Safari Club International v. Sally Jewell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2016 Decided December 6, 2016
No. 15-5170
SAFARI CLUB INTERNATIONAL AND NATIONAL RIFLE
ASSOCIATION OF AMERICA,
APPELLANTS
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
THE DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00670)
Douglas S. Burdin argued the cause for appellants. With
him on the briefs were Christopher A. Conte, Michael T.
Jean, Anna M. Seidman, and Jeremy E. Clare.
Erika B. Kranz, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
John C. Cruden, Assistant Attorney General, and Matthew
Littleton and Meredith L. Flax, Attorneys.
Anna E. Frostic was on the brief for amici curiae The
Humane Society of the United States, et al. in support of
appellees.
2
Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Although the African elephant is
protected under both domestic and international law, the
Interior Department’s Fish and Wildlife Service has long
allowed American hunters who shoot Tanzanian elephants to
repatriate their trophies because, according to the Service,
doing so “would not be detrimental to the survival of the
species.” 50 C.F.R. § 23.61(a). In 2014, however, the Service
changed course and indefinitely suspended issuance of import
permits due in part to a “significant decline in Tanzania’s
elephant population.” 2014 Non-Detriment Finding, at
Deferred Appendix 123. Two organizations representing
hunters challenged the suspension in district court as
substantively and procedurally flawed. Because no member of
either group had applied for a permit, the court dismissed the
case for lack of final agency action and for failure to exhaust
administrative remedies. For the reasons set forth below, we
reverse.
I.
The Fish and Wildlife Service, part of the U.S. Interior
Department, is tasked with regulating the import of species
protected under the Convention on International Trade of
Endangered Species of Wild Fauna and Flora (CITES), Mar.
3, 1973, 27 U.S.T. 1087, which includes African elephants, or
Loxodonta africana, from Tanzania. See, e.g., CITES art.
III(3) & App’x I; 16 U.S.C. §§ 1537a–1539; 50 C.F.R.
§§ 17.11, 17.22. Among its duties, the Service determines
whether and under what conditions hunters may receive
permits to import “sport-hunted trophies,” which “means a
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whole dead animal or a readily recognizable part or derivative
of an animal.” 50 C.F.R. § 23.74(b).
The Service’s permitting scheme is somewhat intricate,
but because it has faced many legal challenges, the particulars
have been thoroughly described in numerous opinions of this
court. See, e.g., Marcum v. Salazar, 694 F.3d 123, 124–25
(D.C. Cir. 2012). An abridged summary will do here.
For threatened species, like African elephants, the
Service must ensure that two conditions are satisfied before it
may grant a permit. First, the Service’s Division of Scientific
Authority must find that the “import will be for purposes
which are not detrimental to the survival of the species.”
CITES art. III(3)(a); see 50 C.F.R. § 23.61. This
determination is known as a “non-detriment” finding. Second,
the Service’s Division of Management Authority must find—
the “enhancement” finding—“that the killing of the trophy
animal will enhance the survival of the species.” 50 C.F.R.
§ 17.40(e)(6)(i)(B). For example, sport hunting might enhance
the survival of a species where it causes no measurable impact
on its population and where “revenues generated by sport
hunting[] ha[ve] the potential to provide conservation benefits
to the species.” January 3, 2014, Information Memorandum,
at Deferred Appendix 122.
For the African elephant, along with a handful of other
species, the Service makes annual, blanket non-detriment and
enhancement findings that cover all applications filed for
sport-hunted trophies “taken” during that year. Although the
Service had long granted permits for sport-hunted Tanzanian
elephant trophies—meaning it had consistently made positive
non-detriment and enhancement findings—it reversed course
in 2014. On February 21 of that year, the Division of
Scientific Authority completed its non-detriment finding for
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trophies taken during calendar year 2014. Acknowledging its
history of finding sport hunting non-detrimental to the
survival of Tanzanian elephants, the Division explained that it
could no longer do so given the availability of more current
information demonstrating a significant decline in elephant
populations. The Division of Management Authority soon
followed suit, concluding that it could no longer find that
sport hunting would enhance the survival of the species. As a
result, the Service announced a “suspension on imports of
sport-hunted African elephant trophies taken in
Tanzania . . . during calendar year 2014.” See April 4, 2014,
Press Release, at Deferred Appendix 161.
Challenging the Service’s suspension, two industry
groups, Appellants Safari Club International and the National
Rifle Association (collectively, “Safari Club”), filed suit on
behalf of their members, which include disappointed elephant
hunters, several of whom had planned hunts in Tanzania for
the fall of 2014. In its second amended complaint, Safari Club
alleged that the Service’s decisionmaking suffered from three
flaws. First, it asserted that the 2014 non-detriment and
enhancement findings were legislative rules requiring notice-
and-comment rulemaking (Count VI). Second, it claimed that
the Service failed to justify its decision to require an
enhancement finding for African elephants (Count VII). And
third, it alleged that the Service’s non-detriment finding rested
on an incorrect standard (Count VIII).
The district court dismissed the suit under Federal Rule
of Civil Procedure 12(b)(6). Bypassing the Service’s
argument that Safari Club lacked Article III standing, the
court concluded that the non-detriment and enhancement
findings were not final agency action and that, by failing to
apply for an import permit, Safari Club’s members had failed
to exhaust their administrative remedies. See Safari Club
5
International v. Jewell, 76 F. Supp. 3d 198, 207–08 (D.D.C.
2014).
Safari Club appeals, arguing that the Service’s decision to
suspend import permits—including the two 2014 findings—
was final, and that its members had no obligation to exhaust
administrative remedies. The Service defends the district
court’s dismissal for lack of finality and exhaustion, adding
that Safari Club lacks standing and that its claims are moot.
Our review is de novo. See Cohen v. United States, 650 F.3d
717, 722 (D.C. Cir. 2011) (reviewing de novo questions of
subject matter jurisdiction and failure to state a claim).
II.
The parties devote the bulk of their briefing to finality
and exhaustion, but this puts the cart before the horse, for we
must begin with our own jurisdiction. Bender v. Williamsport
Area School District, 475 U.S. 534, 541 (1986) (“[E]very
federal appellate court has a special obligation to satisfy itself
not only of its own jurisdiction, but also that of the lower
courts in a cause under review . . . .” (citation and internal
quotation marks omitted)). To determine whether we and the
district court have Article III jurisdiction, we must decide
whether Safari Club has standing and whether its claims are
moot. See, e.g., Worth v. Jackson, 451 F.3d 854, 857 (D.C.
Cir. 2006) (explaining that standing and mootness, along with
ripeness, define the constitutional bounds of our subject-
matter jurisdiction).
A.
To demonstrate Article III standing, plaintiffs must
“establish, as an ‘irreducible constitutional minimum,’ that
they face ‘injury in fact’ caused by the challenged conduct
and redressable through relief sought from the court.” Shays
6
v. Federal Election Commission, 414 F.3d 76, 83 (D.C. Cir.
2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61(1992)). An organization, like Safari Club, has Article
III standing if one of its members has standing. See Summers
v. Earth Island Institute, 555 U.S. 488, 494 (2009)
(“[O]rganizations can assert the standing of their members.”).
The Service argues that Safari Club lacks standing because
none of its members filed a permit application, meaning that
the Club’s injury stems from its members’ inaction rather than
from any decision by the Service. For its part, Safari Club
insists that seeking a permit would have been futile given that
the Service had determined and publicly announced that no
permits would issue for Tanzanian elephants killed in 2014.
According to the Service, however, futility can never excuse a
nonapplicant’s failure to seek a permit, adding that even were
there a futility exception, Safari Club has failed to show
futility here. We disagree with the Service on both counts.
It is true that “a plaintiff must generally . . . submit to a
[government] policy to establish standing” to challenge it.
Grid Radio v. FCC, 278 F.3d 1314, 1319 (D.C. Cir. 2002)
(citation and internal quotation marks omitted). In the context
of applications for government benefits, however, “‘[t]his
threshold requirement . . . may be excused . . . where a
plaintiff makes a substantial showing that the application for
the benefit . . . would have been futile.’” Id. (quoting Prayze
FM v. FCC, 214 F.3d 245, 251 (2d Cir. 2000)); see United
States v. Decastro, 682 F.3d 160, 161, 164 (2d Cir. 2012)
(recognizing futility exception for nonapplicant for firearm
permit but finding no futility on summary-judgment record).
Even our decision in Albuquerque Indian Rights v. Lujan, 930
F.2d 49 (D.C. Cir. 1991), on which the Service itself relies,
supports the existence of a futility exception. There, we held
that a nonapplicant lacked Article III standing because the
summary-judgment record contained no “evidence relating to
7
the asserted ‘futility’ of applying” for government
employment. Id. at 57 (emphasis added); accord id. at 62(D.H. Ginsburg, J., concurring) (“A non-applicant would also
have standing . . . to challenge as unlawful a policy . . . that
has the effect of disqualifying her and rendering her
application pointless.”).
But does the record here show that submitting an
application would have been futile? The Service says no,
relying heavily on a statement from its non-detriment finding
that if an applicant includes in its submission “new or
additional information showing that elephant management
practices by the Government of Tanzania have led to the
sustainability of its elephant population on a nation-wide
basis, these applications should be referred to the Division of
Scientific Authority for consideration on a case-by-case
basis.” 2014 Non-Detriment Finding, at Deferred Appendix
123. In the Service’s view, this caveat saves the day by
leaving open the possibility that applicants might have
obtained a 2014 permit.
On closer examination, however, this possibility was
illusory given the definitive nature of the Service’s non-
detriment and enhancement findings. Based on its review of
the best biological information available as of February 2014,
see 50 C.F.R. § 23.61(f), the Service found that Tanzanian
elephants were suffering a “significant decline” in population,
“primarily due to poaching.” 2014 Non-Detriment Finding, at
Deferred Appendix 123. Largely for that reason, the Service
concluded that the “additional killing of elephants, even if
legal, is not sustainable and will not support effective elephant
population recovery efforts in Tanzania.” Id. at 133. Given
this, an internal agency memorandum directed that “if an
import permit application [for 2014] is received, the
application will be denied.” Targeted Communications
8
Strategy, at Deferred Appendix 137. True, in later years the
Service might change its mind if it “receive[s] information
that indicates a significant improvement for elephants in
Tanzania.” April 4, 2014, Letter from Bryan Arroyo,
Assistant Director of International Affairs, to Hon. Lazaro
Nyalandu, Tanzanian Minister of Natural Resources, at
Deferred Appendix 223–24. That, however, hardly casts
doubt on the conclusion that seeking a permit in 2014 would
have been entirely futile.
The Service also argues that any harm to Safari Club’s
members is speculative because hunters might fail to “kill[]
any elephants to import.” Appellee’s Br. at 38; see Lujan, 504
U.S. at 560 (injury must be “actual or imminent, not
‘conjectural’ or ‘hypothetical’” (citation omitted)). But Safari
Club is not arguing that its members are injured only when
stopped at the border, trophy in tow. Instead, it claims an
antecedent injury: the inability to obtain a permit in the first
place. “We have consistently treated a license or permit denial
pursuant to a state or federal administrative scheme as an
Article III injury.” See Parker v. District of Columbia, 478
F.3d 370, 376 (D.C. Cir. 2007), aff’d sub nom. District of
Columbia v. Heller, 554 U.S. 570 (2008).
Because the de facto permit denial gives Safari Club
Article III standing, we need not address its alternative theory
for standing, namely that by requiring hunters to submit “new
and additional information” with their applications, see 2014
Non-Detriment Finding, at Deferred Appendix 123, the
Service increased the hunters’ regulatory burden and cost of
compliance. See, e.g., CropLife America v. EPA, 329 F.3d
876, 883–84 (D.C. Cir. 2003). And because Safari Club’s
member hunters, and therefore Safari Club, have standing, we
have no need to determine whether other individuals
represented by Safari Club, including guides, outfitters, and
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conservationists, have likewise suffered harm on account of
the Service’s decision. See Comcast Corp. v. FCC, 579 F.3d
1, 6 (D.C. Cir. 2009) (“‘[I]f one party has standing in an
action, a court need not reach the issue of the standing of
other parties when it makes no difference to the merits of the
case.’” (quoting Railway Labor Executives’ Association v.
United States, 987 F.2d 806, 810 (D.C. Cir. 1993))).
B.
We turn next to the Service’s argument that the case has
become moot. “A case becomes moot—and therefore no
longer a ‘Case’ or ‘Controversy’ for purposes of Article III—
‘when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome.’” Already,
LLC v. Nike, Inc., 133 S. Ct. 721, 726–27 (2013) (quoting
Murphy v. Hunt, 455 U.S. 478, 481 (1982)) (per curiam). The
Service argues that because the challenged findings pertain
only to 2014, and because none of Safari Club’s members
killed an elephant during that year, “[n]either this Court nor
the district court can afford Safari Club any relief with respect
to the 2014 findings.” Appellee’s Br. at 25. This argument
suffers from two fatal flaws.
First, the relief Safari Club seeks extends well beyond the
two 2014 findings. Although the second amended complaint
does challenge the now-expired 2014 findings (Count VI), it
also speaks more broadly to whether the Service may require
an enhancement finding at all (Count VII), as well as to
whether it employed an incorrect standard when making its
non-detriment finding (Count VIII). “It is well-established
that if a plaintiff challenges both a specific agency action and
the policy that underlies that action,” as Safari Club does in
Counts VII and VIII, “the challenge to the policy is not
necessarily mooted merely because the challenge to the
particular agency action is moot.” City of Houston v.
10
Department of Housing & Urban Development, 24 F.3d 1421,
1428 (D.C. Cir. 1994).
We applied that principle to a situation nearly identical to
the one we face here in Defenders of Wildlife v. Endangered
Species Scientific Authority, 659 F.2d 168 (D.C. Cir. 1981).
There, the plaintiff challenged the Service’s non-detriment
findings for export of bobcats for a specific year. See id. at
175. Even though the hunting season for that year had long
passed, we concluded that the case was not moot because the
plaintiffs “more broadly . . . attack[ed] the standards federal
agencies apply in approving bobcat exports.” Id. Because
Safari Club likewise “more broadly” challenges the standards
by which the Service makes its elephant findings—Counts
VII and VIII—those counts are similarly not moot.
Count VI, in which Safari Club alleges the Service failed
to conduct notice-and-comment rulemaking for its 2014
findings, presents a different issue because Safari Club
concedes that claim is moot but nonetheless argues that it falls
within the narrow exception for quick-burning disputes that
are “capable of repetition, yet evading review.” Kingdomware
Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976
(2016) (citation and internal quotation marks omitted).
Specifically, although expiration of a government policy
ordinarily moots a challenge to it, the controversy remains
live if “(1) the challenged action [is] in its duration too short
to be fully litigated prior to cessation or expiration, and (2)
there [is] a reasonable expectation that the same complaining
party [will] be subject to the same action again.” Id. (citation
and internal quotation marks omitted).
Defenders of Wildlife once more guides our path.
Although the relevant bobcat-hunting season had passed by
the time the case reached this court, we nonetheless deemed
11
the dispute capable of repetition yet evading review. See
Defenders of Wildlife, 659 F.2d at 175. As we explained,
because the findings were both made and expired within a
single hunting season, the window for litigating a challenge to
the agency’s decision was far too short. See id. Moreover,
since the Service made clear that it would “apply[] the same
criteria and . . . seek[] essentially the same types of
information . . . in developing advice for the 1980–81
season,” the plaintiff would have been subject to the same
action again. See id. (citation and internal quotation marks
omitted).
We see little to distinguish this case from Defenders of
Wildlife. Here, as there, the findings “expire by [their] terms
within a year,” Appellee’s Br. at 30, and the Service nowhere
indicates that it will change the criteria by which they are
made.
The Service nonetheless maintains that future challenges
to the findings “will not evade review because there is no time
limit for importing a trophy killed in a certain year.” Id. at 29–
30. By this, we assume the Service means that a hunter could
have traveled abroad without a permit in 2014, shot an
elephant, attempted to repatriate the trophy in a later year, and
then challenged the Service’s refusal to issue a permit. But
Safari Club’s alleged injury derives from the Service’s refusal
to issue a permit in 2014, and the purpose of that permit, as
Safari Club argues and the Service concedes, is to give
advanced assurance to hunters that if they invest in a hunting
trip—“$100,000 for [a] hunt[,] . . . $10,000 for [a] plane
ticket[,] . . . $50,000 in trophy fees[,] . . . and $50,000–70,000
in taxidermy costs,” Decl. of Walter Allen Tarpley, at
Deferred Appendix 179—they will be allowed to return with
trophies. See id. (“If I am unable to import my elephant
trophy, I will not participate in the elephant portion of the
12
hunt.”); Decl. of Timothy Van Norman, Chief of Permits
Branch, Division of Management Authority, at Deferred
Appendix 200 (“By applying [for a permit] before traveling,
the hunter can, in many cases, make adjustments to their
hunting trip, if desired, based on the FWS determination on
whether a permit can be issued.”). Because Safari Club is
unable to fully litigate a challenge to the findings underlying
the suspension without taking on risk that the permitting
scheme is designed to avoid, the controversy evades review.
See LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998)
(controversy must be “by its very nature short in duration, so
that it could not, or probably would not, be able to be
adjudicated while fully live.” (citation and internal quotation
marks omitted)).
III.
Having assured ourselves of our jurisdiction, we turn to
the Service’s arguments relating to finality and exhaustion.
The Service argues that because the hunters failed to
apply for a permit, it “has not yet been given an opportunity
to render a final decision regarding an import permit,”
meaning “there is no final decision for this Court to review.”
Appellee’s Br. at 49. Under the Administrative Procedure
Act, an agency action is final if it meets two conditions. First,
it must “mark the consummation of the agency’s
decisionmaking process,” i.e., it is not “merely tentative or
interlocutory.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(citation and internal quotation marks omitted). Second, “the
action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.” Id.(citation and internal quotation marks omitted). The finality
inquiry “is a ‘pragmatic’ and ‘flexible’ one.” National
Association of Home Builders v. U.S. Army Corps of
Engineers, 417 F.3d 1272, 1279 (D.C. Cir. 2005).
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As to the first factor, the Service argues that its two
findings were tentative, “predicate” determinations “subject to
amendment based on new information.” See Appellee’s Br. at
13, 50–51. We disagree. As explained above, supra Part II.A,
the findings represented the agency’s final decision that no
permit would issue for the 2014 calendar year. See, e.g.,
Targeted Communications Strategy, at Deferred Appendix
137 (noting that the 2014 findings operated to “prohibit
import of sport-hunted elephant trophies from Tanzania”). In
addition, the content of the two findings reveals a considered
determination, based on a thorough examination of recent
biological studies, elephant population data, Treaty reports,
and official documents from the Tanzanian government. The
“possibility” that the Service “may revise [its decision] . . .
based on ‘new information’ . . . is a common characteristic of
agency action, and does not make an otherwise definitive
decision nonfinal.” U.S. Army Corps of Engineers v. Hawkes
Co., 136 S. Ct. 1807, 1814 (2016). In short, the suspension
was not a “moving target,” but a “final and binding
determination.” See Franklin v. Massachusetts, 505 U.S. 788,
798 (1992).
The definitiveness of the Service’s position also leads
inexorably to the conclusion that Safari Club’s “rights . . .
have been determined.” Bennett, 520 U.S. at 178 (citation and
internal quotation marks omitted). For all practical purposes,
the findings represented a de facto denial of permits for any
Safari Club member wishing to import sport-hunted elephant
trophies from Tanzania for 2014—that is, a “result . . .
that . . . directly affect[s] the parties.” Franklin, 505 U.S. at
797.
Contrary to the Service, nothing in National Mining
Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014),
14
requires a different result. There, we held that the challenged
agency action—an Environmental Protection Agency
guidance—was not final because it amounted to nothing more
than a recommendation that petitioners were “free to ignore.”
Id. at 252 (internal quotation marks omitted). To be sure, we
recognized that “parties may feel pressure to voluntarily
conform their behavior” to agency guidance where it seems
“the writing is on the wall.” Id. at 253. For the petitioners in
that case, however, the writing was not on the wall. Here it is.
The Service has made abundantly clear that it would grant no
permits for 2014. See supra Part II.A.
The Service’s final argument—that Safari Club failed to
exhaust its administrative remedies—is absurd. The remedies
of “reconsideration” and “appeal” that the Service points to
are available only to those who apply for a permit and have it
denied. See 50 C.F.R. § 13.29(a) (persons who “may request
reconsideration” include “[a]n applicant for a permit who has
received written notice of denial”); id. § 13.29(e) (“A person
who has received an adverse decision [following a] request
for reconsideration may submit a written appeal.”). In this
case the Service had nothing to “reconsider,” as Safari Club
never sought, nor was obliged to seek, a permit for 2014.
Insisting that Safari Club nonetheless failed to exhaust its
administrative remedies, the Service cites our decision in
Marcum v. Salazar, 694 F.3d 123 (D.C. Cir. 2012). There,
after the Service denied import permits for Zambian elephant
trophies, see id. at 124–25, hunters brought near-simultaneous
challenges to the permit denials in two separate forums: one
administratively before the Service and another before the
district court, the latter of which granted summary judgment
to the government without realizing that the hunters’
administrative appeals remained pending, see id. at 125–26.
Because the district court “unknowingly decided the case
15
without the full administrative record before it,” we
concluded that the matter was unripe. Id. at 129. But we did
not hold that applicants faced with a total ban on permits must
nonetheless seek a permit and then challenge the agency’s
preordained denial in administrative proceedings.
IV.
For the foregoing reasons, we reverse and remand to the
district court for further proceedings consistent with this
opinion.
So ordered.