In Re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation - Mdl 1993 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
IN RE POLAR BEAR ENDANGERED )
SPECIES ACT LISTING AND § 4(d) )
RULE LITIGATION ) Misc. No. 08-764 (EGS)
) MDL Docket No. 1993
)
)
This Document Relates To: )
)
Safari Club Int’l, et al. v. )
Salazar,1 et al., No. 08-881; )
Hershey v. Salazar, et al., )
No. 09-324; Kreider v. Salazar, )
et al., No. 09-325; Atcheson, )
et al. v. Salazar, et al., )
No. 09-941 )
)
MEMORANDUM OPINION
On May 15, 2008, the U.S. Fish and Wildlife Service (“the
Service” or “the agency”) published its final rule listing the
polar bear as a threatened species under the Endangered Species
Act (“ESA”) because of anticipated impacts to its sea ice
habitat from increasing Arctic temperatures, which the agency
attributed to global greenhouse gas emissions and related
atmospheric changes. See generally Determination of Threatened
Status for the Polar Bear (Ursus maritimus) Throughout Its
Range, 73 Fed. Reg. 28,212 (May 15, 2008) (“Listing Rule”).
1
Pursuant to Fed. R. Civ. P. 25(d), Interior Secretary Ken
Salazar is automatically substituted as a defendant for his
predecessor, Dirk Kempthorne, who was sued in his official
capacity.
This Court recently upheld the Listing Rule as a reasonable
exercise of agency discretion. See In re Polar Bear Endangered
Species Act Listing and § 4(d) Rule Litigation, Misc. No. 08-
764, 2011 U.S. Dist. LEXIS 70172 (D.D.C. June 30, 2011). The
four cases currently before the Court arise out of the Service’s
related determination that, as of the effective date of the
Listing Rule, sport-hunted polar bear trophies may no longer be
imported into the United States under the Marine Mammal
Protection Act (“MMPA”), 16 U.S.C. §§ 1361-1423h, which
generally prohibits the import of marine mammal species that the
Secretary has designated as “depleted.”
The following plaintiffs have filed actions against the
Service asserting violations of the MMPA and the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706:
 Safari Club International and Safari Club International
Foundation (collectively, “SCI”);
 Ronald Kreider (“Kreider”);
 Donald Hershey (“Hershey”);2
 Keith Atcheson, Keith Halstead, Ben Hamel, Marcus Hansen,
Aaron Nielson, Kevin Wieczorek, Dennis Dunn, and
Conservation Force (collectively, “Atcheson plaintiffs”).
Pending before the Court are the parties’ cross-motions for
summary judgment.
The SCI plaintiffs challenge the Service’s legal
determination that imports of sport-hunted polar bear trophies
2
Plaintiffs SCI, Kreider, and Hershey jointly moved for
summary judgment and will be referred to collectively as the
“SCI plaintiffs.”
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are no longer available as arbitrary, capricious, and contrary
to the plain language of the MMPA. As the SCI plaintiffs note,
section 104(c)(5) of the MMPA specifically authorizes the import
of sport-hunted polar bear trophies from approved polar bear
populations in Canada. The SCI plaintiffs argue, first, that
Congress plainly intended this authorization to take precedence
over the MMPA’s prohibition on importing depleted marine mammal
species. The SCI plaintiffs further argue, however, that the
prohibition on importing depleted species does not apply to the
polar bear, which they claim was never properly designated as
depleted. On the same grounds, the SCI plaintiffs challenge the
disposition of import permit applications submitted pursuant to
section 104(c)(5) of the MMPA by individual plaintiffs Hershey
and Kreider, which the Service administratively closed after the
publication of the Listing Rule.
Having carefully considered plaintiffs’ motions, the
federal defendants’ and defendant-intervenors’ cross-motions,
the oppositions and replies thereto, the arguments of counsel at
a motions hearing held on April 13, 2011, the relevant law, the
full administrative record, and for the reasons set forth below,
the Court finds that the Service properly concluded that the
polar bear is a depleted species within the meaning of the MMPA
as of the publication of the Listing Rule. The Court further
finds that the MMPA mandates the Service’s conclusion that
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sport-hunted polar bear trophies are no longer eligible for
import as a result of the species’ depleted status. Sport
hunting is not among the narrow, enumerated exceptions to the
MMPA’s ban on taking and importing depleted marine mammals.
Accordingly, the Court concludes that the Service did not err
when it administratively closed permit applications that were
pending when the Listing Rule took effect, including those
submitted by plaintiffs Hershey and Kreider. The Court
therefore DENIES the SCI plaintiffs’ motion for summary judgment
and GRANTS the federal defendants’ and defendant-intervenors’
motions for summary judgment.
Whereas the SCI plaintiffs primarily argue that the polar
bear is not a depleted species within the meaning of the MMPA,
the Atcheson plaintiffs, for their part, do not contest that the
polar bear was properly designated as depleted. However, after
the publication of the Listing Rule, the Atcheson plaintiffs
nonetheless applied for permits to import their sport-hunted
polar bear trophies under section 104(c)(4)(A) of the MMPA,
which authorizes a narrow exception to the general prohibition
on importing depleted marine mammals for activities that will
“enhance” a depleted species, either by increasing its numbers
or by otherwise contributing to the recovery of the species.
The Service denied the Atcheson plaintiffs’ permit applications,
finding no evidence that either sport hunting itself or the
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subsequent import of these specific sport-hunted polar bear
trophies would actually enhance the species within the meaning
of the statute. The Atcheson plaintiffs challenge the denial of
their permit applications as arbitrary, capricious, contrary to
law, and procedurally deficient.
Having carefully considered plaintiffs’ motions, the
federal defendants’ and defendant-intervenors’ cross-motions,
the oppositions and replies thereto, the arguments of counsel at
a motions hearing held on April 13, 2011, the relevant law, the
full administrative record, and for the reasons set forth below,
the Court finds that the Service reasonably concluded that the
Atcheson plaintiffs failed to meet the standard for an
enhancement exception to the MMPA’s ban on importing depleted
species. Accordingly, the Court DENIES the Atcheson plaintiffs’
motion for summary judgment and GRANTS the federal defendants’
and defendant-intervenors’ motions for summary judgment.
I. BACKGROUND
A. Statutory and Regulatory Background
Congress enacted the MMPA to preserve and replenish marine
mammal populations. See 16 U.S.C. § 1361(2). The Secretary of
the Interior has jurisdiction over most marine mammals covered
by the MMPA, including the polar bear. See id.§ 1362(12)(A)(ii). The Secretary has delegated his duties under
the MMPA to the Service. See 50 C.F.R. § 403.02(f).
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The MMPA establishes a general moratorium “during which
time no permit may be issued for the taking of any marine mammal
and no marine mammal or marine mammal product may be imported
into the United States.”3 16 U.S.C. § 1371(a). The statute
enumerates several exceptions to this general moratorium. One
such exception authorizes the Service to issue permits for the
import of polar bear parts taken in sport hunts in Canada,
provided certain conditions are met. See id. § 1374(c)(5). In
1997, the Service issued regulations approving six Canadian
polar bear populations for so-called “trophy” imports: Southern
Beaufort Sea, Northern Beaufort Sea, Viscount Melville Sound,
Western Hudson Bay, Lancaster Sound, and Norwegian Bay. See 50
C.F.R. § 18.30(i)(l).
However, the MMPA imposes additional restrictions on the
taking and import of marine mammals from species that are
considered “depleted.” A species is depleted within the meaning
of the MMPA when (1) the Secretary determines that the species
or population stock is below its “optimum sustainable
population” (“OSP”); (2) a state with management authority over
the species determines that the species or stock is below its
OSP; or (3) the species or population stock is listed as an
3
“Take” under the MMPA is defined as “to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill
any marine mammal.” 16 U.S.C. § 1362(13).
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endangered species or a threatened species under the ESA. 16
U.S.C. § 1362(1).
Under section 101(a)(3)(B) of the MMPA, “no permit may be
issued for the taking of any marine mammal which has been
designated by the Secretary as depleted, and no importation may
be made of any such mammal.” Section 102(b) further provides:
[I]t is unlawful to import into the United States any
marine mammal if such mammal was - (1) pregnant at the
time of taking; (2) nursing at the time of taking, or
less than eight months old, whichever occurs later;
(3) taken from a species or population stock which the
Secretary has, by regulation published in the Federal
Register, designated as a depleted species or stock;
or (4) taken in a manner deemed inhumane by the
Secretary.
Pursuant to these two provisions, therefore, members of a
depleted marine mammal species or stock generally may not be
imported into the United States.
The statute also enumerates some exceptions to this
prohibition. Specifically, the Service may permit the take or
import of depleted marine mammal species “for scientific
research purposes, photography for educational or commercial
purposes, or enhancing the survival or recovery of a species or
stock . . . , or as provided for under paragraph (5) of this
subsection [authorizing the incidental, but not intentional,
taking of marine mammals during the course of specified
activities].” Id. § 1371(a)(3)(B).
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To qualify for the narrow “enhancement” exception to the
prohibition on taking and importing depleted species, the
Service must determine that
(1) taking or importation is likely to contribute
significantly to maintaining or increasing
distribution or numbers necessary to ensure the
survival or recovery of the species or stock; and
(2) taking or importation is consistent (I) with any
conservation plan adopted by the Secretary under
[the MMPA] . . . or any recovery plan developed
under [the ESA] for the species or stock, or
(II) if there is no conservation or recovery plan
in place, with the Secretary’s evaluation of the
actions required to enhance the survival or
recovery of the species or stock in light of the
factors that would be addressed in a conservation
plan or a recovery plan.
Id. § 1374(c)(4)(A) (emphasis added).
B. Factual and Procedural Background
1. The Listing Rule
On May 15, 2008, the Service issued a final rule listing
the polar bear as a threatened species throughout its range.
See generally 73 Fed. Reg. at 28,212; ARL 117215-307.4 Although
4
The facts in this background section are excerpted from the
administrative records for each of the agency actions before
this Court on review. Because the SCI plaintiffs have
challenged the Service’s legal conclusion, set forth in its
Listing Rule, that import permits for sport-hunted polar bear
trophies are no longer available under the MMPA, this Court will
consider portions of the administrative record for the Listing
Rule. Citations to the administrative record for the Listing
Rule will be abbreviated “ARL.” Citations to the administrative
records in the Hershey and Kreider cases will be abbreviated
“ARH” and “ARK,” respectively. Citations to the administrative
record for the “enhancement” case (Atcheson, et al. v. Salazar,
et al., No. 09-941) will be abbreviated “ARE”.
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the Listing Rule does not purport to “designate” the polar bear
as a depleted species under the MMPA, the Service noted in
response to comments that
[U]nder the MMPA, the polar bear will be considered a
‘depleted’ species on the effective date of this
listing. As a depleted species, imports could only be
authorized under the MMPA if the import enhanced the
survival of the species or was for scientific
research. Therefore, authorization for the import of
sport-hunted trophies will no longer be available
under section 104(c)(5) of the MMPA.
Id. at 28,236; ARL 117240. The Service further noted:
We acknowledge the important contribution to
conservation from scientifically-based sustainable use
programs. Significant benefits to polar bear
management in Canada have accrued as a result of the
1994 amendments to the MMPA that allow U.S. citizens
who legally sport-harvest a polar bear from an MMPA-
approved population in Canada to bring their trophies
back into the United States.
. . .
While we recognize these benefits, the Service must
list a species when the best scientific and commercial
information available shows that the species meets the
definition of endangered or threatened. The effect of
the listing, in this case an end to the import
provision under Section 104(c)(5) of the MMPA, is not
one of the listing factors. Furthermore, the benefits
accrued to the species through the import program do
not offset or reduce the overall threat to polar bears
from loss of sea ice habitat.
Id. at 28,242; ARL 117246.5
5
On May 23, 2008, the Solicitor of the Department of the
Interior issued a memorandum further explaining the legal basis
for the ban on importing sport-hunted polar bear trophies. See
ARL 117714. That memorandum is not before this Court on review.
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The Service subsequently administratively closed all
applications for polar bear trophy import permits under section
104(c)(5) of the MMPA that were pending as of the date the
Listing Rule became effective. See, e.g., ARK 104.
2. Plaintiff SCI
Shortly after the publication of the Listing Rule,
plaintiff SCI initiated an action in this Court challenging the
agency’s legal conclusion that sport-hunted polar bear trophies
are no longer eligible for import permits as a result of the
species’ threatened status. See generally Complaint, SCI, et
al. v. Salazar, et al., No. 08-881 (D.D.C. May 23, 2008), Docket
No. 1. This action was consolidated with other related actions
for coordinated proceedings before this Court, pursuant to an
order of the Judicial Panel on Multi-District Litigation
(“MDL”). Certified Copy of Transfer Order, Docket No. 1.6
On March 3, 2009, the federal defendants filed a motion to
dismiss plaintiff SCI’s complaint. See generally Motion to
Dismiss, Docket No. 21. This Court denied the federal
defendants’ motion to dismiss, finding that the agency’s
determination that polar bear trophy imports are no longer
available constitutes a “final agency action” for the purposes
of judicial review under the APA. See In re Polar Bear
6
Unless otherwise specified, all references to pleadings,
proceedings, hearings, opinions, and orders can be found on the
Misc No. 08-764 docket.
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Endangered Species Act Listing and § 4(d) Rule Litigation, 627
F. Supp. 2d 16, 24 (D.D.C. 2009). The Court further concluded
that plaintiff SCI has standing to bring this action. Id. at
27.
3. Plaintiffs Hershey and Kreider
Plaintiff Kreider attests that he traveled to Canada and
successfully took a polar bear on or about March 31, 2008, from
an approved polar bear population in the Northern Beaufort Sea.
Declaration of Ronald E. Kreider (“Kreider Decl.”), Docket No.
132-6, at ¶¶ 3-4. He avers that he spent approximately $40,000
on his hunt. Kreider Decl. at ¶ 5. Plaintiff Kreider applied
to the Service for a permit to import his polar bear trophy on
April 4, 2008, and received confirmation that his application
was received on April 15, 2008. Kreider Decl. at ¶¶ 6, 7.
Plaintiff Kreider’s permit application was administratively
closed on July 29, 2008, after the polar bear was listed as a
threatened species. Kreider Decl. at ¶ 9. The letter plaintiff
Kreider received from the Service indicated that “importation of
a polar bear from Canada as a sport-hunted trophy . . . is no
longer an activity that can be authorized under the [MMPA].”
ARK 104. Accordingly, the Service informed plaintiff Kreider
that it would not be able to continue processing his application
and that his permit application processing fee would be
returned. See ARK 104. Plaintiff Kreider avers that he
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currently pays monthly fees to keep his trophy in cold storage
in Canada. Kreider Decl. at ¶ 10. Plaintiff Hershey avers
nearly identical facts. See generally Declaration of Donald C.
Hershey, Docket No. 132-7; see also ARH 102 (letter from the
Service to plaintiff Hershey dated July 29, 2008).
Plaintiffs Hershey and Kreider filed petitions for review
of the disposition of their permit applications in the Eastern
District of Pennsylvania. See generally Petition for Review,
Hershey v. Kempthorne, et al., No. 08-4660 (E.D. Pa. Sept. 26,
2008), Docket No. 1; Petition for Review, Kreider v. Kempthorne,
et al., No. 08-4662 (E.D. Pa. Sept. 26, 2008), Docket No. 1.
These actions were subsequently transferred to this Court for
coordinated proceedings under the ongoing MDL. See Certified
Copy of Transfer Order, Hershey v. Salazar, et al., No. 09-324
(D.D.C. Feb. 11, 2009), Docket No. 18; Certified Copy of
Transfer Order, Kreider v. Salazar, et al., No. 09-325 (D.D.C.
Feb. 11, 2009), Docket No. 5.
4. The Atcheson Plaintiffs
Each of the Atcheson plaintiffs purportedly took a polar
bear from the Gulf of Boothia polar bear population in Canada
between April 18, 1999 and May 29, 2005. See Atcheson Plfs.
Mot. at 8. The Gulf of Boothia population is not among the six
polar bear populations that the Service has approved for trophy
imports under section 104(c)(5) of the MMPA. However, rather
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than seeking trophy import permits pursuant to section
104(c)(5), each of the Atcheson plaintiffs sought a permit to
import his polar bear trophy pursuant to the narrow exception
set out at section 104(c)(4)(A) for activities that enhance the
survival or recovery of a depleted species. The individual
Atcheson plaintiffs jointly submitted their applications for
trophy import permits through plaintiff Conservation Force on
July 9, 2008, after the effective date of the Listing Rule. See
Atcheson Plfs. Mot. at 8; see also ARE 28-96.
On February 2, 2009, the Service denied the Atcheson
plaintiffs’ permit requests. See, e.g., ARE 449-50 (letter from
the Service to plaintiff Keith Atcheson dated Feb. 2, 2009). In
its denial letter, the Service asserted that plaintiffs had
failed to provide sufficient evidence that either sport hunting
itself or the importation of their sport-hunted trophies would
enhance the survival or recovery of the polar bear. See, e.g.,
ARE 449-50.
On March 18, 2009, the individual Atcheson plaintiffs
jointly submitted a request for reconsideration, again through
plaintiff Conservation Force, which included additional
supporting documentation. ARE 464. This request was denied on
April 28, 2009. See, e.g., ARE 592 (letter from the Service to
plaintiff Keith Atcheson dated Apr. 28, 2009).
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The Atcheson plaintiffs initiated an action in this Court
challenging the denial of their permit applications. See
generally Complaint, Atcheson, et al. v. Salazar, et al., No.
09-941 (D.D.C. May 21, 2009), Docket No. 1. This action was
subsequently consolidated as a tag-along action with the ongoing
MDL. See Order Granting Motion to Consolidate Cases, Docket No.
112.
5. Summary Judgment Briefing
On the recommendation of the parties, cross-motions for
summary judgment in the actions filed by plaintiffs SCI,
Hershey, and Kreider were briefed jointly. Cross-motions for
summary judgment in the action filed by the Atcheson plaintiffs
were briefed separately, but simultaneously.
Plaintiffs filed their motions for summary judgment on
November 23, 2009.7 The federal defendants filed cross-motions
for summary judgment on January 7, 2010.8 This Court also
7
See generally Motion and Memorandum of Points and
Authorities by Safari Club International, Safari Club
International Foundation, Ronald Kreider, and Donald Hershey in
Support of their Joint Motion for Summary Judgment in the Import
Ban Cases, Docket No. 132, revised at Docket No. 136 (“SCI Plfs.
Mot.”); Statement of Points and Authorities in Support of
Atcheson et al. Plaintiffs’ Motion for Summary Judgment, Docket
No. 134 (“Atcheson Plfs. Mot.”).
8
See generally Memorandum in Support of Defendants’ Cross-
Motion for Summary Judgment and in Opposition to Plaintiffs SCI
and Hershey/Kreider’s Motion for Summary Judgment, Docket No.
142 (“Fed Defs. SCI Mot.”); Federal Defendants’ Combined
Opposition to Plaintiffs Atcheson, et al.’s Motion for Summary
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permitted the following parties to intervene on behalf of the
federal defendants:
 Humane Society of the United States, International Fund
for Animal Welfare, and Defenders of Wildlife
(collectively, “HSUS”);
 Center for Biological Diversity, Natural Resources
Defense Council, and Greenpeace, Inc. (collectively,
“CBD”).
See Stipulation and Order Regarding Intervention, Docket No. 33,
at 4-5; see also Order Granting Oral Motion to Intervene, Docket
No. 112, at 2. The defendant-intervenors filed their cross-
motions for summary judgment on January 21, 2010.9 The Court
heard arguments on plaintiffs’ claims at a motions hearing held
on April 13, 2011. The parties’ cross-motions for summary
judgment are now ripe for determination by the Court.
II. STANDARD OF REVIEW
The APA provides a right to judicial review of final agency
actions. Under the APA, federal agency actions are to be held
unlawful and set aside where they are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
Judgment on Trophy Import Claims and Cross-Motion for Summary
Judgment, Docket No. 140 (“Fed Defs. Atcheson Mot.”).
9
HSUS filed briefs on behalf of all defendant-intervenors in
this case. See generally Import-Ban Intervenors’ Memorandum in
Support of Motion for Summary Judgment and Opposition to
Plaintiffs’ Motion for Summary Judgment, Docket No. 152 (“HSUS
SCI Mot.”); Import-Ban Intervenors’ Memorandum in Support of
Motion for Summary Judgment and Opposition to Plaintiffs’ Motion
for Summary Judgment, Docket No. 154 (“HSUS Atcheson Mot.”).
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To make this finding, a court must determine whether the
agency “considered the factors relevant to its decision and
articulated a rational connection between the facts found and
the choice made.” Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir.
2009) (citing Balt. Gas & Elec. Co. v. Natural Res. Def.
Council, Inc., 462 U.S. 87, 105 (1983)). The standard of review
under the APA is a narrow one. Citizens to Pres. Overton Park
v. Volpe, 401 U.S. 402, 416 (1971). The court is not empowered
to substitute its judgment for that of the agency. Id. An
agency’s permit decisions, in particular, are presumed to be
valid. Envtl. Def. Fund v. Costle, 657 F.2d 275, 283 (D.C. Cir.
1981).
This deferential standard does not, however, shield the
agency from a “thorough, probing, in-depth” review. Id. at 415.
Administrative action must be invalidated as arbitrary where the
agency
relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983). This determination must be made solely on
the basis of the record before the agency when it made its
decision. Camp v. Pitts, 411 U.S. 138, 142 (1973).
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Where the Court must review an agency’s interpretation of a
statute it is charged with administering, the Supreme Court’s
opinion in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council provides the appropriate framework of review. 467 U.S.
837 (1984). Both the agency and the reviewing court must give
effect to the Congress’s unambiguously expressed intent. Id. at
842. Therefore, the Court must first determine “whether
Congress has spoken directly to the precise question at issue.”
Id. If the Court determines that the intent of Congress is not
clear from the statute, “the issue for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Id. at 843. In that case, the Court must uphold any
agency interpretation that is not “procedurally defective,
arbitrary or capricious in substance, or manifestly contrary to
the statute.” United States v. Mead, 533 U.S. 218, 227 (2001)
(citing Chevron, 467 U.S. at 844).
III. DISCUSSION
A. The SCI Plaintiffs’ Claims
The SCI plaintiffs claim that the Service erred when it
concluded that sport-hunted polar bear trophies are no longer
eligible for import under the MMPA as a matter of law. The SCI
plaintiffs raise three primary arguments in support of this
claim. First, plaintiffs argue that the provision of the MMPA
that allows for the import of polar bear trophies from Canada
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trumps the Act’s restrictions on importing depleted species and,
therefore, this provision continues to authorize imports from
approved polar bear populations, notwithstanding the species’
threatened status. Second, the SCI plaintiffs argue that the
import restrictions for depleted species do not apply to the
polar bear because it was not properly designated as depleted
under the MMPA. Finally, the SCI plaintiffs contend that, even
if the Listing Rule did serve to designate the polar bear as
depleted, the Service did not provide adequate notice that its
rule would have that effect.
In the alternative, even assuming the import of sport-
hunted polar bear trophies is properly restricted as a result of
the species’ threatened status, the SCI plaintiffs assert that
these import restrictions only apply to a species that was
depleted at the time of taking. Accordingly, plaintiffs
contend, their specific trophies are eligible for import because
they were taken from approved populations before the Listing
Rule took effect and before the bear became depleted under the
MMPA.
Each of these arguments is addressed in turn.
1. Whether the MMPA Provisions Authorizing Import of
Sport-Hunted Polar Bear Trophies Take Precedence
over Restrictions on Importing Depleted Species
As noted above, although the MMPA establishes a general
moratorium on the taking and import of marine mammals and marine
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mammal products, the statute provides a specific exception for
importing polar bear parts taken in sport hunts from approved
populations in Canada. Section 104(c)(5) reads, in relevant
part:
The Secretary may issue a permit for the importation
of polar bear parts (other than internal organs) taken
in sport hunts in Canada to an applicant which submits
with its permit application proof that the polar bear
was legally harvested in Canada by the applicant.
Such a permit shall be issued if the Secretary, in
consultation with the Marine Mammal Commission and
after notice and opportunity for public comment, finds
that – (i) Canada has a monitored and enforced sport
hunting program consistent with the purposes of the
Agreement on the Conservation of Polar Bears;
(ii) Canada has a sport hunting program based on
scientifically sound quotas ensuring the maintenance
of the affected population stock at a sustainable
level; (iii) the export and subsequent import are
consistent with the provisions of the Convention on
International Trade in Endangered Species of Wild
Fauna and Flora and other international agreements and
conventions; and (iv) the export and subsequent import
are not likely to contribute to illegal trade in bear
parts.
(emphasis added). Because nothing in this provision expressly
excludes “depleted” polar bears, the SCI plaintiffs argue that
the plain language of this provision requires the agency to
grant a permit to import any polar bear trophy taken from one of
the six populations that are currently approved for import,
regardless of whether the polar bear is considered depleted
under the MMPA, unless and until the agency alters its findings.
The federal defendants reject plaintiffs’ plain meaning
reading of the MMPA. To the contrary, they argue, “Congress did
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not intend to allow for the importation of sport-hunted polar
bear trophies after the polar bear acquired its depleted
status.” Fed. Defs. SCI Mem. at 16. This Court agrees.
As the federal defendants explain, the MMPA creates a
“stepwise” structure of prohibitions and exceptions. First, the
statute imposes a general moratorium on the taking and
importation of marine mammals. The statute creates exceptions
to this general moratorium, including an exception for
scientific research, for public display, for enhancement of the
species, for takes that occur incidental to commercial fishing
or other lawful activities, and for takes that prevent damage to
property or personal safety. See 16 U.S.C. §§ 1371(a)(1), (2),
(4), (5). One of the specified exceptions to the MMPA’s general
moratorium is the exception for importing polar bear trophies.
The second “step” of the MMPA imposes additional
restrictions on taking and importation of depleted marine mammal
species or stocks. Section 101(a)(3)(B) is clear that “no
importation may be made” of any depleted species except in
specified circumstances. The statute establishes an outright
ban on the importation of depleted marine mammals unless it is
for one of these specified purposes. See id. § 1371(a)(3)(B)
(“Except for scientific research purposes, photography for
educational or commercial purposes, or enhancing the survival or
recovery of a species or stock . . . no permit may be issued for
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the taking of any marine mammal which has been designated by the
Secretary as depleted, and no importation may be made of any
such mammal.” (emphasis added)).
Sport hunting is not among the narrow exceptions to the
prohibition on importing depleted species, and this Court
declines to imply any such exception. See Sierra Club v. EPA,
719 F.2d 436, 453 (D.C. Cir. 1983) (“[W]hen a statute lists
several specific exceptions to the general purpose, others
should not be implied.”). Therefore, under the MMPA’s stepwise
regime, while the importation of sport-hunted polar bear
trophies from Canada is a permissible exception to the general
moratorium on importing marine mammals and marine mammal
products, it is not an authorized exception where depleted
marine mammals are concerned. The Court notes, further, that
nothing in section 104(c)(5) mandates permits for importing
sport-hunted polar bear trophies, contrary to the SCI
plaintiffs’ assertions. Section 104(c)(5) merely provides that
the Secretary “may issue” such permits, provided certain
conditions are met. By contrast, the statute’s prohibition on
importing depleted marine mammals contains no similarly
permissive language. This provision plainly forbids importation
of depleted species in all but the most narrow of circumstances,
none of which apply here.
- 21 -
The SCI plaintiffs contend that this plain-meaning reading
of the MMPA constitutes a repeal of section 104(c)(5) by
implication. The Court finds this argument unpersuasive. The
MMPA establishes different regimes for the taking and import of
marine mammals depending on the species’ status. As the
defendant-intervenors note, the polar bear trophy import
provision may again be available if the polar bear “is recovered
to the degree where it is no longer threatened with extinction,
and therefore no longer listed under the ESA and depleted under
the MMPA.” HSUS SCI Mot. at 2. The Court declines to find that
the Service was required to expressly revoke its existing
approvals under section 104(c)(5) in order to effect a ban on
importing sport-hunted polar bear trophies.
Accordingly, for the foregoing reasons, the Court finds
that the intent of Congress is clear, and the polar bear trophy
import provision at section 104(c)(5) must give way to
restrictions on importing depleted species. The Court turns now
to the SCI plaintiffs’ argument that the import ban does not
apply to the polar bear because it was never designated as
depleted.
2. Whether the Service Properly “Designated” the
Polar Bear as a Depleted Species
Even if the restrictions on importing depleted species take
precedence over the specific provision of the MMPA allowing
- 22 -
import of sport-hunted polar bear trophies, the SCI plaintiffs
contend that those restrictions do not apply to the polar bear
because the polar bear was never properly “designated” as a
depleted species. According to the SCI plaintiffs, the
restriction on importing depleted species only applies to a
species that the Secretary has determined, by special rule, is
below its optimum sustainable population (“OSP”). It is
undisputed that the Service made no such determination with
respect to the polar bear.
If the agency had conducted a separate rulemaking, the SCI
plaintiffs contend that it would likely not have designated the
polar bear as depleted. The SCI plaintiffs assert that a
threatened species may be at or above its OSP at the time of
listing even if the species will likely experience a population
decline in the future. In fact, the SCI plaintiffs insist that
the polar bear is currently at historically high population
numbers. See SCI Plfs. Mot. at 28. According to the SCI
plaintiffs, Congress did not intend for import restrictions to
apply to the polar bear and other similar species that are not
below their OSP.
The federal defendants reject plaintiffs’ narrow reading of
the MMPA. To the contrary, they argue that the text, structure,
and legislative history of the statute compel the agency’s
conclusion that the polar bear became depleted within the
- 23 -
meaning of the MMPA upon being listed as threatened under the
ESA and, therefore, that the prohibition on importing depleted
marine mammals applies to the polar bear. Having carefully
considered the parties’ arguments, this Court agrees with the
federal defendants.
As a threshold matter, the MMPA expressly identifies three
methods by which a species earns “depleted” status: (1) the
Secretary determines that a species or population stock is below
its OSP; (2) a state with management authority over a species
determines that such species or stock is below its OSP; or (3) a
species or population stock is listed as an endangered species
or a threatened species under the ESA. 16 U.S.C. § 1362(1).
None of these methods is particularly defined or otherwise
referred to as a “designation.” The most natural reading of the
statute suggests that a species may be designated as depleted
through any one of these three methods.10
Moreover, the overall structure of the MMPA makes clear
that Congress intended to prohibit the taking and import of all
depleted marine mammals, regardless of how a species earned its
10
Indeed, as the federal defendants point out, other
provisions of the MMPA indicate that marine mammals may be
designated as depleted by means of listing under the ESA. See
16 U.S.C. § 1371(a)(5)(E) (authorizing the incidental, but not
intentional, take of “marine mammals from a species or stock
designated as depleted because of its listing as an endangered
species or threatened species under the Endangered Species Act
of 1973” while engaging in commercial fishing operations).
- 24 -
depleted status. The restriction on taking and import set out
at section 101(a)(3)(B) of the MMPA is the most significant
provision of the statute that applies specifically to depleted
species. Under plaintiffs’ reading of the MMPA, this
prohibition would not apply to species that obtained their
depleted status through two of the three procedural methods that
the MMPA prescribes (e.g., listing under the ESA and state OSP
determination). This strained reading would suggest that
Congress intended to deny these additional protections to the
majority of depleted species, based solely on the procedural
vehicle by which each species earns its depleted status. The
SCI plaintiffs cite no legislative history or other authority to
suggest that Congress intended such a bizarre result.
To the contrary, Congress recognized that species listed
under the ESA are “a fortiori not at their optimum sustainable
population.” H.R. Rep. No. 97-228, at 16, reprinted in 1981
U.S.C.C.A.N. 1458, 1466. In view of this legislative history,
the Court concludes that Congress did not intend the Service to
engage in duplicative rulemaking to determine whether a species
that has been listed under the ESA is also below its OSP.
For the foregoing reasons, the Court finds that the MMPA’s
prohibition on importing depleted species applies to all
depleted species, regardless of the procedural method by which a
species earns its depleted status. Accordingly, the Service
- 25 -
properly concluded that the prohibition on importing depleted
marine mammals applies to the polar bear by virtue of its
listing as a threatened species under the ESA.
3. Whether the Service Provided Inadequate Notice of
the Polar Bear’s Depleted Status
The SCI plaintiffs go on to argue that even if the Service
effectively designated the polar bear as a depleted species, the
agency failed to provide sufficient notice that its Listing Rule
would have that effect. Had plaintiffs known, they claim that
they would have submitted additional comments, specifically on
the issue of whether the polar bear is below its OSP. See SCI
Plfs. Mot. at 31 (citing Doe v. Rumsfeld, 341 F. Supp. 3d 1, 14
(D.D.C. 2004) (For plaintiffs to establish prejudice, they must
show that “had proper notice been provided, they would have
submitted additional, different comments that could have
invalidated the rationale” for the rule.)). The federal
defendants respond that the agency was under no obligation to
provide notice that it was designating the polar bear as a
depleted species because the polar bear earned its depleted
status automatically as of the publication of the Listing Rule.
As a threshold matter, the SCI plaintiffs have misconceived
the requirements of the MMPA. Where a species earns its
depleted status by virtue of being listed as a threatened or
endangered species under the ESA, as discussed above, the
- 26 -
Service is not required to find that the species is also below
its OSP. Therefore, even if the SCI plaintiffs had submitted
additional comments on the issue of whether the polar bear is
below its OSP, those comments would not have invalidated the
basis for the polar bear’s depleted status.
To the extent any notice was required, however, the Court
is persuaded that the agency provided sufficient notice of the
potential effects of the Listing Rule and of the polar bear’s
depleted status. See ARL 053477 (“Regarding ongoing importation
of polar bear trophies taken from approved populations in Canada
into the United States, we anticipate conducting an evaluation
of continuing the presently authorized imports. Under the MMPA
Section 102 – Prohibitions [Importation of pregnant or nursing
animals; depleted species which includes those listed as
threatened or endangered under the ESA] it is unlawful to import
into the United States any marine mammal if the mammal was taken
from a species or stock that the Secretary has, by regulation
published in the Federal Register, designated as a depleted
species or stock.”). The agency received comments in response
to this issue, including comments from plaintiff SCI expressing
concerns that listing under the ESA would make it “impossible
for U.S. citizens to import sport-hunted polar bear trophies
into the United States.” ARL 124921-22. The agency considered
and responded to these comments in the final Listing Rule. See
- 27 -
ARL 117246. It is disingenuous for the SCI plaintiffs now to
claim that they did not have adequate notice that the Listing
Rule would confer depleted status on the polar bear. See also
Ctr. for Biological Diversity v. Kempthorne, No. 08-1339, 2008
U.S. Dist. LEXIS 52897, at *6-7 (N.D. Cal. July 11, 2008)
(noting that “Conservation Force has been on notice since the
publication of the proposed rule in January, 2007 that polar
bears were likely to be listed as a threatened species and that
such listing could potentially take effect immediately. . . .
Particularly with respect to hunts that would take place after
the nondiscretionary deadline for [the Service] to issue its
final determination in January, 2008, Conservation Force’s
members assumed the risk that they would be unable to import
their trophies.”).
Accordingly, for the foregoing reasons, the Court finds
that the agency’s import ban determination, and subsequent
disposition of plaintiffs’ import permits, was not procedurally
flawed for lack of notice.
4. Whether the MMPA’s Import Ban Only Applies to
Species that Were Depleted at the Time of Taking
Finally, the SCI plaintiffs argue in the alternative that
even if the restrictions on importing depleted species do apply
to polar bears as of the date of the Listing Rule, those
restrictions apply only to polar bears taken after that date.
- 28 -
In support of this interpretation, the SCI plaintiffs point
specifically to section 102(b)(3) of the MMPA, which provides
that importation of a depleted marine mammal is unlawful if
“such mammal was -- . . . taken from a species or population
stock which the Secretary has, by regulation published in the
Federal Register, designated as a depleted species or stock.”
Because a take can only occur “in the present,” the SCI
plaintiffs contend that this provision only prohibits imports of
marine mammals that were designated as depleted at the time of
taking. See SCI Plfs. Mot. at 32-33.
The federal defendants contend, by contrast, that nothing
in the statute can be construed as limiting the import
restriction to those marine mammals that already had acquired
depleted status at the time of taking. This Court agrees.
The Court is sensitive to the fact that plaintiffs Hershey
and Kreider expended significant sums to participate in an
arduous hunt, that they legally took polar bears from approved
Canadian populations, that they applied for import permits
before the effective date of the Listing Rule, and that they are
now paying to store their trophies in Canada indefinitely.
Nonetheless, this Court can only overturn the Service’s
disposition of plaintiffs’ permit applications where it finds
that the agency’s decision was arbitrary, capricious, or
contrary to law. The SCI plaintiffs have identified no
- 29 -
substantial basis for such a finding in this case. The plain
language of the MMPA simply does not support the SCI plaintiffs’
legal conclusion. Indeed, the MMPA clearly dictates that “no
import may be made” of any marine mammal that has been
designated as depleted except in narrow circumstances that do
not apply here. 16 U.S.C. § 1371(a)(3)(B). The Court therefore
declines to find that the Service acted arbitrarily,
capriciously, or contrary to law when it concluded that no
permit may be granted for the import of a sport-hunted polar
bear trophy as of the effective date of the Listing Rule,
regardless of when the trophy was taken.11
For the foregoing reasons, the Court upholds the Service’s
legal determination that the polar bear is depleted within the
11
The SCI plaintiffs note that the other classes of species
for which importation is unlawful include marine mammals that
were “pregnant at the time of the taking,” 16 U.S.C.
§ 1372(b)(1), and marine mammals that were “nursing or less than
eight months old at the time of the taking,” id. § 1372(b)(2).
According to the SCI plaintiffs, these provisions suggest that
Congress intended for the same temporal restriction to apply to
takings of depleted marine mammals. The Court finds this
argument unpersuasive. Contrary to plaintiffs’ assertions, the
fact that Congress chose to restrict the importation of some
non-depleted marine mammals based on certain characteristics “at
the time of taking” but did not use the same language for
depleted species is strong evidence that Congress did not intend
for that restriction to apply to depleted marine mammals. As
the Supreme Court has often stated, “where Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion." Kucana v. Holder, 130 S. Ct. 827, 838
(2010) (citing Nken v. Holder, 129 S. Ct. 1749, 1759 (2009)).
- 30 -
meaning of the MMPA by virtue of being listed as a threatened
species throughout its range under the ESA. The Court also
upholds the Service’s legal determination that, as a result of
the polar bear’s depleted status, no permit may be granted to
import sport-hunted polar bear trophies under section 104(c)(5)
of the MMPA, as of the effective date of the Listing Rule and
until further notice. Finally, the Court upholds the Service’s
disposition of the permit applications submitted by plaintiffs
Hershey and Kreider on these grounds. Accordingly, the Court
DENIES the SCI plaintiffs’ motion for summary judgment and
GRANTS the federal defendants’ and defendant-intervenors’
motions for summary judgment.
The Court turns now to the Atcheson plaintiffs’ claim.
B. The Atcheson Plaintiffs’ Claim
Whereas the SCI plaintiffs primarily argue that the polar
bear is not a depleted species within the meaning of the MMPA,
the Atcheson plaintiffs contend that the Service should have
granted their trophy import permits despite the polar bear’s
depleted status, on a theory that sport hunting qualifies for
the “enhancement” exception to the prohibition on importing
depleted species.
As noted above, the MMPA provides a narrow exception to the
general prohibition on importing depleted marine mammals where
it can be demonstrated that the permitted import will “enhance”
- 31 -
the species. 16 U.S.C. § 1371(a)(3)(B). Section 104(c)(4)(A)
sets out the circumstances under which a so-called “enhancement”
permit may be issued:
A permit may be issued for enhancing the survival or
recovery of a species or stock only with respect to a
species or stock for which the Secretary, after
consultation with the Marine Mammal Commission12 and
after notice and opportunity for public comment, has
first determined that –
(1) taking or importation is likely to contribute
significantly to maintaining or increasing
distribution or numbers necessary to ensure the
survival or recovery of the species or stock; and
(2) taking or importation is consistent (I) with any
conservation plan adopted by the Secretary under
[the MMPA] . . . or any recovery plan developed
under [the ESA] for the species or stock, or
(II) if there is no conservation or recovery plan
in place, with the Secretary’s evaluation of the
actions required to enhance the survival or
recovery of the species or stock in light of the
factors that would be addressed in a conservation
plan or a recovery plan.
The Atcheson plaintiffs argue that sport hunting meets both
prongs of this standard. With respect to the first prong, the
Atcheson plaintiffs assert that “[I]t is undisputed that sport
hunting of Canadian polar bear contributes significantly to the
‘maintenance’ of their numbers and distribution” necessary to
ensure the survival of the species. Atcheson Plfs. Mot. at 14.
12
In this case, the Marine Mammal Commission (“MMC”) – the
federal agency charged with advising the Service on marine
mammal issues, including import permits – urged the Service to
deny the Atcheson plaintiffs’ enhancement permits. See ARE 401
(concluding based on the legislative history of the enhancement
exception that “Congress never intended sport hunting to be
considered an enhancement activity”).
- 32 -
Plaintiffs point specifically to statements in the polar bear
Listing Rule where the Service recognized the “important
contribution to conservation that scientifically based
sustainable use programs can have.” See ARL 117240. Plaintiffs
also cite as support reports by Dr. Milton Freeman, a Senior
Research Scholar with the Canadian Circumpolar Institute at the
University of Alberta, which discuss the critical role that
Canada native Inuits play in polar bear conservation. See
generally ARE 472-85. According to plaintiffs, sport hunting
programs keep these native resource managers invested in polar
bear conservation, which helps maintain current numbers and
distribution of bears. Finally, plaintiffs assert that sport
hunting may be said to increase polar bear numbers because the
portion of polar bear “tags” that are allocated to sport hunts
in Canada often go unused where a hunt is unsuccessful.13 See
Atcheson Plfs. Mot. at 15.
With respect to the second prong, plaintiffs note that no
recovery plan currently exists for the polar bear. Accordingly,
in order to grant plaintiffs’ request to import sport-hunted
polar bear trophies from the Gulf of Boothia population, the
13
The Court notes that under the Canadian polar bear
management system, native hunters are required to “tag” and
document every polar bear killed, either intentionally or
unintentionally, to ensure that established quotas are being
observed. Management agreements allow native communities to set
aside a certain number of the tags allocated to them each
harvest season for non-native sport hunters. See ARE 509.
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Service would have to find that importation is in line with the
factors that the Secretary deems likely to be addressed in a
conservation or recovery plan for the species. See 16 U.S.C.
§ 1374(c)(4)(A)(ii). The Atcheson plaintiffs assert that sport
hunting is the driving force behind polar bear conservation in
Canada because it provides Inuit hunters with a financial
incentive to stay within established quotas. See Atcheson Plfs.
Mot. at 17. Plaintiffs also assert that sport hunting is an
effective conservation tool for polar bears because sport
hunters tend to select large male bears rather than female bears
(whereas subsistence hunters are more opportunistic) and because
sport hunting keeps bear populations below maximum carrying
capacity, which leads to higher survival rates and better
overall population health. See Atcheson Plfs. Mot. at 18.
Accordingly, the Atcheson plaintiffs conclude, provisions for
sport hunting would likely be included in a conservation or
recovery plan for the polar bear.
As a threshold matter, the federal defendants point out
that each of the Atcheson plaintiffs took his bear from the Gulf
of Boothia polar bear population, which was never approved for
trophy imports pursuant to section 104(c)(5) of the MMPA.
Therefore, the federal defendants note, the Atcheson plaintiffs
would need to make a significant showing to demonstrate that the
importation of their trophies from a non-approved population
- 34 -
would enhance polar bear survival or recovery. In denying the
Atcheson plaintiffs’ permit applications, the federal defendants
contend, the Service reasonably concluded that plaintiffs had
failed to carry their burden of demonstrating that importing
these specific sport-hunted polar bear trophies would meet both
prongs of the enhancement standard.14
Having carefully considered the parties’ arguments, the
plaintiffs’ permit applications and requests for
reconsideration, and the agency’s responses thereto, this Court
agrees with the federal defendants. Plaintiffs’ case boils down
to a bare assertion that sport hunting benefits polar bears
because it provides an incentive for native Inuit hunters to
adhere to established quotas. However, while the agency
acknowledges that the participation of American hunters in
Canada’s sport-hunting program has “generated funds that have
14
Because the MMPA authorizes the Service to grant or deny
enhancement permits on a case-by-case basis, the federal
defendants assert that the language of the statute is inherently
ambiguous and that the agency’s permit denial decision should be
upheld as reasonable under step two of Chevron. See Fed. Defs.
Atcheson Reply at 19-23, Docket No. 176. The Court concurs that
a Chevron step two analysis is appropriate here, where Congress
expressly delegated to the Service the authority to grant import
permits on enhancement grounds, provided certain findings are
made. See Fontana v. Caldera, 160 F. Supp. 2d 122, 128-29
(D.D.C. 2001) (holding that statutory interpretations
promulgated in the context of informal adjudications may be
entitled to Chevron deference where the agency has made a
legally binding adjudication pursuant to a Congressional
delegation of authority), aff’d 334 F.3d 80 (D.C. Cir. 2003).
- 35 -
provided conservation benefits to polar bear populations and
supplied an incentive to Inuit hunters to support sustainable
harvest quotas,” see Fed. Defs. Atcheson Mot. at 26, the Service
concluded that these conservation benefits are not sufficient to
meet the statutory requirements for an enhancement permit under
the MMPA. As the federal defendants point out, the standard for
granting an enhancement permit is not whether the permitted
activity would provide any conservation benefit to the species
but whether those benefits are significant and, indeed,
necessary to ensure the survival or recovery of the species.
Plaintiffs offer no substantial basis for this Court to find
that the Service arbitrarily concluded that importing these
specific polar bear trophies would not achieve the significant
conservation benefits required by the statute.
Specifically, with respect to the first prong of the
enhancement standard, the agency concluded that plaintiffs
provided no scientific evidence that sport hunting “actually
reduces the number of bears taken from the set quota, [or]
provide[s] a means to contribute significantly to maintaining or
increasing the number of polar bears necessary for the survival
or recovery of the species.” See ARE 449-50. Although
plaintiffs’ supporting documentation shows the financial
benefits of sport hunting for local communities and native
guides, the agency nonetheless found no evidence that sport
- 36 -
hunting impacts the overall number of bears taken. It is
eminently reasonable for the agency to conclude, therefore, that
neither sport hunting generally nor the specific imports at
issue would contribute significantly to “maintaining” the
distribution or numbers “necessary to ensure the survival or
recovery” of the species or stock. See Franks v. Salazar, No.
09-942, 2011 U.S. Dist. LEXIS 115571, at *38-39 (D.D.C. Oct. 6,
2011) (holding that the Service reasonably denied permits to
import sport-hunted African elephant trophies where it found
insufficient evidence that the killing of African elephants
would “enhance” the survival of the species, even if, as a
general matter, sport hunting “may result in a net benefit to
African elephant populations”).
Plaintiffs’ failure to satisfy the first criterion for
enhancement would itself be sufficient grounds to deny their
permit applications; however, the Service also found that
plaintiffs failed to satisfy the second prong of the enhancement
standard. The second prong of this standard specifies that,
before an import permit may be issued on enhancement grounds,
the permitted import must be consistent with the Secretary’s
evaluation of what actions would likely be included in a
conservation or recovery plan for a depleted species, if no such
plan currently exists. See 16 U.S.C. § 1374(c)(4)(A)(ii).
Here, the Service explained that because habitat loss was
- 37 -
identified as the primary threat to the polar bear in the
Listing Rule, any recovery plan for the species would likely
focus on “actions needed to prevent or reduce habitat
degradation or loss.” See ARE 450. Plaintiffs provided no
evidence in their permit applications indicating that either
sport hunting itself or the importation of these specific sport-
hunted trophies into the United States would prevent or reduce
habitat degradation or loss from sea-ice decline. Accordingly,
the Court finds that the agency reasonably concluded that
neither sport hunting itself nor the import of these sport-
hunted trophies would likely be included in a conservation or
recovery plan for the polar bear as actions that are “required
to enhance the survival or recovery of the species.”15
15
In a related claim, the Atcheson plaintiffs argue that the
agency effectively established a new standard for granting an
import permit that would require an applicant to “engage in
activity that directly offsets the effects of the threat for
which a species was listed.” See Atcheson Plfs. Mot. at 12.
According to the Atcheson plaintiffs, this new standard
constitutes a new “rule” (or, at the least, a new agency
interpretation of the MMPA), and the agency was therefore
required to conduct appropriate notice-and-comment rulemaking
procedures under the APA, 5 U.S.C. §§ 552-53, and the Federal
Register Act (“FRA”), 44 U.S.C. § 1505. The Court finds that
plaintiffs’ claim is without merit. Permit decisions are
adjudications, not rulemakings. See Franks, 2011 U.S. Dist.
LEXIS 115571, at *21 (holding that the Service was not required
to conduct APA notice-and-comment rulemaking procedures when it
denied individual permits to import sport-hunted African
elephant trophies because “[a] permit decision-making proceeding
is clearly adjudication rather than rule-making.” (quoting Nat’l
Wildlife Fed’n v. Marsh, 568 F. Supp. 985, 992 n.12 (D.D.C.
1983))). Here, the Service made a fact-specific permit
- 38 -
In sum, the Court finds that the Service rationally
concluded on the basis of the record before it that the import
of these specific sport-hunted polar bear trophies is not
necessary to ensure the conservation or recovery of the polar
bear. Plaintiffs have made no serious attempt to demonstrate
that this conclusion was irrational. As the federal defendants
point out, many of plaintiffs’ factual assertions lack any
evidentiary support whatsoever. Indeed, plaintiffs offer no
evidence that the import of a few bears taken between 1999 and
2005 from a population that was never approved for import under
the MMPA would achieve any of the conservation goals they
describe.
In view of the lack of substantial contrary evidence, the
narrow standard of review this Court must apply, and the
deference owed to the agency’s reasonable interpretation of the
MMPA’s “enhancement” standard, the Court declines to find that
the Service’s denial of the Atcheson plaintiffs’ enhancement
permit applications was arbitrary, capricious, or contrary to
law.16 Accordingly, the Court DENIES the Atcheson plaintiffs’
determination that is binding only on these individual
applicants and has no broader applicability. Accordingly, the
Court concludes that the Service’s decision to deny the Atcheson
plaintiffs’ permit applications was not procedurally flawed for
failure to conduct rulemaking procedures.
16
The Atcheson plaintiffs argue, in addition, that the
Service deprived them of procedural due process and violated
- 39 -
motion for summary judgment and GRANTS the federal defendants’
and defendant-intervenors’ motions for summary judgment.
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motions for summary
judgment are hereby DENIED, the federal defendants’ cross-
motions for summary judgment are hereby GRANTED, and the
defendant-intervenors’ cross-motions for summary judgment are
hereby GRANTED.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 17, 2011
rulemaking procedures when it failed to consider the additional
information they submitted in support of their request for
reconsideration. See Atcheson Plfs. Mot. at 28. The Court
concludes that this claim is without merit. The Atcheson
plaintiffs have simply misconstrued a statement made in the
agency’s denial letter, which read that the Service could not
consider “new information that changes the content of your
original application.” See ARE 456 (emphasis added). The
record suggests that the agency did, in fact, consider the
additional information submitted in support of plaintiffs’
request for reconsideration. See ARE 568 (“We received the
reconsideration package and are beginning to review the
material.”); ARE 571 (email stating that the Service staff “read
through the material submitted by [Conservation Force] . . . to
reconsider the denial of their polar bear trophy import permit
applications”). Accordingly, in the absence of more substantial
evidence to the contrary, the Court concludes that plaintiffs
were afforded the full process they were entitled to.
- 40 -