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Friends of Animals v. Zinke

United States District Court, District of Columbia

April 8, 2019

FRIENDS OF ANIMALS, et al., Plaintiffs,
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



         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 In claims one and two, plaintiffs challenge the now-withdrawn 2017 Zimbabwe elephant findings.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.


         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 ...

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