United States Court of Appeals, District of Columbia Circuit
Safari Club International and National Rifle Association of America, Appellants
Ryan Zinke, In His Official Capacity as Secretary of the U.S. Department of the Interior, et al., Appellees
October 13, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01026) (No. 1:14-cv-00670)
Douglas S. Burdin argued the cause for appellants. With him
on the briefs were Anna M. Seidman, Christopher A. Conte, and
Michael T. Jean. Jeremy E. Clare entered an appearance.
Kupfer, Attorney, U.S. Department of Justice, argued the
cause for federal appellees. With him on the brief were
Jeffrey H. Wood, Acting Assistant Attorney General, and
Andrew C. Mergen, and Matthew Littleton, Attorneys.
Michael Ray Harris and Jennifer E. Best were on the brief for
appellees Friends of Animals, et al. Courtney R. McVean
entered an appearance.
Sanerib, Sarah Uhlemann, and Anna Frostic were on the brief
for amici curiae The Humane Society of the United States, et
al. in support of defendants-appellees.
Before: Garland, Chief Judge, Tatel, Circuit Judge, and
Edwards, Senior Circuit Judge.
EDWARDS, SENIOR CIRCUIT JUDGE
regulation issued pursuant to the Endangered Species Act
("ESA"), sport-hunted African elephant trophies may
only be imported into the United States if, among other
things, the U.S. Fish and Wildlife Service
("Service") makes "[a] determination . . .
that the killing of the trophy animal will enhance the
survival of the species." 50 C.F.R. §
17.40(e)(6)(i)(B) ("Special Rule"). On April 4,
2014, the Service issued a press release stating that the
agency lacked sufficient information to support a positive
enhancement determination with respect to elephant trophies
hunted in Zimbabwe during the 2014 hunting season. The
finding, which was subsequently published in the Federal
Register, banned the importation of such trophies going
forward from the date of the finding. The Service also made
negative enhancement findings in July of 2014 and March of
2015, each time concluding that information concerning the
size of the Zimbabwean elephant population and status of
conservation efforts in Zimbabwe did not support a conclusion
that killing the animal "will enhance the survival of
the species." Id.
Club International ("Safari Club") and the National
Rifle Association ("NRA") (collectively,
"Appellants") filed suit in District Court to
challenge the 2014 and 2015 findings. Appellants claimed that
the agency's actions were arbitrary and capricious under
the Administrative Procedure Act ("APA") and
violated the ESA because, inter alia, in its
determinations to ban the elephant imports, the Service
impermissibly relied on standards that are more stringent
than the statutory requirements in the ESA. The District
Court denied Appellants' motion for summary judgment on
these claims and granted judgment for the Service. For the
reasons explained below, we affirm judgment for the Service
on these claims.
also contended that the Service erred in adopting the 2014
and 2015 enhancement findings without adhering to the
notice-and-comment rule-making requirements of the APA.
See 5 U.S.C. § 553. The District Court rejected
this claim on the ground that the enhancement findings were
the product of adjudications and, therefore, not covered by
the APA's rule-making requirements. The District Court
erred on this point. Under the APA, a "rule" is
"the whole or a part of an agency statement of general
or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy."
Id. § 551(4). And as the Supreme Court has
explained, rule-making procedures are "used in the
formulation of a basically legislative-type judgment, for
prospective application only, rather than in adjudicating a
particular set of disputed facts." United States v.
Fl. E. Coast Ry. Co., 410 U.S. 224, 246 (1973). The
enhancement findings in this case fit these definitions of
"rule" to a tee. Therefore, the Service erred in
adopting the findings without first following the
notice-and-comment rule-making requirements of the APA.
Accordingly, we reverse the District Court's grant of
summary judgment in favor of the Service on the § 553
claim. The case will be remanded to the District Court with
instructions to remand to the Service so that it may initiate
rule making to address enhancement findings for the time
periods at issue in this case.
Statutory and Regulatory Background
The CITES Treaty
United States and Zimbabwe are parties to the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, Mar. 3, 1973, 27 U.S.T. 1087 ("CITES" or
"Convention"). See 16 U.S.C. §
1538(c)(1) (incorporating the Convention into U.S. domestic
law through the ESA). The Convention regulates the
international trade of imperiled species that are listed in
its appendices, which include African elephants, or
Loxodonta africana, from Zimbabwe. See,
e.g., id. §§ 1537a-1539; 50 C.F.R.
relevant here, Appendix I lists species that are
"threatened with extinction which are or may be affected
by trade, " CITES art. II(1), 27 U.S.T. at 1092, and
Appendix II lists species that may become threatened with
extinction unless their trade is regulated, id. art.
II(2), 27 U.S.T. at 1092. Parties to the Convention may not
allow trade in species listed in the appendices except in
accordance with the treaty's provisions. Id.
art. II(4), 27 U.S.T. at 1092.
I species may be shipped internationally only if both the
importing and exporting countries grant permits, which are
subject to certain conditions. Id. art. III, 27
U.S.T. at 1093-95. Among the requirements for a permit to
issue, both countries must make a "non-detriment"
finding, certifying that the trade in threatened species
"will not be detrimental to the survival of that
species." Id. art. III(2)(a), 27 U.S.T. at
1093; id. art. III(3)(a), 27 U.S.T. at 1093. Until
1994, the Convention also required an importing country to
make an "enhancement finding, " a determination
that "the killing of the animal . . . would enhance the
survival of the species." Retention of Threatened Status
for the Continental Population of the African Elephant, 57
Fed. Reg. 35, 473, 35, 485 (Aug. 10, 1992). The parties to
the Convention removed the enhancement finding requirement
from the treaty by resolution in 1994.
Appendix II species, the Convention requires a permit from
the exporting country only. CITES art. IV, 27 U.S.T. at
1095-97. While subject to the non-detriment finding
requirement, permits for Appendix II species have never been
conditioned on the exporting country making an enhancement
finding. In 1997, over opposition from the United States, the
parties to the Convention transferred African elephants in
Zimbabwe from Appendix I to Appendix II. Changes in List of
Species in Appendices to the [CITES], 62 Fed. Reg. 44, 627,
44, 628-29 (Aug. 22, 1997).
undisputed that the proscriptions in the Convention are a
floor, not a ceiling, for protection of Appendix II species.
The treaty "in no way affect[s] the right of Parties to
adopt . . . stricter domestic measures regarding the
conditions for trade, taking possession or transport of
specimens of species included in Appendices I, II, and III,
or the complete prohibition thereof." CITES art. XIV(1),
27 U.S.T. at 1108.
The Endangered Species Act
passed the Endangered Species Act ("ESA"), 16
U.S.C. §§ 1531-44 (2000), to provide for the
conservation of "endangered" and
"threatened" species, id. § 1531(b);
see id. § 1532(6) (defining "endangered
species" as "any species which is in danger of
extinction throughout all or a significant portion of its
range"); id. § 1532(20) (defining
"threatened species" as "any species which is
likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its
range"). Except in narrow circumstances, the Act
generally prohibits the importation of endangered
species into the United States. Id. §
1538(a)(1)(A); 50 C.F.R. § 17.21(b).
threatened species, section 4(d) requires the Service to
"issue such regulations as [it] deems necessary and
advisable to provide for the[ir] conservation." 16
U.S.C. § 1533(d). Pursuant to this authority, the
Service has promulgated a regulation extending the general
import prohibition on endangered species to threatened
species. See 50 C.F.R. § 17.31(a). The Service
reserved the right, however, to create "special
rule[s]" regarding threatened species, which
"contain all the applicable prohibitions and
exceptions" regarding import of that species.
Id. § 17.31(c). In other words, "the
[Service] has, with this regulation, established a regime in
which the prohibitions established for endangered species are
extended automatically to all threatened species by a blanket
rule and then withdrawn as appropriate, by special rule for
particular species and by permit in particular
situations." Sweet Home Chapter of Cmtys. for a
Great Or. v. Babbitt, 1 F.3d 1, 5 (D.C. Cir. 1993).
1978, the Service has listed the African elephant as a
threatened species under the ESA, see Listing of the
African Elephant as a Threatened Species, 43 Fed. Reg. 20,
499, 20, 503 (May 12, 1978); 50 C.F.R. § 17.11(h), and
maintained a Special Rule governing its importation,
see 50 C.F.R. § 17.40(e) ("Special
Rule"). In 1992, the Service added a provision to the
Special Rule providing that sport-hunted African elephant
trophies may only be imported into the United States under
certain conditions, including that the Service must make
"[a] determination . . . that the killing of the trophy
animal will enhance the survival of the species."
Id. § 17.40(e)(6)(i)(B). This means that, in
the United States, the enhancement finding requirement
continues to apply in accordance with the Special Rule under
the ESA. The 1994 removal of the enhancement finding
requirement from the Convention for the issuance of import
permits for Appendix I species "d[id] not supersede
import or export requirements pursuant to [the ESA]." 62
Fed. Reg. at 44, 633.
Service maintains the right to make nation-wide enhancement
findings sua sponte, "on a periodic basis upon
receipt of new information on the species' population or
management." Id. Current findings "remain
in effect until the Service finds, based on new information,
that the conditions of the special rule are no longer met and
has published a notice of any change in the Federal
section 9(c)(2) of the ESA provides that "[a]ny
importation into the United States" of non-endangered,
Appendix II species such as Zimbabwean elephants "shall,
" where certain conditions are satisfied, "be
presumed to be an importation not in violation of any
provision of [the ESA] or any regulation issued pursuant to
[the ESA]." 16 U.S.C. § 1538(c)(2).
The Enhancement Findings
1997, the Service made a positive enhancement finding for
sport hunting of African elephants in Zimbabwe. Memorandum,
Enhancement Finding for African Elephants Taken as
Sport-hunted Trophies in Zimbabwe, U.S. Fish and Wildlife
Service (July 2, 1997), reproduced at Joint Appendix
("J.A.") 373-76. The Service explained that
revenues generated by sport hunting benefited rural
communities and elephant conservation programs in Zimbabwe.
In addition, Zimbabwe's government had in place
conservation and anti-poaching programs to protect the
elephants. And "one of the best sets of elephant
population data in Africa" indicated that Zimbabwe's
elephant population was growing at "about 5% per annum,
" from 46, 000 elephants in 1980 to 66, 000 in 1997.
J.A. 373-74. Thus, "[b]ased on available information,
" the Service found that "the import of
sport-hunted elephant trophies from Zimbabwe enhances the
survival of the species." J.A. 373.
findings remained in effect until April 4, 2014, when the
Service made an interim negative enhancement finding and
suspended the importation of sport-hunted elephant trophies
from Zimbabwe. Memorandum, Enhancement Finding for African
Elephants Taken as Sport-hunted Trophies in Zimbabwe during
2014, U.S. Fish and Wildlife Service (Apr. 17, 2014),
reproduced at J.A. 496-501. The Service noted that
publicly available survey information suggested that
"the elephant population in Zimbabwe has declined from
84, 416 elephants in 2007 to 47, 366 elephants in 2012."
J.A. 500. But the Service explained that "[t]he most
significant aspect of [its] analysis is the lack of recent
data on what is occurring in Zimbabwe." J.A. 501. The
Service had not received any information in writing from the
Zimbabwean Government since 2007, when it had received three
undated and unsigned papers that relied on dated information.
And the Service had gained little new information from the
occasional meetings it had with Zimbabwean officials since
2007. Lacking current data from the Zimbabwean government
regarding its conservation programs and the status of the
elephant population, the Service determined that it was not
possible "to make a positive finding that sport-hunting
is enhancing the survival of the species." Id.
It therefore temporarily banned imports of sport-hunted
trophies of elephants from Zimbabwe until better information
could be obtained from the Zimbabwean government, and sent a
letter to authorities in Zimbabwe requesting more
information. J.A. 468-69.
Service announced the negative enhancement finding in a press
release on its website on April 4, 2014, but did not publish
notice of the finding in the Federal Register until May 12,
2014. Interim Suspension of Imports of Elephant Trophies from
Zimbabwe, 79 Fed. Reg. 26, 986 (May 12, 2014). Without
expressly inviting public comment, the notice stated that the
Service was "actively pursuing additional
information" from Zimbabwe ...