UNITED STATES I)ISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)

FRIENDS OF ANIMALS, ) '
et al., )
)
Plaintiffs, )
)

v. ) Case No. 17-cv-2530-RCL
)
RYAN ZINKE, in his official capacity as )
Secretary of the United States Departnient of )
lnterior, et al., )
)
Defendants, )
)
and )
)
SAFARI CLUB INTERNATIONAL, et al., )
)
Defendant~lntervenors )
)
MEMORANDUM OPINION

 

in Fall 2017, the U.S Fish and Wildlife Service (the “Service”) issued a new finding with
respect to African elephants in Zirnbabwe, detennining that the permitted hunting of these
elephants Will enhance the survival of the species, and thus paving the Way for the impoltation of
sport-hunted elephant trophies into the United States. After the D,C. Circnit struck down two
earlier country~Wide enhancement findings since the Service did not subject them to the public
notice and comment required by the Adlninistrative Procedure Act (“APA”), see Safari Club [nt’l'
v. Zr'nke, 878 F.3d 316, 331~»35 (D.C. Cir. 201'7) (“Safari Club H”), the Seivice withdrew a slew
of other findings not subject to notice and connnent, including the 2017 Zimbabwe elephant
findings Moving forward, the Sewice announced that it would no longer make these findings on

a conntry-Wide basis, instead choosing to make its findings on a case-by-case basis upon

application to import a sport-limited trophy.

Two organizations Friends of Aninials (“FoA"’) and the Zinibabwe Conseivation Task

 

Force (“ZCTF"’)_bring a five-count complaint challenging the actions of the government Second
Ani. Coinpl., ECF No. 35. Upon inotion, Safai'i Ciub Interiiationai and the Nationai Rifle
Association of Ainerica were permitted to intervene as defendants (tlie “intervenor-defendants"').
Order, ECF No. 26. ln claims one and two, plaintiffs challenge the now-withdrawn 2017
Ziinbabwe elephant findings Second Ain. Compl. W 132-147. lii their third cause of action,
plaintiffs allege that the Sei"vice violated the APA by withdrawing the various enhancement and
noii~deti'iment findings without soliciting public notice and comment Id. 111 148-54. In claiin
fonr, plaintiffs argue that the Sei'vice violated the APA by withdrawing prior negative
enhancement findings without following an alleged publication requirement Id. M 155-60. And
in piaintiffs’ fifth cause of actionJ plaintiffs argue that the Service exceeded its statutory authority
by creating a policy whereby enhancement findings would be made on a case-by-case basis. Id.
‘[H[ 161-65.

Now, both the government and the inteivenor-defendants move to dismiss the complaint
in its entirety. See Federal Defs." l\/lot. Dismiss, ECF No. 38', Inteiyenor-Defendants’ Mot.
Disiniss, ECF No. 39. For the reasons set foitli herein, those motions will be GRANTED.

I. BACKGROUND

A. The Convention on International Trade in Endangered Species of Wild Fauna
and Ffora and the Endangered S{)ecies Act

Iinpoitation into the United States of threatened species such as African elepliaiits is
governed by international convention and U.S. law.
The Convention on international Trade in Endangered Species of Wiid Fauna and Floi'a

(“CITES”), Mar. 3, 19737 27 U.S.T. iOS’/’, is a niuitiiateral treaty to which both the United States

l\.)

and Ziinbabwe are parties. See 16 U.S.C. § l538(c)(l) (incorporating CITES into U.S. domestic
law through the Endangered Species Act). CITES regulates the international trade of protected
plants and wildlife by estabiishing requirements for importing and exporting covered species
categorized into three appendices based on the level of protection each requires See id. §§ 153 7a-
1539. Signatories to CITES, including the United States and Zinibabwe, agree that they “shail not
allow trade in specimens of species included in Appendices l, ll and lll except in accordance with
the provisions of’ the treaty. CITES, art. il.d.

Elephants in Zimbabwe were listed on Appendix l until 1997 and now are listed on
Appendix ll. Changes in List of Species in Appendices to the {CITES], 62 Fed. Reg. 44,627,
44,628-29 (Aug. 22, 1997). While Appendix l lists species “threatened with extinction which are
or may be affected by trade,” ClTES, ait. ll(l), Appendix ll includes species that are not
necessarily currently threatened but that may become threatened with extinction unless trade of
specimens of such species is regulated Id. art. il(2). Under CITES, a species listed on Appendix
il may be traded if the expoiting countries issue expoit permits Id. art. lV. ln issuing perinits,
the exporting country must make certain findings, including that the specimen was legally
acquired, and that trade of the specimen will not be detrimental to the survival of the species (a
non~detriinent finding). Id. art. lV.2(a)-(b).

“lt is undisputed that the proscriptions in [CITES] are a floor, not a ceiling, for protection
oprpendix ll species.” Scifm'i Clirb H, 878 F.3d at 321 (D.C. Cir. 2017). lii fact, the treaty makes
clear that it “in no way affect[s] the right of Pai'ties to adopt . . . stricter domestic measures
regarding the conditions for trade, taking possession or transpoit of specimens of species included

in Appendices l, ll, and ll, or the complete prohibition tliei'eof.” ClTES, art. XlV(l).

To that end, Congress passed the Endangered Species Act (“ESA”) to provide for the
conservation of “endangered"" and “tlireatened"' species 16 U.S.C. § 1531(b). Described as “tlie
most comprehensive legislation for the presentation of endangered species ever enacted by any
nation,"’ Tennessee Valley Airf'hori'ty v. Hi'l[, 437 U.S. 153, 180 (1978), the ESA not only
implements Cl'l`ES into U.S law but also provides federal protection to species listed as
endangered or threatened pursuant to its provisions See 16 U.S.C. §§ 1533(d), l538(a).
Fui'therinore, the listing of a species as endangered or threatened does not depend on whether or
how it is categorized under ClTES. See fd. § 1533(a)(1)(A).

While the ESA generally forbids the importation of endangered species into the United
States, id. § 1538(a)(i)(A); 50 C.F`R. § l7.21(b)5 the Act empowers the Seivice to issue regulations
pertaining to threatened species “deem[ed] necessary and advisable to provide for the conservation
of such species."’ 16 U.S.C. § 1533(d). 'i`he Service “inay by regulation prohibit with respect to
any threatened species [ofwildlif`e] any act prohibited under 16 U.S.C. § 1538(a)(1)."" Id. Pursuant
to this authority, the Seivice has issued a regulation that extends the ESA’s prohibitions on
endangered species to all threatened species unless the Sei"vice has issued a special rule to govern
a particular speciesl 50 C.F.R. §§ 17.31(a), (c); see also Sweef Home Chaprer of leys. for a
Great Or. v. Babbi`n‘, 1 F.3d t, 5 (D.C. Cir. 1993).

B. Factual and Procedural Background

Since the African elephant (Loxodonta Afi‘i'cclna) has been listed as a threatened species
under the ESA, 50 C.F.R. § 17.1l(h), it has been the subject of a special species-specific rule for
importatioii. See id. § 17.40(e) (current rule).

ln 1997, the ruie provided for a limited exception for the importation of African elephant
ti'ophies into the United States from Zimbabwe and other countries, provided five conditions were

met, including that “a determination [was] made that the killing of the animal whose trophy is

4

intended for import would enhance suivival of the species."' 50 C.F.R. § 17.40(e) (1992) (the
“1997 Special Rule”). Under this rule, the Seivice made positive enhancement findings in l997
for importation of sport~hunted elephant trophies on a country-wide basis for Botswana, Naniibia,
and Ziinbabwe. Secoiid Am. Compl. 11 74, ECF No. 35. That same year, in the proposed rule
announcing the transfer of African elepliaiits from CITES Appendix l to Appendix ll, the agency
wrote the following about enhancement findings:

Tlie Seivice will make such findings on a periodic basis upon receipt of new

information on the species' population or management The enhancement findings

for inipoitation of sport-limited elephant trophies from Botswana, Namibia, and

Zirnbabwe are on file in the Of`fice of i\/lanageinent Autliority and remain in effect

until the Seivice finds, based on new information, that the conditions of the special

rule are no longer met and has pubiished a notice of any change in the Federal

Register.

62 Fed. Reg. 44,627-01, 44,633 (the “1997 Pi'oposed Rule”).

The 1997 finding that the killing of African elephants in Zimbabwe whose trophies were
intended for import would enhance survival of the species remained in effect until 2014. Second
Am. Compi. il 83. ln Aprii of that year, the Service announced an interim suspension of the
importation of elephant trophies from Z_imbabwe, citing insufficient information to make a positive
enhancement finding See 79 lied Reg. 26,986-01. Notice of that decision was not published in
the Federal Register until May 12, 2014. Id. Because the 1997 Proposed Ruie required the
publication of` notice, this Court held that the suspension did not actually go into effect until l\/lay
12, 2014. Safari` Club v. Jewell, 213 F. Supp. 3d 48, 73 (D.D.C. 2016) (Safari' Club l). Tliat
holding was not appealed

ln July 2014, the Service made a final determination that the import of sport-hunted African
elephant trophies taken in Zimbabwe would be suspended, as the Service was “unable to determine

that the killing of the animal . . . Would enhance the survival of the species in the wild.” 79 lied

Reg. 44459-01. ln 2015, the Service reaffirmed this decision, continuing its effect indefinitely
80 Fed. Reg. 42524-03.

Tlie 2014 and 2015 findings were all made under the 1997 Special Rule. Second Ani.
Conipl. 11 73. In 2016, the 1997 Special Rule for the importation of sport-limited Afi‘ican elephant
trophies was amended to increase protections for elephants. 81 Fed. Reg. 36,388 (the “2016
Amendments”). The rule left in place the requirement “that the killing of the trophy animal will
enhance the suivival of the species, ” while adding that the trophy must be “accoinpanied by a
threatened species permit under 50 C.F.R. § 17.32.” 50 C.F.R. § 17.40(e)(6).

i`he inteiveiioi‘~defeiidaiits challenged the 2014 and 2015 elephant findings in a case before
this Court. Sq]fc:ri' Cli:b lirt’[ v. Jewell, Case No. 1:14~cv-670-RCL. Although this Court upheld
the 2014 and 2015 elephant findings, see Squ'i Cli:b I, F. Supp. at 81 (D.D.C. 2016), the D.C.
Circuit held that the findings were legislative rules that the Service failed to subject to public notice
and comment under the APA. Safuri Club H, 878 F.3d at 333. lt therefore ordered this Couit to
remand the case to the Service so that it could initiate proper rulemaking to address enhancement
findings for the relevant time periods Id. at 336.

Prior to the D.C. Circuit’s opinion, the Service issued the new enhancement finding at issue
in this case. On November 16, 2017, the Service concluded that hunting elepliants in Zimbabwe
enhances the survival of the species, opening the door for the importation of elephant trophies
hunted in 2016, 20i7, and 2018. See 82 lied Reg. 54,405. Additionally, the Service stated that
because the 2016 Ainendments require that “all imports will be accompanied by a threatened
species permit evaluated through the ESA permit application process found at 50 C.F.R. §
17.32(a), lit would] no longer publish notice of changed enhancement findings for African

elephant spoit-hunted trophies in the Federal Register.” Id.

On November 22, 2017, plaintiffs filed this suit, asserting (1) that the Service failed to
provide notice and the opportunity to comment before making the country-wide findings; and (2)
that the Service failed to act iii accordance with the APA and the ESA . See generally Compl.,
ECF No. 1. .lust before the D.C. Cii'cuit‘s opinion in Sofor:' Cliib H, plaintiffs added a cause action
challenging import permits granted under the 2017 findings See Arn. Compl., ECF No. 6. Then,
the D.C. Circuit issued its opinion regarding the 2014 and 2015 elephant findings in Deceinber
2017. Safcrrr` Club H, 878 P.3d 316.

ln response to that opinion, the Principal Deputy Director of the Service signed a
memorandum on l\/larch 1, 2018, (the “Mai'ch Menio"’) announcing the withdrawal of the 2014 and
2015 Ziinbabwe elephant findings in response to the D.C. Circuit’s opinion in Scifcrri' Club H.
Second Am. Compl. 11 123; lntei'venor-Defendants" Mot. Dismiss Ex. 1, ECF No. 42-1.l
°‘Consistent with this approach,” the Service also withdrew the positive 2017 Zimbabwe elephant
enhancement finding challenged in this case, along with various country-wide enhancement and
non~detrinrent findings Intervenor-Defendants’ Mot. Disiniss Ex. 1; Second Ain. Coinpl. il 123.
l\/loreover, the l\/larch l\/leino announced that “[a]t this time, when the Service processes [perinit
application for the importation of sport-hunted trophies of these species], the Service intends to do

so on an individual basis, including making ESA enhancement determinations, and ClTES non-

 

‘ The Court will consider the March Memo in conjunction with this motion. Defendants move to dismiss the case
both for lack of jurisdiction under Rule 12(1))(1) and for failure to state a claim under Ruie 12(b)(6). Wlien
considering a motion to dismiss for lack ot`jurisdiction, the court “is not limited .to the allegations of the complaint.”
Hohri v. Um`tecr' Sm!es, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other groimds, 482 U.S. 64 (1987). Foi‘
12(b)(6) motions, “where a document is referred to in the complaint and is central to plaintiffs claini, such a
document attached to the motion papers may be considered without converting the motion to one for summary
judgment.” Vai-ioiier v. Haiilmon, 77 F.Supp.Zd 91, 98 (D.D.C.1999) (citing Gi'eenbergv. Tlie Lr'fe Iiisiri'mice
Compaiiy of Va., 177 F.3d 507, 514 (Gth Cir.1999)); see also Correc ]mhislri'es, I)1c. v. .S‘zuir Hol'di"ng L.P., 949 F.2d
42, 48 (2d Cii'.1991) (holding that district court may consider stock purchase agreement, offering memorandum, and
warrant, on a motion to dismiss, even when these materials were not attached to complaint). l-lere, the March
Memo is properly considered because it is central to the plaintiffs’ claims, and the complaint even quotes directly
from it. Sec Second Am. Compl. ‘§ 127

detriment determinations when required for each application."' Intervenor-Defendants’ Mot.
Dismiss Ex. l. In other words, the Service announced an intention “to grant or deny permits to
import a sport-hunted trophy on a case-by-case basis."‘ ld. However, the l\)larch Merno makes
clear that the Service intends to use the information cited in the 2017 Ziinbabwe lion and elephant
findings and other withdrawn findings “as appropriate, in addition to the information it receives
and has available when it receives each applicatioii, to evaluate individual permit applications.”
ld.; Second Arn. Coinpl. ‘ll 127.

ln response to the l\/lar'ch Memo, plaintiffs amended the complaint to remove the count
related to individual permits and to add three new counts: (1) a claim challenging the Service’s
failure to employ notice-and-comment rulemaking to withdraw all previous country-wide
enhancement findings; (2) a claim that the Service failed to follow the 1997 Special Rule’s notice
requirement before withdrawing the rules; and (3`) a claim that the Service violated the APA by
changing to a case-by~case approach for making enhancement and non~detriment findings is in
excess Of statutory authority and in violation of the APA. ld. jill 148-65. Both the government
and the defendant-inteivenors move to dismiss the Second Amended Complaint in its entirety,
challenging some claims under Rule 12(b)(1), some claims under 12(b)(6), and some claims under
both.
II. LEGAL STANDARD

ln evaluating a motion to dismiss under either Rule 12(b)(l) or l?.(b)(6), the Cour't must
“treat the cornplaint's factual allegations as true . . . and must grant plaintiff ‘thebenefit of all
inferences that can be derived from the facts alleged.”’ Sporrow v. Um'led Ai`r Li`iies, liic., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schirler v. Ui'n'ted States, 617 F.2d 605, 608 (D.C. Cir.

l979) (citations omitted)); see also Am_ Ncit'l lus. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.

2011). Nevertheless, the Couit need not accept inferences drawn by the plaintiff if those inferences
are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiffs legal
Conclusions. Bi‘oi-vm`ug v. Cli`mou, 292 F.3d 23 5, 242 (D.C. Cir. 2002).

A. Subject Matter Jurisdiction

Under Rule l2(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence See Lujmi v. Defenders of Wifdlr'fe, 504 U.S. 555, 561 (1992);
Shekoycni v. Sfbley 111!'1 Corp. , 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of
limited jurisdiction and the law presumes that “a cause lies outside this limited jui‘isdiction."'
Kokkonen v. Gzrardr`au Lr`fe IH'S_. CO. of/_tm., 511 U.S. 375, 377 (1994); See also Ger.'. M'ofors Corp.
v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court of limited jurisdiction, we begin, and end7
with an examination of our jurisdiction.”). “fB]ecause subject-matter jurisdiction is ‘an Art[icle]
III as well as a statutory requirement . . . no action of the parties can confer subject-matter
jurisdiction upon a federal court.”’ Aki`nseye v. Di.'strr`ct ofColum.bia, 339 F.3d 970, 971 (D.C. Cir.
2003) (quoting II?S. Col‘p. of[r'., Ll'a'. v. Compagm`e des chxites de Guiiiee, 456 U.S. 694, 702
(1982)).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a
motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”
Ho)'irr', 782 F.2d at 241. Rather, “a court may consider such materials outside the pleadings as it
deems appropriate to resolve the question [ofj whether it has jurisdiction to hear the case.” Scolaro
v. D.C. Bd. ofElecIious & Erhi`cs, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herberl v. Naz"l
Acad. ofSci'S., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharm., ]nc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005).

B. Failure to State a Claim

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint nrust contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”" As!icrofi v. Iql)ul,
556 U.S. 662, 678 (2009) (quoting Bell/_[Il. Coiy). v. Twombly, 550 U.S. 544, 570 (2007)). A claim
is facially plausible when the pleaded factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ia'. at 678. r“l`he plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 566). A pleading must offer
more than ""labels and conclusions”’ or a “‘formulaic recitation of the elements of a cause of
action,”’ id. (quoting Twombly, 550 U.S. at 5 55), and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice."’ Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed
liberally in the plaintiffs favor, and the Court should grant the plaintiff "'tl're benefit of all inferences
that can be derived from the facts alleged.” Kowal v. AJCI Commc'ns Corp., l6 F.3d 1271, 1276
(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs
legal conclusions See id.; see also Br'Ou»'ni!'.rg v. Cf:`nlon, 292 F.3d 235, 242 (D.C. Cir. 2002).

C. APA Notice-and-Comment Rule Making

Under the APA, when an agency proposes to promulgate a rule, it must follow the
procedures set out in 5 U.S.C. § 553. Among other tlrings, the statute requires the agency to publish
a notice “of proposed rule making” in the Federal Register. fd. § 553(b). Then, it must “give
interested persons an opportunity to participate in the rule making through submission” of

cornments, which the agency must consider. [d. § 553(d).

10

III. ANALYSIS
A. Plaintiffs’ challenges to the 2017 finding are moot.

ln their first two causes of actiori, plaintiffs specifically challenge the 2017 elephant
tinding, claiming it was issued arbitrarily and capriciously or otherwise not in accordance with law
because: (1) the Service failed to solicit public notice and cominent; (2) the Service failed to
provide a reasoned explanation for altering the status of elephants in Zinibabwe set forth in the
2014 and 2015 findings; and (3) the Service failed to adequately consider relevant criteria set forth
in the ESA. Second Am. Compl. M 132-147. Plaintiffs ask this Couit to declare that the 2017
finding violates the APA and the ESA, to set aside the 2017 enhancement finding, and to enjoin
the Service from issuing any permits pursuant to that findings ]d. at 28_29. But the positive 2017
finding was withdrawn by the March l\/leino.

Under Aiticle lil, the “judicial power” extends only to “Cases’° and “Conti'oversies.” U.S.
Const. art. lll, s 2. “'l`o qualify as a case tit for federal-court adjudication, an actual controversy
must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonoiisfor
Ojj?ci'ol Engli`sh v. Ari`zouo, 520 U.S. 43, 67 (l997) (citations and internal quotation marks
omitted). And “no justiciable controversy is presented . . . when the parties are asking for an
advisory opinion, [or] when the question sought to be adjudicated has been mooted by subsequent
developinents."" F)'crst v_ Co/ien, 392 U.S. 83, 95 (1968). A “case is moot when the issues presented
are no loirger ‘1ive’ or the parties lack a legally cognizable interest in the outcorne.” Powell v.
McCornmck, 395 U.S. 486, 496 (1969). “Corrective action by an agency is one type of subsequent
development that can moot a previously justiciable issue.” Nat. Res. Def. Counci`l, Im:. v. U.S.

Nucleur Regi:laroiy Comm ’n, 680 F.2d 810, 814 (D.C. Cir. 1982).

11

Here, the challenged findings are no longer in effect 'l`lie Court, therefore, can provide the
plaintiffs with no meaningful relief. The fact that they seek declaratory reliefmin addition to
injunctive relief_does not change the analysis “_The Article lIl case or controversy requirement
is as applicable to declaratory judgments as it is to other forms of relief."’ Conyers v. Reogan, 765
F.2d ll24, 1127 (D.C. Cir. 1985).

The Court cannot set aside findings that have already been withdrawn And to declare that
the withdrawn findings violate the APA or ESA for the purpose of instructing the Service how to
approach future findings amounts to an advisory opinioir. Federal courts “are riot `iri the business
of pronouncing that past actions which have no demonstrable continuing effect were right or
wrong.” Spencer v. Kcriino, 523 U.S. 1, 18 (1998).

Plaintiffs argue that claims one and two fall under the capable-of-repetition-yet-evading-
review exception to the mootness doctrine. A case is capable of repetition and yet evades review
when “(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."’ Clarke v. United Smres, 915 F.2d 699, 704 (D.C. Cir. 1990).
Plaintiffs argue that this exception applies to our case because the Service stated it will use the
information from the withdrawn findings as appropriate to evaluate individual permit applications
Pls.’ Opp. l\/lot. Dismiss 18, ECF No. 47.

Tlre Court is not persuaded Whether or not the Service relies on the same information to
make its individual enhancement determinations does not give the withdrawn country-wide
findings any operational effect in and of themselves lnstead, the proper vehicle to challenge the
Service’s methods in coming to an enhancement finding is to challenge the new enhancement

determinations themselves_findings that affect the ability to import a sport-hunted trophy. ln

other words, these new enhancement findings do not create a live controversy over the withdrawn
ones_

Furthermore, plaintiffs do not-and could not~»-»argue that were the Service to issue a
counti 7-wide enhancement finding like the one challenged in this case that it would evade review.
After all, the D.C. Circuit effectively reviewed the 20l4 and 2015 enhancement findings in Safc.'ri`
Clz:b H. And plaintiffs cannot keep their claims alive on the basis that future litigation challenging
the issuance of specific imports permit might evade review. If the concern is that those individual
adjudication decisions are too short in duration to be fully litigated, the capable-of-repetitioii-yet-
evading~review exception can be applied in that context.

'l`he voluntary cessation doctrine is equally inapplicable The idea behind the exception is
that a “defendant’s voluntary cessation of a challenged practice does not deprive a federal court of
its power to determine the legality of the practice.” Fri'ends ofEm‘Ih v. Lar'dlm»v, 528 U.S. 167,
189 (2000) (internal citations omitted). Here, the 2017 finding suffered from the same procedural
deficiencies as the 2014 and 2015 findings from Sufm'i' Clal') H: 'l`he Service failed to employ
notice-and-comment rulemaking in enacting what amounted to a legislative rule. See Sqfari Club
H, 878 F.3d at 333. So, the withdrawal of the 2017 finding was not a voluntary cessation but rather
a corrective action by the Service. And “[c]orrective action by an agency is one type of subsequent
development that can moot a previously justiciable issue.” Nor. Res. Def Coimci`l, 680 F.2d at
814. This is “more accurately characterized as the provision of appropriate relief to petitioner than
as the ‘cessation of illegal conduct.”’ Id. at 814 n.8.

Because claims one and two challenge the withdrawn 2017 country-wide elephant finding,
there is no live controversy Moreover, rio mootness exception applies The Court lacks

jurisdiction to hear these claims, and they must be DISMISSED_

13

B. Plaintiffs’ challenge to the March Memo’s rescission of prior enhancement
and non-detriment findings must be dismissed either for lack of standing or
because of collateral estoppel.

Iii its third cause of action, plaintiffs allege the Service violated the APA by rescinding
prior enhancement and non-detriirient findings in the March Menio without public notice and
comment Secoiid Am. Coiiipl. 1111 148-54. This claim greatly broadened the scope of this action:
plaintiffs challenge not only the rescission of prior Zimbabwe elephant findings but rather the
withdrawal of “all previous countrywide enhancement findings” in the l\/larch 1\/lemo.2 See id. il
149; Pls.’ Opp. Mot. Dismiss 41. These included findings from rirany countries involving lions
and hontebok in addition to elephants. Federal Defendants’ l\/lot. Disniiss l5-~l6. Tliey included
both positive enhancement findings (such as the 2017 Zirnbabwe findings), paving the way for the
importation of sport-hunted elephant trophies, and negative enhancement findings (such as the
2015 Zimbabwe elephant findings), prohibiting the importation of such trophies Second Am.
Compl. 11 l23; lnterveiior-Defendants’ Mot. Dismiss EX. 1. For the reasons stated below, plaintiffs
lack standing to maintain a challenge to the rescission of any positive enhancement findings or any
non-elephant or non-Zimbabwe findings And although plaintiffs may sufficiently allege facts
supporting standing to challenge the withdrawal of some of the negative findings prohibiting
trophy imports plaintiffs are collaterally estopped from bringing those claims So, plaintiffs’ third

cause of action will be DISMISSED.

 

2 In addition to the 2017 elephant findings the March Memo withdrew the following enhancement findings 1997,
2014, and 2015 findings for elephants in Zinibabwe; l997, 2014, and 2015 findings for elephants in Tanzania; a 1995
finding for elephants in South Africa; a 1997 finding for bontebok taken in South Africa; 2016 and 2017 findings for
lions in Soutii Africa; a 1997 finding for elephants in Botswana; a 1995 finding for elephants in Namibia; a 2012
finding for elephants in Zambia; a 2017 finding for lions in Zambia; and the 2017 finding for elephants in Zambia.
lntervenor-Defendants’ Mot. Dismiss Ex. l, ECF No. 42»1. Additionally, the Service withdrew the following CITES
non-detriment findings: 2014, 20l5, and 2017 finding for elephants in Tanzania; and 2017 finding for elephants in
Zambia. ]d

14

i. Plainiijjfs lack slanding fo challenge the withdrawal of positive
enhancement findings or any non-elephant ar non-Zinibabwe negative
findings

ln order to bring suit, litigants must establish Article lll standing Cn'. for Law & Ea'ae. v.

Dep ’1‘ ofEdac_, 396 F.Bd 1152, 1156_57 (D.C. Cir. 2005). Standing consists of three eleinents:

(l) the plaintiff must have suffered injury in fact, an actual or imminent invasion of
a legally protected, concrete and paiticularized interest; (2) there must be a causal
connection between the alleged injury and the defendants conduct at issue', and (3)
it must be “1il<e1y," not “speculative,” that the court can redress the injury.

Ia'. at 1157 (quoting Lt.'jan, 504 U.S. at 560»61).

“Whether a party’s claim requires dismissal because of an inability to establish standing
depends on the stage of the litigation.” Food & Watei~ Waicn, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015). At the pleadings stage, plaintiffs “must state a plausible claim that [they have]
suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed
by a favorable decision on the merits.” Hnmane Soc ’y ofthe U.S. v. Viisack, 797 F.3d 4, 8 (D.C.
Cir. 2015). “[G]eneral factual allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss [the Cotut] presum[es] that general allegations embrace those
specific facts that are necessary to support the claim.” Bennea v. Spear, 520 U.S. 154, 167_68
(1997). However, the Coutt does “not assume the truth of legal conclusions, nor do[es it] accept
inferences that are unsupported by the facts set out in the complaint.” Arpaio v. Obaina, 797 F.Bd
11, 197(D.C. Cir. 2015).

“[S]tanding is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996).
Plaintiffs must separately demonstrate standing with respect to each claim. Daiin/er-Ch)ysler
Corp. v. Cnno, 54 U.S. 382, 352 (2006). Even so, plaintiffs seem to argue that they can challenge
the withdrawal of findings relating to animals and countries not even mentioned in their complaint

The plaintiffs cite Wiia'Eartn Gaardians v. .feweli for the proposition that “[a}s long as [p]laintiffs

15

are injured by the challenged action, [d]efendants cannot defeat standing by showing that some
aspect of the decision may not injure plaintiffs."' Pls.’ Opp. Mot. Dismiss 37 (citing 738 F.3d 298,
307 (D.C. Cir. 2013)). While defendants cannot defeat standing in such a way, this Court cannot
reinstate or declare invalid findings that have no demonstrable effect on plaintiffs’ interests i`he
Courts will only address the merits of those rescissions that actually cause plaintiffs injury-in-fact.

FoA and ZCTF are conservation organizations dedicated to the preservation and the
sustainability of wildlife Second Am. Compl. 1111 19-23. They oppose sport hunting of African
elephants and believe that allowing the importation of sport-hunted trophies directly harms animals
in the wild and aids in the illegal trafficking of these animals and their parts Feral Decl. ‘H‘H 8-9,
ECF No. 48~1; Rodrigues Decl. 1111 3,4, 20, ECF No. 47-2. The organizations claim both
associational standing through their members, Pls.’ Opp. l\/lot. Dismiss 35~42, and standing in
their own right as organizations Id. at 42-45.

To establish standing in its own right, an organization is required, “like an individual
plaintiff, to show ‘actual or threatened injury in fact that is fairly traceable to the illegal action and
likely to be redressed by a favorable court decision.”’ Eqnal Rigin' Cn'. v. Posl Pi'ops., Inc., 633
F.3d 1136, 1138 (D.C. Cir. 2011) (quoting Spann v. Colonial Vili., Inc., 899 F.2d 24, 27 (D.C. Cir.
1990). Separately, an i‘association ‘has standing to sue under Article lll of the Constitution of the
United States only if (1) at least one of its members would have standing to sue in his own right;
(2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor
the relief requested requires the member to participate in the lawsuit.”’ Ani. Trneking Ass ’ns v.
Fed. Moioi‘ Cai'rier Safeiy Aa'inin., 724 F.3d 243, 247 (D.C, Cir. 2013) (quoting Rainbow/Pasn
Coai. v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003)). Where, as here, “plaintiffs allege injury

resulting from violation of a procedural right afforded to them by statute and designed to protect

l6

their threatened concrete interest, the courts relax_while not wholly eliminating_the issues of
imminence and redressability, but not the issues of injury in fact or causation."’ Cir. for Law &
Ea'nc., 396 F.3d at 1157. “lf 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. fn re Idaho
Conservarion League, 811 F.3d 502, 509 (D.C. Cir. 2016) (internal quotations omitted) (quoting
Ry. Labor Execs. Ass 'n v. United Staies, 987 F.2d 806, 810 (D.C. Cir. 1998).

l-lere, neither FoA nor ZC'l`F have plausibly alleged an injury in fact to themselves or their
members from the March Memo’s rescission of positive enhancement findings or findings related
to countries other than Zimbabwe. First, because the complaint and the declarations submitted in
Support of Standing focus exclusively on elephants and ZirnbabweJ plaintiffs have not plausibly
alleged injury in fact from the rescission of non-Zimbabwe, non-elephant findings

Moreover, the plaintiffs’ entire case is premised on the proposition that allowing the
importation of sport-hunted elephant trophies from Zimbabwe into the United States increases both
the legal and illegal killing of Afi'ican wildlife, harming the plaintiffs’ aesthetic, professional,
scientific, recreational, and organizational interests See Second Am. Compl. 1111 2-7, 56-57, 61;
Rodrigues Decl. 1111 22-27, 30, 32; Feral Decl. 1111 2, 8-10, 12_14. As previously described,
elephant and lion trophies may not be imported to the United States absent a finding that the killing
of the animals enhances the survival of the species Sapi~a Part l.A. A positive enhancement
finding, then, leads to increased killing of African wildlife under plaintiffs’ own theory. 'l`his point
is only buttressed by plaintiffs’ desire to set aside the 2017 positive elephant findings in its first
two causes of action

Here, the March Memo withdraws a number of positive enhancement findings-~»-~relevantly,

the 1997 and 2017 Zimbabwe elephant findings-~explicitly stating that they “are no longer

17

effective for making individual permit determinations for imports of those sport~hunted ESA~listed
species."' lnteivenor~Defendants’ Mot. Dismiss EX. l. ln other words, a permit applicant may no
longer rely on the withdrawn findings in order to gain permission to import atrophy to the United
States.

Plaintiffs put forth no plausible theory for how the withdrawal of these positive
enhancement findings without public notice and comment equates to an injury in fact for either
organization instead, they only point to the Service’s comment that it would continue to use the
information from the 2017 findings as appropriate along with newly submitted information, as
appropriate This is too speculative The Court is left with tire most obvious conclusion: if_as
plaintiffs describe_positive findings increase the number of eiephants killed, then plaintiffs are
not harmed by the rescission of such findings Because there is no injury in fact, plaintiffs lack
standing to challenge the withdrawal of the 1997 or 2017 positive Zimbabwe elephant
enhancement findings

ii. Plciiniijfs are collaterally estopped front challenging the rescission of the
2014 and 2015 negative findings prohibiting trophy imports

The March l\/lemo also withdrew two findings directly related to plaintiffs’ injuries: the
2014 and 20 l 5 negative findings prohibiting elephant trophy import from Zinrbabwe. lntervenor-
Defendants’ Mot. Dismiss EX. 1. Unfortunately for piaintiffs, they already argued before this very
Court-unsuccessfuily_that the Service could not withdraw the 2014 and 2015 findings without
soliciting public notice and commentl See Or'der, Sofoi‘i Club Int ’i v. Jewell, No. 14-cv-670-RCL,
ECF No. 157. They are collaterally estopped from doing so again

"‘Under collateral estoppel, once a court has decided an issue of fact or law necessary to its

judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action

18

involving a party in the first case.” Alien v. Mchrij), 449 U.S. 90, 94 (1980). Three elements
riiust be met before a Coui't can apply the docti'ine:

First, the same issue now being raised must have been contested by the parties and

submitted for judicial determination in the prior case. Second, the issue must have

been actually and necessarily determined by a court of competent jurisdiction in

that prior case. Tliird, preclusion in the second case must not work a basic

unfairness to the party bound by the first determination
Yoma/m Corp. QfAni. v. U.S., 96l F.2d 245, 254 (D.C. Cir. 1992) (citations oinitted). I-lere, ali
three elements are easily inet.

After remand by the D.C. Circuit in Safori Club H, plaintiffs who were intervenor-
defendants in that case, argued that the Couit Shouid retain jurisdiction because the l\/larch l\/lenio
withdrew the 2014 and 2015 finding without undertaking notice-and-coniment rulemaking See
So_rfori Clirb Ini 7 v. Jeweii, No. 14-cv-670-RCL, ECF No. l53. They argued-~like they do nowmm
that the procedurally defective "‘ruies” could not be repealed without going through APA
rulemaking procedures Id. “The Coui't [was} not persuaded by this arguinent.’7 Ordei', So'fari
Chib Int ’i v. Jewefl, No. 14-cv-670-RCL, ECF No. 157. The Court held:

Here, the Service did not conduct notice-and-comment rulemaking iii the first place.

in fact, that was the reason why the D.C. Circuit found them to be procedurally

deficient {FoA and ZC”l`F] point to no case where a court has required an agency

to go through notice-and~coniment in order to withdraw a “rule” that was found to

be deficient because it itself did not go through notice-and-comment. Tlie Service

in this case intended to proceed by adjudication, but the D.C. Circuit found the

Service’s attempt to be more akin to legislative rulemaking The Service withdrew

the Zinibabwe and Tanzania findings in order to comply with that ruling.

Io.'. The Court sees no basic unfairness in precluding tire same parties from making the same

argument about the same findings to the same court.3 Plaintiffs third cause of action is

DISMISSED.

 

3 Furtliermore, were the plaintiffs not estopped from bringing this ciaim, the Court would rule the same way. lt is true
tliat, in general, the repeal of a legislative rule must go through notice and comment and that an agency may not

19

C. fn count four, plaintiffs misinterpret the 1997 Proposed Rule and this Court’s
Opinion.

ln their fourth claini, plaintiffs argue that the 1997 Proposed Rule created a publication
requirement for all elephant enhancement findings and that by switching to case-by-case
adjudication, the l\/lai'ch l\/lemo effectively eliminated that requirement in violation of the APA.
Second Am. Compl. jljl 155-60; see also Pls.’ Opp. l\/lot. Dismiss 28~»»~30. Because this claim relies
on faulty readings of both this Coui't’s prior opinion and the l997 Pi'oposed Rule itself, this cause
of action fails to state a clairn.

in 2014, although the Service announced its interim suspension on importation of elephant
trophies on April 4th in a service bulletin, it did not publish notice in the Fedei‘al Register until
l\/lay 12th. See 79 Fed. Reg. 26,986-01. The public notice stated that the suspension became
onApril 4th. Id. But the 1997 Proposed Rule explicitly stated, “The enhancement findings for
importation of sport-limited elephant trophies from . . . Ziinbabwe are on file . . . and 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 notice of any change in the Federal Register.” 62 Fed. Reg.
44,627-01, 44,633.

ln Safciri Clzib [, the Court held that the plain language of the rule indicated a binding
commitment on the part of the agency to provide public notice before changing the 1997 positive
findings 213 F. Supp. 3d at 73. As a remedy, the Court ordered that the effective date of the

interim suspension would be May l2, 2014, as opposed to Api'il 4, 2014. Id.

 

exclude itself from notice and comment requirements simply by declaring that the rule is “dei`ective” on its own
accord. See Conswnei' Enei'gy Coimcii' v. FERC, 673 F.2d 425, 447 n.79. Bl.lt it must be true that air agency is not
required to go through notice and comment to repeal a rule deemed improper by an intervening change iii la\v.
Otlrer\vise, an agency could be forced to enforce plainly wrong_and maybe even unconstitutional_regulations until
either a Court struck it down or the agency completes the notice and comment process

20

Plaintiffs argues that the Court"s holding and the rule itself mandate public notice for all
future elephant enhancement findings But this goes against the rule"s plain `text. Tlie 1997
Proposed Rule refers to the enhancement findings that were then “on file."’ Hence, the language
does not leave the agency discretion for how it will change only the 1997 finding, not all
enhancement findings going forward Between the 2014 interim finding and the 2014, 2015, and
2017 final findings we are long past the first change to the enhancement findings then “on file.”
Not to mention that there is an amended species-specific rule for African elepliants.

The Proposed Rule describes until when the 1997 enhancement findings for African
elepliarits would remain in effect lt did not create a publication requirement iii perpetuity.
Accoi'dingly, plaintiffs’ fourth cause of action will be DISMISSED.

D. Plaintiffs’ fifth cause of action fails to state a claim.

Plaintiffs’ fifth cause of action challenges the Service’s amiouncement that it would no
longer make country-wide enhancement findings instead opting to make those findings on a case-
by-case basis as part of the permitting process Second Am. Compl. jlil 161-65. Plaintiffs argue
“both the statutory requirements of the ESA and the APA prohibit FWS from making rules
necessary for the preservation of threatened species, such as enhancement findings on a case-by-
case basis, closed~off from the public.” Pls.’ Opp. Mot. Dismiss 30. lnstead, plaintiffs argue that
enhancement findings must be made via regulation Ia.'. at 30-31. Even if plaintiffs have standing
to make this ai'gument, they fail to state a claim upon which relief may be granted

i. Plainii]j"s have plausibly alleged Oi'ganizaiional Standing to bring claim

five

Tlie Court begins with standing Because this aspect of the l\/larch l\/Ieino only changes the
manner in which enhancement and non-detriment findings, plaintiffs caimot plausibly allege that

switching to a case-by-case system, alone, causes more elephants to be killed or makes it more

likely that trophies will be imported into the United States. Therefore, the organizations may riot
rely on aesthetic or recreational interests as a basis for standing lnstead, plaintiffs1 best argument
is that the organizations themselves are harmed by the change in policy and have standing to sue.'“l

To establish standing in its own right, an organization niust, “like an individual plaintiff, []
show ‘actual or threatened injury in fact that is fairly traceable to the illegal action and likely to be
redressed by a favorable court decision.”" eqial Rigiii Cir. v. Posr Props., Inc., 633 F.3d 1136,
1138 (D.C. Cir. 2011) (quotirig Spann v. Co]onial Viil., ]nc., 899 F.2d 24, 27 (D.C. Cir. 1990).

'l`o demonstrate injury in fact, “[a]n organization must allege more than a frustration of its
purpose because frustration of air organization’s objectives ‘is the type of abstract concern that
does not impart standing."'" Fooa’ & Water Waich, 808 F.3d at 919 (quoting Nar’! 1` axpayers
Union, ]nc.`v. United Si'aes, 68 F.3d 1428, 1433 (D.C. Cir. 1995). Rather, an organization wishing
to establish standing must have "‘suffered a concrete and demonstrable injury to [its] activities.”
Pe'ople for the Elhical Treatinent of/lniinals v. USDA, 797 F.3d 1087, 1093 (D.C. Cir. 2015)
(internal quotations omitted) [hereinafter, “PE'i`A”]. This determination is made through a two~
part inquiry-tlie Court asks “first, whether the agency’s action or omission to act injured the
[organization’s] interest and, second, whether the organization used its resources to counteract that
harm.” Id. at 1094.

To satisfy these elements, the challenged conduct must “perceptibly impair[] the

organization’s ability to provide seivices.’1 Food & Waier Waicii, 808 F.3d at 919. lt must inhibit

 

4 Although the federal defendants mention informational standing in their motion to disrniss, see Federal Defs.` Mot.
Dismiss 17, plaintiffs put forth no argument for informational standing in their opposition and fail to identify any
statute entitling them to any information deprived under the Service’s new policy. See Frier.rds of Animais v. Jewel'l,
828 F.3d 989, 992 (D.C. Cir. 20l6) (stating that in order to claim informational standing a plaintiff must allege: “(l)
it has been deprived of information that, on its interpretation a statute requires the government or a third party to
disclose to it, and (2) it suffers, by being denied access to that information the type ofharm Congress sought to prevent
by requiring disclosure.”).

I\)
l\.)

the organization’s daily operations, PETA, 797 F.Bd at 1094, or "ma[k}e the organization’s
activities more difficult."‘ Naf'l Tr'easw‘y Enrps. Uiir`oir, lUl F.3d at 1430.

Here, FoA puts forth three injuries to support organizational standing First, it argues that
a large part of its mission is to advocate for the end of trophy hunting Pls.’ Opp. Mot. Dismiss
43; see also Feral Dec. jill 2, 8-~9. Tlie change to case-by-case determinations “forces [FoA] to
expend additional resources to continually determine if and when new enhancement findings are
being made,” including the filing of Freedoni of lirforniatiori Act (“FOIA”) actions to obtain this
information Pls.’ Opp. Mot. Dismiss 43; see also Feral Dec. 1111 25-27. ln a similar vein, plaintiffs
also argue that they “regularly comment on actions iriipactiiig imperiled wildlife, including African
elephant, and would comment on enhancement findings if the agency provided notice and
opportunity to coininent."’ Pls.’ Opp. Mot. Dismiss 44; see also Feral Dec. W 30-32; Rodi'igues
Decl. il 28.

But both of these injuries are insufficient for organizational standing D.C. Circuit
“precedent makes clear that an organization’s use of resources for litigation, investigation in
anticipation of litigation, or advocacy is not sufficient to give rise to an Article lII injury."’ Food
& Warer Watch, 808 13 .3d at 919. “'l`his is true Whether the advocacy takes place through litigation
Oi' administrative pi‘oceedings.” Tzri‘lock Ir'rigalr.`oir Dfsf. v. FERC, 786 F.3d 18, 24 (D.C. Cir.
2015). And these increased expenditures relate directly and exclusively to pure issue-advocacy
See Ci‘r. for Law & Educ., 396 F.Sd at 1162 (rejecting a claim to organizational standing when
“the only ‘seivice’ impaired is pure issue~advocacy’"). ln other words, plaintiffs’ asserted injury
“is essentially an argument that [the Center] cannot allocate issue advocacy expenses in the way it

would prefer, which is insufficient to establish standing.” Ams. for Safe Access, 706 F.3d at 458.

Plaintiff`s third argument carries more weight FOA states that in support of its mission to
end trophy hunting, it regularly “repoits on the negative impacts of trophy hunting as well as the
organizations progress iii addressing this issue through its magazine Acfi`oiiLi'ne, its website,
educational presentations to professional associations, and outreach to other media outlets."' Feral
Decl. il 2. Tlie Seivice’s change to case-by-case enhancement determinations and decision to “no
longer make enhancement findings public seriously inhibits [FoA’s] ability to do this wor‘k.” [a'.
il 24; Pls.’ Opp. Mot. Dismiss 43-44. FoA must resort to filing FOIA actions to receive the
information it would otherwise have and be able to supply its meinbers, the interested public, and
the uredia. Feral Decl. llil 2.

“[A]n organization does not suffer an injury in fact where it ‘expend[s] resources to educate
its members and others’ unless doing so subjects the organization to ‘operational costs beyond
those normally expended.”’ Fooci’ & Wafei' Wa[ch, 808 F.3d at 920 (quotirig Nar’f Taxpayers
Union, 68 F.3d at 1434). That is what FoA alleges here. FoA argues that information that they
used to receive from the government and use to educate its members and interested parties has
been improperly kept from it. ln order to fulfilla critical part of their mission-»~»~keeping its
members and the interested public abreast on the latest developments in trophy hunting-FOA has
been forced to expend resources by filing FOIA actions lf the case were to go on, FoA would
have to provide evidence that these FOIA expenses were beyond those normally expended But
at this stage of the proceedings, FoA has plausibly alleged injury in fact. See PETA, 797 F.Bd at
1094 (finding organizational standing where the action challenged “deprived PETA of key
information that it relies on to educate the public,” directing impeding PE'i`A’s ability to perform
its public-education services). Additionally, because FoA argues that the l\/larch Meino itself

“renders it iinpossible” for the organization to provide its education services, the Court has no

difficulty at this stage finding causation and redressability See Pls.’ Opp. Mot. Dismiss 43-44.
Plaintiffs have standing to bring their fifth cause of action

i`i`. Plai`irtr`]j{sfr`ff]r cause ofacri`orrfar`]s on the irrer'i`ls.

l-Iaving established standing though only gets the plaintiffs so far because they fail to state
a claim. For threatened species, the ESA provides:

Whenever any species is listed as a threatened species pursuant to subsection (c) of

this section, the Secretary shall issue such regulations as he deems necessary and

advisable to provide for the conservation of such species The Secretary may by

regulation prohibit with respect to any threatened species any act prohibited under
[16 U.S.C. § 1538(a)(l)j, iii the case offish or wildlife

16 U.S.C. § 1533(d). Plaintiffs read this rule to mean that enhancement findings must be made
through regulation and therefore that the Service is statutorily prohibited from conducting case-
by-case adjudications of permit applications as contemplated by the March l\/lenio.5

Even accepting plaintiffs’ premise that a case-by~case adjudication is not a r'egulation, the
Court sees no such requirement lnstead, the statutory scheme empowers the Secretary of Interior
to extend Section 1538(a)(l)’s protections for endangered species to threatened species All
Section 1533(d) requires is that this decision be done through regulation The Service, to which
the Secretary has delegated-the authority for administering the ESA, has done just that.

The Service issued a regulation that extends the ESA’s prohibitions on endangered species
to all threatened species unless the Service has issued a special rule to govern a particular species.
50 C.F.R. §§ 17.3l(a), (c). By separate regulatioii, the Service issued a species-specific rule for

African elephants. See 50 C.F.R. § 17.40(e). Upon its issuance, the Service announced that it was

 

5 In plaintiffs’ briefing they also appear to argue that the Service will necessary violate the APA when it issues
subsequent enhancement findings upon individual adjudication See Pls.’ Opp. Mot. Dismiss 32-33. In support of
this argument, plaintiffs rely primarily on the D.C. Circuit’s determination in Safarr' Cli_tb 11 that the 2014 and 20l5
country-wide enhancement findings were legislative rules requiring notice-and-corninent rulemaking 878 F.3d at
320-21. But no enhancement finding determined in the course of individual adjudication is presently before the Court
and the Court will not speculate about whether future actions by the Service, unknown to this Court, violate the APA.

25

"adopting measures that are necessary and advisable for the current conservation” of African
elephants. 81 Fed. Reg. 36,388-01.

That regulation extends to all of the general prohibitions and exceptions for threatened
wildlife included iii 50 C.F.R. §§ 1731 and 1732 except as provided in the species-specific rule.
Ia'. One of the exceptions the regulation provides is that “African elephant sport-hunted trophies
may be imported into the United States provided [i'nrer alia] . . . [a] determination is made that the
killing of the trophy animal will enhance the survival of the species and the trophy is accompanied
by a threatened species permit issued under § 17.32.” Id. § 17.40(e)(6)(B).

The Service is therefore not acting outside its statutory authority, but rather within it. All
the Service had to do under the ESA was set protections for threatened species by regulation How
and when the Service carries out that regulation-as it does When it makes an enhancement finding
or grants a permit_is left to the agency. Because plaintiffs’ fifth cause of action turns on a faulty
reading of the statute, that claim fails on the merits.

IV. CONCLUSI()N

The Court lacks jurisdiction to hear the majority of plaintiffs’ claims. Claims one and two
are moot. Additionally, plaintiffs lack standing to challenge the Service’s withdrawal of positive
enhancement findings or any non-elephant or non-Zimbabwe findings And plaintiffs are
collaterally estopped from challenging the rescission of the 2014 and 2015 Zimbabwe elephant
findings Lastly, Plaintiffs’ fourth and fifth causes of action fail to state claims upon which relief

may be granted. As such, the case will be DISMISSED. A separate order has issued.

Q,mc. %M.W¢:

perez '7¢/;/ // 7 ROYC'E c. LAMBERTH
United States District Judge

26

