In Re Polar Bear Endangered Species Act Listing
Guillermo A. Montero, Kristen Byrnes Floom, Clifford Eugene Stevens, Clifford Eugene Stevens, Jr., Erik Edward Petersen, U.S. Department of Justice, John F. Cooney, Margaret N. Strand, Venable, LLP, Rachel A. Dougan, Sidley Austin LLP, Washington, DC, Jeffrey M. Feldman, Kevin M. Cuddy, Feldman Orlansky & Sanders, Anchorage, AK, for Defendants.
MEMORANDUM OPINION
EMMET G. SULLIVAN, District Judge.
Plaintiffs Safari Club International (“SCI“) and Safari Club International Foundation (“SCIF“) bring this action pursuant to the Administrative Procedure Act,
I. BACKGROUND
A. Statutory Background2
The Endangered Species Act,
The ESA delegates authority to determine whether to list a species as endangered or threatened to the Secretaries of Commerce and Interior. The Secretary of the Interior has jurisdiction over the polar bear.
The Marine Mammal Protection Act (“MMPA“),
The MMPA prohibits the taking or importation of marine mammals or marine mammal parts, unless a specified exception applies.
Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock ...,
it is unlawful to import into the United States any marine mammal if such mammal was— ...
(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock; ...
Accordingly, where a marine mammal is from a species or stock with a depleted status, Section 1372(b) allows importation only for purposes of scientific research or enhancement of the survival or recovery of the species or stock.
B. Factual Background
1. The Final Rule
On May 15, 2008, the FWS issued a final rule listing the polar bear as a threatened species throughout its range. See 73 Fed. Reg. 28,212 (May 15, 2008) (“Final Rule“). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that
[U]nder the MMPA, the polar bear will be considered a “depleted” species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.
73 Fed.Reg. at 28236. Moreover, in response to a comment that the FWS had not considered “the negative impacts of listing [the polar bear as threatened] on the long-term management of polar bears developed in Canada that intergrates susbistence harvest allocations with a token sport harvest,” the FWS stated
We acknowledge the important contribution to conservation from scientifically-based sustainable use programs. Significant benefits to polar bear management in Canada have accrued as a result of the 1994 amendments to the MMPA that allow U.S. citizens who legally sport-harvest a polar bear from an MMPA-approved population in Canada to bring their trophies back into the United States.
...
While we recognize these benefits, the Service must list a species when the best scientific and commercial information available shows that the species meets the definition of endangered or threatened. The effect of the listing, in this case an end to the import provision under Section 104(c)(5) of the MMPA, is not one of the listing factors. Furthermore, the benefits accrued to the species through the import program do not offset or reduce the overall threat to polar bears from loss of sea ice habitat.
Id. at 28242.
2. Plaintiff‘s Complaint
Plaintiffs bring this suit under the Administrative Procedure Act,
SCI, SCIF, and SCI‘s members complain that they are adversely affected and aggrieved by the FWS‘s determination that imports of sport-hunted trophies from approved populations in Canada will no longer be allowed, and the agency‘s refusal to further process or accept applications for those import permits. Id. at ¶ 12. Plaintiffs also allege that SCI and SCIF‘s interests in polar bear conservation and management efforts, which they maintain are supported by U.S. sport hunters in Canada, are harmed by the FWS‘s determination because those sport hunters may abandon sport hunting of polar bears if the imports are not allowed. Id.
Plaintiffs ask this Court to (a) declare the FWS‘s determination erroneous; (b) set aside the portion of the Final Rule establishing the import ban; and (c) order the FWS to continue accepting and processing polar bear import permit applications under the MMPA and other applicable law. Id. at ¶ 9.
II. STANDARD OF REVIEW
Under
III. DISCUSSION
Defendants argue that they are entitled to judgment on the pleadings because (1) plaintiffs have failed to state a claim upon which relief can be granted because the action they challenge is not final agency action for purposes of the APA; and (2) because plaintiffs lack standing to challenge the statements in the Final Rule related to the importation of polar bear trophies. For the following reasons, the Court rejects both arguments.
A. Failure to State a Claim
The APA requires that the agency action in question must be final before a party may seek judicial review.
As a general matter, two conditions must be satisfied for agency action to be “final“: First, the action must mark the “consummation” of the agency‘s decisionmaking process, ...—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow[.]”
520 U.S. at 177-78, 117 S.Ct. 1154 (internal citations omitted).
Defendants maintain that plaintiffs are only challenging “isolated statements in the preamble to the final regulation discussing the separate issue of how the listing of the polar bear under the ESA may affect the Service‘s future enforcement of the MMPA.” Def. Mem. at 9-10. Defendants argue that rather than the consummation of the agency‘s decisionmaking process on any particular application for an import permit, these statements simply discuss the applicability of the MMPA, “which the agency will implement in future decisions if necessary.” Id. at 10. Defendants also contend that plaintiffs’ challenge fails the second part of the Bennett test because the Final Rule did not itself deny any pending import applications and therefore does not determine plaintiffs’ rights or obligations. Id. In other words, according to the defendants, the Final Rule “merely summarizes the legal provisions the Service will apply moving forward,” id., and does not have “any legal effect on Plaintiffs or their individual members[.]” Id. at 11.
Plaintiffs, on the other hand, insist that they are challenging a final agency action, i.e., the defendants’ legal determination that by listing the polar bear as a threatened species, the FWS can no longer issue import permits under the MMPA. Plaintiffs argue that although technically there may remain the additional step of the agency denying SCI members’ permit applications, the FWS‘s determination in the Final Rule that import permits for polar bear trophies will no longer be granted is final for purposes of judicial review. This Court agrees.
In Bennett v. Spear, the FWS determined that a reclamation project undertaken by the Bureau of Reclamation (“Bureau“), another agency under the Secretary of the Interior‘s jurisdiction, would impact two species of endangered fish. The FWS issued a Biological Opinion identifying “reasonable and prudent alternatives” that the FWS believed would avoid harm to the fish, including maintenance of minimum water levels. 520 U.S. at 158-59, 117 S.Ct. 1154. The Bureau informed the FWS that it intended to operate the reclamation project in compliance with the terms of the Biological Opinion. Id. at 159, 117 S.Ct. 1154. Plaintiff ranch operators and irrigation districts sued the FWS and the Secretary of the Interior, but not the Bureau or its officials, challenging the Biological Opinion. Id. at 159, 117 S.Ct. 1154. Plaintiffs claimed that the “restrictions on water delivery ‘recommended’ by the Biological Opinion ‘adversely affect plaintiffs by substantially reducing the quantity of available irrigation water[.]‘” Id. at 160, 117 S.Ct. 1154 (internal citations omitted). The defendants moved to dismiss on the grounds that plaintiffs lacked standing and that the Biological Opinion was not final agency action for purposes of judicial review under the APA. Id. at 161, 117 S.Ct. 1154.
The defendants argued in Bennett that the Biological Opinion was not final agency action because it did not “conclusively determine how the reclamation project‘s water would be allocated.” Id. at 177,
Similarly, in Appalachian Power Co., et al. v. Environmental Protection Agency, 208 F.3d 1015 (D.C.Cir.2000), the plaintiffs challenged a Periodic Monitoring Guidance issued by the Environmental Protection Agency that allegedly required states to take certain action in connection with operating the states’ permit programs under the Clean Air Act. The defendant Environmental Protection Agency argued that the Guidance was not final agency action for purposes of judicial review. The Court of Appeals for the District of Columbia Circuit rejected that argument.
The short of the matter is that the Guidance, insofar as relevant here, is final agency action, reflecting a settled agency position which has legal consequences both for State agencies administering their permit programs and for companies like those represented by petitioners who must obtain Title V permits in order to continue operating.
As plaintiffs SCI and SCIF correctly point out in their opposition to defendants’ motion, “here, if anything, the legal determination SCI and SCIF are challenging is even more final, as it definitively establishes that any applications for a Section 104(c)(5) permit will not be granted,” whereas in Bennett the Bureau could at least theoretically have chosen not to follow the Biological Opinion‘s restrictions. Pl. Opp‘n. at 10. Moreover, like the Guidance at issue in Appalachian Power, the FWS‘s determination regarding the import ban reflects “a settled agency position which has legal consequences both for” the agency administering the MMPA and for plaintiffs’ members “who must obtain [import] permits in order to continue” importing polar bear trophies. 208 F.3d at 1023. In fact, the defendants themselves attached to their motion a letter dated July 29, 2008, from the FWS to an individual who had submitted an application for an import permit, which demonstrates this point.3 The letter refers to the Final Rule and then states,
We are writing to inform you that as of the effective date of the listing, May 15, 2008, importation of a polar bear from Canada as a sport-hunted trophy that was taken after February 18, 1997, is no longer an activity that can be authorized under the Marine Mammal Protection Act (MMPA). Therefore, we are unable to continue processing the application
that you submitted to the U.S. Fish and Wildlife Service. ...
Since there is no permit authorization available to conduct your requested activity, we are administratively closing your application file and returning the $100.00 permit application processing fee you submitted with your application.
...
In the future, should the MMPA be amended in a manner that would allow for the importation of polar bear sport-hunted trophies, we encourage you to submit a new permit application to our office.
Def. Mem. Ex. 1 (July 29, 2008 Letter from Timothy J. Van Norman, Chief, Branch of Permits, Fish and Wildlife Service to import applicant (recipient‘s name and address redacted)).
The letter expressly states the FWS‘s position that in view of the Final Rule, sport-hunted polar bear trophy importation “is no longer an activity that can be authorized under the Marine Mammal Protection Act,” and, as a result, the application file is being administratively closed. The language in the Final Rule is not of a “merely tentative or interlocutory nature,” but rather represents the “‘consummation’ of the agency‘s decisionmaking process” and, as that language and the July 29, 2008 letter clearly indicate, the Final Rule is “one by which ‘rights or obligations have been determined,‘” specifically, the right to obtain an import permit. See Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (internal citations omitted).4
Accordingly, this Court finds that the action challenged by SCI and SCIF is final agency action for purposes of judicial review pursuant to the APA.
B. STANDING
Defendants argue in the alternative that plaintiffs’ suit must be dismissed for lack of standing because plaintiffs have not alleged facts to establish that they have suffered an injury-in-fact that is fairly traceable to the challenged action. To satisfy
1. Plaintiffs’ Allegations of an Injury-In-Fact
Defendants argue that plaintiffs have not alleged that the Final Rule itself operated as a denial of any permit application by an SCI member or that plaintiffs have suffered actual or imminent injury. Def. Mem. at 12-13. Instead, defendants contend that the plaintiffs’ injury “stems from the possibility that the Service will act in accordance with the statements in the Final Rule regarding the MMPA‘s restrictions, thereby denying import applications from Plaintiff‘s members.” In addition, defendants argue that plaintiffs cannot rely on a “procedural injury“—based on plaintiffs’ allegation that the FWS violated the APA by failing to give the public adequate notice and opportunity to comment on the issue of whether the polar bear is depleted under the MMPA—because plaintiffs have not established that the “procedures in question are designed to protect some threatened concrete interest of [plaintiffs] that is the ultimate basis of [their] standing.” Def. Mem. at 14 (quoting Lujan, 504 U.S. at 573, n. 8, 112 S.Ct. 2130 and citing Florida Audubon Soc‘y v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996)).
Plaintiffs’ Complaint alleges that since 1994, over 900 permits to import sport hunted-trophies have been issued by the FWS, resulting in over $900,000 for polar bear research and management programs. Compl. ¶ 30. Plaintiffs claim that in March, April, and May of 2008, SCI members have successfully sport-hunted polar bears from several of the Canadian polar bear populations approved for imports under the MMPA, and that many of these members submitted applications to import polar bear trophies into the United States. Id. at ¶ 4. According to plaintiffs, other members of SCI who had successfully hunted polar bears during this time period have not yet submitted their applications to FWS, and that “on information and belief,” the FWS has informed SCI members that it will not be processing any permit applications to allow the import of polar bear trophies now that the species is listed as “threatened” under the ESA. Id.
As for particularized interests with respect to their procedural claim, plaintiffs also complain that the FWS‘s actions harm SCI and SCIF‘s interests in polar bear conservation and management efforts, because U.S. hunters may abandon sport-hunting of polar bears if imports are not allowed. Compl. ¶¶ 12, 17. Plaintiffs allege a direct injury to their conservation and management interest because U.S. hunters pay $40,000 to $50,000 per polar bear hunt, and much of those funds go the local native communities, providing “another incentive for these people to accept the Western-based science and management that facilitates polar bear conservation and that is required before the Service will approve a population for import.” Id. at
In Bennett, the Supreme Court found that the plaintiff ranch operators and irrigation districts had established an injury-in-fact when the Biological Opinion was issued, despite the existence of an additional step between the agency‘s action and the plaintiffs’ injury—that is the Bureau complying with the Biological Opinion—and the possibility (which does not exist in this case) that the Bureau might not follow the Biological Opinion. As with the Bennett plaintiffs, SCI and SCIF have sufficiently plead an injury-in-fact, and they are not required to wait for the inevitable formal denial of their permit applications. Moreover, plaintiffs have sufficiently plead that the “procedures in question” threaten a “concrete interest,” i.e., an interest in conservation that is impacted by the import ban.
2. The Causal Connection Between the Alleged Injury and the Defendants’ Conduct
Defendants next argue that plaintiffs cannot establish a causal connection between their alleged injury and the defendants’ conduct because “plaintiffs’ allegations of harm hinge on speculation regarding the Service‘s future actions[.]” Def. Mem. at 16 (citing United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C.Cir. 1989)) (court may “reject as speculative allegations of future injuries“). This argument is belied by the very language in the Final Rule:
We note that, under the MMPA, the polar bear will be considered a “depleted” species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.
73 Fed.Reg. at 28236. Plaintiffs’ allegations that SCI members can no longer obtain import permits are not “speculative“; the Final Rule makes clear that the only possible response an individual applying for a permit to import a sport-hunted polar bear trophy can reasonably expect to receive is a denial of his or her application. In other words, the Final Rule is determinative. Therefore, plaintiffs have satisfied the causal connection requirement. See, e.g., Bennett, 520 U.S. at 170-71, 117 S.Ct. 1154 (finding that plaintiffs had met their “relatively modest” burden at the pleading stage to establish a causal connection between their alleged injury and the agency‘s action, in view of the “powerful coercive” and “virtually determinative” effect that the FWS‘s Biological Opinion would inevitably have on the manner in which the Bureau would operate the project at issue).
3. Whether the Alleged Injury Would Be Redressed By A Favorable Decision
Finally, defendants argue that the “broad relief” sought by plaintiffs, i.e., setting aside the portions of the preamble to the Final Rule and enjoining the FWS from refusing to process import applications, would be “inappropriate.” According to the defendants, if the FWS denies specific applications, the plaintiffs must
Plaintiffs respond that the review procedures for a denial of an individual permit application under the MMPA are not an adequate substitute for an APA challenge to a rule that impacts numerous people. Nor would those procedures address the injuries of SCI members who have hunted polar bears but have not applied for a permit because such an application would be futile, or who must decide whether to book or cancel a hunt without the ability to import any resulting trophy. The Court agrees. In Bennett, the Supreme Court found that setting aside the Biological Opinion would likely redress the plaintiff‘s injury because if the Biological Opinion was set aside, the Bureau would not impose the water level restrictions advised by that opinion. 520 U.S. at 171, 117 S.Ct. 1154. Similarly, this Court finds that if plaintiffs were to prevail on their claims and the Court were to enjoin the FWS from denying the import applications based on the Final Rule, plaintiffs’ injuries would be redressed.
IV. CONCLUSION
For the reasons stated herein, the defendants’ Motion for Judgment on the Pleadings is DENIED. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE