SAFARI CLUB INTERNATIONAL v. Ken SALAZAR, in his official capacity as Secretary of the U.S. Department of the Interior, et al.
Civil Action Nos. 11-cv-01564 (BAH), 12-cv-00194 (BAH), 12-cv-00340 (BAH)
United States District Court, District of Columbia.
March 23, 2012
BERYL A. HOWELL, District Judge.
Owen, et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants. Exotic Wildlife Association, et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants.
First,
With that said, I have seen enough of the record in this case to convince me that the parties and the Court would benefit from a more active supervision of the remaining discovery. I am also painfully aware of how discovery in False Claims Act cases can easily get out of hand.10 To that end, I will recommend to Judge Roberts that he consider directing me to preside over the remaining discovery in this case. If that were to occur, I would begin by ordering the parties to meet and confer and submit a joint plan regarding at least the following issues:
- Are there any additional depositories of electronically stored information or of papers documents that have yet to be produced by either party and, if so, what is the schedule for their production?
- What is the schedule for the remaining depositions?
- Are there any outstanding claims of privilege that the parties have not resolved? If so, how do the parties intend to present them for judicial resolution?
- Are there any other concerns that might delay the completion of discovery?
CONCLUSION
Honeywell‘s motion for sanctions is premature and will therefore be denied. An Order accompanies this Memorandum Opinion.
Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL, District Judge.
Pending before this Court are three Motions to Intervene filed by four organizations: Friends of Animals (“FOA“) has moved to intervene as a defendant in two cases, Safari Club International v. Salazar, et al., Case No. 11-cv-01564 (“SCI Action“), ECF No. 11, and Exotic Wildlife Association, et al. v. U.S. Department of the Interior, et al., Case No. 12-cv-00340 (“EWA Action“), see Case No. 11-cv-01564, ECF No. 34; and three other organizations, Defenders of Wildlife (“DOW“), The Humane Society of the United States (“HSUS“), and Born Free USA (collectively, “DOW-proposed intervenors“) have moved to intervene as defendants in the SCI Action, ECF No. 13.1 The SCI and EWA Actions have been consolidated, along with Owen, et al. v. United States Department of the Interior, et al., Case No. 12-cv-00194 (“Owen Action“).2 See Minute Orders (Feb. 21, 2012; March 16, 2012). For the reasons explained below, the motions for intervention as of right are granted in part as to FOA and DOW, and denied as to HSUS and Born Free USA. FOA and DOW shall be defendant-intervenors with respect to the consolidated case as a whole.3
I. BACKGROUND
A. Overview of the Consolidated Cases
A brief summary of the facts underlying these consolidated actions against the Federal Defendants is helpful to understanding the claims in each of the actions and the interests of the proposed defendant-intervenors. In 1991, the FWS published a proposed rule to list as endangered species under the
FOA and the DOW-proposed intervenors subsequently and successfully filed suit alleging that the FWS unlawfully promulgated the Captive-bred Exemption. See Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D.D.C.2009) (Kennedy, J.). Specifically, Judge Kennedy held that “the text, context, purpose and legislative history of section 10 [of ESA] requires case-by-case consideration
In 2010, both SCI and the Owen plaintiffs petitioned the FWS to delist from the endangered species list the U.S. captive-bred herds of the Three Antelope species, but the FWS has taken no action on those petitions. See SCI Action, ECF No. 1, SCI Compl. ¶ 10; Owen Action, ECF No. 1, Owen Compl. at 1.
On July 7, 2011, the FWS published a proposed rule to withdraw the Captive-bred Exemption, consistent with the holding in Friends of Animals. See 76 Fed.Reg. 39,804 (“Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions“) (July 7, 2011). This would eliminate the exclusion for the Three Antelope species from certain prohibitions in the ESA and require any person intending to engage in otherwise prohibited activity to qualify for an exemption or obtain a permit authorizing such activity.
The SCI Action was then filed in this district on August 31, 2011, alleging that the Federal Defendants violated the ESA and
On January 5, 2012, FWS issued its final rule removing the Captive-bred Exemption, effective on April 4, 2012 (“Final Rule“). 77 Fed.Reg. 431 (Jan. 5, 2012). The EWA Action was filed on March 2, 2012, to invalidate and set aside the Final Rule as violative of the APA. See EWA Action, ECF No. 1, EWA Compl. at 4. On March 16, 2012, this Court consolidated the SCI and Owen Actions with the EWA Action. See Minute Order (Mar. 16, 2012). The plaintiffs in both the SCI Action and the EWA Action have pending motions for preliminary injunctions, through which they seek to enjoin enforcement of the Final Rule. See SCI Action, ECF No. 26; EWA Action, ECF No. 3.
B. The Proposed Defendant-Intervenors
FOA and the DOW-proposed intervenors have moved to intervene as defendants in the SCI Action, and FOA has also moved to intervene in the more recently filed EWA action. See SCI Action, ECF Nos. 11, 13; EWA Action, see Case No. 11-cv-01564, ECF No. 34. These four organizations have submitted declarations indicating that they share three salient attributes relevant to their pending motions to intervene. First, each of these organizations was a plaintiff in the successful lawsuit against FWS in 2009, in which Judge Kennedy held that the Captive-bred Exemption, codified at
Finally, each of these organizations is committed to the conservation of endangered species. FOA is a “non-profit animal advocacy organization” with a mission to “cultivate a respectful view of nonhuman animals, free-living and domestic.” Feral Decl. ¶ 3. Specifically, FOA seeks to intervene “because [SCI‘s] lawsuit directly threatens FoA’ and its members’ interests in protecting the three antelope species, and threatens to undo years of successful administrative and legal advocacy work.” FOA Mem. in Supp. of Mot. to Intervene in SCI Action, at 1. DOW is “a national non-profit organization dedicated to the protection and restoration of all wild animals and plants in their natural communities,” including the antelope species at issue. Fascione Decl. ¶ 2. With approximately 525,000 members nationwide, DOW advocates new approaches to wildlife conservation that protect endangered species and help keep other species from becoming endangered, and it employs education, litigation, research, legislation, and advocacy to defend wildlife and their habitat. Id. ¶¶ 4-8. The HSUS is a non-profit membership organization dedicated to protecting wild and domestic animals by actively opposing those projects, plans, and events that result in the killing or cruel treatment of animals. Page Decl. ¶ 2. With approximately 11 million members, this organization seeks to inform the public about the perils animals regularly face and to address those problems with diverse tools. Id. ¶¶ 6-7; Slackman Decl. ¶ 5. The HSUS invests considerable resources in its effort to end the trophy hunting of threatened and endangered species in general, and the inhumane practice of canned hunting of threatened and endangered species in particular. See Page Decl. ¶ 8. Finally, Born Free USA focuses on animal welfare and wildlife conservation, and engages in campaigns against animals in entertainment, exotic “pets,” trapping and fur, and the destructive international wildlife trade. Roberts Decl. ¶¶ 2-9. Born Free USA strives to end the suffering of wild animals in captivity, rescue individual animals in need, protect wildlife, including highly endangered species in their natural habitats, and encourage compassionate conservation globally. Id.
The proposed defendant-intervenors contend that they satisfy the standards for both intervention of right under
In this case, the Court‘s analysis of the pending motions to intervene begins and ends with consideration of the
A. Legal Standard for Intervention of Right
Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
The Court of Appeals for the D.C. Circuit has parsed the language of
To establish standing under Article III, a prospective intervenor must show: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002). “An association has standing to bring suit on behalf of its
The injury-in-fact and causation connection with the challenged action requirements for standing are closely related to the second and third factors under
B. Analysis
FOA and the DOW-proposed intervenors argue that they are entitled to intervene as a matter of right under
At the outset, the Court observes that the parties’ briefs are peppered with references to the findings of two district courts regarding the standing of the proposed intervenors in connection with earlier litigation over the Three Antelope species. Specifically, in 2006, Judge Walker considered the standing of the DOW-proposed intervenors in a lawsuit they filed in California as plaintiffs against the FWS challenging the Captive-bred Exemption. Cary v. Hall, No. 05-4363, 2006 WL 6198320, 2006 U.S. Dist. LEXIS 78573 (N.D.Cal. Sept. 30, 2006). This lawsuit was subsequently transferred and consolidated with Friends of Animals, in which Judge Kennedy considered the standing of FOA. Friends of Animals v. Salazar, 626 F.Supp.2d at 105. Consequently, review of the thorough analyses conducted in both of these courts of the proposed intervenors’ standing arguments during the 2009 litigation is helpful in considering the instant motions.
In that prior litigation, FOA proffered three grounds for standing to challenge the Captive-bred Exemption. First, FOA claimed that the exemption injured the organization‘s members’ aesthetic interests in viewing antelope species in the wild because captive-bred herds created a legal market and increased the incentive for poaching the wild members of the species abroad. FOA suggests the same basis for standing in the instant suit, stating, “continued sport hunting in the U.S. undermines recovery efforts because it creates an international market for trophies . . . As long as some trophies can be obtained legally in the U.S. there will be a continued economic incentive to poach the antelope in Africa.” FOA Mem. in Supp. of
While an injury-in-fact may occur “when a defendant adversely affects a plaintiff‘s enjoyment of flora or fauna, which the plaintiff wishes to enjoy again upon the cessation of the defendant‘s actions,” the injured party must also show causation, namely, that “the injury is fairly traceable to the defendant‘s challenged conduct; and [] that the injury is likely to be redressed by a favorable decision.” ASPCA v. Feld Entm‘t, Inc., 659 F.3d 13, 18 (D.C.Cir.2011) (citing Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 332 U.S.App.D.C. 104 (D.C.Cir.1998) (en banc)). This court in 2009 rejected the first proffered basis for standing due to FOA‘s lack of evidence that “eliminating the Rule (which regards captive-bred antelope only) will have an effect on the poaching of wild antelope and therefore has not shown causation.” Friends of Animals, 626 F.Supp.2d at 109. The court cited as “highly persuasive” the conclusion reached in the District Court for the Northern District of California, where Judge Walker in considering the standing as plaintiffs of the instant DOW-proposed intervenors, discounted the “theory” that “the Rule sent a signal that hunting antelope was acceptable and that this signal would cause hunters to kill wild antelope.” Id.
Second, FOA claimed in 2009 that the exemption injured the organization‘s members’ aesthetic interests in viewing the Three Antelope species in captivity, but this court in 2009 rejected this basis as unsupported. Id. at 110.
Finally, and most relevant to the instant case, FOA argued in 2009 that the organization had standing based on an informational injury since section 10(c) of the ESA created a right to information by requiring public notice and comment on a case-by-case basis of each permit application to engage in otherwise prohibited activity for endangered species. This permitting process was obviated by the Captive-bred Exemption and thereby resulted in a concrete injury “because plaintiffs regularly comment on section 10 permits.” Id. at 112. This court agreed with FOA, concluding that “plaintiffs have suffered an informational injury which confers standing to challenge the [Captive-bred Exemption] Rule under subsection 10(c) of the Act.” Id. at 113.
Similarly, the Cary court described the process required under Section 10(c), stating that: “Published notice and public availability of information generated in connection with § 10 permit applications make meaningful the participation of interested parties in the process of determining whether to allow an otherwise prohibited activity with respect to an endangered species.” Cary, 2006 WL 6198320, at *11, 2006 U.S. Dist. LEXIS 78573, at *31-32. The court concluded that Section 10(c) “protects the informational interests of those who participate in that process” and “creates a right to information sufficient to support standing.” Id. at *11, 2006 U.S. Dist. LEXIS 78573, at *34. Based upon the Complaint, in which “Defenders has alleged that it regularly comments on § 10 permits,” the court concluded that the DOW‘s injury there was actual or imminent, and that this organization had “standing to pursue its claim under § 10(c).” Id. at *11, 2006 U.S. Dist. LEXIS 78573, at *33.8
FOA argues, however, that “[b]y de-listing captive-bred herds, those ranchers [with captive-bred herds] will no longer have to show contribution to the conservation of the species, nor will the ranchers have incentive to do so. Such a ruling will injure FoA’ past work and future endeavors to protect the species and bring them back from near extinction in the wild.” FOA Mem. in Supp. of Mot. to Intervene in SCI Action, ECF No. 11 at 13. Similarly, the DOW-proposed intervenors assert that the plaintiffs’ effort “to overturn the endangered listing status of captive members of these species” represents “a backdoor attempt to avoid the statutorily required permit scheme embodied in section 10 with respect to captive members of these antelope species, and to circumvent the ruling Proposed Defendant-Intervenors obtained from Judge Kennedy [in Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D.D.C.2009)].” DOW-Proposed Intervenors’ Mem. in Supp. of Mot. to Intervene in SCI Action, ECF No. 13-1 at 2. They argue that this would undercut the proposed intervenors’ “enforceable right to all of the required information flowing from [the statutorily mandated Section 10 permit application] process so that they can meaningfully participate in the Section 10 process.” Id. at 16.
As an initial matter, the Court need not decide on a motion to intervene the merits of the argument whether de-listing the U.S. captive herds of the Three Antelope species would contribute to, or adversely affect, the conservation of this species. The crux of SCI‘s position is that the proposed intervenors have “no entitlement to information about a species simply because it is listed as endangered,” but only “when an individual decides to seek permission for an exemption from prohibitions limiting the take of members of these species.” SCI Mem. in Opp. to DOW-Proposed Intervenors’ Mot. to Intervene in SCI Action, ECF No. 18 at 9; see also SCI Mem. in Opp. to FOA Mot. to Intervene in SCI Action, ECF No. 14 at 15 (“FoA is not entitled to any type of information or comment opportunities simply because the three antelope species are listed as endangered. The only time FoA might be entitled to information or an opportunity to comment is if an individual seeks a permit for an exemption from ESA take prohibitions.“).
SCI made this argument before it filed its preliminary injunction and before the EWA Action was consolidated with the SCI Action. Now, however, at least part of the relief sought in these consolidated cases is to
This conclusion finds support in the recent D.C. Circuit decision in ASPCA v. Feld Entm‘t, Inc., 659 F.3d 13 (D.C.Cir.2011). The D.C. Circuit recognized that “a denial of access to information can work an ‘injury in fact’ for standing purposes, at least where a statute (on the claimants’ reading) requires that the information ‘be publicly disclosed’ and there is no reason to doubt their claim that the information would help them.” ASPCA v. Feld Entm‘t, Inc., 659 F.3d at 22 (quoting Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C.Cir.2002) (quoting FEC v. Akins, 524 U.S. 11, 21 (1998))). In Feld, the DC Circuit found that the plaintiff did not have informational standing to sue a private defendant for its treatment of elephants on the attenuated theory that the defendant should have obtained a permit under
As a second reason for denying the pending motions by the DOW-proposed intervenors, SCI argues vigorously that the DOW-proposed defendant-intervenors fail to demonstrate an injury-in-fact since they “rely solely” on three-year old declarations previously submitted in another proceeding that contain “outdated” data and, in fact, incorrectly identify Ms. Fascione as being associated with DOW when she is now employed by a different organization. SCI
The Court concludes that, consistent with the findings of two courts in prior litigation involving the same Three Antelope species, both FOA and DOW have informational standing in this matter. In addition, for the same reasons that these proposed intervenors have informational standing they also have an interest in obtaining information under section 10(c) that could potentially be impaired should plaintiffs prevail. Thus, both the second and third requirements of
With respect to the last two requirements of the four-factor test, SCI does not raise any dispute about whether the proposed intervenors have met the requirements of timeliness or inadequate representation, and the Court concludes that those two requirements are satisfied. Both FOA and the DOW-proposed intervenors moved to intervene in the SCI Action approximately three months after the Complaint was filed, about one month after the FWS filed its answer, and before any dispositive motions were filed. Thus, their participation as defendant-intervenors will not lead to prejudice or delay the proceedings. Cf. In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. at 8 (denying motion to intervene by SCI because, inter alia, settlement agreements were pending and SCI‘s stated purpose in seeking to intervene was to delay resolution of the case and prejudice FWS’ ability to comply with the settlement terms).
Finally, while the interests of FOA and DOW as defendant-intervenors are clearly aligned with the Federal Defendants in this action, they have a legitimate basis for concern over the adequacy of the representation of their interests, in view of the prior lengthy litigation by these proposed intervenors against the FWS and the necessity of a court order to force the FWS to remove the Captive-bred Exemption. The Court is cognizant in reaching this conclusion that the burden of showing inadequate representation is “minimal,” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972), and “not onerous.” Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C.Cir.1986), particularly where the proposed intervenors’ interests may be “more narrow and parochial” than that of Federal Defendants, whose perspective is necessarily on the broader public interest. Fund for Animals, Inc. v. Norton, 322 F.3d at 737.
The Court has determined that FOA and DOW may intervene of right under
For the reasons explained above, the Court grants the motions to intervene of Friends of Animals and Defenders of Wildlife and denies the motions to intervene of The Humane Society of the United States and Born Free USA. Both Friends of Animals and Defenders of Wildlife shall be defendant-intervenors with respect to the consolidated case. As defendant-intervenors, they shall adhere to the schedules that apply to the FWS. An appropriate Order will accompany this Memorandum Opinion.
CALIFORNIA VALLEY MIWOK TRIBE, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants. Civil Action No. 11-160 (RWR). United States District Court, District of Columbia. March 26, 2012.
BERYL A. HOWELL
DISTRICT JUDGE