Franks v. Salazar , 816 F. Supp. 2d 49 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
LAWRENCE A. FRANKS, STEVE )
SELLERS, GEORGE J. BROWN, )
CHARLES F. ROBBINS, JESSE R. )
FLOWERS, JR., JACK ATCHESON, )
and CONSERVATION FORCE, INC., )
)
Plaintiffs, )
) Civil Action No. 09-0942 (RCL)
v. )
)
KEN SALAZAR, SECRETARY, )
United States Secretary of Interior, )
ROWAN GOULD, Acting Director of )
United States Fish & Wildlife Service, )
And UNITED STATES FISH & )
WILDLIFE SERVICE, )
)
Defendants. )
_____________________________________ )
MEMORANDUM OPINION
Thrill-seeking safari hunters willingly pay thousands of dollars for the privilege of
shooting an African elephant. Sport hunting is legal in many African countries and can often
benefit threatened elephant populations where the practice is carefully managed and revenue
from hunting licenses is recycled into conservation programs. Without an effective wildlife
management plan, however, the haphazard sport-killing of elephants may—intuitively enough—
be detrimental to their survival as a species. For this and other reasons, the United States Fish &
Wildlife Service (“the Service”) determined that sport hunting in Mozambique would not
“enhance” the survival of African elephants in that country—a prerequisite for allowing the
import of a sport-hunted trophy into the United States. See 50 C.F.R. 17.40(e)(3)(iii)(C).
Accordingly, the Service denied plaintiffs’ request for permission to import their elephant
1
trophies from Mozambique into the United States. The agency’s decision is rational and is
supported by the administrative record, and defendants are therefore entitled to summary
judgment.
I. BACKGROUND
Owing in large part to a violent civil war that plagued the country from 1977 to 1992,
Mozambique has struggled to maintain a healthy population of African elephants since the mid-
1970’s. The number of elephants in Mozambique appears to have declined from between 50,000
and 65,000 in 1974 to an estimated 11,000 to 13,000 in 2002, though accurate population
numbers during this time are somewhat elusive. Administrative Record (“AR”) 13, 725. Much
of the decline is directly attributable to illegal poaching for ivory, which the country has been
unable to control effectively due to a lack of adequate resources. AR 942-44, 1993-95. But
elephant populations have also suffered from defensive killings (to protect crops and property)
and from the destruction of habitat. Id. Although Mozambique banned sport hunting in 1990,
the ban was lifted in 1999 to allow a limited number of hunting licenses. AR 947, 1998.
Mozambique and the United States are both parties to the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (“CITES”), Mar. 3, 1973, 27 U.S.T. 1087,
T.I.A.S. No. 8249, which governs the import and export of threatened species between
signatories. CITES divides the species it governs into three Appendices; the African elephant is
listed under Appendix I, the most protective category, which authorizes trade only in
“exceptional circumstances.” Id. art. II(1). “Trade” in Appendix I specimens requires a permit
from the designated Scientific Authority of both the importing and exporting nations. Id. art. III.
Before issuing an export permit for an Appendix I specimen, the Scientific Authority of
the exporting country—here, Mozambique’s National Directorate of Forestry and Wildlife
2
(“DNFFB”)—must find that the export of such a trophy “will not be detrimental to the survival
of that species.” Id. art. III(2)(a). Similarly, before issuing an import permit, the Scientific
Authority of the importing country—here, the Service—must make a separate, independent
determination that the import of an African elephant trophy “will be for purposes which are not
detrimental to the survival of the species involved.” Id. art. III(3)(a); see 50 C.F.R. § 23.61(a).
These are commonly known as “non-detriment” findings.
The United States implements CITES through the Endangered Species Act (“ESA”), 16
U.S.C. § 1531 et seq., which prohibits “trade in any specimens contrary to the provisions of the
Convention.” 16 U.S.C. § 1538(c)(1). Exercising its authority under § 1540(f), the Service has
promulgated regulations setting out the various factors it considers in making non-detriment
findings. See 50 C.F.R. § 23.61. The Service considers, for example, whether removal of an
animal from the wild represents “sustainable use,” id. § 23.61(c)(1), is part of a “management
plan that is designed to eliminate over-utilization of the species,” id. § 23.61(c)(2), or would
“stimulate additional trade in the species,” id. § 23.61(e)(3). These findings are based on the
“best available biological information,” and in cases where “insufficient information is
available,” the Service “take[s] precautionary measures and [is] unable to make the required
finding of non-detriment.” Id. § 23.61(f)(4).
A special rule for African elephants—created pursuant to 16 U.S.C. §§ 1533(d) and
1539(a)(1)(A)—flatly prohibits the “[i]mport or export [of] any African elephant,” with a narrow
exception for sport-hunted trophies. 50 C.F.R. § 17.40(e)(3)(iii). The sport-hunted trophy
exception requires the Service to determine that “the killing of the animal whose trophy is
intended for import would enhance survival of the species.” Id. § 17.40(e)(3)(iii)(C). This is
commonly known as an “enhancement” finding. Thus, in addition to the permit requirements of
3
50 C.F.R. § 23.61 regarding non-detriment findings, a successful permit application must comply
with the special “enhancement” rule for African elephants. See id. § 17.40(e)(3)(iii)(C).
The Service periodically receives permit applications from hunters seeking to bring home
their trophies from African safaris. In November 1998, several years after the end of hostilities
in Mozambique, the Service opened a line of communication with officials in the DNFFB,
Mozambique’s wildlife agency, requesting their help in assessing the status of the country’s
elephant population. Over the next several years, the Service sent Mozambique officials a series
of written requests for information about the existence of an elephant management plan,
domestic legislation related to elephant conservation, current population figures and sport-
hunting quotas, the status of protected areas since the end of the civil war, and current estimates
of illegal poaching activity. AR 84-91, 500-03, 688-89. Though Mozambique officials
responded to these requests, the Service found their responses to be superficial and lacking in
specific detail and scientific support. See AR 92-96, 569-72, 851-53. After several attempts to
verify the requested information, the Service concluded that it did not have sufficient information
to determine whether Mozambique had an elephant management plan, an accurate estimate of its
elephant population, or the resources to control illegal poaching. AR 627-35, 725-27.
These findings acquired significance for the plaintiffs in this case. Lawrence A. Franks,
Steve Sellers and George J. Brown each shot and killed at least one elephant in Mozambique
between 2000 and 2006. With the help of Conservation Force (a nonprofit organization acting as
the hunters’ “authorized representative”), they applied for permits to import their trophies into
the United States. Am. Compl. ¶ 99 (Doc. 29); see AR 318-19, 608-09, 671-72, 1047-48.
Charles F. Robbins and Jesse R. Flowers, Jr., who both intended to hunt elephants in
4
Mozambique between 2003 and 2005, filed similar permit applications prospectively. AR 490-
91, 736-37. 1
The Service did not act on these requests for several years. While the administrative
record reflects that the delay was caused in part by the DNFFB’s failure to provide adequate
responses to the agency’s written questionnaires, the record also establishes that the Service did
not “prioriti[ze]” these permit applications. AR 504. The Service eventually apologized for the
“extreme delay in responding to [plaintiffs’] request[s]” when it ultimately denied most of these
applications in July 2006. AR 1021-24. 2 The Service explained that after repeated attempts to
obtain information from Mozambique on the benefits of sport hunting, it was unable to make the
required enhancement and non-detriment findings. Id.
The Service gave several reasons for this conclusion. First, it had been unable to verify
whether Mozambique had an effective elephant management plan. Though the plaintiffs had
accompanied their permit applications with a copy of the DNFFB’s National Strategy for the
Management of Elephants in Mozambique, AR 97-122, the Service concluded that this was
merely the “first step” in the process of implementing an effective wildlife management plan.
AR 1022. Second, the Service had been unable to obtain adequate information from
Mozambique regarding its elephant population. For example, the DNFFB could not provide an
accurate headcount of elephants in Mozambique or quantify the extent of illegal poaching and
defensive killings, and its sport-hunting quotas were irrational and without scientific basis. Id.
1
Defendants argue that plaintiffs Conservation Force and Jack Atcheson (the hunters’ “booking agent”)
lack standing to challenge the Service’s ultimate denial of these permit applications. See Mem. Supp.
Defs.’ Mot. Summ. J. (“Defs.’ Mem.”) at 6 n.1 (Doc. 50). However, because defendants are entitled to
summary judgment on all claims, it is not necessary to address whether Conservation Force and Atcheson
have established standing.
2
Because the permit denial letters are identical in all material respects, citations to the record will refer to
Franks’ permit denial letter, AR 1021-24.
5
Finally, the Service expressed its view that Mozambique simply did not have the resources to
enforce its existing conservation laws. Id.
After exhausting their administrative appeals, plaintiffs sued for declaratory and
injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq.,
seeking judicial review of the denial of their import permit applications. Shortly after the
plaintiffs filed their complaint in May 2009, the Service denied Brown’s remaining permit
applications on September 3, 2009. AR 1974-77. Plaintiffs then filed an amended complaint
raising nine claims, including additional claims related to the denial of Brown’s remaining
permit applications. Am Compl. ¶ 162-206. The parties then moved for judgment on the
administrative record, and the case is now ripe for summary judgment. See Mem. Supp. Pls.’
Mot. Summ. J. (“Pls.’ Mem.”) at 41-42 (Doc. 48-1); Defs.’ Mem. at 45. For the reasons that
follow, the Court will deny plaintiffs’ motion for summary judgment and grant defendants’
cross-motion for summary judgment.
II. STANDARD OF REVIEW
Plaintiffs face a steep climb in challenging the Service’s denial of their import permit
applications, as the applicable standard of review is a formidable one. The APA—which
governs judicial review of agency decisions under the ESA, Cabinet Mountains Wilderness v.
Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982)—provides that a reviewing court may set aside
agency action only when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. §706(2)(A). Review under this standard is “highly deferential”
and “presumes the agency’s action to be valid.” Environmental Defense Fund, Inc. v. Costle,
657 F.2d 275, 283 (D.C. Cir. 1981) (citations omitted).
6
In applying this standard, a federal court may not “substitute[e] its judgment for that of
the agency.” Costle, 657 F.2d at 283. Instead, the court’s only role is to determine whether the
agency “considered the relevant factors and articulated a rational connection between the facts
found and the choice made.” Baltimore Gas & Elec. Co. v. Natural Resource Defense Council,
Inc., 462 U.S. 87, 105 (1983) (citations omitted). Accordingly, the arbitrary and capricious
standard “mandates judicial affirmance if a rational basis for the agency’s decision is presented,
even though [the court] might otherwise disagree.” Costle, 657 F.2d at 283 (citations omitted).
To make matters worse for plaintiffs, federal courts are particularly deferential toward
agency findings that involve “scientific determination[s],” Baltimore Gas, 462 U.S. at 103, since
these findings are presumed to be the product of agency expertise. In such cases, the court “must
look at the decision not as the chemist, biologist or statistician that [it is] qualified neither by
training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of
holding agencies to certain minimum standards of rationality.” Ethyl Corp. v. EPA, 541 F.2d 1,
36 (D.C. Cir. 1976) (en banc).
Summary judgment is an appropriate mechanism for deciding the question of whether
agency action is supported by the administrative record. Occidental Engineering Co. v. INS, 753
F.2d 766, 770 (9th Cir. 1985). In such cases, a federal district court “sits as an appellate
tribunal” to review the purely legal question of whether the agency acted in an arbitrary and
capricious manner. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).
Thus, in the special context of reviewing agency factfinding, judicial review is limited to the
administrative record, see 5 U.S.C. § 706, and the burden is on plaintiffs to prove the particular
manner in which the Service’s actions are arbitrary and capricious. City of Olmsted Falls, Ohio
v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).
7
III. ANALYSIS
Defendants are entitled to summary judgment because the administrative record
demonstrates that the Service acted rationally in denying plaintiffs’ permit applications. The
Court will begin with several claims in plaintiffs’ amended complaint that confront
insurmountable procedural obstacles. For the remaining claims, application of the arbitrary and
capricious standard leads to the conclusion that the Service acted rationally in denying plaintiffs’
request to import their elephant trophies.
A. Plaintiffs’ failure-to-process claims are moot.
There is no longer any relief this Court can provide for several of plaintiffs’ claims
because the Service has already finished processing their permit applications. Claims II and III
allege in part that the years of delay in responding to these requests “deprived the plaintiffs of
meaningful process before the government divested them of their right to keep and enjoy their
property” in violation of the Due Process clause of the U.S. Constitution and 5 U.S.C. §
706(2)(b). Am. Compl. ¶ 173. 3 Similarly, Claim VIII alleges that a decision on the plaintiffs’
permit applications was “unlawfully withheld or unreasonably delayed” in violation of 5 U.S.C.
§ 706(1). Id. at ¶¶ 200-03. Plaintiffs request a declaratory judgment and order of mandamus
requiring the Service to act on these permits without further delay.
These claims are moot to the extent they challenge the Service’s failure to process
plaintiffs’ permit applications, because there is no longer any relief this Court can grant that will
remedy the alleged injury. Plaintiffs filed their amended complaint on June 30, 2010, asking the
Court to order the Service to act on the permits without further delay. However, as of September
9, 2009, the Service had finished processing the plaintiffs’ permit applications. Thus, plaintiffs
3
In their amended complaint, plaintiffs state that Claim III—which alleges a violation of their substantive
due process rights—is “[i]ncorporated into Second Claim.” Am. Compl. ¶ 176. The Court will therefore
consider Claim III as raising the same grounds for relief as Claim II.
8
have already received the specific relief requested in their amended complaint. Because there is
no further relief that this Court can afford plaintiffs on their failure-to-process claims, defendants
are entitled to dismissal of Claims II, III and VIII to the extent they allege a failure to act. 4
The Constitution’s “case or controversy” requirement compels this conclusion. Federal
courts are without authority to render advisory opinions that “cannot affect the rights of litigants
in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971); see Better Gov’t
Ass’n v. Dep’t of State, 780 F.2d 86, 90 (D.C. Cir. 1986) (“The doctrine of mootness is a logical
corollary of the ‘case or controversy’ requirement of Article III.”). In cases where the
challenged conduct has already ceased and “there is no reasonable expectation that the wrong
will be repeated, . . . it becomes impossible for the court to grant any effectual relief whatever to
the prevailing party, . . . [and] any opinion as to the legality of the challenged action would be
advisory.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (internal quotation marks
omitted).
This Court has repeatedly reached the same result in similar cases challenging various
failures to process import permit applications. See Conservation Force v. Salazar, — F. Supp.
2d —, 2011 WL 3874816, at *9 (D.D.C. Sept. 1, 2011); Marcum, 2011 WL 3805666, at *8-*9;
Conservation Force v. Salazar, 715 F. Supp. 2d 99, 105 (D.D.C. 2010). In each of these cases,
plaintiffs’ claims regarding the Service’s alleged failure to process their permit applications were
moot because, while the litigation was pending, the Service denied the outstanding permit
4
To the extent that Claims II and III also challenge the Service’s denial of plaintiffs’ permit applications
on the merits under the APA’s arbitrary and capricious standard, see Am. Compl. ¶ 173(a), the Court will
consider these arguments along with Claims I and VII later in this Opinion. “It would be overly
formalistic and, more importantly, a huge waste of time for the Court to consider the merits of [these
claims] twice simply because plaintiffs repeat their allegations in more than one claim in their Amended
Complaint.” Marcum v. Salazar, — F. Supp. 2d —, 2011 WL 3805666, at *9 n.1 (D.D.C. Aug. 30,
2011).
9
applications. Thus, as is the case here, the requested declaratory relief would amount to an
improper advisory opinion. See Conservation Force, 715 F. Supp. 2d at 105.
Plaintiffs argue that the Service’s challenged conduct falls within an exception to the
mootness doctrine for claims that are “capable of repetition, yet evading review.” Pls.’ Reply
Mem. Supp. Pls.’ Mot. Summ. J. (“Reply Mem.”) at 36 n. 5 (Doc. 54) (quoting Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009)). But plaintiffs have not
established their entitlement to this exception, which requires that “(1) the challenged action is in
its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party would be subjected to the same action
again.” Del Monte, 570 F.3d at 322 (quoting Clarke v. United States, 915 F.2d 699, 704 (D.C.
Cir. 1990) (en banc)). Plaintiffs do not even allege that they intend to apply for import permits in
the future, and there is no indication from the record that these particular plaintiffs will ever hunt
African elephants again. See Conservation Force, 715 F. Supp. 2d at 106. Thus, plaintiffs
cannot demonstrate a reasonable expectation that the Service will again delay the processing of
their permit applications, and so they cannot overcome the mootness bar to these claims. For
these reasons, defendants are entitled to summary judgment on Claims II, III and VIII.
B. Plaintiffs’ wrongful-permit-denial claims cannot be enforced via the
ESA’s citizen-suit provision.
Plaintiffs’ Fifth and Ninth Claims allege that the Service’s denial of their permit
applications ran afoul of several affirmative duties under the ESA. See Am. Compl. ¶¶ 182-87,
204-06. But these claims cannot be brought under the ESA’s citizen-suit provision because they
allege merely a “maladministration” of the ESA—not any violation of its substantive
prohibitions. See Bennett v. Spear, 520 U.S. 154, 174 (1997). Accordingly, defendants are
entitled to dismissal of Claims V and IX.
10
In Claim V, plaintiffs argue that the ESA obligates the Service to “encourage, cooperate
with and support” the conservation programs of foreign nations, see 16 U.S.C. § 1537(b)(1), and
to “do all things necessary and appropriate to carry out” its designated functions under CITES,
see id. § 1537a(b). Am. Compl. ¶¶ 182(b), 185. In Claim IX, plaintiffs further argue that the
ESA requires the Service to “consult with” the Secretary to “insure that any action authorized,
funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of
any endangered species.” 16 U.S.C. § 1536(a)(2); see Am. Compl. ¶ 204. Plaintiffs claim that
the Service’s denial of their permit applications violated these affirmative duties.
These claims cannot be enforced via the ESA’s citizen-suit provision, 16 U.S.C. §
1540(g)(1), because they allege merely a “maladministration” of the ESA. See Bennett, 520 U.S.
at 174. Section 1540(g)(1) provides in relevant part:
[A]ny person may commence a civil suit on his own behalf—(A) to enjoin any
person, including the United States and any other governmental instrumentality
. . . who is alleged to be in violation of any provision of this chapter or regulation
issued under the authority thereof; or . . . (C) against the Secretary where there is
alleged a failure of the Secretary to perform any act or duty under section 1533 of
this title which is not discretionary.
16 U.S.C. § 1540(g)(1). Because plaintiffs do not allege that the Service failed to perform any
non-discretionary duty under section 1533, they are not eligible for judicial review under
subsection (C). 5
Nevertheless, plaintiffs cannot maintain their claims under subsection (A) either, because
the Supreme Court has interpreted that section to allow an individual to commence a civil suit
5
In their motion for summary judgment, plaintiffs argue—for the first time—that the Service also failed
to perform its duties under 16 U.S.C. §§ 1533(b)(1)(A) and 1533(b)(5)(5), which require the Service to
“take into account” the conservation efforts of foreign nations and to give notice of proposed regulatory
changes to any foreign nations whose species may be affected. Pls.’ Mem. at 32-33. But even if the
Court agreed with plaintiffs’ apparent implication that these sections impose “non-discretionary” duties
(and that proposition is at least questionable), plaintiffs cannot use their summary judgment briefing to
press claims not raised in their amended complaint. See Winder v. District of Columbia, 555 F. Supp. 2d
103, 110-11 (D.D.C. 2008).
11
only to enforce substantive prohibitions of the ESA, not to attack the Service’s implementation
of the ESA. Bennett, 520 U.S. at 174. The Supreme Court explained that the term “‘violation’
. . . cannot be interpreted to include the Secretary’s maladministration of the ESA,” id., since
such a broad reading would render superfluous subsection (C)’s careful limitation to the
Secretary’s failure to perform nondiscretionary duties under 16 U.S.C. § 1533, id. at 172.
Here, Claim V does not allege that the Service committed any act prohibited under §
1538 (“Prohibited Acts”). Rather, plaintiffs allege that the Service “violated” several
aspirational provisions that govern how the Service implements the ESA and, by extension,
CITES. See Am. Compl. ¶¶ 181-87. These are precisely the sort of “maladministration” claims
that cannot be enforced through the ESA’s citizen-suit provision. See Bennett, 520 U.S. at 174.
This Court and others have recently applied Bennett to foreclose private enforcement of similar
claims. See Marcum, 2011 WL 3805666, at *11 (holding that plaintiffs’ complaints about
wrongful permit denials could not be brought via the ESA’s citizen-suit provision); Conservation
Force v. Salazar, 753 F. Supp. 2d 29, 34 (D.D.C. 2010) (same); Conservation Force v. Salazar,
677 F. Supp. 2d 1203, 1211-12 (N.D. Cal. 2009) (same). For these reasons, defendants are
entitled to dismissal of Claims V and IX.
C. The Service did not engage in formal rulemaking requiring compliance
with the APA’s notice and comment procedures.
Plaintiffs’ Fourth Claim alleges that in rationalizing the denial of their permit
applications, the Service promulgated several new “rules” requiring formal public notice and
comment under the APA, 5 U.S.C. § 553, and the Federal Register Act, 44 U.S.C. § 1505-07.
Am. Compl. ¶¶ 177-81. Specifically, plaintiffs claim that conditioning the grant of a permit on
the presence of a national management plan and a “precise individual count of elephants” in
Mozambique amounted to the creation of new “rules” for issuing import permits. Id. ¶ 179.
12
However, the APA’s notice-and-comment procedures do not apply to agency “adjudications” (as
opposed to formal rulemakings), and “[a] permit decision-making proceeding is clearly
adjudication rather than rule-making.” National Wildlife Federation v. Marsh, 568 F. Supp. 985,
992 n.12 (D.D.C. 1983).
The Supreme Court has explained the “basic distinction between rulemaking and
adjudication” as a difference between “proceedings for the purpose of promulgating policy-type
rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in
particular cases on the other.” United States v. Florida East Coast Ry. Co., 410 U.S. 224, 245
(1973). Stated differently, the “central distinction between rulemaking and adjudication” is that
“rules have legal consequences only for the future.” Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 216-17 (1988) (Scalia, J., concurring). This Court recently applied these principles in
a materially indistinguishable case, holding that the Service’s denial of plaintiffs’ requests to
import elephant trophies from Zambia were adjudications rather than rulemakings. Marcum,
2011 WL 3805666, at *13-*14.
These same principles lead to the same result here. As in Marcum, the Service here
confronted a specific group of permit applicants and evaluated their claims against the existing
regulatory standards set forth in 50 C.F.R. §§ 23.61 and 17.40(e)(3)(iii)(C). Applying those
standards, the Service found that it lacked sufficient information to conclude that plaintiffs’
proposed import would not be detrimental to the survival of African elephants, id. § 23.61(a), or
enhance their survival, id. § 17.40(e)(3)(iii)(C). These decisions do not bind future permit
applicants and do not even bar the specific plaintiffs in this case from filing new applications.
Thus, they simply are not “rules” under the APA, since they are not intended to have “future
effect.” 5 U.S.C. § 551(4). Nor did the concerns articulated in the permit denial letters become
13
“rules” simply because the Service relied on them in reaching its decisions. Because the permit
denials were adjudications rather than rulemakings, plaintiffs’ claim that the Service should have
engaged in formal notice-and-comment procedures fails as a matter of law.
Plaintiffs nevertheless argue that the Service’s decision to deny their permit applications
in part because Mozambique did not have a national management plan or accurate population
numbers violated a stipulation in Safari Club International v. Babbitt, No. 91-2523, 1994 U.S.
Dist. LEXIS 18183 (D.D.C. Dec. 14, 1994), a case previously before this Court. In that case,
Safari Club challenged the Service’s internal guidelines for issuing elephant trophy permits on
the ground that these guidelines had not undergone public notice and comment. This Court
agreed, and thereafter, in exchange for the Service’s withdrawal of the guidelines, the parties
stipulated to dismissal of Safari Club’s complaint. Plaintiffs in this case claim—with some
justification—that the withdrawn guidelines overlap somewhat with the regulatory factors the
Service applied in denying their permit applications. Am. Compl. § 180. However, as this Court
concluded in Marcum, that by itself does not mean the Service has reinstated the withdrawn
guidelines in violation of the stipulation. See Marcum, 2011 WL 3805666, at *14 n.3. Nothing
in plaintiffs’ motion for summary judgment suggests the Service relied on the withdrawn
guidelines as opposed to simply applying the regulatory factors under 50 C.F.R. §§ 23.61 and
17.40(e)(3)(iii)(C). For all of these reasons, defendants are entitled to summary judgment on
Claim IV. 6
6
Plaintiffs’ related argument under Claim IV—that “Defendants failed to provide the country of
Mozambique with notice, an opportunity to comment, and 90 days notice before implementing their new
policy” in violation of 16 U.S.C. § 1533(b)(5), Am. Compl. ¶ 181(a)—fails for the same reason. Because
the Service did not engage in rulemaking when denying plaintiffs’ permit applications, it was not
obligated to provide Mozambique with notice and an opportunity to comment. Nor did the Service ever
require that “all information come directly from the Mozambique authorities rather than the applicant.”
Am. Compl. ¶ 181(b).
14
Likewise, the Service did not create a “new rule” in limiting the scope of plaintiffs’
requests for reconsideration to information that was relevant to their initial permit applications.
Claim VI alleges that in the final permit denial letter, the Service notified plaintiffs that they
could request reconsideration of its decision to deny their applications, and that the
reconsideration would be based on the information provided in the original application or on
information the Service had at the time of the denial. Am. Compl. ¶¶ 188-93; see AR 1024.
Plaintiffs argue that this constituted an amendment of 50 C.F.R. § 13.29, which they claim
allows an applicant to provide “new information” when submitting a petition for
reconsideration. 7 Am. Compl. ¶ 190.
Plaintiffs read § 13.29 too broadly. What that section actually says is that a request for
reconsideration may “includ[e] any new information or facts pertinent to the issue(s) raised by
the request for reconsideration.” 50 C.F.R. § 13.29(b)(3) (emphasis added). Thus, contrary to
plaintiffs’ suggestion, § 13.29 does not permit an aggrieved applicant to supplement the
administrative record willy-nilly with information wholly untethered to the original permit
application. The Service could reasonably apply § 13.29 as limiting the scope of new
information admissible in a request for reconsideration to issues actually considered in the
original permit application. And in so doing, the Service did not engage in rulemaking requiring
public notice and comment. See 5 U.S.C. § 553. In any event, it appears plaintiffs were not
deterred by the language in their denial letters, since they submitted “reams of information and
7
Plaintiffs’ amended complaint refers to 50 C.F.R. § 13.29(e), which addresses an “appeal” from the
denial of a request for reconsideration. Am. Compl. ¶ 190. But the basis for Claim VI is language in the
initial permit denial letters allegedly limiting the information plaintiffs could submit along with the
request for reconsideration itself. Id.; see AR 1024. Defendants suggest, and the Court assumes, that
plaintiffs intend to invoke § 13.29(b)(3), which addresses the scope of new information that may
accompany a request for reconsideration. Defs.’ Mem. at 41.
15
reports” with their requests for reconsideration. Pls.’ Mem. at 40. Thus, defendants are entitled
to summary judgment on Claim VI as well.
D. The Service acted rationally in denying plaintiffs’ permit applications.
That leaves plaintiffs’ final argument—that the Service’s denial of their permit
applications was arbitrary and capricious. Plaintiffs’ remaining claims fail on the merits under
the “highly deferential” arbitrary and capricious standard of review. See Costle, 657 F.2d at 283.
The administrative record demonstrates that the Service acted rationally in denying plaintiffs’
permit applications because the agency considered the relevant statutory and regulatory factors
and provided a rational explanation for its decision. See id. Plaintiffs therefore cannot rebut the
“strong presumption in favor of upholding decisions of the Service.” American Wildlands v.
Kempthorne, 478 F. Supp. 2d 92, 96 (D.D.C. 2007) (internal quotations marks omitted).
Recall that to grant a permit application, the Service must find that the import would be
for purposes that are “not detrimental” to the survival of the species, 50 C.F.R. § 23.61(a), and
indeed would serve to “enhance” the survival of the species, id. § 17.40(e)(3)(iii)(C). In making
these decisions, the Service considers the various factors set out in § 23.61(c) and (e), see 16
U.S.C. § 1540(f), and makes factual findings regarding these factors based on the “best available
biological information,” 50 C.F.R. § 23.61(f)(4). Where “insufficient information is available,”
the Service “take[s] precautionary measures and [is] unable to make the required finding of non-
detriment.” Id. Importantly, the permit applicant bears the burden of providing sufficient
information to support a non-detriment finding. Id. § 23.61(c).
The administrative record demonstrates that the Service considered the relevant statutory
and regulatory factors and provided a rational explanation for its findings with respect to each
factor. First, the Service considered whether the sport hunting at issue was “part of a
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biologically based sustainable-use management plan that is designed to eliminate over-utilization
of the species.” 50 C.F.R. § 23.61(c)(2). Based on the responses it received from Mozambique
officials, the Service concluded that it lacked “sufficient information” to find that Mozambique
had implemented an effective elephant management plan. AR 1022. Indeed, the record suggests
that Mozambique’s conservation efforts were poorly organized, underfunded, and in no position
to oversee the controlled killing of elephants. AR 866-67.
Plaintiffs claim that Mozambique had such a plan: the DNFFB’s National Strategy for
the Management of Elephants in Mozambique. AR 97-122. But the Service found that the
National Strategy was just a “first step” toward a comprehensive wildlife management plan, and
that it had not yet been implemented—or even ratified—by the Government of Mozambique. As
the Service explained:
No details were provide on specific research or survey projects to be conducted,
how DNFFB’s capacity to manage and protect elephants would be accomplished
both legislatively and financially, and nothing to indicate what would be done
about human-elephant conflicts. We are not aware of any comprehensive plan
that provided local communities with a stake in managing, protecting, and
conserving elephants as both a natural and economic resource. In addition, it is
not clear what level of legislative or financial commitment the Government of
Mozambique would provide towards managing its elephant populations.
AR 1022. In light of this uncertainty, the Service could rationally take “precautionary measures”
and find that the “best available” information did not establish the existence of an effective
elephant management plan. See 50 C.F.R. § 23.61(f)(4). And contrary to plaintiffs’ suggestion,
the record reflects that the Service expressly considered and discussed the National Strategy in
processing plaintiffs’ permit applications. AR 1022. Plaintiffs simply dislike the Service’s
discretionary finding that this was not a “management plan.” See 50 C.F.R. § 23.61(c)(2).
Plaintiffs resist this conclusion, pointing to the existence of two community-based
conservation projects in Mozambique—the Tchuma Tchato Community Project and the Niassa
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Game Reserve—which provide localized oversight of elephant herds through the financial
support of private donors and non-government organizations like the World Wildlife Fund.
Plaintiffs tout the success of these local projects and argue that because Franks, Sellers and
Brown each shot their elephants in one of these community-based reserve areas, the Service
should have evaluated the existence of an elephant “management plan” at the local level—rather
than, as it did, at the “nationwide” level. Pls.’ Mem. at 21-22.
But the Service had good reason to adhere to its “countrywide” approach. The
administrative record reflects that these community-based projects were designed by professional
wildlife biologists from other countries and are totally dependent on private donations and NGO
funding for their survival. Although the Government of Mozambique has given its blessing to
these projects, they are not government-sponsored programs and include only a fraction of the
country’s elephant population. And while revenue from the sale of hunting licenses in these
areas was being distributed among the national and local governments and the community, AR
869, there is no evidence that this money was actually being recycled back into the maintenance
of local elephant reserves.
Plaintiffs point out that in the letters informing them of the denial of their requests for
reconsideration, the Service stated that it “supports the formulation of a comprehensive plan for
community-based management of natural resources that could provide local communities with a
stake in the management and conservation of elephants.” AR 1958. But it was precisely the lack
of a “comprehensive plan” for the use of these local projects that the Service found troubling.
And even the existing community-based projects to which plaintiffs refer were not financially
self-sustaining at the time plaintiffs submitted their requests. AR 1958 (“Although some
community-based projects have been established and are currently operating in Mozambique,
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they were not functioning at the time you took your trophy.”). Thus, the Service acted rationally
in finding that the Tchuma Tchato and Niassa projects were not the equivalent of a “biologically
based sustainable-use management plan.” See 50 C.F.R. § 23.61(c)(2).
Second, the Service considered a number of factors generally addressing whether, despite
the absence of a management plan, the sport-hunting of elephants in Mozambique was
nevertheless “sustainable.” 50 C.F.R. § 23.61(c)(1). These factors include, for example,
whether sport hunting “would not contribute to the over-utilization of the species,” id. §
23.61(c)(3), “would pose no net harm to the status of the species in the wild,” id. § 23.61(c)(4),
and “would not stimulate additional trade in the species,” id. § 23.61(e)(3). The Service again
concluded that it lacked “sufficient information” to make these findings because it had been
unable to obtain adequate responses from the Mozambique government regarding its elephant
population. AR 1021-24.
The Service found several deficiencies in the information supplied by Mozambique. For
one thing, the DNFFB could not provide actual population numbers for elephants in
Mozambique or quantify the extent of illegal poaching and defensive killings. Id. at 1022. The
Service explained that:
[M]ost of the information on elephant population size, distribution, and dynamics
is based on informed guesses. As of 2005, there has been a lack of adequate
research and survey work to be able to establish the actual population numbers
and the extent that migration impacts population estimates.
Id. For another thing, the Service found that there was insufficient evidence that Mozambique’s
elephant hunting quotas were scientifically based and sustainable. Id. The Service explained
that the hunting quotas were irrational and disconnected from the government’s own policy on
sport hunting. AR 1022-23. For example, in 1997 and 1998, Mozambique established export
quotas of 50 and 20 elephants respectively, even though there was a ban on sport hunting of
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elephants until 1999. AR 1022. But after the ban on sport-hunting was lifted, Mozambique
officials claimed that the quota was reduced to 10 elephants per year. Id. There was apparently
“no scientific basis upon which these quotas have been established each year” since “the actual
elephant population in Mozambique is not currently known.” Id. And for a third thing, the
DNFFB’s vague responses regarding the extent of illegal poaching and defensive killings
“raise[d] concerns about what impact any level of take involving elephant sport-hunting is
having on the wild population.” Id. at 1023.
Plaintiffs claim that the Service’s insistence on “actual population numbers” was
unlawful, arguing that the ESA was amended in 1982 to eliminate population estimates as a
precondition for non-detriment findings. See 16 U.S.C. § 1537a(c)(2) (“[T]he Secretary . . . is
not required to make, or require any state to make, estimates of population size in making such
determinations.”). Plaintiffs rely on Defenders of Wildlife v. Endangered Species Scientific
Auth., 725 F.2d 726 (D.C. Cir. 1984), in which the D.C. Circuit stated that population estimates
are no longer a valid requirement for non-detriment findings. But the fact that the Service “is not
required to make . . . estimates of population size” does not mean the Service may not consider
the absence of reliable population data as a factor in making a discretionary non-detriment
finding. After all, the Service must still base its determination on the “best available biological
evidence.” 16 U.S.C. § 1537a(c)(2). And even Defenders of Wildlife recognizes that the
statutory amendment preserves “the discretion of the Secretary” to consider population estimates.
725 F.2d at 731.
Third, the Service concluded that Mozambique simply did not have the financial or
human resources to manage the sport hunting of elephants. AR 1023. The Service reasoned that
although domestic laws relating to elephant conservation in Mozambique had been in place for
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many years, it was difficult for the DNFFB to enforce these laws due to inadequate resources.
Id. The Service explained:
There seemed to be a severe shortage of manpower and a need for properly
trained staff at all levels of the Directorate. There also appeared to be a lack of
material resources to enable the staff to carry out their duties, and a lack of
financial resources in terms of remunerating staff and providing funding for
management operations and projects. Due to this apparent lack of financial
support for wildlife management, the level of illegal hunting in Mozambique
[between 2000 and 2005] was difficult to assess. Indications are that the level of
poaching was still high, due in part to people settling or re-settling in portions of
the elephants[’] range since the end of civil war. The difficulties in controlling
illegal hunting were compounded by an abundance of firearms that have remained
in circulation since the end of the war.
Id. Thus, the Service concluded that Mozambique’s lack of sufficient resources to protect and
manage elephants weighed against finding non-detriment and enhancement. For all of these
reasons, the Service concluded that it was unable to find that sport hunting would “enhance” the
survival of elephants in Mozambique. See 50 C.F.R. § 17.40(e)(3)(iii)(C).
In their motion for summary judgment, plaintiffs develop several additional arguments in
general opposition to the agency’s findings, all unavailing. Plaintiffs contend, for example, that
CITES Resolution 2.11 requires the Service to defer to Mozambique’s non-detriment finding.
Pls.’ Mem. at 34-36. But this is a misreading of the resolution. Resolution 2.11 provides that
“the Scientific Authority of the importing country” should “accept the finding of the Scientific
Authority of the exporting country that the exportation of the hunting trophy is not detrimental to
the survival of the species, unless there are scientific or management data to indicate otherwise.”
CITES Conf. 2.11(b) (Rev.) (Mar. 1979) (emphasis added). Indeed, Resolution 2.11 goes on to
state that “the scientific examination by the importing country” must “be carried out
independently of the result of the scientific assessment by the exporting country.” Id. at 2.11(c).
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Thus, the resolution in question indicates rather clearly that the importing signatory must
ultimately make its own, independent non-detriment finding in order to issue an import permit.
What is more, this argument overlooks the special rule flatly prohibiting the import of
African elephant trophies absent a separate “enhancement” finding. See 50 C.F.R. §
17.40(e)(3)(iii)(C). Plaintiffs protest that the “enhancement” rule is contrary to CITES
Resolution 2.11, or that Resolution 2.11 somehow “repealed” § 17.40(e)(3)(iii)(C). Pls.’ Mem.
at 30. But CITES resolutions do not create enforceable legal standards; instead, they are merely
recommendations “intended to give guidance to the Parties in implementing the Convention.”
Castlewood Products, L.L.C. v. Norton, 365 F.3d 1076, 1084 (D.C. Cir. 2004). Besides, CITES
itself expressly allows signatory nations to enact “stricter domestic measures regarding the
conditions for trade” in threatened species than the specific provisions of CITES. CITES, art.
XIV(1)(a), 27 U.S.T. 1087. And in any event, § 17.40(e)(3)(iii)(C) was promulgated pursuant to
the Secretary’s authority under the ESA to issue “such regulations as he deems necessary and
advisable” for the protection of a threatened species. See 16 U.S.C. § 1533(d). So plaintiffs are
reduced to challenging the Secretary’s statutory authority under § 1533. Thus, their apparent
facial challenge to the special “enhancement” rule fails as a matter of law.
Finally, plaintiffs argue generally that sport hunting does enhance the survival of elephant
populations because trophy hunting fees can be used by local governments to control poaching
and compensate local property owners for damage caused by elephants. It is certainly true that,
as an abstract matter, sport hunting may result in a net benefit to African elephant populations
under controlled circumstances. Indeed, Congress has expressly so found. 16 U.S.C. § 4202(9)
(“[T]here is evidence that the proper utilization of well-managed elephant populations provides
an important source of funding for African elephant conservation programs.”). But plaintiffs’
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general argument does not undermine the Service’s conclusion that, in this particular case, there
was insufficient evidence to find that Mozambique’s elephant population was “well-managed”
and that the killing of African elephants would enhance their survival as a species.
To be sure, the administrative record includes several hundred pages of expert opinion
extolling the benefits of sport-hunting in aid of conservation efforts. AR 1608-1812. Plaintiffs
make much of the report of Dr. James Teer, a professor of wildlife science at Texas A&M
University, who—at the behest of Conservation Force—personally traveled to Mozambique and
conducted a week-long survey of elephant conservation and management in that country. AR
290-308. Dr. Teer concluded that it “seems prudent and safe to continue harvesting a small
number of elephants each year until evidence suggests that the population is being impacted.”
Id. at 307. Plaintiffs argue that the Service entirely failed to consider the opinion of Dr. Teer and
other experts in making its negative enhancement and non-detriment findings, and that the
Service’s contrary conclusion was arbitrary and capricious. Pls.’ Mem. at 4, 7.
But there is no requirement that the Service specifically cite and rebut every piece of
evidence favorable to a permit applicant. Besides, Dr. Teer’s opinion actually supports the
Service’s negative non-detriment and enhancement findings in several places. Dr. Teer’s own
report states, for example, that “[m]ost African range states simply do not have the resources
required to conduct intensive research and monitoring projects.” AR 292. Nor would the Court
have faulted the Service for refusing to give Dr. Teer’s report any weight, since it was not based
on a comprehensive survey of Mozambique’s elephant population and instead was limited to a
small subset of that population. But most importantly of all, even if the Court disagreed with the
Service’s conclusions regarding the benefits of sport hunting in Mozambique, the arbitrary and
capricious standard of review simply does not authorize this Court to second-guess the agency’s
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findings. See Costle, 657 F.2d at 283. So although plaintiffs disagree with the Service’s
assessment of the alternative opinions in the record, that does not provide a basis for this Court to
overturn the denial of their permit applications. Thus, defendants are entitled to summary
judgment on Claims I and VII.
IV. CONCLUSION
For these reasons, plaintiffs’ motion for summary judgment is denied and defendants’
cross-motion for summary judgment is granted. A separate order memorializing these
conclusions will issue this day.
Date: October 6, 2011 ______________/s/______________
Royce C. Lamberth
Chief United States District Judge
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