Conservation Force, Inc. v. Sally Jewell , 733 F.3d 1200 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2012 Decided August 20, 2013
No. 11-5316
CONSERVATION FORCE, INC., ET AL.,
APPELLANTS
v.
SALLY JEWELL, SECRETARY OF THE INTERIOR, IN HER
OFFICIAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00495)
John J. Jackson III argued the cause and filed the briefs
for appellants.
James S. Pew and Emma C. Cheuse were on the brief for
amicus curiae Sierra Club in support of appellants.
Michael T. Gray, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. R. Craig
Lawrence, Assistant U.S. Attorney, entered an appearance.
Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: This appeal concerns the
straight-horned markhor, an impressive subspecies of wild goat
that inhabits an arid, mountainous region of Pakistan.
Appellants are safari clubs, hunters, and international
conservationists. For more than a decade, they pressed the
United States Fish and Wildlife Service to take certain
administrative actions regarding the markhor. They allege that
the agency’s failure to take those actions was -- among other
things -- arbitrary and capricious.
As tempting as it may be to consider an arbitrary and
capricious claim in a case involving a goat,1 an array of
justiciability problems -- mootness, ripeness, and standing --
require us to decline the opportunity.
I
The Endangered Species Act directs the Secretary of the
Interior to determine whether any species is “endangered” or
“threatened.” 16 U.S.C. § 1533. A species is “endangered” if
it is “in danger of extinction throughout all or a significant
portion of its range.” Id. § 1532(6). A species is “threatened”
if it is “likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.” Id. § 1532(20).
1
See OXFORD ENGLISH DICTIONARY 2:868-69 (2d ed. 1989)
(tracing the origins of the word “capricious” to the musical term
“capriccioso,” which denotes “a free fantastic style,” and which in turn
is derived from the Italian “capro,” meaning “goat, as if ‘the skip or
frisk of a goat’”).
3
In 1976, the Fish and Wildlife Service (FWS) classified the
straight-horned markhor as endangered. 50 C.F.R. § 17.11(h);
see Endangered Status for 159 Taxa of Animals, 41 Fed. Reg.
24,062, 24,067 (June 14, 1976). By the early 1980s, the
population of straight-horned markhor had reached a “critical
level,” estimated at fewer than two hundred in their primary
habitat, the Torghar Hills along the Pakistan-Afghanistan
border. Reclassifying the Straight-Horned Markhor with Special
Rule, 77 Fed. Reg. 47,011, 47,017 (Aug. 7, 2012).
In response to the depletion of the markhor population,
local tribal leaders formed the Society for Torghar
Environmental Protection (STEP) and reached out to wildlife
biologists in the United States for support. 77 Fed. Reg. at
47,016-17. The result was the Torghar Conservation Project
(TCP), which, according to the Fish and Wildlife Service,
effectively eliminated poaching of the straight-horned markhor
and led to a greater than ten-fold increase in the subspecies’
population over the past three decades. Id. at 47,017. The
program works by sanctioning a limited number of sport hunts
by primarily foreign hunters, who pay large sums for the
privilege of chasing this wild goat across its rocky and
forbidding terrain. Those revenues benefit the local tribes and
pay the salaries of local game guards, encouraging the
community to invest in the animal’s recovery. Id.
In 1999, the Fish and Wildlife Service received a petition
from one of the individuals involved in the local markhor
conservation effort, Sardar Naseer A. Tareen, who requested
that the straight-horned markhor be reclassified from
endangered to threatened. See 16 U.S.C. § 1533(b)(3)(A)
(outlining mandatory procedures for responding to petitions to
“add a species to, or remove a species from,” the endangered
and threatened lists). The Service issued a favorable initial
finding on the petition and noted that it would commence a
4
status review of the entire markhor species. 90-day Finding on
Petition to Reclassify the Straight-horned Markhor, 64 Fed. Reg.
51,499, 51,500 (Sept. 23, 1999). But the Service took no further
action, despite its statutory obligation to make a final finding on
the petition’s merit “[w]ithin 12 months” after it was received.
16 U.S.C. § 1533(b)(3)(B). In 2010, several of the appellants,
including Conservation Force, filed a new petition requesting
the “same action” as Tareen’s 1999 petition -- the issuance of a
rule to downlist the straight-horned markhor from endangered
to threatened. Reply Br. 8.
In the instant suit, Tareen, Conservation Force, and STEP
have joined with an array of safari clubs and individual hunters
to level two sets of claims against the Fish and Wildlife
Service.2 The first set challenges the Service’s failure to act on
Tareen’s 1999 petition to downlist the markhor by issuing a
finding on the merits of that request within the statutorily-
required 12-month period. The second set of claims challenges
the Service’s allegedly unreasonable delay in processing
applications to import parts of the bodies of slain straight-horned
markhor, which the appellants describe as “trophies.” We
address each in turn.
2
For the sake of convenience, this opinion collectively refers to
the following appellants as “safari clubs”: Conservation Force, the
Wild Sheep Foundation, the Dallas Safari Club, the Houston Safari
Club, the African Safari Club of Florida, Inc., the Grand Slam
Club/Ovis, and the Conklin Foundation. We collectively refer to
STEP and Tareen as “international conservationists,” and to Barbara
Lee Sackman, Alan Sackman, Jerry Brenner, and Steve Hornady as
“hunters.”
5
II
The appellants’ first set of claims challenges the Fish and
Wildlife Service’s “failure to consider and proceed with”
Tareen’s 1999 petition for a rule downlisting the straight-horned
markhor. Second Am. Compl. 25. Specifically, the appellants
argue that the Service violated both the Administrative
Procedure Act (APA) and the Endangered Species Act by failing
to issue a 12-month finding on that petition. See id. at 24-26(alleging violations of 5 U.S.C. §§ 706(1), (2), and 16 U.S.C.
§§ 1533, 1537(b)). The district court dismissed those claims as
time-barred under 28 U.S.C. § 2401(a), which states that “every
civil action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of
action first accrues.” See Conservation Force v. Salazar, 811 F.
Supp. 2d 18, 27-28 (D.D.C. 2011). On appeal, the parties
extensively briefed the issue of whether the claims can and
should be heard notwithstanding the statute of limitations.
Unfortunately -- in light of the effort the parties have invested --
resolution of the statute of limitations issue will have to await
another day because the claims themselves have become moot.
In general, a case becomes moot “when the issues presented
are no longer live or the parties lack a legally cognizable interest
in the outcome.” Larsen v. U.S. Navy, 525 F.3d 1, 3 (D.C. Cir.
2008) (internal quotation marks omitted). This occurs when,
among other things, the court can provide no effective remedy
because a party has already “obtained all the relief that [it has]
sought.” Monzillo v. Biller, 735 F.2d 1456, 1459 (D.C. Cir.
1984). “Federal courts lack jurisdiction to decide moot cases
because their constitutional authority extends only to actual
cases or controversies.” Iron Arrow Honor Soc’y v. Heckler,
464 U.S. 67, 70 (1983).
6
On August 7, 2012 -- seven days after the reply brief in this
appeal was filed -- the Service issued a “12-month finding”
(albeit, not within 12 months) on Conservation Force’s 2010
petition for a rule to downlist the markhor.3 Reclassifying the
Straight-Horned Markhor with Special Rule, 77 Fed. Reg.
47,011 (Aug. 7, 2012). That finding was favorable to the
appellants. Indeed, it was accompanied by a proposed rule to
downlist the species, “based on a review of the best available
scientific and commercial data which indicates that the
endangered designation no longer correctly reflects the status of
the straight-horned markhor.” Id. The finding included a
lengthy background section that referenced Tareen’s 1999
petition and acknowledged that a “12-month finding was never
completed” on that earlier petition. Id. at 47,012-13.
The Service’s publication of a 12-month finding on
Conservation Force’s 2010 petition renders moot the appellants’
challenges to the Service’s failure to publish such a finding with
respect to Tareen’s 1999 petition. It is true that the Service
never technically completed a 12-month finding on Tareen’s
petition. But that alone cannot preserve appellants’ claims for
our review. Both Tareen’s and Conservation Force’s petitions
sought precisely the same thing: a rule to downlist the straight-
horned markhor. By taking action with respect to the latter
petition, the Service effectively took action with respect to the
former petition as well. See Oral Arg. Recording at 12:55 -
13:20 (statement by FWS counsel that the agency “considered
the information brought in [the 1999] petition,” that the recent
finding “resolve[s] everything that was brought in the 1999
petition,” and that “any decision at this point on the 1999
petition would be the same”). Accordingly, because the
3
That action was taken pursuant to a settlement in a parallel case,
Conservation Force v. Salazar, No. 11-cv-2008 (D.D.C. 2011). See
FWS Br. 17-18.
7
appellants have “obtained all the relief that they sought,” their
claims relating to the 1999 downlisting petition are moot.
Monzillo, 735 F.2d at 1459.4
III
The appellants’ second set of claims concerns the alleged
failure of the Fish and Wildlife Service to timely process four
applications to import straight-horned markhor trophies.
Although the Endangered Species Act generally prohibits the
importation of an endangered species, see 16 U.S.C.
§ 1538(a)(1)(A); see also id. § 1532(8), (6), individuals may
apply for a permit if importation furthers “scientific purposes”
or “enhance[s] the propagation or survival of the affected
species,” id. § 1539(a)(1)(A); 50 C.F.R. § 17.22.
Appellants Barbara Lee Sackman, Alan Sackman, Jerry
Brenner, and Steve Hornady each hunted and killed a
straight-horned markhor and filed an application with the
Service to import his or her trophy. See Second Am. Compl. 9-
11. They allege that the Service’s unreasonable delay in
processing their applications violated the APA and the
Endangered Species Act (and related agency regulations). See
id. at 29-30 (alleging violations of 5 U.S.C. §§ 706(1), (2); 16
U.S.C. §§ 1533, 1537(b); and 50 C.F.R. §§ 13.11(c), 13.21,
17.22(a)). They also allege that the Service’s delay violated
their due process rights, by constructively depriving them of
their property interests in possessing their markhor trophies. Id.4
Appellants’ requested remedy was limited to injunctive and
declaratory relief; appellants did not seek monetary damages. Cf.
LaRouche v. Fowler, 152 F.2d 974, 977 (D.C. Cir. 1998) (noting that
the mooting of requests for injunctive relief does not moot a case in
which claims for damages remain). See generally City of Los Angeles
v. Lyons, 461 U.S. 95, 105 (1983).
8
at 26-29 (alleging violations of the 5th Amendment and 5 U.S.C.
§ 706(2)).
While this case was pending in the district court, the Fish
and Wildlife Service processed and denied all four applications.
Conservation Force, 811 F. Supp. 2d at 30. Thereafter, the
district court dismissed the appellants’ APA and Endangered
Species Act claims as moot. Id. at 30-31. The court reached the
merits of appellants’ due process claims, however, dismissing
those on the separate ground that “plaintiffs are unable to
demonstrate that they have a fundamental right to or a
constitutionally-protected property interest in the markhor
trophies.” Id. at 30.
On appeal, the appellants concede that, because the Service
has now acted, the four individual hunters’ unreasonable delay
claims are moot. Oral Arg. Recording at 4:30 - 4:33; see also
Appellants’ Br. 59 (acknowledging that “these particular
individuals . . . will likely not hunt markhor again”). We agree.
But the hunters’ related due process claims are necessarily moot
as well. As noted, those claims rest on a theory that the
agency’s delay constructively deprived the hunters of their
markhor trophies. Because the complained-of delay has now
ended, any constructive deprivation that the delay generated has
also necessarily ceased.5 And because the individual hunters’
due process claims are moot, so too are the same claims raised
by the safari clubs in their capacity as representatives of those
hunters. See Munsell v. Dep’t of Agric., 509 F.3d 572, 584
(D.C. Cir. 2007) (holding that, when an association sues on
5
At least in this case, the appellants do not assert that the
agency’s denial of their permits violated their due process rights. See
Second. Am. Compl. 26-29; compare Conservation Force v. Salazar,
878 F. Supp. 2d 268, 270 (D.D.C. 2012) (challenging permit denials
under a due process theory).
9
behalf of its members, its claims become moot if its members’
claims become moot). As for Tareen and STEP: they have
failed to articulate any theory of standing to raise a due process
argument. See Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir.
2002).
IV
What remains? Quite a bit, the appellants contend.
Although the specific import applications have now been
processed, the appellants maintain that the Fish and Wildlife
Service’s pattern of unreasonable delay persists. The
appellants’ complaint alleged that the Service maintains a
“practice” of “fail[ing] and neglect[ing] to process or approve”
permits to import straight-horned markhor trophies. Second
Am. Compl. 23; see Appellants’ Br. 48-51. That pattern or
practice of delay, they allege, “devalue[s] the trophies and
obstruct[s] the conservation effort” of STEP and related
organizations. Second Am. Compl. 23.6
6
On appeal, the appellants have amplified this argument in a
subtle but significant way. They now claim that the “[d]efendants
have an ongoing policy of ignoring trophy import permit applications,
then denying them only when faced with legal action.” Appellants’
Br. 50 (emphasis added). We are not obliged to consider this
late-stage reformulation of appellants’ challenge. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that
a federal appellate court does not consider an issue not passed upon
below.”). Indeed, our “general presumption against deciding claims
not raised below is particularly strong where, as here, the claim turns
upon factual questions not yet passed upon by the district court.”
Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1043 (D.C.
Cir. 2003). In this case, the record is bare on several key factual
issues, including: how many times the FWS has thwarted litigation
midstream by processing an import permit; whether agency officials
have been instructed, via an express or implied policy, to delay
10
The appellants argue that their “pattern” challenge is not
moot because “it seeks declaratory relief as to an ongoing
policy.” Del Monte Fresh Produce Co. v. United States, 570
F.3d 316, 321 (D.C. Cir. 2009). But plaintiffs who challenge an
ongoing policy must still demonstrate both that “the request for
declaratory relief is ripe” and that they have “standing to bring
such a forward-looking challenge.” Id. (quoting City of Houston
v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1429 (D.C. Cir.
1994)). Appellants can do neither.
In determining whether a case is ripe, we generally evaluate
two factors: “[1] the fitness of the issues for judicial decision
and [2] the hardship to the parties of withholding court
consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). “[W]hen an agency [policy] may never have its effects
felt in a concrete way by the challenging parties[,] . . . the
prospect of entangling ourselves in a challenge to such a [policy]
is an element of the fitness determination.” Devia v. Nuclear
Regulatory Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007). Here,
that element is dispositive.
In addition to proposing a rule to downlist the markhor, the
Fish and Wildlife Service has also proposed a rule “to allow the
import of sport-hunted markhor trophies taken from established
conservation programs without a threatened species permit.”
Reclassifying the Straight-Horned Markhor with Special Rule,
77 Fed. Reg. 47,011, 47,025 (Aug. 7, 2012) (emphasis added).
As appellants concede, once the rulemaking is finalized,
“presumptively” no permit would be required to import
straight-horned markhor trophies. Oral Arg. Recording at 23:00
- 23:18. Hence, any previous policy of delay in processing such
processing until sued; and whether such a strategy was employed with
respect to the particular applications at issue here.
11
permits would no longer be relevant to these, or any, appellants
again.
Of course, it may come to pass that the Service will decide
not to finalize the proposed rule that liberalizes the importation
of markhor trophies. It may then come to pass that one of the
appellants will file a new application for a markhor import
permit. And then it may come to pass that the Service will
unreasonably delay the processing of that application. But we
see no reason to “entangl[e]” ourselves in the issue based on
such a speculative possibility. Devia, 492 F.3d at 424; see also
id. (noting that part of the rationale for a determination that a
claim is not ripe is that, “[i]f we do not decide [the claim] now,
we may never need to.”). That is particularly so because we see
no hardship to the parties from withholding our consideration at
this time. None of the appellants has an outstanding permit
application that is presently being delayed. Nor does any have
a concrete plan to apply for such a permit in the future. See
Appellants’ Br. 59.
Moreover, even if the appellants’ “practice of delay” claim
is ripe, they do not have standing to raise it. The “irreducible
constitutional minimum” of standing contains three elements:
(1) injury-in-fact, (2) causation, and (3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). And as we
have held, “[t]he petitioner’s burden of production in the court
of appeals is . . . the same as that of a plaintiff moving for
summary judgment in the district court: it must support each
element of its claim to standing ‘by affidavit or other
evidence.’” Sierra Club, 292 F.3d at 899 (quoting Lujan, 504
U.S. at 561).
In this case, there is no record evidence to support the claim
that any of the appellants suffers an injury-in-fact from the
Service’s alleged ongoing policy of delay. Neither Tareen nor
12
STEP submitted any affidavit or evidence at all. The four
individual appellants whose applications have already been
processed have indicated that they do not intend to hunt for
markhor again. See Appellants’ Br. 59. The declaration
submitted by an additional hunter does not aver that he has such
future plans. See Smith Decl. (J.A. 177). Nor do the affidavits
of the safari clubs name any other members who have such
plans. See Thornton Decl. (J.A. 178); Jackson Decl. 1-6 (J.A.
209-214); see also Chamber of Commerce of U.S. v. EPA, 642
F.3d 192, 199 (D.C. Cir. 2011) (“When a petitioner claims
associational standing, it is not enough to aver that unidentified
members have been injured. Rather, the petitioner must
specifically identify members who have suffered the requisite
harm.” (internal quotation marks omitted)).
We have repeatedly held that general allegations of injury
are insufficient at this stage of the proceedings. See, e.g.,
Americans for Safe Access v. DEA, 706 F.3d 438, 443 (D.C. Cir.
2013); Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d
102, 123-24 (D.C. Cir. 2012); Sierra Club, 292 F.3d at 899. We
do not insist on record evidence and affidavits to establish
standing because we are misguided nitpickers, but rather
because we must respect the limits of our jurisdiction. See
Chamber of Commerce, 642 F.3d at 199. As we said long ago,
“standing must be carefully controlled” to ensure “a practical
separation of the meritorious sheep from the capricious goats.”
Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 872 (D.C. Cir.
1970).
V
For the foregoing reasons, the case is remanded with
instructions to dismiss the complaint for lack of jurisdiction.
The portions of the district court’s order addressing the claims
raised on appeal are vacated. See Nader v. Fed. Election
13
Comm’n, No. 12-5134, 2013 WL 3956997 (D.C. Cir. Aug. 2,
2013); Humane Soc’y of U.S. v. Kempthorne, 527 F.3d 181, 184-
85 (D.C. Cir. 2008); City of Houston, 24 F.3d at 1432.
So ordered.