Safari Club Int'l v. Jewell

213 F.Supp.3d 48

SAFARI CLUB INTERNATIONAL, et al., Plaintiffs,

v. Sally M. R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants,andFriends of Animals, et al., Defendant-Intervenors.

Civil Action No. 14-0670 (RCL)

15-cv-01026 (RCL) (consolidated briefing)

United States District Court, District of Columbia.

Signed September 30, 2016

Anna Margo Seidman, Douglas Scott Burdin, Jeremy Evan Clare, Douglas Scott Burdin, Safari Club International, Washington, DC, Christopher A. Conte, National Rifle Association of America, Fairfax, VA, for Plaintiff.

Andrea Gelatt, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, United States District Judge

Plaintiffs Safari Club International and the National Rifle Association challenge the federal government's suspension of imports of trophies from elephants sport-hunted in Zimbabwe. On April 4, 2014, the U.S. Fish and Wildlife Service ("the Service") suspended imports of these trophies on an interim basis. On July 31, 2014, the Service published notice finalizing the April decision, prohibiting imports of trophies from elephants sport-hunted from April 4, 2014 through the remainder of the year. And on March 26, 2015, it announced a suspension of imports for the 2015 hunting seasons and future hunting seasons. The Service explained that it suspended imports because it could no longer make the finding required under its regulations "that the killing of the animal whose trophy is intended for import would enhance survival of the species"—referred to as an enhancement finding. Plaintiffs assert that the three decisions are invalid due to a number of procedural defects and because they are arbitrary and capricious. For the reasons set forth below, the Court will grant plaintiffs' motion for summary judgment in part on the issue that the Service failed to comply with its commitment not to change the enhancement finding before publishing notice in the Federal Register. It will deny plaintiffs' motion on all other issues. The Court will grant defendants' motion for summary judgement in part on all issues except it will deny the motion on the issue of its commitment to publish notice of changes in the Federal Register. The Court will also order that the effective date of the April 2014 interim suspension is May 12, 2014, not April 4, 2014.

LEGAL FRAMEWORK AND BACKGROUND

Importation into the United States of threatened species such as African elephants is governed by international convention and U.S. law.

I. The Convention on International Trade in Endangered Species of Wild Fauna and Flora

The Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 ("CITES"), is a multilateral treaty that regulates the international trade of protected wildlife and plants. The treaty establishes requirements for importing and exporting covered species and categorizes them into three appendices, depending on the level of protection each species requires. Relevant here, Appendix I covers species threatened with extinction, see CITES art. II.1, and Appendix II covers species for which trade is controlled to avoid trade incompatible with the species' survival. Id., art. II.2.¹ Signatories to the treaty, 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" CITES. Id., art. II.4.

A. Appendix I

Under the treaty, a species listed on Appendix I may only be traded if both the importing and the exporting countries issue import and export permits, respectively. In issuing these permits, each country's designated authority must make a number of findings, including that the trade of the species "will be for purposes which are not detrimental to the survival of the species." Id., art. III.2(a), III.3(a). This determination is sometimes referred to as a "non-detriment finding," and both the importing and the exporting countries must separately make this finding before each can issue the required permit. Id.

Before 1994, the treaty required importing countries to also determine that the import of an Appendix I species "would enhance the survival of the species." This determination is sometimes referred to as an "enhancement finding." CITES Res. Conf. 2.11. (Annex 1), AR 249 at 5563;² see also Endangered and Threatened Wildlife and Plants; Retention of Threatened Status for the Continental Population of the African Elephant, 57 Fed. Reg. 35,473, 35,485 (Aug. 10, 1992). But the enhancement finding requirement was eliminated from the treaty in 1994. See Res. Conf. 2.11 and CITES Doc. 9.50, AR at 5559-61, 5563.

B. Appendix II

A species listed on Appendix II requires the exporting country to issue an export permit, including making the non-detriment finding described above. CITES, art. IV. The importing country is not required to issue an import permit or make a non-detriment finding, and the treaty has never required enhancement findings for Appendix II species. Id.

II. U.S. Law

A. The Endangered Species Act

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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the Endangered Species Act ("ESA") is a federal statute that seeks "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." ESA, 16 U.S.C. § 1531(b) (2010). The Act implements CITES into U.S. law. §§ 1532(4), 1537a, 1538(c).

Separately, the Act also provides federal protection to species listed as endangered or threatened pursuant to its provisions, and the listing of a species as endangered or threatened does not depend on whether or how it is categorized under CITES. See §§ 1533(a)(1), 1533(d), 1538(a).

With respect to endangered species, section 9(a) of the Act prohibits a number of activities, including "taking"³ them and importing or exporting them into or from the United States, except as authorized by the statute. §§ 1538(a)(1)(A); § 1532(19).

With respect to threatened species, the Act mandates:

Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.

16 U.S.C. § 1533(d). The Act also gives the Secretary authority to promulgate regulations to "prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) ... with respect to endangered species." Id.

The Secretary has exercised the authority under section 1533(d) by issuing a regulation that extends the Act's prohibitions on endangered species to all threatened species, 50 C.F.R. § 17.31(a), unless the agency has issued a special rule to govern a specific species. § 17.31(c) ("Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.").

B. The Special Rule Governing African Elephants

In 1978, the Service listed African elephants as a threatened species under the Endangered Species Act and simultaneously issued a special rule for them. Listing of the African Elephant as a Threatened Species, 43 Fed. Reg. 20499 (May 12, 1978) ; 50 C.F.R. § 17.11(h) ; 50 C.F.R. § 17.40(e) ( "Special Rule"). The Special Rule allows imports of sport-hunted trophies of African elephants under the following conditions:

(A) The trophy originates in a country for which the Service has received notice of that country's African elephant ivory quota for the year of export;

(B) All of the permit requirements of 50 CFR parts 13 and 23 have been complied with;

(C) A determination is made that the killing of the animal whose trophy is intended for import would enhance survival of the species; and

(D) The trophy is legibly marked [as set forth in the regulation].

50 CFR § 17.40(e)(3)(iii).⁴

Subpart (C) of the Special Rule contains an enhancement finding requirement that was added to the Special Rule in 1992, when all African elephants were on Appendix I and CITES required both non-detriment and enhancement findings to trade an Appendix I species. 57 Fed. Reg. at 35,473 -01. Although CITES no longer requires enhancement findings for Appendix I species, the enhancement finding requirement remains in U.S. law in the Special Rule governing African elephants. See id.

III. Changes to Import Requirements under CITES and the Endangered Species Act

A. The 1997 Downlisting of African Elephants

Signatories to CITES hold regular meetings called the Conference of the Parties to review the treaty's operation and the listing of species under its appendices. When CITES was first implemented, African elephants appeared on Appendix I. In 1997, signatories to the treaty transferred three African elephant populations—from Zimbabwe, Botswana, and Namibia—from Appendix I to Appendix II. Changes in List of Species in Appendices to the CITES, Proposed Rule, 62 Fed. Reg. 44627, 44629 (proposed Aug. 22, 1997) ("1997 Proposed Rule"). The consequence of this downlisting is that under the treaty, a hunter need obtain only an export permit issued by the exporting country to bring home a sport-hunted elephant trophy from one of those three countries. Import permits were no longer required.

After this downlisting and other changes to the CITES appendices, the Service published the 1997 Proposed Rule advising the public of these changes and proposing to amend U.S. regulations to incorporate "all changes in CITES Appendices I and II that were approved by the Conference of the Parties." 62 Fed. Reg. at 44,634.

Because of "the...