Phoenix Herpetological Society, Inc. v. FWS ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2021 Decided June 4, 2021
No. 20-5161
PHOENIX HERPETOLOGICAL SOCIETY, INC.,
APPELLANT
v.
UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17cv02584)
Frederick Coles III argued the cause and filed the briefs
for appellant.
Benjamin Richmond, Attorney, argued the cause for
appellees. With him on the brief were Jonathan D. Brightbill,
Principal Deputy Assistant Attorney General, Eric Grant,
Deputy Assistant Attorney General, and Andrew Mergen and
Rachel Heron, Attorneys. Rebecca Jaffee, Attorney, entered
an appearance.
2
Before: ROGERS and KATSAS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: The Fish and Wildlife
Service denied two permit applications from the Phoenix
Herpetological Society. The Service first blocked the export of
four blue iguanas, an endangered species, to a Danish zoo. It
then declined to renew the captive-bred wildlife registration for
the Society’s entire collection of blue iguanas. The Society
contends the denials were arbitrary and capricious. But the
record backs the agency’s findings, and its conclusions follow
logically. We affirm.
I
The nonprofit Phoenix Herpetological Society collects and
raises rare reptiles, including the Grand Cayman Blue Iguana.
The blue iguana is Grand Cayman’s largest native land
vertebrate. When full-grown, it stretches approximately five
feet long and weighs over twenty-five pounds. Although the
iguanas can survive 25 to 40 years in the wild, they have been
known to live for almost 70 years in captivity.
Blue iguanas are protected by the Endangered Species
Act. 1 In 1981, they were listed on Appendix I (“species
threatened with extinction”) of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora.2 The
Endangered Species Act implements that Convention,
prohibiting “any trade in any specimens” contrary to the
1
See 16 U.S.C. § 1531 et seq.
2
Mar. 3, 1973, 27 U.S.T. 1087.
3
treaty’s provisions. 3 In 1983, the blue iguana was also
designated as “endangered” under the Endangered Species Act
itself. Both listings have persisted until today.
The Act (and through it, the Convention) places numerous
restrictions on blue iguana ownership, including bans on their
collection, trade, and export. Congress has nonetheless
authorized the Secretary of the Interior to permit “any”
otherwise prohibited conduct “to enhance the propagation or
survival” of a protected species. Relying on the Secretary’s
delegated authority, the Fish and Wildlife Service promulgated
regulations governing the permits at issue in this case.4
The Society applied for permits to (1) export four blue
iguanas to a Danish zoo and (2) continue its captive-bred
wildlife program at its Arizona facility. The purpose of an
export permit is self-evident; the Society’s captive-bred
wildlife registration allows it to hold, manage, and exhibit its
blue iguanas (among other acts).5
Appellants must satisfy certain conditions to gain the
permits; we limit our discussion to the disputed requirements.
For export, the Service must find that “proposed export would
not be detrimental to the survival of the species” to comply
with the Convention. 6 The Service also evaluates—under
Endangered Species Act criteria—whether a permit “would be
3
See generally Defs. of Wildlife, Inc. v. Endangered Species
Sci. Auth., 659 F.2d 168, 174–75 (D.C. Cir. 1981).
4
See 50 C.F.R. § 13.1 et seq.
5
See 50 C.F.R. § 17.3.
6
50 C.F.R. § 23.36(c)(2).
4
likely to reduce the threat of extinction facing the species.”7
Although these two standards seem similar, the former ensures
that export will not do harm to the species in the wild. The
latter turns on whether export will make an affirmative
contribution to the species’ survival. Cf. Convention Art. XIV,
¶ 2(a) (Parties may adopt “stricter domestic measures” on top
of Convention requirements).
For both an export permit and a captive-bred wildlife
registration, the applicant bears the burden of showing that its
specimens were lawfully acquired. 8 An applicant needs to
make this showing, according to the Service, not just for the
particular specimens that it has bred. It must also demonstrate
lawful importation of those specimens’ ancestors.9
* * *
In its initial export application, the Society proposed
transferring four iguanas—free of charge—to the Aalborg Zoo
in Denmark. The Society represented that “parents maintained
in [its] collection” hatched the four “siblings.” J.A. 627, 631.
There are no blue iguanas in Denmark; the Aalborg Zoo plans
7
50 C.F.R. § 17.22.
8
See 50 C.F.R. §§ 23.36(c)(1), 23.60(a). We note, however,
that the Service’s position that the lawful acquisition requirement
applies not only to export permits but to captive-bred wildlife
registrations appears to be unsupported. Compare id. § 23.36(c)(1),
with id. §§ 17.21(g), 17.22. But since the Society did not raise that
argument, we do not address it.
9
One might also question whether this final requirement is a
permissible interpretation of the Convention or Endangered Species
Act. See Oral Arg. 1:13–1:14 (Mar 12, 2021). Those authorities
make no mention of a specimen’s parental stock. Yet again, the
Society did not advance the argument.
5
to establish a new conservation and breeding program with the
Society’s specimens. Responding to the Service’s request for
additional information about the parental stock of the iguanas,
the Society referenced imports by the San Diego Zoo in 2005
and by an organization called the Life Fellowship in the 1970s
and 1980s.
The Service denied the application in an informal
adjudication. Because the four reptiles are siblings and the zoo
possesses no other blue iguanas, the agency explained that they
were “unsuitable for breeding among themselves once
exported.” J.A. 655–56; see also J.A. 678. Therefore, the
proposed program would not enhance the propagation or
survival of the species. Furthermore—despite the Society’s
assertions about the importations of the iguanas’ ancestors—
the Service had no record of an import permit for blue iguanas
in 2005. The Society supplied no evidence to support its lawful
importation claims.
While awaiting the export permit decision, the Society also
applied to renew its existing captive-bred wildlife registration
for its entire collection of 22 blue iguanas. But since it
submitted no information about the parental stock of these
iguanas, the agency declined to determine that they had been
lawfully acquired. The Service acknowledged that it had
previously registered the Society’s iguanas. But due to new
questions about the iguanas’ parental stock (arising from the
export application), the Service was reevaluating the validity
of the prior registrations. The agency therefore denied the
registration until it “can confirm the legal origin of the
species.” J.A. 373.
The Society requested reconsideration of both denials.
Appellant claimed the four iguanas were not actually
siblings—contradicting its initial representation. In the revised
6
account, one pair of iguanas was descended from wildlife
captured on Grand Cayman in 1971 and hand carried to the
United States by Ramon Noegel—a pastor, breeder, and
conservationist who ran the Life Fellowship mentioned in the
initial application. Noegel’s 1971 acquisition would predate
the Endangered Species Act, and it is undisputed that a pre-Act
acquisition is lawful.10
The Society claimed that the second duo came from Ty
Park, an iguana expert in Florida. The application, however,
made no mention of how Park obtained the iguanas. No
explanation was given for the previous reference to a 2005
import by the San Diego Zoo.
In support of this new claim involving Noegel’s
acquisition, the Society submitted a 2006 affidavit from David
Blair, another iguana collector. Appellant explained that
Noegel gave three of his lawfully acquired iguanas to Blair.
Blair then transferred offspring of those iguanas to a woman in
Florida, who then gifted her specimens to the Society. The
Blair affidavit states that he “obtained [the iguanas] in 1971
from Ramon Noegel in Florida.” And Noegel “advised [Blair]
with complete certainty that the [iguanas] were captured as
wild-caught on Grand Cayman Island.” J.A. 447. Blair and
Noegel are both since deceased.
The Service upheld the denial of both permits. Although
the Service determined that it would not be “detrimental” to
export the Noegel stock iguanas, the agency could not approve
export of the Park stock iguanas since the Society, again,
submitted no information about their ancestors’ importation.
Because the Service could still not “confirm whether
specimens imported into the United States or any progeny
resulting from those imported specimens has been legally
10
See 50 C.F.R. § 17.4.
7
acquired,” it denied the reconsideration request. J.A. 455.
The Society then appealed the denial of its reconsideration
request—its final appeal to the agency. This time, in yet
another change of position (without explanation), the Appellant
claimed the iguanas for export were really all Noegel stock
iguanas.
The Service again upheld its denial of the export permit.
It determined (as in the original denial) that the export of four
related animals “to a facility with no other specimens” will not
“enhance[] the propagation or survival of the species.” J.A.
616; see also J.A. 680 (“[B]reeding between these specimens
would not be consistent with maintaining genetic diversity for
the species.”).
Following additional inquiries, the Service also stood by
its denial of the Society’s registration application. 11 The
agency explained that it “lack[ed] sufficient information
pertaining to legal acquisition of all founder stock” in the
Society’s collection. J.A. 614; see also J.A. 616 (“[The
Service] considered the information included in your
application, including various explanations regarding the
lawful origin of the founder stock. . . . [T]his information was
insufficient to demonstrate that the founder stock was lawfully
acquired.”) (emphasis added). And without information on the
legal acquisition of all of the parental stock of Appellant’s blue
iguanas, the Service could not make the required findings.
Having exhausted its administrative remedies, the Society
brought its dispute to the district court. Seeing no problem with
11
The Service conducted its own investigation into whether
Noegel legally imported his blue iguanas into the United States. In
light of our approval of the Service’s rejection of Appellant’s
position, it is unnecessary to discuss the agency’s investigation.
8
the denials, the court granted the Service’s motion for summary
judgment. Phoenix Herpetological Soc’y, Inc. v. United States
Fish & Wildlife Serv., No. 17-CV-02584, 2020 WL 3035037(D.D.C. June 5, 2020). This appeal followed.12
II
The Society does not challenge the lawfulness of the
permit regulations. It instead claims to have satisfied the
requirements. As to the export permit, Appellant contends that
the agency contradicted itself when it determined that the
iguanas lacked sufficient genetic diversity. Alternatively, the
Society argues that the agency’s conclusion lacks any
evidentiary foundation. Appellant then, regarding the denial of
the registration permit, asserts that the service improperly
ignored the Blair affidavit.
12
Appellant speculated at oral argument that, if it were to lose
its captive-bred wildlife registration, it would be forced to “destroy”
its specimens. But see 16 U.S.C. §§ 1532(20), 1538(a)(1)(B)
(prohibition on harming or killing members of an endangered
species). While the Service disagreed, it could not identify any
practical consequence of denying the reregistration. Of course, if the
registration denial would have no impact, that would implicate our
jurisdiction. We ordered supplemental briefing on the question.
The Parties agree that removal of the registration eliminates—
among other things—the Society’s right to sell or transport its
iguanas in interstate commerce. See Appellee Supp. Br. 3; Appellant
Supp. Br. 2. The Society explains that the elimination of its permit
subjects its operations to significant uncertainty, interferes with its
educational activities, and prohibits it from recovering the cost of
raising these reptiles through sales to other permit holders. Appellant
Supp. Br. 2–5. The Service acknowledges that the Society may
continue to own, breed, and possess its iguanas without a
registration. Appellee Supp. Br. 3.
9
We start with the export permit. There is no merit to the
contention that the Service contradicted itself. 13 When
evaluating the Society’s reconsideration request, the agency
determined that exporting two Noegel stock iguanas (aside two
iguanas from Park) would not be “detrimental” to the species.
See 50 C.F.R. § 23.61. Appellant claims this non-detriment
finding precluded the agency from subsequently concluding—
during the final administrative appeal—that exporting all four
Noegel iguanas would not “reduce the threat of extinction” for
the species. See id. § 17.22(a)(2)(iv).
Appellant confuses the relationship between the two
standards. As we previously mentioned, the “non-detriment”
finding turns on whether export will injure the species in the
wild. By contrast, whether export will “reduce the threat of
extinction” focuses on whether the proposed export will
improve the species’ prospects. That the former—based on a
do no harm principle—is satisfied, does not control the later—
requiring an affirmative benefit.
We also reject Appellant’s argument that the agency’s
lack-of-diversity determination diverges from the record. The
Society emphasizes that “[i]nbreeding occurs in all iguanids”
in the wild. J.A. 181. Therefore, Appellant contends, it was
unreasonable to conclude that inbreeding would not
affirmatively contribute to the species.
That’s a non-sequitur. Because something happens in the
wild does not mean it is desirable for the species. Although a
13
Appellant accuses the agency of acting inconsistently despite
its own twists and turns. This argument violates our chutzpah
doctrine. See Marks v. Comm’r, 947 F.2d 983, 986 (D.C. Cir. 1991);
Harbor Ins. Co. v. Schnabel Found. Co., 946 F.2d 930, 937 n.5 (D.C.
Cir. 1991).
10
researcher for the Cayman Islands Government acknowledged
natural inbreeding, he also explained why it was not “too
severe” in wild populations. J.A. 181. Of course, “too severe”
implies that the researcher assumed the agency’s basic premise:
Breeding closely related iguanas is not a good idea. This
common-sense determination passes muster, particularly in an
informal adjudication. See Menkes v. Dep’t of Homeland Sec.,
486 F.3d 1307, 1314 (D.C. Cir. 2007) (“[I]t is common for the
record to be spare” in informal adjudications.).
Appellant similarly claims that this determination is
“unsupported by substantial evidence” and thus violates the
Administrative Procedure Act. Appellant Br. 26 (citing 5
U.S.C. § 706(2)(E)). But the text of the APA applies
“substantial evidence” review only to formal proceedings, not
informal adjudications. Compare Camp v. Pitts, 411 U.S. 138,
142 (1973) (“The appropriate standard of review” in informal
proceedings is “arbitrary, capricious [or] an abuse of discretion
. . . as specified in 5 U.S.C. § 706(2)(A).”) (internal quotations
omitted), with Allentown Mack Sales & Serv., Inc. v. N.L.R.B.,
522 U.S. 359, 377 (1998) (applying “‘substantial evidence’
factual review” in formal adjudications pursuant to §
706(2)(E)).
To be sure, the arbitrary and capricious standard does not
substantively differ from the substantial evidence test when
“performing [the] function of assuring factual support.” Ass’n
of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of
Fed. Rsrv. Sys., 745 F.2d 677, 683 (D.C. Cir. 1984). But the
standards do differ as to the allowable origins of factual support
and, as a consequence, how those facts are assessed. See id. at
684–85. It is therefore permissible—as with the genetic
diversity determination here—for common sense and
predictive judgements to be attributed to the expertise of an
agency in an informal proceeding, even if not explicitly backed
11
by information in the record. See FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 521 (2009). But formal
adjudications (which more typically involve historical facts)
require substantial evidence to be found based on the closed
record before the agency. See Data Processing, 745 F.2d at
684. This subtle difference, as we have previously said,
“should not be underestimated.” Id.Turning to the captive-bred wildlife registration. The
Service was well within its discretion to require additional
information before approving the application.
We agree with the district court’s conclusion. 14 As the
Service rightly argues, “Plaintiff undermined its ability to show
legal acquisition by providing at least three different
conflicting descriptions of the iguanas that it sought to export
and their parental stock.” Appellee Br. 26–27; see also J.A.
616 (noting the “various explanations” given for the origins of
the founder stock). The record shows that the applicant
modified the origins of its specimens’ ancestors in a manner
that just so happens to circumvent the agency’s latest
objections. In light of that pattern of changing positions, the
14
We hesitate, however, to endorse the district court’s rejection
of the Blair affidavit as “uncorroborated hearsay,” particularly since
the agency did not offer this rationale during the adjudication. To be
sure, our rules of evidence do not apply in informal adjudications, so
an agency may entirely reject, give credit to, or discount the weight
of hearsay as appropriate. See Lacson v. U.S. Dep’t of Homeland
Sec., 726 F.3d 170, 178 (D.C. Cir. 2013). Yet, as records and
memories degrade over time, it will become more and more
burdensome for permit applicants to prove pre-Act acquisition. And
as individuals with personal knowledge of a specimen’s importation
pass away, nothing but hearsay may remain. One wonders how (or
if) this phenomenon might bear on the reasonableness of the
agency’s requirements.
12
Service was well within the bounds of its discretion to decline
the reregistration absent additional evidence from Appellant.
Cf. Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106, 1112 (D.C. Cir.
2002) (“[A]n agency’s credibility decision normally enjoys
almost overwhelming deference.”).
That the agency had previously issued a captive-bred
wildlife registration to the Society does not change our
assessment. An agency may change course so long as that
change is reasoned. Here, the Service appropriately
acknowledged the prior permits and explained that the
inconsistent assertions about the parental stock raised new
questions about lawful acquisition.
The judgment of the district court is affirmed.
So ordered.