Conservation Force v. Salazar
919 F. Supp. 2d 85
D.D.C.2013Background
- Plaintiffs challenge the Service's denial of import permit applications for straight-horned markhor trophies under the APA, ESA, and Constitution.
- The straight-horned markhor is listed as endangered under the ESA, and import of trophies is prohibited absent a permit.
- Plaintiffs allege that sport hunting funds conservation and that local bans increased, thereby maintaining or increasing goat populations.
- Four hunters had their import permit denials in October 2009, and Plaintiffs sued after those denials.
- The district court ultimately limited the case to the APA claim and then held exhaustion issues control the outcome.
- The court concluded Plaintiffs failed to exhaust administrative remedies under 50 C.F.R. § 13.29, making the claim non-final for judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exhaustion is required under § 13.29 | Plaintiffs argue exhaustion is not mandatory here. | Defendants contend § 13.29 mandates exhaustion before review. | Exhaustion required; process exists and must be pursued. |
| Whether Darby excused exhaustion | Darby allows review without exhaustion where no mandatory review process exists. | Darby does not excuse here because § 13.29 provides a mandatory review process. | Darby not controlling; exhaustion mandatory. |
| Whether the 45-day deadline affects finality and reviewability | The deadline expired, making the denials final for purposes of review. | Even if the deadline passed, exhaustion cannot be bypassed; process must be pursued. | Deadline does not render bypass permissible; exhaustion still required. |
| Whether failure to exhaust bars APA review of the denial | Plaintiffs should be allowed judicial review without exhausting. | Without exhaustion, the action is not final and not reviewable under the APA. | Failure to exhaust defeats review; action dismissed. |
Key Cases Cited
- Marine Mammal Conservancy v. Department of Agriculture, 134 F.3d 409 (D.C. Cir. 1998) (exhaustion required where applicable regulation exists)
- Career Education, Inc. v. Department of Education, 6 F.3d 817 (D.C. Cir. 1993) (exhaustion to give agency top-level review)
- Marcum v. Salazar, 694 F.3d 123 (D.C. Cir. 2012) (final-action requirement and exhaustion discussed)
- Darby v. Cisneros, 509 U.S. 137 (U.S. 1993) (exhaustion required when statute/regulation provides review)