Polar Bear Endangered Species Act Listing & Section 4(D) Rule Litigation-MDL No. 1993 v. Jewell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2013 Decided June 18, 2013
No. 11-5353
IN RE: POLAR BEAR ENDANGERED SPECIES ACT LISTING AND
SECTION 4(D) RULE LITIGATION–MDL NO. 1993,
SAFARI CLUB INTERNATIONAL, ET AL.,
APPELLANTS
v.
SALLY JEWELL, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-mc-00764)
Douglas S. Burdin argued the cause for appellants. With
him on the briefs were Anna M. Seidman and Paul Minnich.
Sean E. Summers entered an appearance.
Katherine W. Hazard argued the cause for appellees. On
the brief were Maggie B. Smith and David Shilton.
Howard M. Crystal, Eric R. Glitzenstein, Brendan R.
Cummings, Kassia R. Siegel, and Rebecca J. Riley were on
the brief for intervenors Humane Society of the United States,
2
et al. in support of appellee. Benjamin H. Longstreth and
Jason C. Rylander entered appearances.
Before: ROGERS and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After listing the polar bear as a
threatened species under the Endangered Species Act, the
U.S. Fish and Wildlife Service, acting pursuant to a related
statute—the Marine Mammal Protection Act—barred the
importation of polar bear trophies. Hunters and hunting
organizations challenge this determination, raising both
statutory and procedural arguments. Finding them all without
merit, the district court granted summary judgment to the
Service. We affirm.
I.
“[T]he largest of the living bear species,” polar bears are
characterized by their “large body size, a stocky form, and fur
color that varies from white to yellow.” Determination of
Threatened Status for the Polar Bear (Ursus maritimus)
Throughout Its Range (“Listing Rule”), 73 Fed. Reg. 28,212,
28,212 (May 15, 2008). Evolutionarily adapted to sea-ice
habitats, polar bears live in “ice-covered seas” in Russia,
northern Europe, the Canadian Arctic, and parts of Alaska. Id.
at 28,212–13. A 2006 study estimated the “total number of
polar bears worldwide” to be 20,000–25,000, comprised of
“19 relatively discrete populations” in different geographic
regions. See id. at 28,215.
This case is not about living polar bears. Instead, it
concerns polar bear trophies—“mount[s], rug[s] or other
display item[s] composed of the hide, hair, skull, teeth,
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baculum, bones, and claws of the specimen which [were]
taken . . . during a sport hunt for personal, noncommercial
use.” 50 C.F.R. § 18.30(b)(1). Plaintiffs, Safari Club
International and Safari Club International Foundation, along
with individual hunters Ronald Kreider and Donald Hershey,
seek to import polar bear trophies from sport hunts in the
Canadian Arctic.
Two federal statutes, the Marine Mammal Protection Act
(“MMPA”), 16 U.S.C. §§ 1361 et seq., and the Endangered
Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., govern the
importation of polar bear trophies. Congress enacted the first
of these statutes, the MMPA, because “certain species and
population stocks of marine mammals are, or may be, in
danger of extinction or depletion as a result of” human
activities. Id. § 1361(1). The MMPA restricts the importation
and “taking”—i.e., harassing, hunting, capturing, or killing,
see id. § 1362(13)—of polar bears, as well as other marine
mammals such as seals, dolphins, walruses, and sea lions.
The MMPA establishes a “stepwise approach” to the
conservation of marine mammals. Appellees’ Br. 5. At step
one, the statute imposes a general “moratorium on the taking
and importation” of all marine mammals, regardless of the
species’ scarcity or abundance. See 16 U.S.C. § 1371(a). This
moratorium has several enumerated exceptions, including one
for importation of sport-hunted polar bear trophies. Id.§ 1371(a)(1) (providing an exception to the general
moratorium for “importation of polar bear parts . . . taken in
sport hunts in Canada”). Specifically, section 104(c)(5)
authorizes the Service to “issue a permit for the importation of
polar bear parts (other than internal organs) taken in sport
hunts in Canada” and provides that the Service “shall” do so
when certain criteria are satisfied. Id. § 1374(c)(5)(A).
Pursuant to this provision, the Service approved the issuance
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of permits for importation of trophies from certain Canadian
polar bear populations. See 50 C.F.R. § 18.30(i)(1).
Going beyond the general moratorium, step two of the
MMPA’s conservation scheme imposes additional protections
for species the Secretary designates as “depleted.” See 16
U.S.C. §§ 1371(a)(3)(B), 1372(b)(3). The MMPA defines the
term “depleted” as “any case in which” (1) the Secretary
“determines that a species or population stock is below its
optimum sustainable population”; (2) an authorized State
makes the same determination; or (3) “a species or population
stock is listed as an endangered species or a threatened
species under the Endangered Species Act of 1973.” Id.§ 1362(1). Two provisions of the MMPA prohibit importation
of species that have been designated as depleted. Section
101(a)(3)(B) provides that:
Except for scientific research purposes, photography
for educational or commercial purposes, or
enhancing the survival or recovery of a species or
stock as provided for in paragraph (1) of this
subsection, or as provided for under paragraph (5) of
this subsection, during the moratorium 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.
Id. § 1371(a)(3)(B). And section 102(b)(3) reads:
Except pursuant to a permit for scientific research, or
for enhancing the survival or recovery of a species or
stock, issued under section 1374(c) of this title, it is
unlawful to import into the United States any marine
mammal if such mammal was . . . taken from a
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species or population stock which the Secretary has,
by regulation published in the Federal Register,
designated as a depleted species or stock . . . .
Id. § 1372(b)(3).
On May 15, 2008, the Service published a rule listing the
polar bear as a threatened species under the ESA. See
Determination of Threatened Status for the Polar Bear (Ursus
maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May
15, 2008). In the same rule, the Service also determined that
the listing had the effect of designating the polar bear as
“depleted” under the MMPA and that MMPA sections
101(a)(3)(B) and 102(b)(3) thus barred continued importation
of sport-hunted polar bear trophies under that statute. Id. at
28,236, 28,242, 28,301–02. As a consequence, the Service
administratively closed Kreider’s and Hershey’s permit
applications, which sought to import polar bears killed prior
to the bear’s threatened listing. In identical letters sent to
Kreider and Hershey, the Service explained that, due to the
polar bear’s depleted status, the MMPA provision “allow[ing]
for the import of sport-hunted polar bear trophies from
Canada is no longer available, even if your bear was hunted
prior to the effective date of the ESA listing.”
A number of industry groups, environmental
organizations, hunters, and states challenged the Listing Rule
in several district courts. These challenges, including those by
Kreider, Hershey, and the Safari Club, were consolidated as a
Multidistrict Litigation case in the United States District
Court for the District of Columbia. With respect to the actions
challenging the Service’s decision to list the polar bear as a
threatened species under the ESA, the district court granted
summary judgment to the Service, and we sustained that
ruling earlier this year. In re Polar Bear Endangered Species
6
Act Listing & Section 4(d) Rule Litigation, 709 F.3d 1 (D.C.
Cir. 2013). In a separate ruling, the district court also granted
summary judgment to the Service on the issue now before
us—whether the MMPA authorizes importation of sport-
hunted polar bear trophies following the Listing Rule.
According to the district court, 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,” meaning that “the MMPA mandates the Service’s
conclusion that sport-hunted polar bear trophies are no longer
eligible for import as a result of the species’ depleted status.”
In re Polar Bear Endangered Species Act Listing & Section
4(d) Rule Litigation, 818 F. Supp. 2d 240, 245 (D.D.C. 2011).
The Safari Club now appeals the district court’s grant of
summary judgment on the importation issue, raising both
statutory and procedural challenges. Several conservation
groups, including the Humane Society of the United States,
have intervened on behalf of the Service. “In a case like the
instant one, in which the District Court reviewed an agency
action under the APA, we review the administrative action
directly, according no particular deference to the judgment of
the District Court.” Holland v. National Mining Association,
309 F.3d 808, 814 (D.C. Cir. 2002). In reviewing the
Service’s interpretation of the MMPA, a statute the agency
has sole authority to administer with respect to polar bears
and certain other marine mammals, we apply the familiar two-
step analysis set forth in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
Because we conclude that Congress has “directly spoken to
the precise question[s] at issue” here, we have no need to
resolve the parties’ debate about whether the Service’s
interpretation of the MMPA qualifies for Chevron step two
deference. Id. at 842–43; see also Pharmaceutical Research
7
& Manufacturers of America v. Thompson, 251 F.3d 219, 224
(D.C. Cir. 2001).
II.
We begin with the Service’s argument that the Safari
Club’s claims are unripe for review. See Wyoming Outdoor
Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C. Cir.
1999) (“[A]n Article III court cannot entertain the claims of a
litigant unless they are ‘constitutionally and prudentially
ripe.’ ” (quoting Louisiana Environmental Action Network v.
Browner, 87 F.3d 1379, 1381 (D.C. Cir. 1996))). Although
conceding that Hershey’s and Kreider’s challenges to the
disposition of their permit applications are ripe, the Service
contends that the Safari Club’s challenge to the Listing Rule’s
import determination was “not fit for judicial review” “[a]t
the time the Final Rule was published” because the Service
had yet to “appl[y] the legal reasoning [in the Rule] to any
particular case.” Appellees’ Br. 21. But because “ripeness is
peculiarly a question of timing, it is the situation now . . . that
must govern,” Regional Rail Reorganization Act Cases, 419
U.S. 102, 140 (1974), not the situation at the time the Listing
Rule was published. Viewed through this lens, the Safari
Club’s challenge to the Listing Rule is indisputably fit for
judicial resolution. Not only does the Safari Club raise
“purely legal” issues of statutory interpretation, but the
Service has now applied the Listing Rule to dispose of
individual permit applications, including those filed by
Hershey and Kreider, thus demonstrating the finality of the
agency’s action and rendering further factual development
unnecessary. See Clean Air Act Implementation Project v.
EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998) (ripeness
doctrine’s first requirement is concerned with “whether the
issue ‘is purely legal, whether consideration of the issue
would benefit from a more concrete setting, and whether the
agency’s action is sufficiently final’ ” (quoting NRDC v. EPA,
8
22 F.3d 1125, 1133 (D.C. Cir. 1994))). Moreover, the Service
nowhere disputes that the Safari Club will suffer hardship
associated with the inability to import polar bear trophies if
court consideration is withheld. See Abbott Laboratories v.
Gardner, 387 U.S. 136, 149 (1967) (ripeness doctrine’s
second requirement requires us to consider “the hardship to
the parties of withholding court consideration”), overruled on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
We thus turn to the merits.
The Service’s challenged determination rests on three
premises: (1) that the polar bear’s ESA listing had the effect
of “designating” the species as depleted within the meaning of
MMPA sections 101(a)(3)(B) and 102(b)(3); (2) that once
these import prohibitions were triggered, polar bears could no
longer be imported under section 104(c)(5)’s trophy import
authorization; and (3) that these import prohibitions apply
even to bears taken before the species was designated as
depleted. The Safari Club disputes all three propositions and
adds two procedural challenges. We consider each claim in
turn.
A.
The Safari Club argues that sections 101(a)(3)(B) and
102(b)(3) pose no bar to trophy importation because the polar
bear was never “designated” as a depleted species within the
meaning of those provisions. Recall that the MMPA specifies
three methods by which a species can become “depleted”:
(1) the Secretary “determines that a species or population
stock is below its optimum sustainable population”; (2) an
authorized State makes the same determination; 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). According to the Safari Club, a species is
“designated” as depleted only when an affirmative
9
determination is made, through the procedures set forth in
MMPA section 115(a), that the species has fallen below its
optimum sustainable population. When a species is instead
listed as threatened under the ESA, the Safari Club contends
that the species becomes depleted automatically and thus is
not “designated” as depleted within the meaning of MMPA
sections 101(a)(3)(B) and 102(b)(3).
The Safari Club places far too much emphasis on the
term “designate.” As the district court explained, because “the
MMPA expressly identifies three methods by which a species
earns ‘depleted’ status” and “[n]one of these methods is
particularly defined or otherwise referred to as a
‘designation,’ ” the “most natural reading of the statute” is
“that a species may be designated as depleted through any one
of these three methods.” In re Polar Bear Endangered Species
Act Listing, 818 F. Supp. 2d at 254. Indeed, other MMPA
provisions refer to a species as being “designated” as depleted
“because of” or “on the basis of” its listing as an endangered
or threatened species under the ESA, thus demonstrating that
Congress believed an ESA listing could amount to a
“designation.” See 16 U.S.C. §§ 1371(a)(5)(E)(i); 1387(a)(2).
Under the Safari Club’s interpretation, moreover,
whether a particular species is protected by the import
prohibitions would turn on the procedural mechanism by
which that species became depleted. Nothing in the legislative
record, however, suggests that Congress intended such an odd
result. The Safari Club insists that threatened species should
be treated differently because, unlike species found to be
presently below their optimum sustainable population,
threatened species may “currently enjoy historically high
population numbers” but be ESA-listed “because of
predictions about [future] conditions.” Appellants’ Br. 41. But
Congress thought otherwise: “species that are listed under the
10
Endangered Species Act are, a fortiori, not at their optimum
sustainable population and, therefore, should be considered
depleted.” H.R. Rep. No. 97-228, at 16 (1981), reprinted in
1981 U.S.C.C.A.N. 1458, 1466. In any event, even were a
species in fact at its optimum sustainable population and
listed as threatened based solely on predicted future
conditions, the Safari Club fails to explain why, given the
MMPA’s overarching goal of protecting species “in danger of
extinction or depletion,” 16 U.S.C. § 1361(1), Congress
would have wanted that species to drop below its optimum
sustainable population before the MMPA’s import
prohibitions for depleted species could apply. We thus think it
quite clear that Congress intended to extend the protections of
sections 101(a)(3)(B) and 102(b)(3) to all depleted species,
regardless of how they achieve their depleted status.
B.
The Safari Club next argues that MMPA section
104(c)(5) requires the Service to authorize importation of
sport-hunted polar bear trophies even where the polar bear is
designated as depleted under the MMPA. The district court
rejected this argument, finding “the intent of Congress . . .
clear” that section 104(c)(5) “must give way to restrictions on
importing depleted species.” In re Polar Bear Endangered
Species Act Listing, 818 F. Supp. 2d at 253. We agree.
Sections 101(a)(3)(B) and 102(b)(3) prohibit importation of
depleted species, unless the importation falls into one of the
narrow exceptions for specific purposes such as scientific
research and enhancing survival of the species. See 16 U.S.C.
§§ 1371(a)(3)(B), 1372(b). Importation of sport-hunted
trophies is not among these enumerated exceptions. See
Andrus v. Glover Construction Co., 446 U.S. 608, 616–17
(1980) (“Where Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are
11
not to be implied, in the absence of evidence of a contrary
legislative intent.”).
Conceding the obvious—that neither section 101(a)(3)(B)
nor section 102(b) exempts trophy importation—the Safari
Club nonetheless insists that these provisions must give way
to section 104(c)(5)’s “express and mandatory Congressional
authorization of imports of legally harvested polar bears.”
Appellants’ Br. 27. As the Safari Club sees it, these
provisions are in irreconcilable conflict: section 104(c)(5)
requires the Service to authorize importation of sport-hunted
polar bear trophies (and contains no exception for depleted
polar bears), whereas sections 101(a)(3)(B) and 102(b)(3)
prohibit any such importation. Invoking a bevy of statutory
construction canons, the Safari Club argues that section
104(c)(5) should govern because the provision (1) is “narrow,
precise and specific” to importation of polar bear trophies;
(2) was enacted later in time; and (3) would otherwise be
rendered superfluous. Appellants’ Br. 29–31 (internal
quotation marks omitted).
These arguments rest on a mistaken premise. Read in
context, the provisions in question do not conflict but instead
operate in different spheres of the MMPA’s stepwise scheme.
Although section 104(c)(5) does authorize trophy importation,
that provision—like the statute’s other permit
authorizations—remains subject to the MMPA’s more
stringent protections for depleted species. When Congress
wanted permit authorizations, such as those for scientific
research and enhancement, to apply even to depleted species,
it made this clear by including exceptions for those purposes
in sections 101(a)(3)(B) and 102(b). But Congress included
no such exception for trophy importation, thus demonstrating,
as the district court explained, that although “importation of
sport-hunted polar bear trophies from Canada is a permissible
12
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.” In re Polar Bear Endangered Species Act Listing,
818 F. Supp. 2d at 253.
C.
In support of its argument that the import prohibitions
apply only to polar bears taken after the species became
depleted, the Safari Club first points to section 102(b)(3),
which prohibits importation of any marine mammal “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.” 16 U.S.C. § 1372(b)(3).
According to the Safari Club, this provision applies only to
mammals taken from species that had already been
designated as depleted at the time they were taken. The
district court disagreed, as do we. See In re Polar Bear
Endangered Species Act Listing, 818 F. Supp. 2d at 256 &
n.11. The provision refers not to mammals taken from species
the Secretary had designated as depleted but instead mammals
taken from species the Secretary has so designated. If
Congress intended section 102(b)(3) to apply only to
mammals taken after the species became depleted, it would
have replaced the verb “has” with “had.”
Reinforcing this conclusion, other provisions of section
102(b) are expressly limited by the phrase “at the time of
taking.” Specifically, sections 102(b)(1) and 102(b)(2),
respectively, prohibit importation of mammals “pregnant at
the time of taking” and “nursing at the time of taking.” 16
U.S.C. § 1372(b)(1)–(b)(2). By contrast, section 102(b)(3)
contains no language limiting its operation to species
designated as depleted “at the time of taking.” See Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen
13
‘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.’ ” (quoting
Russello v. United States, 464 U.S. 16, 23 (1983))).
Alternatively, the Safari Club relies on section
101(a)(3)(B), but that provision cannot permit what section
102(b)(3) expressly prohibits without rendering the latter
superfluous. See Davis County Solid Waste Management v.
EPA, 101 F.3d 1395, 1404 (D.C. Cir. 1996) (“[I]t is of course
a well-established maxim of statutory construction that courts
should avoid interpretations that render a statutory provision
superfluous.”). Indeed, counsel for the Safari Club conceded
as much at oral argument, stating that if the trophies in
question cannot be imported under section 102(b)(3), “it
doesn’t help that they might be able to [be imported] under
the other provision.” Oral Arg. Rec. 15:13–15:19.
D.
This brings us finally to the Safari Club’s procedural
challenges.
The Safari Club first argues that the Service failed to
comply with MMPA section 115(a) when it promulgated the
Listing Rule. That provision requires the Service, in taking
“any action . . . to determine if a species or stock should be
designated as depleted,” to follow certain procedural
requirements, such as publishing in the Federal Register a call
for assistance in obtaining scientific information and utilizing
informal working groups to the extent feasible. 16 U.S.C.
§ 1383b(a). Acknowledging that it did not follow section
115(a)’s requirements, the Service contends that it had no
obligation to do so. We agree. Section 115(a) applies only to
actions “to determine if a species or stock should be
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designated as depleted.” Id. (emphasis added). This clearly
refers to the first mechanism for designating a species as
depleted—where “the Secretary . . . determines that a species
or population stock is below its optimum sustainable
population.” Id. § 1362(1)(A). By contrast, where a species is
listed under the ESA, it automatically becomes designated as
depleted under the MMPA. See id. § 1362(1)(C).
Accordingly, because an ESA listing results in a depleted
designation under the MMPA but entails no “determination”
to that effect, section 115(a) is inapplicable.
Next, the Safari Club argues that the proposed Listing
Rule failed to provide adequate notice that the Service “was
designating the polar bear as a depleted marine mammal
under the MMPA.” Appellants’ Br. 47. Had it been given
notice, the Safari Club claims it “would have argued . . . that
simply listing a species as threatened was not a ‘designation’
of a marine mammal as depleted.” Appellants’ Br. 49. The
district court rejected this argument, finding that the proposed
rule in fact “provided sufficient notice of the potential effects
of the Listing Rule and of the polar bear’s depleted status.” In
re Polar Bear Endangered Species Act Listing, 818 F. Supp.
2d at 255. Again, we agree.
The notice of proposed rulemaking clearly advised
stakeholders that the ESA listing could have the effect of
designating the polar bear as a depleted species within the
meaning of the MMPA’s import prohibitions. The proposed
rule explained that:
Regarding ongoing importation of polar bear
trophies taken from approved populations in Canada
into the United States, we anticipate conducting an
evaluation of the merits of continuing the presently
authorized imports. Under the MMPA Section 102—
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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
population stock that the Secretary has, by regulation
published in the Federal Register, designated as a
depleted species or stock.
Proposed Rule to List the Polar Bear (Ursus maritimus) as
Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1098
(Jan. 9, 2007) (bracketed text in original). In other words, the
proposed rule not only explained the Service’s view that
“depleted species . . . include[] those listed as threatened or
endangered under the ESA,” but also alerted interested parties
that the MMPA could therefore bar continued trophy
importation. Id. Indeed, the Safari Club seems to have
understood this: it submitted comments to the Service
warning that “[l]isting under the ESA would make it
impossible for U.S. citizens to import sport-hunted polar bear
trophies into the United States, at least without the adoption
of special rules and permits to allow such imports.” Thus, the
Safari Club “should have anticipated”—and did in fact
anticipate—“the agency’s final course in light of the initial
notice,” rendering the final rule a “logical outgrowth of its
notice.” Covad Communications Co. v. FCC, 450 F.3d 528,
548 (D.C. Cir. 2006) (internal quotation marks omitted).
III.
For the foregoing reasons, we affirm.
So ordered.