Friends of Animals v. David Bernhardt, 961 F.3d 1197

Background

The U.S. Fish and Wildlife Service (Service) historically issued countrywide “enhancement” and “non-detriment” findings (blanket determinations) governing import permits for sport-hunted trophies of threatened African species.
Earlier rulings (Safari Club II) held that such blanket findings were legislative rules requiring APA notice-and-comment; the D.C. Circuit remanded rather than vacating and suggested rulemaking.
In March 2018 the Service issued a memorandum withdrawing more than twenty prior findings (including the 2017 Zimbabwe elephant and lion findings) and stated it would evaluate future permit applications on a case-by-case (informal adjudication) basis, using information from withdrawn findings as appropriate.
Conservation organizations (Center for Biological Diversity and Friends of Animals) challenged: (a) the 2017 findings, (b) the March Memo’s withdrawal of prior findings (arguing withdrawal required notice-and-comment), and (c) the announced shift to case-by-case adjudication (arguing it was unlawful and harmed their organizational interests).
The district court dismissed most claims for lack of jurisdiction or failure to state a claim; the D.C. Circuit affirmed in part and addressed standing and merits questions as to select withdrawals and the case-by-case policy.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of challenges to the 2017 Zimbabwe findings	2017 findings still inform individual permit decisions; relief would be meaningful	March Memo withdrew the findings; they no longer have legal effect	Claims challenging the 2017 findings are moot; voluntary-cessation and capable-of-repetition exceptions do not save them
Whether withdrawing prior (improperly promulgated) findings required APA notice-and-comment	Service must use §553 to repeal previous findings because they functioned as rules	Withdrawals of findings that never lawfully attained rule status need not undergo §553 rulemaking	No notice-and-comment required to withdraw findings that were never validly promulgated by §553 (i.e., “non-rule rules”); different result when a valid rule is being repealed
Standing to challenge the March Memo withdrawals	Organizations asserted harm from many withdrawn findings	Government said plaintiffs lacked injury from most withdrawals	Plaintiffs had standing only as to certain discrete withdrawals (e.g., 2015 Zimbabwe elephant; Center also for 2015 Tanzania); standing is evaluated discretely, not “in gross”
Challenge to agency policy of future case-by-case informal adjudication	Policy will increase trophy imports and impair organizational informational/educational efforts; ESA §1533(d) requires rulemaking	Agency has discretion to choose rulemaking or adjudication; memo is a policy statement/interpretation and not unlawfully adopted	Friends of Animals has organizational standing (concrete informational injury); Center lacks standing on the advocacy-resource theory. Merits: ESA §1533(d) does not compel rulemaking for every subsidiary finding — agency may use adjudication where statute permits

Key Cases Cited

Safari Club Int’l v. Zinke, 878 F.3d 316 (D.C. Cir. 2017) (countrywide trophy findings were legislative rules subject to notice-and-comment)
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015) (agencies must use same procedures to amend or repeal rules as used to adopt them)
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (APA’s treatment of initial and subsequent agency action)
Am. Tel. & Tel. Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992) (agency should not apply a judicially condemned legislative rule in adjudication)
Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (repeal of a legislative rule ordinarily requires notice-and-comment)
Nat. Res. Def. Council v. Wheeler, 955 F.3d 68 (D.C. Cir. 2020) (agency abandoning part of a rule that had been lawfully promulgated must use notice-and-comment)
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (agency procedural choice—rulemaking v. adjudication—generally within agency discretion)
People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087 (D.C. Cir. 2015) (organizational standing requires concrete injury beyond litigation or advocacy)