Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
)
DALLAS SAFARI CLUB, et al., )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-03696 (APM)
)
DAVID BERNHARDT, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
Plаintiffs in this case are the Dallas Safari Club, the Namibian Ministry of the Environment and Tourism, the Namibian Association of Community Based Natural Resource Management Support Organizations, and a group of individual elephant sport hunters seeking to import their sport-hunted elephant trophies into the United States (together, “Plaintiffs”). They bring this lawsuit to challenge Defendant United States Fish and Wildlife Service’s failure to act on pending elephant trophy import permit applications. Now before this court is Plaintiffs’ Motion for a Preliminary Injunction, in which Plaintiffs ask the court to require the Service to process pending and subsequently filed permit applications. See Pls.’ Mot. for Prelim. Inj., ECF No. 11. Because Plaintiffs have failed to show that Defendant’s inaction has irreparably harmed the organizational Plaintiffs, their members, or the individual hunter Plaintiffs, the court denies the motion for a preliminary injunction.
I.
A. Statutory and Regulatory Background
Two legal regimes govern the importation of sport-hunted African elephant trophies: the Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq. , and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249. CITES is a multilateral treaty that aims to protect wildlife that is vulnerable to or adversеly affected by commercial or non-commercial trade, which Congress has implemented into domestic law through the ESA. 16 U.S.C. §§ 1537a, 1538(c).
The ESA prohibits, among other things, importing into the United States species of fish and wildlife listed as endangered. § 1538(a)(1). The ESA also authorizes the United States Fish and Wildlife Service (“Service”) to extend those prohibitions to species of fish or wildlife listed as threatened through species-specific rulemaking. See id. § 1533(d); 50 C.F.R. § 17.31(c). The Service has established a permitting process to grant exceptions to some protections for threatened species. See 50 C.F.R. § 17.32.
The African elephant is listed as a threatened species under the ESA, see 43 Fed. Reg. 20,499 (May 12, 1978); 50 C.F.R. § 17.11(h), and the Service has promulgated a species-specific rule extending certain protections to the African elephant, 50 C.F.R. § 17.40(e). Notwithstanding these protections, the Service permits a sport-hunted African elephant trophy to be imported into the United States if various conditions are satisfied. 81 Fed. Reg. 36,388 (June 6, 2016); 50 C.F.R. § 17.40(e). One of these conditions is that the Service has determined “that the killing of the trophy animal will enhance the survival of the species”—this is known as an “enhancement finding”— and issued a threatеned species permit under 50 C.F.R. § 17.32(a). 50 C.F.R. § 17.40(e)(6)(i)(B). This enhancement finding is made by the Branch of Permits within the Division of Management *3 Authority, which is part of the Service’s International Affairs Program. Federal Def.’s Resp. to Pls.’ Mot. for Preliminary Inj., ECF No. 16 [hereinafter Def.’s Opp’n], Ex. A, ECF No. 16-1 [hereinafter Alvarez Decl.], ¶ 7.
The ESA also prohibits any trade in animal specimens that violates CITES, a multilateral treaty—of which the United States is a signatory—that regulates international trade of various species through a system of permits and certificates. 16 U.S.C. § 1538(c)(1); CITES, Art II. The African elephant is included among the species whose trade is regulated by CITES. Though the process differs slightly depending upon the country of origin, generally speaking, African elephant specimens may be shipped internationally under CITES so long as the exporting country issues a permit and the permit accompanies the specimen and is presented for validation at the time of trade. CITES, Art. IV, ¶¶ 2, 4. In some instances, an import permit is also required. The import permit requires the importing country to find that trade in the specimen will be for purposes which are not detrimental to the survival of the species involved (“non-detriment finding”), Art. III, ¶ 3(a), and that the specimen is not to be used for primarily commercial purposes, Art. III, ¶ 3(c); see also 50 C.F.R. § 23.61 (listing factors to be considered in issuing a non-detriment finding); id . § 23.62 (listing factors to be considered in making a finding of not for primarily commercial purposes). The Branch of Permits within the Service is responsible for making the required findings and issuing or denying the CITES import permit. Alvarez Decl. ¶ 11 .
B. Factual Background
To recap, all African elephant trophy imports require the Service to make an enhancement finding and issue an ESA permit. In addition, certain African elephant trophy imports also require a non-detriment finding and CITES import permit. Historically, the Service madе periodic countrywide enhancement findings and non-detriment findings, as appropriate, which applied to *4 all sport-hunted elephant trophies taken in the particular country during specific time periods. See Alvarez Decl. ¶ 16.
Such periodic determinations came to a halt, however, according to Plaintiffs, due to a
“Presidential tweet[].” Pls.’ Mem. of P. & A in Support of Mot. for Prelim. Inj., ECF No. 11-1
[hereinafter Pls.’ Mot.], at 5. The tweet at issue was preceded by the Service’s decision to lift the
suspension on Zimbabwe’s ESA enhancement finding, which had been imposed in 2014.
Pls.’ Mot. at 10–11, 14. In a Federal Register Notice dated November 17, 2017, the Service
announced the enhancement finding as to Zimbabwe for elephants taken on or after January 21,
2016; indicated it would make a new enhancement finding at the start of 2019 for, at least, the
2019 hunting season; and stated that it would review import applications “on a case-by-case basis.”
82 Fed. Reg. 54,405, 54,405–08 (Nov. 17, 2017). According to Plaintiffs, “[t]he decision to lift
the suspension on elephant imports gathered spontaneous criticism in the media.” Pls.’ Mot. at 15.
The media storm prompted President Trump to tweet on the same day, November 17, 2017:
“Put big game trophy decision on hold until such time as I review аll conservation facts. Under
study for years. Will update soon with Secretary Zinke. Thank You!” Donald J. Trump
(@realDonaldTrump), Twitter (Nov. 17, 2017).
[1]
Two days later, President Trump again tweeted:
“Big-game trophy hunting decision will be announced next week but will be very hard pressed to
change my mind that this horror show in any way helps conservation of Elephants or any other
animal.” Donald J. Trump (@realDonaldTrump), Twitter (Nov. 19, 2017).
[2]
As a result of the
President’s proclamations, Plaintiffs contend, “[n]o elephant import permit from any country has
been processed, issued or renewed since that first tweet on November 17, 2017.” Pls.’ Mot. at 16.
*5
Meanwhile, the Service’s prior negative enhancement findings for Zimbabwe in 2014 and
2015 were under attack in litigation. In 2016, a district court rejected the argument that those
findings were invalid because they were adopted without notice and comment.
See Safari Club
Int’l v. Jewell
,
C. Procedural History
Plaintiffs filed this suit on December 11, 2019. Compl., ECF No. 1. Two months later, Plaintiffs moved for preliminary injunctive relief. See Pls.’ Mot. for Prelim. Inj., ECF No. 11. Specifically, they ask this сourt to “issue an injunction requiring [Defendant] to expeditiously and in no event later than 90 days process all pending applications for elephant import permits and subsequently received applications.” Pls.’ Mot. at 43. For the reasons that follow, the court denies Plaintiffs’ motion.
II.
Preliminary injunctive relief is an “extraordinary and drastic remedy” that is “never
awarded as [a matter] of right.”
Munaf v. Geren
, 553 U.S. 674, 689–90 (2008) (citations and
internal quotation marks omitted). A court may only grant the “extraordinary remedy . . . upon a
clear showing that the plaintiff is entitled to such relief.”
Winter v. Nat. Res. Def. Council, Inc.
,
Specifically, a plaintiff must show that: (1) it “is likely to succeed on the merits”; (2) it “is
likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities
tips in [its] favor”; and (4) “an injunction is in the public interest.”
Winter
,
Regardless of whether the sliding scale framework applies, a movant must at minimum
demonstrate irreparable harm, which has “always” been “[t]he basis of injunctive relief in the federal
courts.”
Sampson v. Murray
,
A number of principles apply when evaluating whether an alleged harm is “irreparable.”
First, “the injury must be both certain and great; it must be actual and not theoretical.”
Wis. Gas
Co. v. FERC
,
III.
The court finds that injunctive relief is not warranted because Plaintiffs have failed to show
irreparable harm as to any Plaintiff. Accordingly, the court need not consider any of the other
preliminary injunction factors.
See CityFed Fin. Corp.
,
A. The Individual Plaintiffs’ Claims In support of their motion for a preliminary injunction, Plaintiffs provide declarations from sport hunters and individual Plaintiffs Larry Atlas Cheek, Joe Lane Easter, Daniel Crippen, and David Crippen. See Pls.’ Mot., Ex. 2, ECF No. 11-3 [hereinafter Hunters’ Decl.]. They also submitted the declaration of Donald Troy Moritz, who is not a named Plaintiff but a member of organizational Plaintiff Dallas Safari Club. See Pls.’ Mot., Ex. 10, ECF No. 11-11 [hereinafter Moritz Decl.]. Plaintiffs argue that each of the individual hunters is “being denied the trophies from their hunts, resulting in both emotional and monetary injury.” Pls.’ Mot. at 28. None, however, makes out irreparable harm.
As an initial matter, both Cheek and Moritz lack standing to challenge the Service’s
inaction, as neither has a pending import permit application.
See Summers v. Earth Island Inst.,
1. The hunter Plaintiffs’ emotional harm The remaining huntеr Plaintiffs—Joe Lane Easter, Daniel Crippen, and David Crippen—do have pending applications, and so the court turns to their claimed injuries. Each Plaintiff states that the Service’s failure to process his application has caused him “great anguish,” because each has been unable to “bring back the trophy from [his] hunt and . . . [the Service] can give [him] no information as to when, if ever, [his] import permit application will be processed.” Hunters’ Decl. at 2–5. But the hunters’ claimed emotional injuries, as presented, do not rise to the level of irreparable harm. Plaintiffs’ statemеnts are contained in identically worded, four-paragraph declarations, which provide no detail about how the stalled processing of their applications has individually affected them. The boilerplate and conclusory quality of these declarations undercuts their claims of “great” harm.
But even assuming “the sincerity of declarants’ disappointment,” “the inability to import
elephant trophies does not result in a ‘certain and great’ harm,”
Safari Club Int’l v. Jewell
, 47
F. Supp. 3d 29, 34 (D.D.C. 2014), much less an irreparable one,
see League of Women Voters of
U.S. v. Newby
,
At bottom, Plaintiffs’ distress is not the sort of extreme emotional distress that might warrant the extraordinary relief of a preliminary injunction. Cf. Colo. Wild Horse v. Jewell , 130 F. Supp. 3d 205, 220 (D.D.C. 2015) (recognizing that emotional distress might rise to irreparable harm where the claimed injury is observing the killing of a large number of animals).
2. The hunter Plaintiffs’ economic harm The hunter Plaintiffs also claim economic harm, and here their argument is two-fold. First, Plaintiffs allege that the hunter Plaintiffs have incurred expenses through their travels to Africa, “obtaining the necessary permits to hunt an elephant, hiring guides, effecting the hunt and in *11 preserving his or her trophy.” Pls.’ Mot. аt 28. These “injuries,” however, are costs that the individual Plaintiffs sustained before any delay in receiving an import permit. Thus, these costs cannot have been caused by any action or inaction on Defendant’s part.
Plaintiffs’ second economic harm argument is that the hunter Plaintiffs face the “additional irreparable injury resulting from risk of loss due to theft . . . as well as the risk that ivory from legally taken elephants may be diverted to the black market.” at 29. They also cite the rising cost of storing their trophies abroad. Id.
Here, too, Plaintiffs fall far short of the necessary showing of irreparable harm. None of the hunter Plaintiffs claims to be actually paying additional costs for storing his trophy. Only Moritz offered evidence of paying fees for the “monthly warehousing” of his trophies, see Moritz Decl. at 7, but he has no pending application, so his costs cannot be attributed to the Service’s alleged inaction. Plaintiffs also offer a declaration from Debbie Peake, the owner of a taxidermy shop in Botswana, who asserts that her facility will soon have to charge clients for the storage of elephant trophies because the delay in obtaining approval to ship the stored trophies increases the risk of theft. See Pls. Mot., Ex. 4, ECF No. 11-4. But Plaintiffs offer no evidence that any hunter Plaintiff or any member of an organizational Plaintiff stores his or her trophy with Peake’s company and thus will face increased fees or the heightened risk of theft. Thus, Peake supplies no evidence to establish irreparable harm as to these Plaintiffs.
But even assuming that record evidence supported Plaintiffs’ claims as to the storage fees
and the risk of theft, Plaintiffs’ argument would fare no better. Courts in this Circuit have
recognized that economic loss can constitute irreparable injury only in limited circumstances:
where “monetary loss . . . threatens the very existence of the movant’s business,”
Wis. Gas Co.
,
758 F.2d at 674, or where the claimed economic loss is unrecoverable,
Nat’l Mining Ass’n v.
*12
Jackson
,
* * * In sum, the court concludes that neither the individual hunter Plaintiffs’ alleged emotional injuries nor their alleged economic injuries are sufficient to warrant the extraordinary relief of a mandatory preliminary injunction.
B. Organizational Plaintiffs’ Claims
With respect to the organizational Plaintiffs— Dallas Safari Club (“DSC”), the Namibian Ministry of the Environment and Tourism (“MET”), and the Namibian Association of Community Based Natural Resource Management Support Organizations (“NASCO”)—Plaintiffs argue that *13 these organizations are suffering “irreparable harm derivatively.” Pls.’ Mot. at 29. The organizational Plaintiffs’ primary contention is that the Service’s delay in processing permit applications will decrease the popularity of sport hunting in Africa, resulting in a decrease in funding for conservation efforts and ultimately a detrimental impact on “efforts to support the recovery of African elephants and other endangered and threatened species in the elephant range countries.” at 29–42. Plaintiffs offer declarations from the heads of two of the three organizational Plaintiffs, who testify that Defendant’s “hold on the processing of elephant import permits causes irreparable injury . . . because it impedes the full recovery of the threatened African elephant population,” Pls.’ Mot., Ex. 5, ECF 11-6 [hereinafter Mason Decl.], ¶ 4, and that Defendant’s “failure . . . to grant elephant trophy import permits is undermining Namibia’s conservation incentive mechanisms,” Pls.’ Mot., Ex. 7, ECF No. 11-8 [hereinafter Shifeta Decl.] ¶ 18. Based on these declarations, Plaintiffs maintain that they have shown irreparable harm.
The court is not persuaded. First of all, Plaintiffs again fall well short of supporting their
claims with proof.
See Wis. Gas Co
.,
Likewise, with respect to MET and NASCO, Plaintiffs contend that “studies have shown that most conservancies will shortly fail if elephant import permits are not processed,” Pls.’ Mot. at 36, but they offer no evidence to support these representations. At the first step of their speculative chain, Plaintiffs have provided no evidence that the suspension of elephant trophy permits has dеcreased the popularity of sport hunting in these regions. At the second step, Plaintiffs provide no evidence that any decrease in hunting has affected funding received by the conservation groups. MET Minister Pohamba Shifeta avers that “[h]unting contributed approximately 46% of the total cash income to conservancies in 2018,” Shifeta Decl. ¶ 7, yet provides no comparable data from prior years by which this court could assess whether President Trump’s 2017 tweet and the Service’s subsequent suspension of processing permit applications has had a negative impact on cash income it received. And Plaintiffs provide no evidence at all from NASCO as to how the suspension of permits has caused it programmatic or economic injury.
Furthermore, even assuming Plaintiffs had shown that the Service’s inaction in processing
permits resulted in decreased funding to NASCO and MET, as explained, “the standard for
showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not
sufficient to warrant this [c]ourt’s granting of a motion for a preliminary injunction.”
Safari Club
Int’l v. Salazar
,
Accordingly, the court finds that the organizational Plaintiffs have failed to demonstrate that they face irreparable harm absent a preliminary injunction.
IV.
Prior to concluding, the court notes that two additional considerations militate against
issuing a preliminary injunction in this case. The first is Plaintiffs’ delay in seeking preliminary
injunctive relief. Courts in this jurisdictiоn have found that “[a]n unexcused delay in seeking
extraordinary injunctive relief may be grounds for denial because such delay implies a lack of
urgency and irreparable harm.”
Newdow v. Bush
,
Second, the court cannot ignore the current COVID-19 pandemic and the particular
hardship a mandatory injunction would impose in the present situation. On March 11, 2020, the
World Health Organization publicly characterized COVID-19 as a pandemic. C ENTERS FOR
D ISEASE C ONTROL AND P REVENTION , Coronavirus Disease 2019 (COVID-19): Situation Summary (updated April 7, 2020).
[3]
On March 13, 2020, the President declared a National Emergency in an
effort to address the spread of COVID-19.
See
Declaring a National Emergency Concerning the
Novel Coronavirus Disease (COVID-19) Outbreak, Pres. Proc. No. 9994, 85 Fed. Reg. 15337,
The Office of Personnel Management has also been issuing guidance concerning the continuity of Federal Government operations, including recommendations that agencies permit employees to telework. See Dale Cabaniss, U NITED S TATES O FFICE OF P ERSONNEL M ANAGEMENT , Memorandum for: Heads of Executive Departments and Agencies. Subject: Coronavirus Disease 2019 (COVID-19); Additional Guidance , (Mar. 7, 2020). [6] The Office of Management and Budget has asked agencies to “offer maximum telework flexibilities to all current telework eligible employees, consistent with operational needs of the departments and agencies as determined by their heads.” See Russel T. Vought, E XECUTIVE O FFICE OF THE P RESIDENT , O FFICE OF M ANAGEMENT AND B UDGET , Updated Guidance for National Capital Region on Telework Flexibilities in Response to Coronavirus, Memorandum from the Acting Director of The Office of Management and Budget to the Heads of Departments and Agencies , (Mar. 15, 2020). [7]
In light of thе unprecedented disruptions created by the COVID-19 pandemic and the Service’s likely diminished capacity to process permit applications during this period— particularly given Defendant’s representation that “[r]endering enhancement and non-detriment findings on a case-by-case basis is a time consuming and resource intensive process,” Def.’s Opp’n *18 at 36—this court finds it particularly unwise and not in the public interest to order the expeditious processing of sport trophy permit applications during this time.
V. For the foregoing reasons, the court denies Plaintiffs’ Motion for a Prеliminary Injunction, ECF No. 11.
Dated: April 9, 2020 Amit P. Mehta United States District Court Judge
Notes
[1] Available at https://twitter.com/realdonaldtrump/status/932397369655808001.
[2] Available at https://twitter.com/realdonaldtrump/status/932397369655808001.
[3] Available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.
[4] Available at https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_ 315PM.pdf.
[5] Available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence- members-coronavirus-task-force-press-briefing-14/.
[6] Available at https://chcoc.gov/content/coronavirus-disease-2019-covid-19-additional-guidance.
[7] Available at https://www.chcoc.gov/content/updated-guidance-national-capital-region-telework-flexibilities- response-coronavirus.