Two organizations-Friends of Animals ("FoA") and the Zimbabwe Conservation Task Force ("ZCTF")-bring a five-count complaint challenging the actions of the government. Second Am. Compl., ECF No. 35. Upon motion. Safari Club International and the National Rifle Association of America were permitted to intervene as defendants (the "intervenor-defendants"). Order, ECF No. 26. In claims one and two, plaintiffs challenge the now-withdrawn 2017 Zimbabwe elephant findings. Second Am. Compl. ¶¶ 132-147. In their third cause of action, plaintiffs allege that the Service violated the APA by withdrawing the various enhancement and non-detriment findings without soliciting public notice and comment. Id. ¶¶ 148-54. In claim four, plaintiffs argue that the Service violated the APA by withdrawing prior negative enhancement findings without following an alleged publication requirement. Id. ¶¶ 155-60. And in plaintiffs' fifth cause of action, plaintiffs argue that the Service exceeded its statutory authority by creating a policy whereby enhancement findings would be made on a case-by-case basis. Id. ¶¶ 161-65.
Now, both the government and the intervenor-defendants move to dismiss the complaint in its entirety. See Federal Defs.' Mot. Dismiss, ECF No. 38 ; Intervenor-Defendants' Mot. Dismiss, ECF No. 39. For the reasons set forth herein, those motions will be GRANTED.
I. BACKGROUND
A. The Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Endangered Species Act
Importation into the United States of threatened species such as African elephants is governed by international convention and U.S. law.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), Mar. 3, 1973, 27 U.S.T. 1087, is a multilateral treaty to which both
Elephants in Zimbabwe were listed on Appendix I until 1997 and now are listed on Appendix II. Changes in List of Species in Appendices to the [CITES],
"It is undisputed that the proscriptions in [CITES] are a floor, not a ceiling, for protection of Appendix II species." Safari Club II ,
To that end, Congress passed the Endangered Species Act ("ESA") to provide for the conservation of "endangered" and "threatened" species.
While the ESA generally forbids the importation of endangered species into the United States,
B. Factual and Procedural Background
Since the African elephant (Loxodonta Africana ) has been listed as a threatened
In 1997, the rule provided for a limited exception for the importation of African elephant trophies into the United States from Zimbabwe and other countries, provided five conditions were met, including that "a determination [was] made that the killing of the animal whose trophy is intended for import would enhance survival of the species."
The Service will make such findings on a periodic basis upon receipt of new information on the species' population or management. The enhancement findings for importation of sport-hunted elephant trophies from Botswana, Namibia, and Zimbabwe are on file in the Office of Management Authority and remain in effect until the Service finds, based on new information, that the conditions of the special rule are no longer met and has published a notice of any change in the Federal Register.
The 1997 finding that the killing of African elephants in Zimbabwe whose trophies were intended for import would enhance survival of the species remained in effect until 2014. Second Am. Compl. ¶ 83. In April of that year, the Service announced an interim suspension of the importation of elephant trophies from Zimbabwe, citing insufficient information to make a positive enhancement finding. See
In July 2014, the Service made a final determination that the import of sport-hunted African elephant trophies taken in Zimbabwe would be suspended, as the Service was "unable to determine that the killing of the animal ... would enhance the survival of the species in the wild."
The 2014 and 2015 findings were all made under the 1997 Special Rule. Second Am. Compl. ¶ 73. In 2016, the 1997 Special Rule for the importation of sport-hunted African elephant trophies was amended to increase protections for elephants.
The intervenor-defendants challenged the 2014 and 2015 elephant findings in a case before this Court. Safari Club Int'l v. Jewell , Case No. 1:14-cv-670-RCL. Although this Court upheld the 2014 and 2015 elephant findings, see Safari Club I ,
Prior to the D.C. Circuit's opinion, the Service issued the new enhancement finding at issue in this case. On November 16, 2017, the Service concluded that hunting elephants in Zimbabwe enhances the survival of the species, opening the door for the importation of elephant trophies hunted in 2016, 2017, and 2018. See
On November 22, 2017, plaintiffs filed this suit, asserting (1) that the Service failed to provide notice and the opportunity to comment before making the country-wide findings; and (2) that the Service failed to act in accordance with the APA and the ESA. See generally Compl., ECF No. 1. Just before the D.C. Circuit's opinion in Safari Club II , plaintiffs added a cause action challenging import permits granted under the 2017 findings. See Am. Compl., ECF No. 6. Then, the D.C. Circuit issued its opinion regarding the 2014 and 2015 elephant findings in December 2017. Safari Club II ,
In response to that opinion, the Principal Deputy Director of the Service signed a memorandum on March 1, 2018, (the "March Memo") announcing the withdrawal of the 2014 and 2015 Zimbabwe elephant findings in response to the D.C. Circuit's opinion in Safari Club II . Second Am. Compl. ¶ 123; Intervenor-Defendants' Mot. Dismiss Ex. 1, ECF No. 42-1.
In response to the March Memo, plaintiffs amended the complaint to remove the count related to individual permits and to add three new counts: (1) a claim challenging the Service's failure to employ notice-and-comment rulemaking to withdraw all previous country-wide enhancement findings; (2) a claim that the Service failed to follow the 1997 Special Rule's notice requirement before withdrawing the rules; and (3) a claim that the Service violated the APA by changing to a case-by-case approach for making enhancement and non-detriment findings is in excess of statutory authority and in violation of the APA. Id. ¶¶ 148-65. Both the government and the defendant-intervenors move to dismiss the Second Amended Complaint in its entirety, challenging some claims under Rule 12(b)(1), some claims under 12(b)(6), and some claims under both.
II. LEGAL STANDARD
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.' " Sparrow v. United Air Lines, Inc. ,
A. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife ,
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri ,
B. Failure to State a Claim
"To survive a [Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal ,
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in the plaintiff's favor, and the Court should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp. ,
C. APA Notice-and-Comment Rule Making
Under the APA, when an agency proposes to promulgate a rule, it must follow the procedures set out in
III. ANALYSIS
A. Plaintiffs' challenges to the 2017 finding are moot.
In their first two causes of action, plaintiffs specifically challenge the 2017 elephant finding, claiming it was issued arbitrarily and capriciously or otherwise not in accordance with law because: (1) the Service failed to solicit public notice and comment; (2) the Service failed to provide a reasoned explanation for altering the status of elephants in Zimbabwe set forth in the 2014 and 2015 findings; and (3) the Service failed to adequately consider relevant criteria set forth in the ESA. Second Am. Compl. ¶¶ 132-147. Plaintiffs ask this Court to declare that the 2017 finding violates the APA and the ESA, to set aside the 2017 enhancement finding, and to enjoin the Service from issuing any permits pursuant to that findings.
Under Article III, the "judicial power" extends only to "Cases" and "Controversies." U.S. Const. art. III, s 2. "To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."
Here, the challenged findings are no longer in effect. The Court, therefore, can provide the plaintiffs with no meaningful relief. The fact that they seek declaratory relief-in addition to injunctive relief-does not change the analysis. "The Article III case or controversy requirement is as applicable to declaratory judgments as it is to other forms of relief." Conyers v. Reagan ,
The Court cannot set aside findings that have already been withdrawn. And to declare that the withdrawn findings violate the APA or ESA for the purpose of instructing the Service how to approach future findings amounts to an advisory opinion. Federal courts "are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna ,
Plaintiffs argue that claims one and two fall under the capable-of-repetition-yet-evading-review exception to the mootness doctrine, A case is capable of repetition and yet evades review when "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action." Clarke v. United States ,
The Court is not persuaded. Whether or not the Service relies on the same information to make its individual enhancement determinations does not give the withdrawn country-wide findings any operational effect in and of themselves. Instead, the proper vehicle to challenge the Service's methods in coming to an enhancement finding is to challenge the new enhancement determinations themselves-findings that affect the ability to import a sport-hunted trophy. In other words, these new enhancement findings do not create a live controversy over the withdrawn ones.
Furthermore, plaintiffs do not-and could not-argue that were the Service to issue a country-wide enhancement finding like the one challenged in this case that it would evade review. After all, the D.C. Circuit effectively reviewed the 2014 and 2015 enhancement findings in Safari Club II . And plaintiffs cannot keep their claims alive on the basis that future litigation challenging the issuance of specific imports permit might evade review. If the concern is that those individual adjudication decisions are too short in duration to be fully litigated, the capable-of-repetition-yet-evading-review exception can be applied in that context.
The voluntary cessation doctrine is equally inapplicable. The idea behind the exception is that a "defendant's voluntary cessation of a challenged practice
Because claims one and two challenge the withdrawn 2017 country-wide elephant finding, there is no live controversy. Moreover, no mootness exception applies. The Court lacks jurisdiction to hear these claims, and they must be DISMISSED .
B. Plaintiffs' challenge to the March Memo's rescission of prior enhancement and non-detriment findings must be dismissed either for lack of standing or because of collateral estoppel.
In its third cause of action, plaintiffs allege the Service violated the APA by rescinding prior enhancement and non-detriment findings in the March Memo without public notice and comment. Second Am. Compl. ¶¶ 148-54. This claim greatly broadened the scope of this action: plaintiffs challenge not only the rescission of prior Zimbabwe elephant findings, but rather the withdrawal of "all previous countrywide enhancement findings" in the March Memo.
i. Plaintiffs lack standing to challenge the withdrawal of positive enhancement findings or any non-elephant or non-Zimbabwe negative findings.
In order to bring suit, litigants must establish Article III standing.
(1) the plaintiff must have suffered injury in fact, an actual or imminent invasion of a legally protected, concrete and particularized interest; (2) there must be a causal connection between the alleged injury and the defendant's conduct at issue; and (3) it must be "likely," not "speculative," that the court can redress the injury.
"Whether a party's claim requires dismissal because of an inability to establish standing depends on the stage of the litigation." Food & Water Watch, Inc. v. Vilsack ,
"[S]tanding is not dispensed in gross." Lewis v. Casey ,
FoA and ZCTF are conservation organizations dedicated to the preservation and the sustainability of wildlife. Second Am. Compl. ¶¶ 19-23. They oppose sport hunting of African elephants and believe that allowing the importation of sport-hunted trophies directly harms animals in the wild and aids in the illegal trafficking of these animals and their parts. Feral Decl. ¶¶ 8-9, ECF No. 48-1 ; Rodrigues Decl. ¶¶ 3,4, 20, ECF No. 47-2. The organizations claim both associational standing through their members, Pls.' Opp. Mot. Dismiss 35-42, and standing in their own right as organizations. Id. at 42-45.
To establish standing in its own right, an organization is required, "like an individual plaintiff, to show 'actual or threatened injury in fact that is fairly traceable to the illegal action and likely to be redressed by a favorable court decision.' " Equal Rights Ctr. v. Post Props., Inc. ,
Here, neither FoA nor ZCTF have plausibly alleged an injury in fact to themselves or their members from the March Memo's rescission of positive enhancement findings or findings related to countries other than Zimbabwe. First, because the complaint and the declarations submitted in support of standing focus exclusively on elephants and Zimbabwe, plaintiffs have not plausibly alleged injury in fact from the rescission of non-Zimbabwe, non-elephant findings.
Moreover, the plaintiffs' entire case is premised on the proposition that allowing the importation of sport-hunted elephant trophies from Zimbabwe into the United States increases both the legal and illegal killing of African wildlife, harming the plaintiffs' aesthetic, professional, scientific, recreational, and organizational interests. See Second Am. Compl. ¶¶ 2-7, 56-57, 61; Rodrigues Decl. ¶¶ 22-27, 30, 32; Feral Decl. ¶¶ 2, 8-10, 12-14. As previously described, elephant and lion trophies may not be imported to the United States absent a finding that the killing of the animals enhances the survival of the species. Supra Part I.A. A positive enhancement finding, then, leads to increased killing of African wildlife under plaintiffs' own theory. This point is only buttressed by plaintiffs' desire to set aside the 2017 positive elephant findings in its first two causes of action.
Here, the March Memo withdraws a number of positive enhancement findings-relevantly, the 1997 and 2017 Zimbabwe elephant findings-explicitly stating that they "are no longer effective for making individual permit determinations for imports of those sport-hunted ESA-listed species." Intervenor-Defendants' Mot, Dismiss Ex. 1. In other words, a permit applicant may no longer rely on the withdrawn findings in order to gain permission to import a trophy to the United States.
Plaintiffs put forth no plausible theory for how the withdrawal of these positive enhancement findings without public notice and comment equates to an injury in fact for either organization. Instead, they only point to the Service's comment that it would continue to use the information from the 2017 findings as appropriate along with newly submitted information, as appropriate. This is too speculative. The Court is left with the most obvious conclusion: if-as plaintiffs describe-positive findings increase the number of elephants killed, then plaintiffs are not harmed by the rescission of such findings. Because there is no injury in fact, plaintiffs lack standing to challenge the withdrawal of the 1997 or 2017 positive
ii. Plaintiffs are collaterally estopped from challenging the rescission of the 2014 and 2015 negative findings prohibiting trophy imports.
The March Memo also withdrew two findings directly related to plaintiffs' injuries: the 2014 and 2015 negative findings prohibiting elephant trophy import from Zimbabwe. Intervenor-Defendants' Mot. Dismiss Ex. 1. Unfortunately for plaintiffs, they already argued before this very Court-unsuccessfully-that the Service could not withdraw the 2014 and 2015 findings without soliciting public notice and comment. See Order, Safari Club Int'l v. Jewell , No. 14-cv-670-RCL, ECF No. 157. They are collaterally estopped from doing so again.
"Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party in the first case." Allen v. McCurry ,
First, the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case. Second, the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case. Third, preclusion in the second case must not work a basic unfairness to the party bound by the first determination.
Yamaha Corp. of Am. v. U.S. ,
After remand by the D.C. Circuit in Safari Club II , plaintiffs, who were intervenor-defendants in that case, argued that the Court should retain jurisdiction because the March Memo withdrew the 2014 and 2015 finding without undertaking notice-and-comment rulemaking. See Safari Club Int'l v. Jewell , No. 14-cv-670-RCL. ECF No. 153. They argued-like they do now-that the procedurally defective "rules" could not be repealed without going through APA rulemaking procedures.
Here, the Service did not conduct notice-and-comment rulemaking in the first place. In fact, that was the reason why the D.C. Circuit found them to be procedurally deficient. [FoA and ZCTF] point to no case where a court has required an agency to go through notice-and-comment in order to withdraw a "rule" that was found to be deficient because it itself did not go through notice-and-comment. The Service in this case intended to proceed by adjudication, but the D.C. Circuit found the Service's attempt to be more akin to legislative rulemaking. The Service withdrew the Zimbabwe and Tanzania findings in order to comply with that ruling.
In their fourth claim, plaintiffs argue that the 1997 Proposed Rule created a publication requirement for all elephant enhancement findings and that by switching to case-by-case adjudication, the March Memo effectively eliminated that requirement in violation of the APA. Second Am. Compl. ¶¶ 155-60; see also Pls.' Opp. Mot. Dismiss 28-30. Because this claim relies on faulty readings of both this Court's prior opinion and the 1997 Proposed Rule itself, this cause of action fails to state a claim.
In 2014, although the Service announced its interim suspension on importation of elephant trophies on April 4th in a service bulletin, it did not publish notice in the Federal Register until May 12th. See
In Safari Club I , the Court held that the plain language of the rule indicated a binding commitment on the part of the agency to provide public notice before changing the 1997 positive findings.
Plaintiffs argues that the Court's holding and the rule itself mandate public notice for all future elephant enhancement findings. But this goes against the rule's plain text. The 1997 Proposed Rule refers to the enhancement findings that were then "on file." Hence, the language does not leave the agency discretion for how it will change only the 1997 finding, not all enhancement findings going forward. Between the 2014 interim finding and the 2014, 2015, and 2017 final findings, we are long past the first change to the enhancement findings then "on file." Not to mention that there is an amended species-specific rule for African elephants.
The Proposed Rule describes until when the 1997 enhancement findings for African elephants would remain in effect. It did not create a publication requirement in perpetuity. Accordingly, plaintiffs' fourth cause of action will be DISMISSED .
D. Plaintiffs' fifth cause of action fails to state a claim.
Plaintiffs' fifth cause of action challenges the Service's announcement that it would no longer make country-wide enhancement findings, instead opting to make those findings on a case-by-case basis as part of the permitting process. Second Am. Compl. ¶¶ 161-65. Plaintiffs argue "both the statutory requirements of the ESA and the APA prohibit FWS from making rules necessary for the preservation of threatened species, such as enhancement findings, on a case-by-case basis, closed-off from the public." Pls.' Opp. Mot. Dismiss 30. Instead, plaintiffs argue that enhancement findings must be made via regulation. Id. at 30-31. Even if plaintiffs have standing to make this argument, they fail
i. Plaintiffs have plausibly alleged organizational standing to bring claim five.
The Court begins with standing. Because this aspect of the March Memo only changes the manner in which enhancement and non-detriment findings, plaintiffs cannot plausibly allege that switching to a case-by-case system, alone, causes more elephants to be killed or makes it more likely that trophies will be imported into the United States. Therefore, the organizations may not rely on aesthetic or recreational interests as a basis for standing. Instead, plaintiffs' best argument is that the organizations themselves are harmed by the change in policy and have standing to sue.
To establish standing in its own right, an organization must, "like an individual plaintiff, [ ] show 'actual or threatened injury in fact that is fairly traceable to the illegal action and likely to be redressed by a favorable court decision.' " Equal Rights Ctr. v. Post Props., Inc. ,
To demonstrate injury in fact, "[a]n organization must allege more than a frustration of its purpose because frustration of an organization's objectives 'is the type of abstract concern that does not impart standing.' " Food & Water Watch ,
To satisfy these elements, the challenged conduct must "perceptibly impair[ ] the organization's ability to provide services." Food & Water Watch ,
Here, FoA puts forth three injuries to support organizational standing. First, it argues that a large part of its mission is to advocate for the end of trophy hunting. Pls.' Opp. Mot. Dismiss 43; see also Feral Dec. ¶¶ 2, 8-9. The change to case-by-case determinations "forces [FoA] to expend additional resources to continually determine if and when new enhancement findings are being made," including the filing of Freedom of Information Act ("FOIA") actions to obtain this information. Pls.' Opp. Mot. Dismiss 43; see also Feral Dec.
But both of these injuries are insufficient for organizational standing. D.C. Circuit "precedent makes clear that an organization's use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury." Food & Water Watch ,
Plaintiffs third argument carries more weight, FoA states that in support of its mission to end trophy hunting, it regularly "reports on the negative impacts of trophy hunting as well as the organization's progress in addressing this issue through its magazine ActionLine , its website, educational presentations to professional associations, and outreach to other media outlets." Feral Decl. ¶ 2. The Service's change to case-by-case enhancement determinations and decision to " 'no longer make enhancement findings public seriously inhibits [FoA's] ability to do this work." Id. ¶ 24; Pls.' Opp. Mot. Dismiss 43-44. FoA must resort to filing FOIA actions to receive the information it would otherwise have and be able to supply its members, the interested public, and the media. Feral Decl. ¶¶ 2.
"[A]n organization does not suffer an injury in fact where it 'expend[s] resources to educate its members and others' unless doing so subjects the organization to 'operational costs beyond those normally expended.' " Food & Water Watch ,
Having established standing though only gets the plaintiffs so far because they fail to state a claim. For threatened species, the ESA provides:
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under [16 U.S.C. § 1538 (a)(1) ], in the case of fish or wildlife.
Even accepting plaintiffs' premise that a case-by-case adjudication is not a regulation, the Court sees no such requirement. Instead, the statutory scheme empowers the Secretary of Interior to extend Section 1538(a)(1)'s protections for endangered species to threatened species. All Section 1533(d) requires is that this decision be done through regulation. The Service, to which the Secretary has delegated the authority for administering the ESA, has done just that.
The Service issued a regulation that extends the ESA's prohibitions on endangered species to all threatened species unless the Service has issued a special rule to govern a particular species.
That regulation extends to all of the general prohibitions and exceptions for threatened wildlife included in
The Service is therefore not acting outside its statutory authority, but rather within it. All the Service had to do under the ESA was set protections for threatened species by regulation. How and when the Service carries out that regulation-as it does when it makes an enhancement finding or grants a permit-is left to the agency. Because plaintiffs' fifth cause of action turns on a faulty reading of the statute, that claim fails on the merits.
IV. CONCLUSION
The Court lacks jurisdiction to hear the majority of plaintiffs' claims. Claims one
Notes
The Court will consider the March Memo in conjunction with this motion. Defendants move to dismiss the case both for lack of jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). When considering a motion to dismiss for lack of jurisdiction, the court "is not limited to the allegations of the complaint." Hohri v. United States ,
In addition to the 2017 elephant findings, the March Memo withdrew the following enhancement findings: 1997, 2014, and 2015 findings for elephants in Zimbabwe; 1997, 2014, and 2015 findings for elephants in Tanzania; a 1995 finding for elephants in South Africa; a 1997 finding for bontebok taken in South Africa; 2016 and 2017 findings for lions in South Africa; a 1997 finding for elephants in Botswana; a 1995 finding for elephants in Namibia; a 2012 finding for elephants in Zambia; a 2017 finding for lions in Zambia; and the 2017 finding for elephants in Zambia. Intervenor-Defendants' Mot. Dismiss Ex. 1, ECF No. 42-1. Additionally, the Service withdrew the following CITES non-detriment findings: 2014, 2015, and 2017 finding for elephants in Tanzania; and 2017 finding for elephants in Zambia. Id
Furthermore, were the plaintiffs not estopped from bringing this claim, the Court would rule the same way. It is true that, in general, the repeal of a legislative rule must go through notice and comment and that an agency may not exclude itself from notice and comment requirements simply by declaring that the rule is "defective" on its own accord. See Consumer Energy Council v. FERC ,
Although the federal defendants mention informational standing in their motion to dismiss, see Federal Deft.' Mot. Dismiss 17, plaintiffs put forth no argument for informational standing in their opposition and fail to identify any statute entitling them to any information deprived under the Service's new policy. See Friends of Animals v. Jewell ,
In plaintiffs' briefing, they also appear to argue that the Service will necessary violate the APA when it issues subsequent enhancement findings upon individual adjudication. See Pls.' Opp. Mot. Dismiss 32-33. In support of this argument, plaintiffs rely primarily on the D.C. Circuit's determination in Safari Club II that the 2014 and 2015 country-wide enhancement findings were legislative rules requiring notice-and-comment rulemaking.