Polar Bear Endangered Species Act Listing & Section 4(D) Rule Litig.-MDL No. 1993 v. Jewell

720 F.3d 354

In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND SECTION 4(D) RULE LITIGATION–MDL NO. 1993, Safari Club International, et al., Appellants

v.Sally Jewell, Secretary of the Interior, et al., Appellees.

No. 11–5353.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2013.

Decided June 18, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:08–mc–00764).

Douglas S. Burdin argued the cause for appellants. With him on the briefs were Anna M. Seidman and Paul Minnich. Sean E. Summers entered an appearance.

Katherine W. Hazard argued the cause for appellees. On the brief were Maggie B. Smith and David Shilton.

Howard M. Crystal, Eric R. Glitzenstein, Brendan R. Cummings, Kassia R. Siegel, and Rebecca J. Riley were on the brief for intervenors Humane Society of the United States, et al. in support of appellee. Benjamin H. Longstreth and Jason C. Rylander entered appearances.

Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

After listing the polar bear as a threatened species under the Endangered Species Act, the U.S. Fish and Wildlife Service, acting pursuant to a related statute—the Marine Mammal Protection Act—barred the importation of polar bear trophies. Hunters and hunting organizations challenge this determination, raising both statutory and procedural arguments. Finding them all without merit, the district court granted summary judgment to the Service. We affirm.

I.

“[T]he largest of the living bear species,” polar bears are characterized by their “large body size, a stocky form, and fur color that varies from white to yellow.” Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range (“Listing Rule”), 73 Fed.Reg. 28,212, 28,212 (May 15, 2008). Evolutionarily adapted to sea-ice habitats, polar bears live in “ice-covered seas” in Russia, northern Europe, the Canadian Arctic, and parts of Alaska. Id. at 28,212–13. A 2006 study estimated the “total number of polar bears worldwide” to be 20,000–25,000, comprised of “19 relatively discrete populations” in different geographic regions. See id. at 28,215.

This case is not about living polar bears. Instead, it concerns polar bear trophies—“mount[s], rug[s] or other display item[s] composed of the hide, hair, skull, teeth, baculum, bones, and claws of the specimen which [were] taken ... during a sport hunt for personal, noncommercial use.” 50 C.F.R. § 18.30(b)(1). Plaintiffs, Safari Club International and Safari Club International Foundation, along with individual hunters Ronald Kreider and Donald Hershey, seek to import polar bear trophies from sport hunts in the Canadian Arctic.

Two federal statutes, the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1361 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., govern the importation of polar bear trophies. Congress enacted the first of these statutes, the MMPA, because “certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of” human activities. Id. § 1361(1). The MMPA restricts the importation and “taking”—i.e., harassing, hunting, capturing, or killing, see id. § 1362(13)—of polar bears, as well as other marine mammals such as seals, dolphins, walruses, and sea lions.

The MMPA establishes a “stepwise approach” to the conservation of marine mammals. Appellees' Br. 5. At step one, the statute imposes a general “moratorium on the taking and importation” of all marine mammals, regardless of the species' scarcity or abundance. See16 U.S.C. § 1371(a). This moratorium has several enumerated exceptions, including one for importation of sport-hunted polar bear trophies. Id. § 1371(a)(1) (providing an exception to the general moratorium for “importation of polar bear parts ... taken in sport hunts in Canada”). Specifically, section 104(c)(5) authorizes the Service to “issue a permit for the importation of polar bear parts (other than internal organs) taken in sport hunts in Canada” and provides that the Service “shall” do so when certain criteria are satisfied. Id. § 1374(c)(5)(A). Pursuant to this provision, the Service approved the issuance of permits for importation of trophies from certain Canadian polar bear populations. See50 C.F.R. § 18.30(i)(1).

Going beyond the general moratorium, step two of the MMPA's conservation scheme imposes additional protections for species the Secretary designates as “depleted.” See16 U.S.C. §§ 1371(a)(3)(B), 1372(b)(3). The MMPA defines the term “depleted” as “any case in which” (1) the Secretary “determines that a species or population stock is below its optimum sustainable population”; (2) an authorized State makes the same determination; or (3) “a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973.” Id. § 1362(1). Two provisions of the MMPA prohibit importation of species that have been designated as depleted. Section 101(a)(3)(B) provides that:

Except for scientific research purposes, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock as provided for in paragraph (1) of this subsection, or as provided for under paragraph (5) of this subsection, during the moratorium no permit may be issued for the taking of any marine mammal which has been designated by the Secretary as depleted, and no importation may be made of any such mammal.

Id. § 1371(a)(3)(B). And section 102(b)(3) reads:

Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock, issued under section 1374(c) of this title, it is unlawful to import into the United States any marine mammal if such mammal was ... taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock....

Id. § 1372(b)(3).

On May 15, 2008, the Service published a rule listing the polar bear as a threatened species under the ESA. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed.Reg. 28,212 (May 15, 2008). In the same rule, the Service also determined that the listing had the effect of designating the polar bear as “depleted” under the MMPA and that MMPA sections 101(a)(3)(B) and 102(b)(3) thus barred continued importation of sport-hunted polar bear trophies under that statute. Id. at 28,236, 28,242, 28,301–02. As a consequence, the Service administratively closed Kreider's and Hershey's permit applications, which sought to import polar bears killed prior to the bear's threatened listing. In identical letters sent to Kreider and Hershey, the Service explained that, due to the polar bear's depleted status, the MMPA provision “allow[ing] for the import of sport-hunted polar bear trophies from Canada is no longer available, even if your bear was hunted prior to the effective date of the ESA listing.”

A number of industry groups, environmental organizations, hunters, and states challenged the Listing Rule in several district courts. These challenges, including those by Kreider, Hershey, and the Safari Club, were consolidated as a Multidistrict Litigation case in the United States District Court for the District of Columbia. With respect to the actions challenging the Service's decision to list the polar bear as a threatened species under the ESA, the district court granted summary judgment to the Service, and we sustained that ruling earlier this year. In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litigation, 709 F.3d 1 (D.C.Cir.2013). In a separate ruling, the district court also granted summary judgment to the Service on the issue now before us—whether the MMPA authorizes importation of sport-hunted polar bear trophies following the Listing Rule. According to the district court, the Service “properly concluded that the polar bear is a depleted species within the meaning of the MMPA as of the publication of the Listing Rule,” meaning that “the MMPA mandates the Service's conclusion that sport-hunted polar bear trophies are no longer eligible for import as a result of the species' depleted status.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litigation, 818 F.Supp.2d 240, 245 (D.D.C.2011).

The Safari Club now appeals the district court's grant of summary judgment on the importation issue, raising both statutory and procedural challenges. Several conservation groups, including the Humane Society of the United States, have intervened on behalf of the Service. “In a case like the instant one, in which the District Court reviewed an agency action under the APA, we review the administrative action directly, according no particular deference to the judgment of the District Court.” Holland v. National Mining Association, 309 F.3d 808, 814 (D.C.Cir.2002). In reviewing the Service's interpretation of the MMPA, a statute the agency has sole authority to administer with respect to polar bears and certain other marine mammals, we apply the familiar two-step analysis set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because we conclude that Congress has “directly spoken to the precise question[s] at issue” here, we have no need to resolve the parties' debate about whether the Service's interpretation of the MMPA qualifies for Chevron step two deference. Id. at 842–43, 104 S.Ct. 2778;see also Pharmaceutical Research & Manufacturers of America v. Thompson, 251 F.3d 219, 224 (D.C.Cir.2001).

II.

We begin with the Service's argument that the Safari Club's claims are unripe for review. See Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999) (“[A]n Article III court cannot entertain...