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Safari Club International v. Zinke

United States Court of Appeals, District of Columbia Circuit

December 22, 2017

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

          Argued October 13, 2017

         Appeals 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.

          Avi 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.

          Tanya 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.



         By 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.

         Safari 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.

         Appellants 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.

         I. Background

         A. Statutory and Regulatory Background

         1. The CITES Treaty

         The 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. § 17.11.

         As 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.

         Appendix 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.

         For 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).

         It is 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.

         2. The Endangered Species Act

         Congress 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).

         For 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).

         Since 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.

         The 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 Register." Id.

         Finally, 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).

         3. The Enhancement Findings

         In 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.

         Those 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.

         The 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 ...

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