Conservation Force v. Salazar, Civil Action No. 10–CV–1262 (BJR).

919 F.Supp.2d 85

CONSERVATION FORCE, et al., Plaintiffs,

v.Ken SALAZAR, et al., Defendants.

Civil Action No. 10–CV–1262 (BJR).

United States District Court, District of Columbia.

Jan. 29, 2013.

John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Bradley Howard Oliphant, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM AND OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

BARBARA JACOBS ROTHSTEIN, District Judge.

I. INTRODUCTION

This matter is before the Court on cross motions for summary judgment. Plaintiffs filed their motion on May 17, 2012 (Dkt. No. 36, “Pls.' Mot.”) and Defendants filed a Combined Opposition to Plaintiffs' Motion for Summary Judgment and Cross–Motion for Summary Judgment on June 14, 2012 (Dkt. No. 40, “Defs.' Mot.”). Plaintiffs' filed a Combined Opposition to Defendants' Motion for Summary Judgment and Reply in Support of Plaintiffs' Motion for Summary Judgment on August 1, 2012. (Dkt. No. 44, “Pls.' Reply.”). Defendants filed their reply thereto on August 31, 2012. (Dkt. No. 48, “Defs.' Reply.”). Both parties filed notices of supplemental authority. (Dkt. Nos. 47 and 51.). Having considered the parties' arguments, pleadings, and relevant case law, the Court finds and rules as follows:

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendants Ken Salazar, Secretary of the United States Department of Interior, Daniel M. Ashe, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively, the “Service” or “Defendants”), move this Court, pursuant to Fed.R.Civ.P. 56 for summary judgment regarding the Service's denial of the Plaintiffs' import permit applications. Likewise, Plaintiffs, Conservation Force, Steve Hornady, Barbara Lee Sackman, Alan Sackman, Jerry Brenner, Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, Inc., The Conklin Foundation, Grand Slam Club/Ovis, Wild Sheep Foundation, Sardar Naseer A. Tareen, and the Society for Torghar Environmental Protection, (collectively, “Plaintiffs”), also move for summary judgment pursuant to Federal Rule 56. (Second Amended Complaint (“SAC”), Dkt. No. 43 at ¶¶ 11–23.).

Plaintiffs are sport-hunters who are willing to pay large sums of money for the right to hunt and kill the straight-horned markhor, a species of wild goat found in small, isolated populations in the mountains of Afghanistan, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan. (SAC at ¶ 48.) The straight-horned markhor is listed as “endangered” under the Endangered Species Act (the “ESA”). ( Id. at ¶¶ 48–49.). Plaintiffs claim that hunting markhor goats actually contributes to the conservation of the species. ( Id. at ¶¶ 50–52.). According to Plaintiffs, the fact that some sport-hunters are willing to pay fees for the right to hunt the goats has caused local tribal chieftains to place a ban on all unauthorized hunting of the goats by locals, presumably to ensure the stabilization of the species' population so that the chieftains may collect tourist hunting fees. ( Id. at ¶¶ 51–52.). Plaintiffs allege that the goat population has increased significantly as a result of the hunting ban. ( Id. at ¶¶ 50–51, 56.).

Nevertheless, the markhor remains on the endangered species list, and, as such, the hunters are prohibited from importing their “trophies” into the United States. ( Id. at ¶¶ 48–49, 106.). Plaintiffs assert that their inability to import the goat carcasses has artificially deflated the revenues derived from the sport-hunting because “Americans are unwilling to pay full price to hunt if they are unable to bring their trophies home.” ( Id. at ¶ 108.).

Plaintiffs include four hunters who each killed a straight-horned markhor in Pakistan in 2004, 2008 and/or 2009. ( Id. at ¶¶ 12–15.). Each applied to the Service for permits to import the carcasses into the United States, and each received an adverse decision in October 2009. ( Id.). On July 26, 2010, Plaintiffs filed the present action challenging the denials under the Administrative Procedures Act (the “APA”), U.S. Constitution, and the ESA. ( Id. at ¶ 4.). The Service moved to dismiss all claims except Plaintiffs' permit denial claim under the APA. This Court granted the Service's motion on September 2, 2011. (Dkt. No. 16 at 28.). Following the September 2nd Order, the only claim that remained was Plaintiffs' allegation that the Service “arbitrarily and capriciously denied the import trophy permits....” ( Id.). This claim is the subject of the cross-motions for summary judgment that are presently before the Court.

Plaintiffs move the Court to set aside the Service's denial of the permit applications. (Pls.' Mot. at 1.). They argue that the denials were arbitrary, capricious and an abuse of discretion.¹ ( Id.). The Service counters that Plaintiffs failed to exhaust the administrative remedies available to them under 50 C.F.R. § 13.29. (Defs.' Mot. at 2.). As such, the Service argues, the denials do not constitute final agency action and, therefore, the remaining APA claim must be dismiss. ( Id.). The Services further argues that even if this Court were to determine that Plaintiffs' claim is judicially reviewable under the APA, the claim fails on the merits under the “highly deferential” arbitrary and capricious standard of review. ( Id. at 2–3.). Because the Court finds that Plaintiffs failed to exhaust their administrative remedies, it will grant the Service's motion for summary judgment and deny Plaintiffs' cross motion.

III. LEGAL STANDARD

Under the APA, a court must set aside an agency action that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706. This standard of review is highly deferential to the agency, so that a court need not find that the agency's decision is “the only reasonable one, or even that it is the result [the court] would have reached had the question arisen in the first instance in judicial proceedings.” Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983) (quoting Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946)). Rather, to survive the “arbitrary and capricious” standard, an agency need show only that it “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made.’ ” PPL Wallingford Energy LLC v. Fed. Energy Regulatory Comm'n, 419 F.3d 1194, 1198 (D.C.Cir.2005) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal punctuation omitted)).

However, a court may not review a non-final agency action. Fund for Animals, Inc. v. United States BLM, 460 F.3d 13, 18 (D.C.Cir.2006); Hall v. Sebelius, 689 F.Supp.2d 10, 19 (D.D.C.2009) (noting that a non-final agency action is not subject to judicial review under the APA). An agency action is final if it “1) marks the consummation of the agency's decision making process” and 2) affects the “rights or obligations ... [or the] legal consequences” of the party seeking review. Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Domestic Secs. v. SEC, 333 F.3d 239, 246 (D.C.Cir.2003). Therefore, prior to reaching the merits of Plaintiffs' claim, this Court must consider whether the agency's position is final and whether it has a “direct and immediate effect” on the parties.

IV. DISCUSSION

The Service argues that Plaintiffs failed to exhaust their administrative remedies with respect to the remaining APA claim. It claims that Plaintiffs did not ask the Service to reconsider its decision to deny Plaintiffs' permit applications, nor did Plaintiffs appeal the decision to the Director of the Service before instituting the present lawsuit. Therefore, the Service maintains, the permit denials are not final agency actions within the meaning of 5 U.S.C. § 704, and this case must be dismissed. Plaintiffs concede that they did not seek reconsideration of the agency decision, but counter that they are entitled to judicial review without first pursuing an administrative appeal for two reasons. First, they contend that judicial review is appropriate because they waited until the denials were deemed “final” for administrative review purposes ( i.e., the administrative deadline had expired after which no motion for reconsider or appeal to the Director could filed) before seeking the Court's review. Pls.' Resp. at 13. Second, they suggest that pursuant to Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), exhaustion is not necessary in this case because the Service has not instituted a “mandatory review process” for permit denials. Id. For the reasons discussed below, the Court concludes that this action must be dismissed.

Under the APA, administrative exhaustion is required when it is mandated by statute or agency rule. Darby, 509 U.S. at 146, 113 S.Ct. 2539 (the APA “limit[s] the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates”); see also, DSE, Inc. v. United States, 169 F.3d 21, 26–27 (D.C.Cir.1999) ( “[u]nder the APA, a party can seek judicial review from a final agency action withoutpursuing an intra-agency appeal unless required to do so by statute or by regulation”). Therefore, to determine whether Plaintiffs were required to exhaust administrative remedies before seeking judicial review, this Court must determine whether the applicable statute or agency regulations mandate exhaustion. See Jasperson v. Federal Bureau of Prisons, 460 F.Supp.2d 76, 86 (D.D.C.2006).

Here, the Service asserts that agency regulation 50 C.F.R. § 13.29 mandates exhaustion before a plaintiff may seek judicial review of an adverse permit decision. 50 C.F.R. § 13.29 sets forth the administrative process through...