CONSERVATION FORCE et al v. SALAZAR et al
811 F. Supp. 2d 18
D.D.C.2011Background
- ESA-listed straight-horned markhor endangered; Torghar Hills, Pakistan markhor population grew due to TCP community-based conservation; permits for sport-hunted trophies and import denial issued; petitions to downlist filed March 1999 with 90-day finding in Sept. 1999 but no 12-month finding issued; Conservation Force I (2009) challenged permits, 12-month finding, and five-year review; Conservation Force II (2010) challenged five-year review and permit denials; court grants dismissal of Force I in part and dismisses Force II claims consistent with APA/ESA limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations for 12-month finding | Conservation Force argues continuing violation extends period | Defendant asserts 2401(a) is a jurisdictional bar for a one-time violation | Claim I time-barred |
| Due process claim viability | Plaintiffs have a protectable interest in trophies | No fundamental right or property interest in import trophies | Claim II dismissed |
| Judicial review of permit processing under APA/ESA §1537(b) | Requests review of Secretary's administrative handling | §1537(b) is not subject to review; broad administrative duties are not discrete actions | Claim III/IV dismissed as non-reviewable |
| Five-year status review notice requirement | NOI referenced five-year review; timely to sue | Notice not provided 60 days before suit because already litigating | Claim II (Force II) dismissed for lack of proper 60-day notice |
| Final agency action vs. programmatic challenges under APA/ESA | Challenges to denial of permits and cooperation obligations | Requests are programmatic; not subject to review | Claims I and IV not reviewable; remaining Force II claims dismissed |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (ESA §1540(g)(1) limits to substantive ESA violations; maladministration not a reviewable ‘violation’)
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (U.S. 1990) (general APA review limitations; final agency action required for review)
- Snow Lepard, 677 F. Supp. 2d 1203 (N.D. Cal. 2009) (§1537(b) claims are maladministration; not reviewable under ESA §1540(g)(1)(A))
- SUWA v. Norton, 542 U.S. 55 (U.S. 2004) (APA review of broad land-use mandates requires discrete actions; not reviewable for broad encumbrances)
- Wilderness Society v. Norton, 434 F.3d 584 (D.C. Cir. 2006) (continuing violations not applied to §2401(a) as a jurisdictional bar)