Ctr. for Biological Diversity v. Bernhardt

592 F.Supp.3d 845

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.David BERNHARDT, et al., Defendants.

No. CV-20-00461-TUC-JGZ

United States District Court, D. Arizona.

Signed March 21, 2022

Laura Friend Smythe, Pro Hac Vice, Nicholas Martin Arrivo, Pro Hac Vice, Humane Society of the United States, Washington, DC, Sarah Uhlemann, Pro Hac Vice, Tanya Marie Sanerib, Pro Hac Vice, Center for Biological Diversity, Seattle, WA, for Plaintiffs.

Alison C. Finnegan, US Dept. of Justice ENRD - WMRS, Washington, DC, for Defendants United States Department of the Interior, United States Fish and Wildlife Service, Debra Haaland, Martha Williams.

ORDER

Jennifer G. Zipps, United States District Judge

Pending before the Court is Defendant-Intervenor Safari Club International's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Doc. 23.) Safari Club argues that Plaintiffs have failed to sufficiently allege Article III standing and asserts Plaintiffs’ claims are moot. The motion is fully briefed. (Docs. 33, 34.)

Having considered the parties’ briefing and the accompanying declarations and exhibits, the Court will deny the motion.

BACKGROUND

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a multilateral treaty, ratified by the United States, that regulates the international trade of imperiled species, including the leopard. 27 U.S.T. 1087. CITES is implemented in the United States through the Endangered Species Act (ESA) and through regulations promulgated by the U.S. Fish and Wildlife Service (FWS). 16 U.S.C. §§ 1531 - 1544 ; 50 C.F.R. §§ 23.1 - 23.92. Pursuant to ESA Section 4(d), FWS has adopted a rule allowing for the import of sport-hunted leopard trophies when relevant CITES import requirements are met. 16 U.S.C. § 1533(d) (ESA Section 4(d)); 50 C.F.R. § 17.40(f) (leopard rule).

Leopards (Panthera Pardus ) are listed in CITES Appendix I. 50 C.F.R. § 23.91 ; CITES Appendices, available at https://www.cites.org/eng/app/appendices.php (last visited March 16, 2022). Appendix I pertains to species "threatened with extinction" and receives the strongest protections. 27 U.S.T. 1087. CITES bans all commercial, international trade in Appendix-I species. 27 U.S.T. 1087 ; 50 C.F.R. § 23.13(a). CITES allows for non-commercial trade of Appendix I-species, including the export and import of hunting trophies, if, prior to the exportation of a species listed under its provisions, the scientific authority of the state of export finds that "such export will not be detrimental to the survival of the species." 27 U.S.T. 1087. In addition, prior to issuing an import permit for a listed species, the scientific authority for the state of import—in this case FWS—must find that "the proposed import permit would be for purposes that are not detrimental to survival of the species." 50 C.F.R. § 23.35(c) ; 27 U.S.T. 1087.

U.S. regulations set forth the factors FWS considers in making a "non-detriment finding" and requires that FWS base its determination on "the best available biological information." 50 C.F.R. § 23.61(c), (e), (f). Regulation Section 23.61 states: "In cases where insufficient information is available or the factors [ ] are not satisfactorily addressed, [FWS takes] precautionary measures and would be unable to make the required finding of non-detriment." Id. § 23.61(f)(4).

In October 2020, Plaintiffs filed this action challenging FWS's issuance of leopard import permits. (Doc. 10 at 57-62.) Plaintiffs allege FWS acted arbitrarily, capriciously, and contrary to law when it (1) failed to consider the required factors set forth in 50 C.F.R. § 23.61 ; (2) failed to use the best available biological information in authorizing leopard trophy imports; and (3) failed to take precautionary measures and refrain from making findings where insufficient information was provided and the factors were not met. (Doc. 10 at 57-62.)

On June 15, 2021, the Court granted Safari Club's Motion to Intervene and permitted it to file the pending Motion to Dismiss. (Docs. 22, 23.)

On June 17, 2021, the Court denied the Federal Defendants’ Motion to Dismiss for lack of standing. (Doc. 24.) The Court concluded that Plaintiffs sufficiently alleged that FWS's authorization of import permits cause injury to Plaintiffs’ cognizable interest in observing leopards and that their injury will likely be redressed by setting aside the allegedly unlawful permits. (Id. at 4.) The Court noted that Plaintiffs alleged, with factual support, that the challenged import permits are "prerequisites" to the trophy hunter embarking on a hunt and, without import authorizations and the ability to bring a trophy home, the "[a]pplicants would not kill the target leopards." (Doc. 24 at 4; Doc. 10 at ¶¶ 20, 136.) The Court concluded that Plaintiffs plausibly alleged that the applicants’ decisions to hunt leopards for trophies are at least substantially motivated by FWS's issuance of import permits, thus satisfying the causation and redressability requirements. (Doc. 24 at 5) (citing Cary v. Hall , 2006 WL 6198320, *6 (N.D. Cal. Sept. 30, 2006) (recognizing that trophies are the end goal of sport hunters, and therefore, "causation would not be implausible if the exemption allowed the importation into the United States of trophies of the three antelope species taken in the wild." (emphasis added))).

DISCUSSION

In its pending motion, Safari Club moves to dismiss the case for lack of standing, disputing all three elements of standing and asserting Plaintiffs’ claims are moot. The Court will address these arguments in order.

I. Standing

A. Applicable Legal Standards

Standing under Article III of the Constitution is a limitation on a district court's subject matter jurisdiction and is properly addressed in a Rule 12(b)(1) motion. Cetacean Cmty. v. Bush , 386 F.3d 1169, 1174 (9th Cir. 2004). "A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). By contrast, a "factual challenge ‘rel[ies] on affidavits or any other evidence properly before the court to contest the truth of the complaint's allegations." Courthouse News Serv. v. Planet , 750 F.3d 776, 780 (9th Cir. 2014) (citation omitted).

When a challenger relies on extrinsic evidence, as Safari Club does here, Plaintiffs must respond by presenting "affidavits or any other evidence necessary to satisfy [their] burden of establishing that the court, in fact, possess subject matter jurisdiction." Colwell v. Dep't of Health & Human Servs. , 558 F.3d 1112, 1121 (9th Cir. 2009). "The district court may look beyond the pleadings to the parties’ evidence without converting the motion to dismiss into one for summary judgment." Edison v. United States , 822 F.3d 510, 517 (9th Cir. 2016). "In evaluating the evidence, the court ‘need not presume the truthfulness of the plaintiffs’ allegations.’ " Id. (citation omitted). "Any factual disputes, however, must be resolved in favor of Plaintiffs." Id. Additionally, "[w]here jurisdiction is intertwined with the merits, [courts] must ‘assume the truth of the allegations in a complaint ... unless controverted by undisputed facts in the record." Warren , 328 F.3d at 1139.

"[T]he irreducible constitutional minimum of standing contains three elements." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To have standing, a plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Sierra Club v. Trump , 963 F.3d 874, 883 (9th Cir. 2020). "The party invoking federal jurisdiction bears the burden of establishing these three elements." Id.

1. Injury in Fact

To prove injury in fact, a plaintiff must have suffered "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (cleaned up).

In the environmental context, "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for the purpose of standing." Lujan , 504 U.S. at 562-63, 112 S.Ct. 2130 ; see also Friends of Earth, Inc. v. Laidlaw Envir. Servs. (TOC), Inc. , 528 U.S. 167, 183, 120 S.Ct. 693 (2000) ("We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity." (quoting Sierra Club v. Morton , 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) )). Because Defendants rely on extrinsic evidence to disprove the injury, Plaintiffs must "submit affidavits or other evidence showing ... [that] the species were in fact being threatened ... [and that one of the Plaintiffs] would thereby be ‘directly’ affected." Lujan , 504 U.S. at 563, 112 S.Ct. 2130 (discussing summary judgment, but on a factual attack Plaintiffs must still present evidence, as stated above, and the Court will resolve any dispute in Plaintiffs’ favor).

Plaintiffs allege that FWS's issuance of import permits increases the number of leopards being killed, putting unsustainable pressure on an already imperiled species. (Doc. 10 at 8.) Plaintiffs also allege that they view, enjoy, study and photograph leopards in the countries and the same areas where leopards have been taken and FWS has authorized the importation of the taken leopards. (Doc. 10 at 9.) Plaintiffs...