Marcum v. Salazar
810 F. Supp. 2d 56
D.D.C.2011Background
- This case involves import permits for sport-hunted African elephant trophies and the U.S. implementation of CITES via the ESA.
- FWS denied import permits in March 2010 after evaluating non-detriment and enhancement criteria under 50 C.F.R. § 23.61 and § 17.40(e)(3)(iii)(C).
- DSA (Scientific Authority) issued a non-detriment advisory that could not support a permit; DMA (Management Authority) concurred that the import would not enhance survival of the species.
- Zambia’s elephant management and anti-poaching efforts were scrutinized; an independent CITES Panel found serious governance and enforcement problems in Zambia (e.g., ZAWA interference, weak enforcement, poaching).
- Plaintiffs sought summary judgment challenging FWS’s decisions; defendants-cross moved for summary judgment; court held issues moot or lack jurisdiction in several claims.
- Court addressed whether claims were moot, whether ESA citizen-suit claims were proper, and whether FWS’s adjudication on permit denials complied with the APA and related statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of Claims One and Three | Marcum argued FWS hadn’t processed permits. | FWS’s processing rendered claims moot. | Both claims moot; grant for defendants on these claims. |
| Jurisdiction under ESA citizen-suit (Claims Two and Six) | Plaintiffs seek review of permit denials under ESA §1540(g). | Bennett v. Spear bars challenges to agency maladministration under §1540(g)(1)(A). | Claims Two and Six dismissed for lack of proper statutory basis and failure to give notice. |
| APA/rulemaking for Claim Five | FWS created new policy requiring public rulemaking without notice. | Permit decisions are adjudications, not rules; no APA rulemaking required. | Claim Five fails; decisions treated as adjudications, not rulemaking. |
| Rationality of denial (Claim Four) | FWS ignored evidence that sport-hunting could aid conservation. | FWS properly weighed evidence; rational basis to deny non-detriment and enhancement findings. | Denial upheld; agency acted rationally based on total record. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (ESA citizen-suit scope excludes mal-administration claims against the Secretary)
- Marsh v. Oregon Nat. Res. Council, 568 F.Supp. 985 (D.D.C. 1983) (permit decisions are adjudications, not rulemaking; rationality standard)
- Overton Park v. Volpe, 401 U.S. 402 (1971) (arbitrary and capricious review requires rational connection to facts)
- Conservation Force v. Salazar, 715 F.Supp.2d 99 (D.D.C. 2010) (ESA citizen-suit claims rejected; mootness considerations)
- Defenders of Wildlife v. Endangered Species Scientific Authority, 725 F.2d 726 (D.C.Cir. 1984) (population data not strictly required; agency discretion preserved)