Friends Animals v. Bernhardt

961 F.3d 1197

FRIENDS OF ANIMALS, Appellant

v.David Longly BERNHARDT, in his official capacity as Secretary of the Interior, et al., Appellees

Center for Biological Diversity, et al., Appellants

v.David Longly Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Appellees

No. 19-5147

No. 19-5152

United States Court of Appeals, District of Columbia Circuit.

Argued April 22, 2020

Decided June 16, 2020

Stephen R. Hernick argued the cause for appellant Friends of Animals. With him on the briefs were Michael R. Harris, Boca Raton, FL, and Jennifer E. Best.

Sommer H. Engels, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were Eric A. Grant, Deputy Assistant Attorney General, and Andrew C. Mergen and Avi M. Kupfer, Attorneys.

Jeremy E. Clare and Michael T. Jean were on the brief for intervenor-appellees Safari Club International and the National Rifle Association of America. Christopher A. Conte entered an appearance.

Tanya M. Sanerib argued the cause for appellants Center for Biological Diversity, et al. With her on the briefs were Anna E. Frostic and Sarah Uhlemann.

Sommer H. Engels, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With her on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric A. Grant, Deputy Assistant Attorney General, and Andrew C. Mergen and Avi M. Kupfer, Attorneys.

Jeremy E. Clare and Michael T. Jean were on the brief for intervenor-appellees Safari Club International and National Rifle Association of America.

Before: Griffith and Pillard, Circuit Judges, and Silberman, Senior Circuit Judge.

Silberman, Senior Circuit Judge:

These cases raise some interesting administrative law questions. Appellants, conservation organizations and a safari guide, challenge a series of actions of the U.S. Fish and Wildlife Service governing imports of sport-hunted animal trophies from Africa. Appellants initially challenged certain "findings" the Service made that would allow such trophies to be imported. We subsequently reviewed a similar set of findings in another case and concluded that they were legislative rules illegally issued without notice and comment. The Service then withdrew all its findings that suffered from the same deficiency, including those challenged by appellants in the two cases before us, and announced that in the future it would proceed by informal adjudication. Nevertheless, appellants wish to contest the withdrawn findings, claiming that they are relied on in the Service's informal adjudications. Appellants assert, moreover, that it was illegal for the Service to abandon its prior findings without engaging in APA informal rulemaking, and that it also was illegal for the Service to announce its intent to make the necessary findings through informal adjudications in the future. We affirm the district court's thoughtful rejection of these claims in this consolidated opinion.

I.

The disputes in these cases arise from the Service's regulation of imports of certain sport-hunted animal trophies from Africa. The Service is tasked with determining under what conditions it will grant hunters permits to import "sport-hunted trophies," which it has termed "a whole dead animal or a readily recognizable part or derivative of an animal." 50 C.F.R. § 23.74(b). We have previously described at length the governing regulatory regime under the Convention on International Trade of Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, and the Endangered Species Act, 16 U.S.C. §§ 1531 – 1544. See Safari Club Int'l v. Zinke (Safari Club II ), 878 F.3d 316, 321–23 (D.C. Cir. 2017).

We deal here with the requirements governing permits to import trophies of species that are classified as "threatened." The Service, by legislative rule, has instituted a general ban on importing such trophies, subject to species-specific exceptions. Those exceptions, in turn, generally impose at least two requirements before a permit may be granted: First, the Service must determine that the killing of the trophy animal will enhance the survival of the species (the "enhancement" finding). See, e.g. , 50 C.F.R. § 17.40(e)(6)(i)(B) (African elephants); id. § 17.40(r) (lions) (referencing § 17.32). Second, the Service must determine that the proposed import will not be detrimental to the survival of the species (the "non-detriment" finding). See id. § 23.61(a); see also id. § 17.40(e)(6)(i)(D) (referencing § 23); id. § 17.40(r)(3) (same).

For many years, the Service periodically made blanket enhancement and non-detriment "findings" to govern all applications to import particular species taken in particular countries over a given time period. In 2014, for example, the Service issued a negative enhancement finding for African elephants taken as sport-hunted trophies in Zimbabwe. It concluded that in the absence of current data it was unable to determine that sport-hunting of elephants in Zimbabwe would enhance the survival of the species. The Service came to the same conclusion in 2015, extending the suspension of imports through the 2015 hunting season and future hunting seasons. As it had done for years, the Service issued the 2014 and 2015 Zimbabwe elephant findings without proceeding under § 553 of the Administrative Procedure Act, which of course requires notice and comment.

That led Safari Club International and the National Rifle Association to seek judicial review of the 2014 and 2015 Zimbabwe elephant findings in our district court. They argued, inter alia , that the "findings" were rules subject to the notice-and-comment requirements of the APA. Before that case came to our court, the Service issued two new positive enhancement findings in late 2017. The Service determined that the sport-hunting of elephants in Zimbabwe would enhance the survival of the species during 2018, 2017, and much of 2016. It came to the same conclusion with respect to Zimbabwe's lions.

Appellants in the present cases, with interests opposite from Safari Club and the NRA, then sued. One group, made up of the Center for Biological Diversity, three other conservation organizations, and a local safari guide (collectively "the Center"), challenged the 2017 Zimbabwe elephant and lion findings as arbitrary and capricious, contrary to law, and—as Safari Club and the NRA had argued about the 2014 and 2015 findings—in violation of the APA's rulemaking procedures. The second group, made up of Friends of Animals and the Zimbabwe Conservation Task Force (collectively "Friends of Animals"), challenged just the 2017 Zimbabwe elephant finding on largely the same grounds.

Before the district court decided the cases brought by the conservation organizations, we agreed with Safari Club and the NRA that the 2014 and 2015 Zimbabwe elephant findings were not really the products of adjudications, but were actually rules subject to the APA's notice and comment procedures. Safari Club II , 878 F.3d at 331–34. We explained that the so-called "findings" did not adjudicate any dispute between specific parties, resulted in no immediate legal consequences for any specific parties, and were not made "in the course of denying an application for an import permit." Id. at 334 ; see id. at 333–34. We instructed the district court "to remand the case to the Service so that it may initiate rule making to address enhancement findings for the time periods at issue in this case." Id. at 336. In other words, we anticipated (but did not require) that the Service would issue its enhancement determinations through rulemaking.

However, in March 2018, the Service issued a memorandum withdrawing the disputed 2014 and 2015 findings "[i]n response to the D.C. Circuit Court's opinion in [ Safari Club II ]."¹ The "March Memo" also withdrew a number of other enhancement and non-detriment findings, including the 2017 Zimbabwe elephant and lion findings challenged by the Center and Friends of Animals, as equally illegal. The Memo acknowledged, however, that although the withdrawn findings were no longer effective, the Service intended to use the information relied upon in the defective findings as appropriate when evaluating individual permit applications. It also set forth the Service's plan to make future enhancement and non-detriment findings when considering permit applications on a case-by-case basis—in other words, by informal adjudication. The Center and Friends of Animals then amended their respective complaints to add challenges to the March Memo on grounds we discuss below. Safari Club and the NRA intervened as defendants in each case.

The district court dismissed the conservation organizations’ challenges for lack of subject matter jurisdiction and failure to state a claim, for largely identical reasons. See Ctr. for Biological Diversity v. Zinke , 369 F. Supp. 3d 164, 183 (D.D.C. 2019) ; Friends of Animals v. Zinke , 373 F. Supp. 3d 70, 91–92 (D.D.C. 2019). Appellants’ claims before us fall roughly into three categories: (1) challenges to the 2017 Zimbabwe findings; (2) challenges to the March Memo's withdrawal of prior findings; and (3) challenges to the March Memo's announcement that the Service now intends to make findings on a case-by-case basis when considering individual permit applications. We take the issues related to each category of claims in turn.

II.

A.

The district court first dismissed appellants’ respective challenges to the 2017 Zimbabwe findings as moot, reasoning that the March Memo had already eliminated their legal effects. See Ctr. for Biological Diversity , 369 F. Supp. 3d at 173 ; Friends of Animals , 373 F. Supp. 3d at 83. The Center contends that the Service actually has continued to rely on the substance and conclusions of the 2017 findings in its "case-by-case" permitting decisions (informal adjudications), so a court order declaring those conclusions invalid would still provide the Center with meaningful relief. And...