under Rule 12(b)(1), some claims
under 12(b)(6), and some claims under both.
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 the 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. oflr., Ltd. 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., 974 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 ...