Safari Club International v. Salazar , 82 Fed. R. Serv. 3d 288 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAFARI CLUB INTERNATIONAL,
Plaintiff,
v.
KEN SALAZAR, in his official capacity as Civil Action No. 11-cv-01564 (BAH)
Secretary of the U.S. Department of the Judge Beryl A. Howell
Interior, et al.,
Defendants.
OWEN, et al.,
Plaintiffs,
v.
Civil Action No. 12-cv-00194 (BAH)
UNITED STATES DEPARTMENT OF THE Judge Beryl A. Howell
INTERIOR, et al.,
Defendants.
EXOTIC WILDLIFE ASSOCIATION, et al.,
Plaintiffs,
Civil Action No. 12-cv-00340 (BAH)
v. Judge Beryl A. Howell
(Consolidated Cases)
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Defendants.
MEMORANDUM OPINION
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
1
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 Endangered Species Act (“ESA”) three antelope species, namely, the scimitar-
horned oryx, dama gazelle, and addax (“Three Antelope species”). See 56 Fed. Reg. 56,491 (Nov.
5, 1999). No action was taken on this proposed rule until September 2, 2005, when the FWS listed
the Three Antelope species as endangered under the ESA, and also added a new regulation, codified
1
While the two motions pending in the SCI Action are fully briefed, FOA’s Motion to Intervene in the EWA Action was
filed on March 16, 2012 and is not yet ripe. See Case No. 11-cv-01564, ECF No. 34. Nevertheless, the Court’s
resolution of the ripe motions effectively applies to the entire consolidated case.
2
The Owen and EWA Actions were reassigned as related cases to the presiding judge on February 10 and March 14,
2012, respectively.
3
Each of the three consolidated actions is against Ken Salazar, in his official capacity as Secretary of the Department
of the Interior; the U.S. Fish and Wildlife Service (“FWS”); and Daniel Ashe, in his official capacity as Director of the
FWS. The U.S. Department of the Interior is also a defendant in Case Nos. 12-cv-00194 and 12-cv-00340. (The Court
refers to the defendants collectively as “Federal Defendants”).
2
at 50 C.F.R. § 17.21(h), authorizing certain otherwise prohibited activities for U.S. captive-bred
individuals of the Three Antelope species (“Captive-bred Exemption”). 70 Fed. Reg. 52, 319 and
52, 310 (Sept. 2, 2005).
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 before the FWS may permit otherwise prohibited acts to enhance the propagation or
survival of endangered species,” and that the “blanket exemption” reflected by the Captive-bred
Exemption violated the ESA’s subsection 10(c) requirement to provide public notice in the Federal
Register of each application for a permit allowing such otherwise prohibited acts. Id. at 115. The
court remanded the rule to the FWS for further proceedings. Id. at 115-116.
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.
3
The SCI Action was then filed in this district on August 31, 2011, alleging that the Federal
Defendants violated the ESA and Administrative Procedure Act (APA) by including U.S. captive-
bred herds of the Three Antelope species in the 2005 listing determination and for failing to respond
in a timely manner to SCI’s petition for delisting. See SCI Action, ECF No. 1, SCI Compl. ¶ 2.
Likewise, the Owen Action, which was filed in the Northern District of Texas in October, 2011,
alleges that the FWS violated the ESA and the APA by failing to respond to the EWA’s petition for
delisting. See Owen Action, ECF No. 1, Owen Compl. at 1. Following transfer of the Owen Action
to this jurisdiction, this Court consolidated the SCI Action with the Owen Action. See Minute Order
(Feb. 21, 2012). 4
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
4
The Owen Action was transferred from the Northern District of Texas to this jurisdiction on February 6, 2012. See
Case No. 12-cv-00194, ECF No. 16. Seven of the nineteen plaintiffs in the Owen Action are also plaintiffs in the EWA
Action.
4
successful lawsuit against FWS in 2009, in which Judge Kennedy held that the Captive-bred
Exemption, codified at 50 C.F.R. § 17.21(h), violated the ESA and the National Environmental
Policy Act. 5 Friends of Animals, 626 F. Supp. 2d at 105. Second, these four organizations monitor
applications for permits seeking authorization to engage in otherwise prohibited actions involving
endangered species. See FOA Mot. to Intervene in SCI Action, Att. 1, ECF No. 11-1 (Declaration
of Priscilla Feral, President of FOA, dated Nov. 1, 2011) (“Feral Decl.”) 6, ¶ 22; see also DOW-
Proposed Intervenors’ Mot. to Intervene in SCI Action, Ex. 1, ECF No. 13-2 (Declaration of Nina
Fascione, (former) Vice President of DOW, dated Nov. 10, 2008) (“Fascione Decl.”) , ¶¶ 5, 7-14;
id. at Ex. 2, ECF No. 13-3 (Declaration of Andrew Page, Senior Director at HSUS, dated Nov. 4,
2008) (“Page Decl.”), ¶¶ 6-8, 13-18; id. at Ex. 3, ECF No. 13-4 (Declaration of Marcia Slackman,
member of HSUS, dated Nov. 5, 2008) (“Slackman Decl.”), ¶¶ 4-5, 8-9; id. at Ex. 4, ECF No. 13-5
(Declaration of Adam Roberts, Senior Vice President of Born Free USA, dated Nov. 11, 2008)
(“Roberts Decl.”), ¶¶ 7, 9, 11; DOW-Proposed Intervenors’ Reply to SCI Opp. to Mot. to
Intervene, Ex. 6, ECF No. 21-2 (Declaration of Michael P. Senatore, dated January 3, 2102)
(“Senatore Decl.”). This monitoring activity is facilitated by the requirement in ESA section 10(c)
for the FWS to publish notice in the Federal Register of each application for a permit and obtain
comment from interested parties and the public. See 16 U.S.C. § 1539(c). Certain permit
applications, such as for sport hunting of such animals, prompt the organizations to inform their
members and the public about proposed governmental actions that would impact endangered
animals through various means, including electronic action alerts, their websites, and various
5
As previously noted, the Final Rule, which is challenged in the EWA Action and by SCI and EWA in their motions for
a preliminary injunction, would amend 50 C.F.R. § 17.21 by removing paragraph (h), the paragraph that excludes U.S.
captive-bred scimitar-horned oryx, addax, and dama gazelle from certain ESA prohibitions. 77 Fed. Reg. 431, 438 (Jan.
5, 2012).
6
Ms. Feral has filed two declarations in the consolidated case. The second declaration, filed on March 16, 2012,
appears to be identical to the one filed in November, 2011 at ECF No. 11-1. See FOA Mot. to Intervene in EWA
Action, ECF No. 34-1 (Declaration of Priscilla Feral, dated February 14, 2012). The Court will therefore cite only to
the first filed Feral Declaration.
5
mailings. See, e.g., Feral Decl. ¶¶ 16-17, 20-22; Fascione Decl. ¶¶ 7-13; Page Decl. ¶¶ 6-16;
Slackman Decl. ¶¶ 6-8; Roberts Decl. ¶¶ 10-11. These organizations and their members also
routinely comment on such actions to government agencies and legislative bodies. Id.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
6
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 Rule 24(a) and permissive intervention under Rule 24(b). The Federal
Defendants take no position on the motions to intervene. SCI, on the other hand, opposes these
motions. See SCI Action, ECF Nos. 14, 18. 7 For the reasons explained below, the motions for
intervention are granted in part as to FOA and DOW, and denied as to HSUS and Born Free USA.
II. DISCUSSION
Rule 24 of the Federal Rules of Civil Procedure sets forth the requirements for both
intervention as of right and permissive intervention. See FED. R. CIV. P. 24(a) & (b). While “[i]n
theory” a court has “no discretion when intervention is under Rule 24(a),” Wright, Miller, & Kane,
Federal Practice & Procedure, Civil 3d § 1913, practically speaking, even this basis for intervention
involves “a measure of judicial discretion.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732
(D.C. Cir. 2003) (citing Massachusetts School of Law at Andover, Inc. v. United States, 118 F.3d
776, 779 (D.C. Cir. 1997) (noting “the existence of district court discretion over the timeliness and
adequacy of representation issues under Rule 24(a)(2)”)). If there is no right to intervene under
Rule 24(a), “it is wholly discretionary with the court whether to allow intervention under Rule
24(b).” Wright, Miller, & Kane, Federal Practice & Procedure, Civil 3d § 1913. “If a movant does
not meet the requirements to intervene as a matter of right, the Court may nonetheless allow
intervention, pursuant to FED. R. CIV. P. 24(b), if the movant ‘has a claim or defense that shares with
the main action a common question of law or fact.’” Id. (quoting FED. R. CIV. P. 24 (b)(1)(B)).
7
SCI does not oppose the participation of these organizations as amici. SCI Action, ECF No. 14, at 2 n.2; ECF No. 18,
at 3 n.1.
7
In this case, the Court’s analysis of the pending motions to intervene begins and ends with
consideration of the Rule 24(a) prong for intervention of right.
A. Legal Standard for Intervention of Right
Rule 24(a)(2) states in relevant part:
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 Rule 24(a)(2) to
require four factors in order for a movant to qualify for intervention of right: “(1) the timeliness of
the motion; (2) whether the applicant claims an interest relating to the property or transaction which
is the subject of the action; (3) whether 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; and (4)
whether the applicant’s interest is adequately represented by existing parties.” Fund for Animals,
Inc. v. Norton, 322 F.3d at 731 (quoting Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.
Cir. 1998)); Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Additionally, the proposed
intervenor seeking to participate on equal footing with the original parties to the suit must
demonstrate standing under Article III of the Constitution. Fund for Animals, Inc. v. Norton, 322
F.3d at 731-32; United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1146 (D.C. Cir. 2009);
Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 308 (D.D.C. 2011) (hereinafter “CBD v.
EPA”); In re ESA Litig., 270 F.R.D. 1, 4 (D.D.C. 2010).
8
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 members when its members would otherwise have standing to sue in their own right, the interests
at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Friends of the Earth,
Inc. v. Laidlaw Envt’l. Servs. (TOC), Inc., 528 U.S. 167, 180-181 (2000) (citing Hunt v. Washington
State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).
The injury-in-fact and causation connection with the challenged action requirements for
standing are closely related to the second and third factors under Rule 24(a), which require a
showing of interest in the subject matter of the lawsuit and the potential impairment of that interest
absent intervention in the suit. See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233
(D.C. Cir. 2003) (“[A]ny person who satisfies Rule 24(a) will also meet Article III’s standing
requirement.”); Defenders of Wildlife v. Jackson, No. 10-1915, 2012 U.S. Dist. LEXIS 35750 at *10
(D.D.C. Mar. 18, 2012) (noting that outcome is the same whether standing is considered separately
or as part of Rule 24(a)(2) interest requirements); Akiachak Native Cmty. v. U.S. Dep’t of Interior,
584 F. Supp. 2d 1, 7 (D.D.C. 2008) (“The standing inquiry is repetitive in the case of intervention as
of right because an intervenor who satisfies Rule 24(a) will also have Article III standing.”).
9
B. Analysis
FOA and the DOW-proposed intervenors argue that they are entitled to intervene as a matter
of right under Federal Rule of Procedure 24(a) because they meet the four-factor test as well as have
standing. SCI argues that none of these organizations qualifies for intervention of right, even under
a liberal application of the Rule, because they lack standing and do not satisfy the second factor
under Rule 24(a): namely, they do not have an interest in U.S. captive bred herds of the Three
Antelope species, which SCI states is the subject matter of this litigation. See SCI Mem. in Opp. to
FOA Mot. to Intervene, ECF No. 14, at 1-2; SCI Mem. in Opp. to DOW-Proposed Intervenors Mot.
to Intervene, ECF No. 18, at 2-3. “Because a prospective intervenor’s Article III standing presents
a question going to this Court’s jurisdiction, the Court must address standing before considering the
four-part test for evaluating intervention as of right.” In re Endangered Species Act Section 4
Deadline Litig., 277 F.R.D. 1, 5 (D.D.C. 2011); see also Fund for Animals, 322 F.3d at 732; Sierra
Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
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 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.
10
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 Mot. to Intervene in SCI Action, ECF No. 11
at 11.
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.11
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 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 *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 *33. 8
8
The Cary court made no individual finding about standing for the instant proposed intervenors other than DOW,
indicating that once one plaintiff had established standing, “[t]he court need not consider the standing of other plaintiffs
to claim a violation of § 10(c).” Cary, 2006 U.S. Dist. LEXIS 78573, at *33 (citing Public Citizen v. Dep’t of Transp.,
316 F.3d 1002, 1014-15 (9th Cir 2003) (“We need only find that one petitioner has standing to allow a case to
proceed.”), rev’d on other grounds, 541 U.S. 752 (2004)). While the standing of a single plaintiff may suffice to satisfy
the jurisdictional requirement of a case or controversy, see Arlington Heights v. Metropolitan Housing Development
12
Notwithstanding the conclusions reached by two courts in 2006 and 2009 about the
informational standing of both FOA and DOW regarding FWS regulations under the ESA for the
Three Antelope species, SCI argues that these organizations do not have standing in the instant
consolidated case for two reasons. First, SCI contends that the proposed intervenors have no
interest in the “conservation status and value of the U.S. captive populations” and therefore have no
interest in whether those herds are de-listed from the endangered species list. SCI Opp. Mem. to
FOA Mot. to Intervene in SCI Action, ECF 14 at 8; SCI Opp. Mem. to DOW-Proposed Intervenors
Mot. to Intervene in SCI Action, ECF No. 18 at 9 (“This litigation is about whether those animals
should be classified as endangered in the first place. [DOW et al.] has no entitlement to information
about a species simply because it is listed as endangered”). To the extent they claim an interest in
the U.S. captive-bred herds of the Three Antelope species in order to stop the poaching of wild
antelope abroad, SCI argues that the Cary court and Friends of Animals court previously rejected
this causal connection and rejected standing on this ground. SCI Opp. Mem. to DOW-Proposed
Intervenors Mot. to Intervene, ECF No. 18 at 8-9. Related to this argument, SCI further contends
that “[t]he listing status of these U.S. populations [of antelope] does not, by itself, give [the
proposed intervenors] a legally protected interest in access to information about members of these
populations. By the same token, [the proposed intervenors] will suffer no harm to a legally
protected interest if [SCI] succeeds in this litigation and the U.S. populations are removed from the
endangered species list.” Id. at 2.
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
Corp., 429 U.S. 252, 264 & n. 9 (1977) (“Because of the presence of this plaintiff [with standing], we need not consider
whether the other individual and corporate plaintiffs have standing to maintain the suit.”); Watt v. Energy Action
Educational Foundation, 454 U.S. 151, 160 (1981) (“Because we find [that one of the three plaintiff groups] has
standing, we do not consider the standing of the other plaintiffs.”), the law is not clear whether each proposed intervenor
must establish standing, although the parties appear to argue for standing for each organization. Rule 24(a) applies the
requirements for intervention to “anyone” seeking to intervene and, thus, by its terms, requires each proposed intervenor
to satisfy the four-factor test.
13
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.”).
14
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 find invalid the Final Rule and set aside the case-by-case permitting process
to which the proposed intervenors obtain information critical to their missions. Indeed, that is the
relief sought in the pending preliminary injunction motions filed by SCI and EWA, which seek to
set aside the Final Rule and keep in place the status quo Captive-bred Exemption. Both FOA and
DOW have demonstrated their “concrete and particularized interest in the access to information
under section 10(c) of the ESA and in the wild antelope that remain unprotected until the Service’s
Final Rule, which is under attack in this action, goes into effect.” FOA Mem. in Supp. of Mot. to
Intervene in EWA Action, ECF No. 34 at 15; DOW-Proposed Intervenors’ Mem. in Supp. of Mot. to
Intervene in SCI Action, ECF No. 13-1, at 17 (setting aside Final Rule and “remov[ing] captive
members of the three antelope species from the ESA’s protection . . . would concretely injure
Proposed Defendant-Intervenors’ organizational interests in the critical information to which they
are statutorily entitled under Section 10, as well as their interests in meaningfully participating in
the Section 10 process”). This clearly implicates the same informational injury that two district
courts previously concluded in 2006 and 2009 was sufficient to confer standing on FOA and DOW.
This Court finds the thorough analysis performed by those two judges persuasive here and reaches
the same conclusion that FOA and DOW would suffer an informational injury if the plaintiffs’
succeed in setting aside the Final Rule.
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
15
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 ESA’s Section 10 and, in the course of the
permitting process, the defendant would have disclosed information which would then have been
available to the plaintiff. ASPCA v. Feld Entm’t, Inc., 659 F.3d at 22-23. The court determined that
the plaintiff sued under a different ESA section, which did not “directly entitle” the plaintiff to any
information, and that the defendant, as a private person, in any case had no obligation to provide
information to the plaintiff. Id. at 24. Section 10’s disclosure requirements, the Court noted, are
“triggered only in the context of an ongoing permit proceeding and intended, not to provide a broad
right to information about the activities of any person engaged in a taking, but to allow interested
parties to comment on and assist the Secretary’s evaluation of permit applications. Id. at 23-24
(citing 16 U.S.C. § 1539(c) (requiring the Secretary to “invite the submission from interested parties
. . . of written data, views, or arguments with respect to the [permit] application”)). The Court
acknowledged that Section 10(c) would entitle the plaintiff to information received by the FWS as
part of a permit application, but absent such an application or even a requirement for such an
application, the plaintiff could not establish informational standing. Notably, the Court cited
Friends of Animals v. Salazar, 626 F. Supp. 2d at 111 for its “finding informational standing where
plaintiffs alleged that the Fish and Wildlife Service violated section 10(c) by promulgating a rule
that eliminated permit requirements for takings of certain antelope.” ASPCA v. Feld Entm’t, Inc.,
659 F.3d at 24.
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
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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 Mem. in Opp. to
DOW-Proposed Intervenors’ Mot. to Intervene in SCI Action, ECF No. 18 at 11. SCI’s point is
well-placed. An injury-in-fact must be not only “concrete and particularized,” but also “actual or
imminent.” The DOW-Proposed Intervenors counter that notwithstanding the 2008 dates of the
declarations, the Friends of Animals decision as well as the declarations contain language indicating
“routine” or “regular” activity of the organizations that “demonstrate their organizational interests
in these issues are not ‘outdated.’” DOW-Proposed Intervenors’ Reply to SCI Opp. Mem., ECF
No. 21 at 7. The Court is not persuaded. While DOW cured the defect in its untimely declaration
by submitting a declaration that makes clear that the facts attested to three years ago remain in
effect, see Senatore Decl. (attesting to continued truth of matters contained in declaration of Nina
Fascione), neither HSUS or Born Free USA have done the same. The absence of any evidence in
the record regarding the “imminence” of the injury to HSUS or Born Free USA is fatal to their
ability to establish standing or their satisfaction of the second and third factor for intervention of
right requiring a showing that they have a sufficiently current interest which would be impaired
should plaintiffs prevail in this action.
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
Rule 24(a) are satisfied by FOA and DOW.
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
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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 Rule 24(a)(2)
and therefore will not consider their alternative basis for permissive intervention. 9
9
The Court declines to exercise its discretion to grant the alternative motion of HSUS and Born Free USA for
permissive intervention under Rule 24(b)(1)(B). Whether standing is required for permissive intervention in this Circuit
is an unresolved issue. See In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1, 8 (D.D.C. 2011); In
re Vitamins Antitrust Class Actions, 215 F.3d 26, 31-32 (D.C. Cir. 2000); In re ESA Litig., 270 F.R.D. at 6, n.5.
As noted, these two organizations have not established standing. In any event, the three-year old declarations these
organizations submitted in support of their motion raise serious question whether they currently have a strong interest at
stake in this litigation and, to the extent they do, their interests will be adequately represented by FOA and DOW.
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III. CONCLUSION
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.
DATED: March 23, 2012 /s/ Beryl A. Howell___
BERYL A. HOWELL
United States District Judge
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