UNITED STATES DISTRICT COURT

 

FOR THE DISTRICT OF COLUMBIA F I L E D
) SEP 3 0 2016
C|erk, U.S. D' '
SAFARI CLUB INTERNATIONAL, et al., § Bankruptc;$éggtrt;nd
Plaintiffs, )
)
v. ) Civil Action No. 14-0670 (RCL) and
) lS-cv-01026 (RCL) (consolidated briefing)
SALLY M. R. JEWELL, in her official )
capacity as Secretary of the U.S. )
Department of the Interior, et al., )
)
Defendants, and )
)
FRIENDS OF ANIMALS, et al., )
)
Defendant-lntervenors. )
)
)

 

MEMORANDUM OPINION

Plaintiffs Safari Club Intemational and the National Rifle Association challenge the federal
government’s suspension of imports of trophies from elephants sport-hunted in Zimbabwe. On
April 4, 2014, the U.S. Fish and Wildlife Service (“the Service”) suspended imports of these
trophies on an interim basis. On July 31, 2014, the Service published notice finalizing the April
decision, prohibiting imports of trophies from elephants sport-hunted from April 4, 2014 through
the remainder of the year. And on March 26, 2015, it announced a suspension of imports for the
2015 hunting seasons and future hunting seasons. The Service explained that it suspended imports
because it could no longer make the finding required under its regulations “that the killing of the
animal Whose trophy is intended for import Would enhance survival of the species” _ referred to

as an enhancement finding. Plaintiffs assert that the three decisions are invalid due to a number

l

of procedural defects and because they are arbitrary and capricious For the reasons set forth
below, the Court will grant plaintiffs’ motion for summary judgment in part on the issue that the
Service failed to comply with its commitment not to change the enhancement finding before
publishing notice in the F ederal Register. lt will deny plaintiffs’ motion on all other issues The
Court will grant defendants’ motion for summary judgement in part on all issues except it will
deny the motion on the issue of its commitment to publish notice of changes in the Federal
Register. The Court will also order that the effective date of the April 2014 interim suspension is
May 12, 2014, not April 4, 2014.
LEGAL FRAMEWORK AND BACKGROUND

Importation into the United States of threatened species such as Afiican elephants is

governed by international convention and U.S. law.

I. The Convention on International Trade in Endangered Species of Wild Fauna
and Flora

The Convention on International Trade in Endangered Species of Wild Fauna and Flora,
Mar. 3, 1973, 27 U.S.T. 1087 (“CITES”), is a multilateral treaty that regulates the international
trade of protected Wildlife and plants The treaty establishes requirements for importing and
exporting covered species and categorizes them into three appendices, depending on the level of
protection each species requires Relevant here, Appendix I covers species threatened with
extinction, see CITES art. II.l, and Appendix ll covers species for which trade is controlled to
avoid trade incompatible with the species’ survival. ld., art. Il.2.l Signatories to the treaty,

including the United States and Zimbabwe, agree that they “shall not allow trade in specimens of

 

1 Appendix III, which is not implicated in this action, covers species subject to regulation by
a particular country “for the purpose of preventing or restricting exploitation.” CITES art. II.3.

2

species included in Appendices I, ll and III except in accordance with the provisions of” CITES.
Id., art. II.4.

A. Appendix I

Under the treaty, a species listed on Appendix I may only be traded if both the importing
and the exporting countries issue import and export permits, respectively. In issuing these permits,
each country’s designated authority must make a number of findings, including that the trade of
the species “will be for purposes Which are not detrimental to the survival of the species.” Id., art.
III.2(a), IlI.3(a). This determination is sometimes referred to as a “non-detriment finding,” and
both the importing and the exporting countries must separately make this finding before each can
issue the required permit. Ia’.

Before 1994, the treaty required importing countries to also determine that the import of

4

an Appendix I species ‘would enhance the survival of the species.” This determination is
sometimes referred to as an “enhancement finding.” CITES Res. Conf. 2.11. (Annex 1), AR 249
at 5563;2 see also Endangered and Threatened Wildlife and Plants; Retention of Threatened Status
for the Continental Population of the Afi‘ican Elephant, 57 Fed. Reg. 35,473, 35,485 (Aug. 10,
1992). But the enhancement finding requirement Was eliminated from the treaty in 1994. See Res.

Conf. 2.11 and CITES Doc. 9.50, AR at 5559_61, 5563.

B. Appendix II

A species listed on Appendix II requires the exporting country to issue an export permit,

including making the non-detriment finding described above. CITES, art. IV. The importing

 

2 The first time the Court cites a document in the Administrative Record (“AR”), it will cite
to the document number in the Joint Appendix lndex [Dkt. # 97-1 at 1-11], then the relevant Bates
number(s). Subsequent citations to the document will refer to the relevant Bates numbers only.

3

country is not required to issue an import permit or make a non-detriment finding, and the treaty
has never required enhancement findings for Appendix II species Id.

II. U.S. Law
A. The Endangered Species Act

Described as “the most comprehensive legislation for the preservation of _ endangered
species ever enacted by any nation,” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978),
the Endangered Species Act (“ESA”) is a federal statute that seeks “to provide a means whereby
the ecosystems upon which endangered species and threatened species depend may be conserved,
[and] to provide a program for the conservation of such endangered species and threatened
species” ESA, 16 U.S.C. § 153l(b) (2010). The Act implements CITES into U.S. law.
§§ 1532(4), 1537a, 1538(0).

Separately, the Act also provides federal protection to species listed as endangered or
threatened pursuant to its provisions, and the listing of a species as endangered or threatened does
not depend on whether or how it is categorized under CITES. See §§ 1533(a)(l), 1533(d), 153 8(a).

With respect to endangered species, section 9(a) of the Act prohibits a number of activities,
including “taking”3 them and importing or exporting them into or from the United States, except
as authorized by the statute. §§ 153 8(a)(l)(A); § 1532(19).

With respect to threatened species, the Act mandates:

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

 

3 “Take” is defined to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

4

16 U.S.C. § 1533(d). The Act also gives the Secretary authority to promulgate regulations to
“prohibit with respect to any threatened species any act prohibited under section 153 8(a)(1) . . .
with respect to endangered species.” Id.

The Secretary has exercised the authority under section 1533(d) by issuing a regulation
that extends the Act’s prohibitions on endangered species to all threatened species, 50 C.F.R.
§ 17.31(a), unless the agency has issued a special rule to govern a specific species § 17.31(c)
(“Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the
provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the
applicable prohibitions and exceptions.”).

B. The Special Rule Governing African Elephants

In 1978, the Service listed African elephants as a threatened species under the Endangered
Species Act and simultaneously issued a special rule for them. Listing of the Afi'ican Elephant as
a Threatened Species, 43 Fed. Reg. 20499 (May 12, 1978); 50 C.F.R. §17.11(h); 50 C.F.R.
§ 17.40(e) (“Special Rule”). The Special Rule allows imports of sport-hunted trophies of African
elephants under the following conditions:

(A) The trophy originates in a country for which the Service has received
notice of that country’s African elephant ivory quota for the year of
export;

(B) All of the permit requirements of 50 CFR parts 13 and 23 have been
complied with;

(C) A determination is made that the killing of the animal whose trophy is
intended for import Would enhance survival of the species; and

(D) The trophy is legibly marked [as set forth in the regulation].

50 CFR § 17.40(e)(3»)(iii).4

Subpart (C) of the Special Rule contains an enhancement finding requirement that was
added to the Special Rule in 1992, When all African elephants were on Appendix I and CITES
required both non-detriment and enhancement findings to trade an Appendix I species 57 Fed.
Reg. at 35,473»01. Although CITES no longer requires enhancement findings for Appendix I
species, the enhancement finding requirement remains in U.S. law in the Special Rule governing
African elephants. See id.

III. Changes to Import Requirements under CITES and the Endangered Species Act
A. The 1997 Downlisting of African Elephants

Signatories to CITES hold regular meetings called the Conference of the Parties to review
the treaty’s operation and the listing of species under its appendices When CITES was first
implemented, African elephants appeared on Appendix I. In 1997, signatories to the treaty
transferred three African elephant populations - from Zimbabwe, Botswana, and Namibia - from
Appendix l to Appendix II. Changes in List of Species in Appendices to the CITES, Proposed
Rule, 62 Fed. Reg. 44627, 44629 (proposed Aug. 22, 1997) (“1997 Proposed Rule”). The
consequence of this downlisting is that under the treaty, a hunter need obtain only an export permit
issued by the exporting country to bring home a sport-hunted elephant trophy from one of those

three countries Import permits were no longer required.

 

4 The Special Rule was amended effective July 6, 2016. Endangered and Threatened
Wildlife and Plants; Revision of the Section 4(d) Rule for the Afi'ican Elephant (Loxodonta
africana); Final Rule, 81 Fed. Reg. 36,3 88 (June 6, 2016). That amendment does not affect this
case, Which is governed by the rule in effect before the amendment

6

After this downlisting and other changes to the CITES appendices, the Service published
the 1997 Proposed Rule advising the public of these changes and proposing to amend U.S.
regulations to incorporate “all changes in CITES Appendices l and II that were approved by the
Conference of the Parties.” 62 Fed. Reg. at 44,634.

Because of “the complexity of the terms of the CITES downlistings” and “thc high public
interest” in the species, the Service specifically explained how these changes affected the treatment
of African elephants under U.S. law. Id. at 44,633. First, it reiterated the four requirements under
the Special Rule to import a sport-hunted trophy. Id., citing 50 C.F.R. § 17.40(e) (stating that an
import will be authorized when the trophy “has (1) originated in a country for which the Service
has received notice for that country’s African elephant ivory quota for the year of export; (2) the
permit requirements of the regulations for CITES permits (50 CFR 13 and 23) have been met; (3)
the Service has determined that the take of the trophy for import would enhance the survival of the
species; and (4) the ivory has been marked as outlined in the special rule”). It explained that a
species’ downlisting under CITES does not alter requirements under U.S. law:

Changes in the CITES listing status of species as a consequence of actions
taken at [the tenth Conference of the Parties] do not supersede import or
export requirements pursuant to other wildlife conservation laws For
example, import or export of species listed as Threatened or Endangered
under the U.S. Endangered Species Act (ESA) still must meet the provisions
of that law and its implementing regulations in 50 CFR Part 17, even if those

species have been transferred to a less protective CITES Appendix or
removed from the Appendices entirely.

Id. In other words, the conditions of the Special Rule - including the enhancement finding
requirement - would continue to apply after the Appendix II listing for elephants from Botswana,
Namibia, and Zimbabwe took effect, even though the requirement was no longer imposed by the

treaty. See id. The Service then stated that it reviews “the status of the population and the total

management program for the elephant in each country to ensure the program is promoting the
conservation of the species” when making an enhancement finding under the Special Rule. Id.

The “practical effect” of the CITES downlistings was that “an import permit will no longer
be required for non-commercial imports of African elephant sport-hunth trophies from these
countries only. Only a CITES export permit from the country of origin . . . [would] be required.”
Ia'.5 The enhancement findings for Botswana, Namibia, and Zimbabwe - which Would be made
“on a periodic basis upon receipt of new information on the species’ population or management”
- were “on file in the Office of Management Authority.” Ia’. They would remain in effect until
the Service found, “based on new information, that the conditions of the special rule [were] no
longer met” and it “published a notice of any change in the Federal Register.” Id.,' see
Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe, AR
20 at 2557-60 (“1997 Finding”).

The 1997 Finding for Zimbabwe remained in effect until April 4, 2014, when the Service
announced it could no longer make the finding for imports from that country. lt is this changed
enhancement finding that plaintiffs challenge

B. The Challenged Enhancement Findings
l. Apri12014 Finding

On April 4, 2014, the Service announced a suspension of imports of sport-hunted African
elephant trophies taken from Zimbabwe. Service Suspends Import of Elephant Trophies from

Tanzania and Zimbabwe, April 2014, AR 196 at 3021_22 (“Service Bulletin”). lt stated that “[i]n

 

5 The Service noted that Afiican elephants from all other countries remained on CITES
Appendix l, so imports of sport-hunted elephant trophies from those countries would continue to
require prior issuance of both an import and an export permit. 62 Fed. Reg. at 44,633.

8

Zimbabwe, available data, though limited, indicate a significant decline in the elephant population.
Anecdotal evidence, such as the Widely publicized poisoning last year of 300 elephants in Hwange
National Park,6 suggests that Zimbabwe’s elephants are [ ] under siege.” Id. at 1.

In its finding, the Service cited an International Union for Conservation of Nature
(“IUCN”) Elephant Database Report (“2013 Africa Report”)7 as showing the elephant population
in Zimbabwe in 2007 was 84,416 but in 2013 it was “reduced to 47,366.”y Enhancement Finding
for African Elephants Taken as Sport-Hunted Trophies in Zimbabwe during 2014 (April 17, 2014),
AR 102 at 3820 (“April 2014 Finding”).8 lt noted that despite this, the government of Zimbabwe
continued to provide population estimates of 100,000 elephants. Ia'., AR at 3821 (explaining that
most estimates are based on 2001 figures and that for a substantial part of the country, no recent
surveys have occurred). The finding also expressed concern about the management, funding, and
resources of the Zimbabwe Parks and Wildlife Management Authority (“ZPWMA”) and its
process for determining the country’s hunting quotas, given the lack of recent population surveys
Id., AR at 3821-22 (“[T]he govemment’s belief that they have a population of 100,000 elephants
may result in the over-estimation of the sustainable offtake.”). Finally, it noted that the “current
poaching problem does not appear to be under control or even acknowledged.” Ia'., AR at 3823.

The agency stated the “most significant aspect of [its] analysis is the lack of recent data on what

 

6 The Service corrected this statement on the number of elephants poisoned in the Hwange
incident in its subsequent enhancement findings See n.16 below.

7 The 2013 Africa Report appears in the Administrative Record at AR 80 at 3626~27.

8 The Service first issued the finding on April 4, 2014, AR 89 at 3651-56, but reissued it on
April 17, 2014 to correct the effective date. April 2014 Finding, AR at 3818_23.

9

is occurring in Zimbabwe.” Id. lt said it would gather additional information but until then, it was
“unable to make [a] positive finding.” Id.

On May 12, 2014, the Service published notice of the suspension in the F ederal Register.
Notice of lnterim Suspension on Importation of Zimbabwean Elephant Trophies, 79 Fed. Reg.
26,986 (May 12, 2014). The Service Bulletin stated that thc suspension applied to clcphants taken
in all of 2014, but the Federal Register notice changed the effective date to elephants taken on or
after April 4, 2014. Ia'. The Service also stated, “[W]e recognize that our inability to make a
finding is based primarily on a lack of information, not on specific information that shows that
Zimbabwe’s management is not enhancing the survival of the species,” and it indicated that it was
“actively pursuing additional information from the Government of Zimbabwe” and other sources
to make a final determination 79 Fed. Reg. at 26,987.

The agency requested information from the government of Zimbabwe on April 4, 2014.
Letter to ZPWMA Director, Apr. 4, 2014, AR 74 at 3604_05.

2. July 2014 Finding

After receiving information from the government, the Service issued its final enhancement
determination on July 22, 2014. Enhancement Finding for African Elephants Taken as Sport-
hunted Trophies in Zimbabwe during 2014 (July 22, 2014), AR 206 at 4505-4517 (“July 2014
Finding”).9 The July 2014 Finding “supersede[d]” the April 2014 Finding Id., AR at 4505. The

Service published notice of the finding on July 31, 2014. Notice of Suspension of Imports of

 

9 The Service issued the finding on July 17, 2014 but revised it on July 22, 2014 “to make a
technical revision to address an editorial error . . . and to reflect ETIS data from the 16th Meeting
of the Conference of Parties to CITES . . . .” July 2014 Finding, AR at 4505 (stating the technical
revisions did not alter the analysis or decision announced in the July 17 finding).

10

Zimbabwe Elephant Trophies Taken in 2014 On or After April 4, 2014, 79 Fed. Reg. 44,459,
44,460 (July 31, 2014).

With respect to population, the Service cited data from the 2013 Africa Report, which
showed the 2007 total population estimate at 99,107. July 2014 Finding, AR at 4510. The report
categorized data into the categories of definite, probable, possible, and speculative to reflect the
level of certainty associated with particular counts within the total population estimate. May 30,
2014 email string, AR 151 at 4166. Of the 99,107 total elephants in 2007, eighty-five percent or

”l° compared to the 2012 population total estimate of 100,291

84,416 were classified as “definite,
elephants, of Which only forty-seven percent or 47,366 was classified as “definite.” July 2014
Finding, AR at 4510. Noting that the data for 2012 was more than ten years old and that “[v]ery
few new surveys have been conducted since 2007,” the Service said the government of
Zimbabwe’s population estimates of more than 100,000 elephants was “clearly based on outdated
information.” Id. Without more current population data and “a better understanding of the offtake
from other sources, like poaching and problem animal control,” the Service found it could not
determine if the government was meeting its management plan goals and objectives Id., AR at
451 1 .

The Service received a number of documents regarding the management plan, including

the Policy and Plan for Elephant Management in Zimbabwe (1997) and Elephant Management in

Zimbabwe, third edition (July 1996). See id., AR at 4507. The documents presented “well-

 

10 This corrected the statement in the April 2014 Finding that the elephant population in 2007
was 84,416, AR at 3820, when that number reflected only those elephants classified as “definite”
in the survey.

11

articulated, but general, goals and objectives,” and the government of Zimbabwe provided no
information on implementation Ia'., AR at 4509. “Without management plans with specific goals
and actions that are measurable, the Service cannot determine if ZPWMA is implementing” the
plan Id.

Regarding Zimbabwe’s applicable laws and regulations, the agency found that they

provided for sufficient penalties for poaching “[i]f properly enforced.” AR at 4511. The Service,

however,
[did] not have a good understanding of the ZPWMA’s annual operational
budget, how much money is generated by elephant hunting, or how these
funds (or the lack of these funds) impacts the ability of ZPWMA to
adequately enforce the Parks and Wild Life Act, day-to-day management,
or anti-poaching efforts . . . .

Id.

With respect to the country’s annual hunting quota, the Service found that while the
methodology for determining the quota was based on “sound wildlife management principles used
globally,” 79 Fed. Reg. at 44,461, it did not receive “specific information on how quotas are
established” or whether they were “reasonable or beneficial to elephant populations and, therefore
whether sport hunting is enhancing the survival of the species.” July 2014 Finding, AR at 4515.

The finding also discussed the CAMPFIRE project, a program that “has been the model
for community-based conservation efforts in several other African countries and identified as an
innovative program in the past.” Ia’. The agency found that CAMPFIRE has been criticized for
“excessive retention of generated funds by district councils,” reducing the pro gram’ s effectiveness
Ia’. lt stated that information the program provided to a CITES panel of experts in 2002 indicated

this problem was improving, but the Service had no current information on the situation

12

“[W]ithout current information on how [CAMPFIRE] funds are utilized and the basis for hunting
off-takes,” the Service stated it could not assess whether sport-hunting would enhance the survival
of the species Id., AR at 4515-16.

The Service acknowledged some “bright spots” in elephant conservation by non-
governmental entities and individuals in the country but did not change its finding Id., AR at
4517. lt stated the finding Would be re-evaluated in December 2014. Ia'., AR at 4505.

3. March 2015 Finding

The Service received more information from the government of Zimbabwe on
December 10, 2014, as well as information from plaintiffs Conservation Force and Safari Club
lnternational in late 2014 and earl>y 2015. Enhancement Finding for African Elephants Taken
as Sport-Hunted Trophies in Zimbabwe On or After January 1, 2015, AR 344 at 7256_73, 7258
(“201 5 Finding”).

On March 26, 2015, the Service issued the 2015 Finding for trophies of elephants taken in
Zimbabwe as of January 1, 2015. Id., AR at 7256-73. The Service again determined that it was
unable to make an enhancement finding and extended the import suspension to the 2015 hunting
season and future seasons Ia'., AR at 7256. lt said that the suspension could be lifted if the
agency received addition information on the status and management of the species that
satisfied the Special Rule. See id.

As with the July 2014 Finding, the Service found no “specific measurable outcomes”
against Which to review implementation of the government’s elephant management plan Id. ,

AR at 7259 (stating it had “not received sufficient information to indicate . . . Which objectives

are being met or how they are being met”). ZPWMA explained that it does not have a

13

“proscriptive management plan” because it uses an “adaptive management approach” and is
“devolving wildlife management authority” to local authorities, private conservancies, and
CAMPFIRE. ld. , AR at 7260. But because the government of Zimbabwe previously told the
Service that elephants were managed on a national level, the Service found “there needs to be
a national approach and understanding of the basis of this adaptive management and that the
country . . . is taking a logical, scientifically based approach to reach the agreed upon end
result.” Id. And while the government Was preparing a new management plan, the agency
stated that the government provided no information on recent or future hunting seasons to
indicate it was implementing the existing plan See ia'., AR at 7261.

Regarding the elephant population, ZPWMA provided information about two surveys
conducted in 2012_13, one in Save Valley Conservancy and the other in Gonarezhou National
Park and the surrounding areas Ia’., AR at 7262. The first survey counted 1,538 elephants in
an aerial survey. Id. Based on nine years of aerial surveys, the Service noted a short-term
increase in population density of 9.5 percent, but also found that the trend in the last three
years of survey Was only a 2.2 percent increase and noted that “conditions were such that
double counting may have occurred.” Id.

The second survey estimated 10,151 elephants in the surveyed area ~ “the highest
estimate since sample surveys began there in 1975.” Ia'. The Service stated that while the
apparent population increase was “excellent news,” the reported carcass ratio Was low and
could indicate that the survey did not accurately detect all the carcasses Ia'. , AR at 7263.

The Service cited the 2014 Pan African Aerial Elephant Survey as reporting a

provisional population estimate of 82,000_83,000 elephants, a six percent decline since 2001

14

surveys Ia’. Further, figures presented at the March 2013 CITES conference indicated that
from 2002~2010, the percentage of illegally killed elephants (“PIKE”) in the Chewore area
Was twenty-four percent but in 2011, it Was sixty-seven percent. Id. The Service explained
that a PlKE level of fifty percent higher or means “half or more of all carcasses were the result
of illegally killed elephants,” indicating “that the elephant population is very likely to be in
net decline.” Ia'.

With regard to Zimbabwe’s laws, it found that the Parks and Wildlife Act “includes
sections on virtually every aspect of ZPWMA, including requirements for annual financial
audits and reporting to the central government,” along with substantial penalties for the
unlawful possession of or trading in ivory. Ia'. But again, the Service did not receive adequate
information on enforcement ld.

While ZPWMA reported that “elephant hunting contributes in excess of US$ 1 4 million
annually and that approximately 30% of [its] revenue is from hunting, of which the elephant
is the major contributor,” the Service Was concerned it did not have information on how much
money is generated by elephant hunting specifically, how the funds are distributed, or how
they impacted enforcement of the country’s laws and regulations day-to-day management, or
anti-poaching efforts Id., AR at 7264.

The Service considered information from third parties about ZPWMA’s budget and
resources, and noted press reporting that Zimbabwean politicians and military personnel were
involved in illicit wildlife trade with Chinese nationals Id. , AR at 7264-65. The Service also
cited reports about increasing illegal ivory trade. Id., AR at 7265. Although it received

information from Zimbabwean safari outfitters and hunting guide organizations suggesting

15

that the presence of hunters is the major deterrent to poaching, the Service said it received “no
evidence” that poaching would significantly increase without hunters generally or U.S.
elephant hunters specifically. Ia’. Rather, it concluded that legal hunting is “not Widespread
enough or at a high enough density level to reduce significantly poaching in and of itself.” Ia'.
lt Was also concerned with a “lack of sufficient information” about ZPWMA’s “funding levels
or any indication that [the agency’s] financial base, management skills, equipment, or
infrastructure have improved.” Id., AR at 7266.

Regarding sustainable use, the Service stated it had not received adequate information
about offtake in Zimbabwe. Id. The export quota in 2014 and 2015 Was 500 elephants per
year, and it had been at that number since 2004. Id. The Service noted that for the April and
July 2014 Findings, it had not received information on the number of trophies exported
annually or of elephants killed by categories of offtakell but, based on third party and press
sources, the Service found that poaching was on the rise. Id.; see also id. n.l (highlighting
the poisoning of 105 elephants in Hwange National Park 2013, Which the agency initially
stated in the Service Bulletin involved 300 elephants). For the 2015 Finding, ZPWMA
provided percentage information on offtake categories and reported a five-year average of 190
poached elephants, id. at 7266, then a three-year average of 180 poached elephants, excluding
the Hwange poisonings. Ia'. at 7267. But the Service questioned ZPWMA’s percentages
because they reflected a natural mortality rate “far below the likely natural morality rate” of

healthy populations Id.

 

11 Categories of offtake are cropping, natural mortality, accidents, poaching, problem
animals, and management offtake. 2015 Finding, AR at 7266.

16

The Service also highlighted the lack of information on how the government sets
quotas and allocates them spatially. Id. , AR at 7267. lt noted that quotas are set to “maximize
the sustainable production of high-quality trophies,” which caused the Service to question if
quotas are set for each hunting area based on the overall quota or to facilitate management
goals for each area. Id., AR at 7268. The Service emphasized that ZPWMA only provided
“a general overview” of setting quotas for all species Ia’.

As for CAMPFIRE, as in the July 2014 Finding, the Service was unable to determine
how much revenue elephant sport-hunting provides, and how much of that comes from U.S.
hunters Id., AR at 7271.

The Service concluded that the suspension could be lifted`if additional information showed
that the conditions of the Special Rule had been satisfied. Id., AR at 7256. lt published notice of
the finding in the F ederal Register on July 17, 2015. Notice of Continued Suspension of Imports
of Zimbabwe Elephant Trophies Taken On or After April 4, 2014, 80 Fed. Reg. 42,524 (July 17,
2015).

PROCEDURAL HISTORY

On April 21, 2014, plaintiffs filed suit challenging the April 4, 2014 decision Compl.
[Dkt. # 1], Safari Club Int’l v. Jewell, l4-cv-670-RCL. On December 26, 2014, the Court denied
defendants’ motion to dismiss for lack of subject matter jurisdiction and granted plaintiffs’ motion
to file an amended complaint. Order [Dkt. # 47] (granting plaintiffs leave to file a second amended

complaint to add claims to challenge the July 2014 Finding).12 On March 12, 2015, the Court

 

12 The Court also granted defendants’ motion to dismiss claims related to the suspension of
imports of trophies of elephants sport-hunted in Tanzania because plaintiffs failed to exhaust their
administrative remedies See Safari Club lnt’l v. Jewell, 76 F. Supp. 3d 198 (D.D.C. 2014).

17

granted Friends of Animals and the Zimbabwe Conservation Task Force leave to intervene as
defendants Order [Dkt. # 62].

On June 30, 2016, plaintiffs filed a related case challenging the Service’s March 26, 2015
suspension of imports of elephant trophies sport-hunted in Zimbabwe. Compl. [Dkt. # 1], Safari
Club lnt’l v. Jewell, 15-cv-1026-RCL; Notice of Related Case [Dkt. # 10]. Friends of Animals
and the Zimbabwe Conservation Task Force were granted leave to intervene in the'related lawsuit.
Min. Order (Aug. 21, 2015). The Court granted the parties’ motion for a proposed joint
consolidated briefing schedule for the two related cases See Min. Order (Jul. 21, 2015). The
parties have briefed the motions for summary judgment,13 Which are now pending before the Court.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and evidence show that “there is
no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). However, in cases involving review of agency action
under the Administrative Procedure Act (“APA”), Rule 56 does not apply due to the limited role
of a court in reviewing the administrative record. Select Specialzy Hosp.-Akron, LLC v. Sebelius,
820 F. Supp. 2d 13, 21 (D.D.C. 2011). Under the APA, the agency’s role is to resolve factual
issues and arrive at a decision that is supported by the administrative record, and the court’s role

is to “determine whether or not as a matter of law the evidence in the administrative record

 

13 See Pls.’ Mot. for Summ. J. [Dkt. ## 87 & 32] (“Pls’ Mot.”); Fed. Defs.’ Cross-Mot. for
Summ. J. [Dkt. ## 90 & 34]; Fed. Defs.’ Mem. in Supp. [Dkt. ## 90-1 & 34-1] (“Fed. Defs.’
Mem.”); lntervenors’ Mem. in Opp. to Pls.’ Mot. [Dkt. ## 91 & 35] (“lntervenors’ Mem.”); Pls.’
Opp. to Fed. Defs.’ Cross-Mot. & Reply [Dkt. ## 92 & 36] (“Pls.’ Opp./Reply”); Reply in Supp.
of Fed. Defs.’ Cross-Mot. [Dkt. ## 96 & 39] (“Fed. Defs.’ Reply”).

18

permitted the agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766,
769-70 (9th Cir. 1985); See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971); Richara's v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).

Under the APA, a court must “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious an abuse of discretion, or otherwise not in
accordance With law,” 5 U.S.C. § 706(2)(A), in excess of statutory authority, §706(2)(C), or
“without observance of procedure required by law.” § 706(2)(D). However, the scope of
review is narrow. See Motor Vehicle Mfrs. Ass ’n of U.S., Inc. v. State Farm Mut. Auto. Ins. C0.,
463 U.S. 29, 43 (1983). The agency’s decision is presumed to be valid, see Citizens to Preserve
Overton Park, 401 U.S. at 415, and the court must not “substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. A court must be satisfied, though, that
the agency has examined the relevant data and articulated a satisfactory explanation for its action,
“including a ‘rational connection between the facts found and the choice made.”’ Alpharma,
Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006), quoting Motor Vehicle Mf’s. Ass’n at 43 (stating
that administrative action would be arbitrary and capricious “if the agency relied on factors which
Congress has not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.”) Deference to an agency’s judgment is particularly appropriate where the decision at
issue “requires a high level of technical expertise.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360,

375-77 (1989), quoting Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976).

19

ln reviewing an agency’s interpretation of a statute, courts use the two-step analysis
outlined in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). Step one involves determining whether Congress has spoken directly to the precise
question at issue. lf it has, “the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress,” and that is the end of the matter. Ia'.; Nat’l
Treasury Emps. Union v. Fed. Labor Relations Auth., 392 F.3d 498, 500 (D.C. Cir. 2004). lf the
statute is silent or ambiguous on the question, Chevron instructs the Court to go on to a second
step and determine “whether the agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843. An agency’s interpretation will Warrant deference if it is
reasonable. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991).

ANALYSIS

Plaintiffs assert a number of procedural and substantive defects with the three enhancement
findings for Zimbabwe. They contend with respect to all three findings that the agency (1) violated
APA rulemaking requirements by not providing for notice and comment before issuing them;
(2) applied prohibited guidelines and the wrong standard in making the findings; (3) failed to
overcome a statutory presumption in Section 9(c)(a) of the Endangered Species Act governing
these imports; and (4) violated the APA by failing to explain why it maintained the enhancement
finding requirement in the Special Rule afier the requirement was eliminated from CITES.

Plaintiffs further argue that the April 2014 Finding violated binding commitments the
agency made concerning how it would change the enhancement finding, failed to request
information from reliable sources and misinterpreted available information in making the finding,

and sought to correct the problems With the April 2014 Finding retroactively without authority to

20

do so. With respect to the July 2014 Finding, they argue that it was arbitrary and capricious
because it was based on a lack of information and because the Service improperly analyzed the
information it did have. Finally, they argue the March 2015 Finding was arbitrary and capricious
because the agency improperly analyzed the data.

For the reasons set forth below, the Court will grant federal defendants’ cross-motion for
summary judgment on all issues except it will grant plaintiffs’ motion for summary judgment on
the issue that the agency failed to comply with its binding commitment not to change the 1997
enhancement finding before publishing notice of the change in the Federal Register. The analysis
below first addresses the arguments that apply to all three findings, then addresses plaintiffs’
individual challenges to each of the three findings

I. The Service Was Not Required to Provide for Notice and Comment Under the APA
Before Issuing the Enhancement Findings because the Findings are Not Rules.

The APA requires that “[g]eneral notice of proposed rule making shall be published in the
Federal Register” and after providing this notice, “the agency shall give interested persons an
opportunity to participate in the rule making through submission of written data, views, or
arguments.” 5 U.S.C. § 553(b)-(c). Plaintiffs argue that the enhancement findings are substantive
rules, subject to the APA’s notice and comment requirement See Pls.’ Mot. at 49~50 (citing
authority that distinguish between substantive rules and interpretive rules). lntervenor-defendants
agree that the findings are rules lntervenors’ Mem. at 5-6. While plaintiffs are correct that
interpretive rules are not subject to the notice and comment requirements 5 U.S.C. § 553(b)(3 )(A),
the Court must first address the threshold question of whether the findings are rules in the first

place.

21

The APA defines “‘rule’ very broadly,” Sugar Cane Growers Co-op. of Fla. v. Veneman,
289 F.3d 89, 95 (D.C. Cir. 2002), to mean “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 or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C.
§ 551(4). The APA defines “rule making” as the “process for formulating, amending or repealing
a rule.” § 551(5).

“[A]n agency pronouncement that lacks the firmness of a [prescribed] standard . . . is not a
rule.” Sugar Cane Growers Co-op. of Fla., 289 F.3d at 95, citing Syncor lnt’l Corp. v. Shalala,
127 F.3d 90, 94 (D.C. Cir. 1997); see also Sprint Corp. v. FCC, 315 F.3d 369, 373 (D.C. Cir. 2003)
(holding that only an “agency’s imposition of requirements that affect subsequent [agency] acts
and have a future effect on a party before the agency triggers the APA notice requirement,” in
contrast to an informal adjudication, which “lacks the firmness of a [prescribed] standard”)
(internal quotations omitted). While “[t]he line between [adjudication and rulemaking] is
frequently a thin one,” Gen. Am. Transp. Corp. v. lnterstate Commerce Comm ’n, 883 F.2d 1029,
1030 n.2 (D.C. Cir. 1989), quoting City ofChicago v. Fed. Power Comm’n, 458 F.2d 731, 739
(D.C. Cir. 1971), the Court concludes that the enhancement findings are adjudications

The Supreme Court has explained the “basic distinction between rulemaking and
adjudication” as a difference between “proceedings for the purpose of promulgating policy-type
rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in
particular cases on the other.” United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 244-45 (1973);

see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216-17 (1988) (Scalia, .l., concurring)

22

(stating that the “central distinction between rulemaking and adjudication” is that “rules have legal
consequences only for the future”).

ln Franks v. Salazar, this Court held that enhancement findings made in the context of
import permits that individuals must obtain to import a species on CITES Appendix l are
adjudications 816 F. Supp. 2d 49 (D.D.C. 2011). ln that case, the Service conditioned the grant
of a permit to import sport-hunted elephants from Mozambique on the presence of a national
management plan Id. at 54, 59. The plaintiffs contended that doing so amounted to the
promulgation of new rules governing the issuance of import permits Id. at 59. But the Court
disagreed, noting that the Service was merely evaluating the permit applications “against the
existing regulatory standards.” Id.; see also Marcum v. Salazar, 810 F. Supp. 2d 56, 71-72 (D.D.C.
201 1) (holding that the denial of permit applications to import elephant trophies from Zambia were
adjudications rather than rulemakings), vacated and remanded on other grounds7 694 F.3d 123
(D.C. Cir. 2012). The question here is whether enhancement findings made in the Appendix ll
context - in the absence of individual permit applications - are rules or adjudications

The Court recognizes that these findings bear some of the characteristics of a rule: they do
not require individuals to submit permit applications they affect a group of hunters and not
individual permit applicants and they operate both prospectively and retrospectively. But
substantively, the findings are adjudications because they do not “promulgat[e] policy-type rules
or standards,” but rather “adjudicate disputed facts in particular cases.” Fla. E. Coast Ry. Co.,
410 U.S. at 245.

An agency decision made by applying facts to existing regulatory standards does not

become a rule merely because the decision was not made in response to a pending matter before

23

the agency. ln Safe Extensions, Inc. v. FAA, the FAA promulgated a series of “advisory circulars”
that changed which types of products needed to pass a safety test and made the test itself more
stringent. 509 F.3d 593, 596 (D.C. Cir. 2007). This change was not made in response to a matter
then before the agency, and it constituted a departure from what had been FAA standard operating
procedure for thirty-five years See id. The D.C. Circuit held that the advisory circulars were
informal adjudications not subject to the APA’s notice and comment requirement. Id. at 604. l

Like the adjudication at issue in Safe Extensions, the enhancement findings at issue here
do not become rules merely because they were not made in the context of a specific permit
application The Special Rule governing elephants requires the Service to make an enhancement
finding before allowing the importation of sport-hunth Aliican elephants 50 C.F.R.
§ 17.40(e)(3)(iii)(C). That rule has been in effect since 1992, and the Service has not changed the
rule here. lt has not created a new rule, and it has not even changed the criteria it uses in applying
that rule. lnstead, it has merely evaluated the status of Afiican elephants in Zimbabwe and their
management by the government there, applied the Special Rule, and arrived at an agency decision
This is the hallmark of adjudication See Fla. E. Coast Ry. Co., 410 U.S. at 245.

Also, contrary to plaintiffs’ argument, see Pls.’ Opp./Reply at 24-27, the fact that the
findings affect a group of people and have prospective effect do not make them rules First,
adjudications do not become rules merely because they impact a broad class of individuals See
Goodman v. FCC, 182 F.3d 987, 993~94 (D.C. Cir. 1999) (holding that an FCC order Was an
adjudication, and not a rulemaking, even though it impacted the validity of licenses held by non-
parties to the proceeding). “Just as a class action can encompass the claims of a large group of

plaintiffs without thereby becoming a legislative proceeding, an adjudication can affect a large

24

group of individuals without becoming a rulemaking” Id. at 994; see NLRB v. Bell Aerospace
Co., 416 U.S. 267, 292 (1974) (rejecting the notion that an agency is required to resort to rule
making in order to promulgate new standards that govern the future conduct of non-parties).

Second, adjudications can, and necessarily do, have prospective effect. They “generally
provide a guide to action that the agency may be expected to take in future casesf” NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 765-66 (1969). A rule of law announced in an adjudication
with exclusively prospective effect can be accepted as binding with “new analysis[ ] in subsequent
adjudications.” Bowen, 488 U.S. at 221 (holding that otherwise, “it would constitute rulemaking”).
The enhancement findings at issue here do not have exclusively prospective effect, and the Service
has made clear they can be revised with new facts and a new analysis See April 2014 Finding,
AR at 3823; July 2014 Finding, AR at 4505, March 2015 Finding, AR at 7256.

Further, the enhancement findings do not set “policy-type rules or standards” for future
enhancement findings They do not establish the conditions that must be satisfied for the agency
to allow imports The Special Rule and its preamble did that. See 50 C.F.R. § 17.40(e)(3)(iii)1
(establishing the four requirements for imports including the enhancement finding); see also 1997
Proposed Rule, 62 Fed. Reg. at 44,633 (stating the agency would review “the status of the
population and the total management program for the elephant in each country to ensure the
program is promoting the conservation of the species”). Rather, the findings “adjudicate[d]
disputed facts” Fla. E. Coast Ry. Co., 410 U.S. at 245. They analyzed the status of the population
in Zimbabwe and the management program there to determine “if the killing of the animal whose
trophy is intended for import would enhance survival of the species.” 50 C.F.R. § 17.40(e)(3)(iii)

And while the result of the adjudication - no enhancement finding _ has the prospective effect of

25

suspending imports from Zimbabwe, that effect will remain in place only until new facts arise to
change the results of the agency’s analysis - which occurs against existing regulations See
Franks, 816 F. Supp. at 59 (ruling that the decision to grant or deny import permits involves an
evaluation of the permit applications “against the existing regulatory standards”). Accordingly,
the Court holds that the Service’s enhancement findings are adjudications not subject to the notice
and comment requirements of the APA.

II. ~ The Special Rule Rebuts the Presumption in Section 9(c) of the ESA.

Plaintiffs also challenge the three findings on the grounds that the Service failed to rebut a
statutory presumption in the ESA. Pls.’ Mot. at 55-61.

Section 9(c) of the Endangered Species Act makes it unlawful to engage in trade of species
in violation of CITES. 16 U.S.C. §§ 1538(0)(1), 1532(4). lt also provides:

(2) Any importation into the United States of fish or wildlife shall, if -

(A) such fish or wildlife is not an endangered species listed pursuant
to section 1533 of this title but is listed in Appendix ll to the
Convention,

(B) the taking and exportation of such fish or wildlife is not contrary
to the provisions of the Convention and all other applicable
requirements of the Convention have been satisfied,

(C) the applicable requirements of subsections (d), (e), and (f) of this
section have been satisfied, and

(D) such importation is not made in the course of a commercial
activity,

be presumed to be an importation not in violation of any provision of this
chapter or any regulation issued pursuant to this chapter.

16 U.sc. § 1538(¢)(2).

26

Plaintiffs contend that the Service failed to rebut this presumption because the provision
requires the Service to presume that all conditions of the Special Rule are met, including the
enhancement finding requirement, absent facts to the contrary. Pls.’ Mot. at 55-61 (arguing that
the Service must make “an affirmative finding based on the facts available at the time of the
importation” but here the Service only “lacked” sufficient information to make a positive finding).

Defendants argue that the Special Rule rebuts the presumption Fed. Defs.’ Mem. at 36-
40; see also Safari Club lnt'l v. Babbitt, No. MO-93-CA-001, 1993 WL 13932673 at 12 (W.D.
Tex. Aug. 12, 1993) (“The Service has interpreted § 9(c)(2) to raise a presumption of the legality
of importing trophies Which could be rebutted by the promulgation of a special protective
regulation pursuant to § 4(d) of the Act, 16 U.S.C. § 1533(d).”).

Under Chevron, the Court must first consider whether the statute is unambiguous on the issue.
If it is, “the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress,” and that is the end of the matter. Chevron, 467 U.S. at 842-43; Nat’l
Treasary Emps. Union, 392 F.3d at 500. lf the statute is silent or ambiguous on the question,
Chevron instructs the Court to then determine “whether the agency’s answer is based on a
permissible construction of the statute.” 467 U.S. at 843. An agency’s interpretation Will
warrant deference if it is reasonable Pauley, 501 U.S. at 702.

Section 4 of the ESA gives the Secretary broad authority to protect threatened species
16 U.S.C. § 1533(d) (authorizing the Secretary to promulgate regulations she “deems necessary
and advisable”); see Babbitt v. Sweet Home Chapter of Cmtys for a Great Or., 515 U.S. 687, 708

(1995) (describing this authority as “broad administrative and interpretive power” and holding that

27

“[f]ashioning appropriate standards for issuing permits under § 10 for takings that would otherwise
Violate § 9 necessarily requires the exercise of broad discretion”).

Section 4 also authorizes the Secretary to extended the prohibitions on endangered species
to threatened ones 16 U.S.C. § 1533(d). The Secretary exercised this authority with a single
blanket regulation covering all threatened species but allowed for the agency to carve out certain
species from these prohibitions by issuing species-specific rules

(c) Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened
species none of the provisions of paragraphs (a) and (b) of this section will

apply. T he special rule will contain all the applicable prohibitions and
exceptions

50 C.F.R. § 17.31 (emphasis added). The Service issued just such a special rule to govern Afiican
elephants.

While the Court agrees that plaintiffs’ reading of the statute offers one interpretation, it
does not agree that this is the only reading or that Congress “unambiguously expressed [its] intent”
on the issue. Chevron, 467 U.S. at 842-43. Section 9(c) of the Act establishes a presumption that
imports of Appendix ll species not on the endangered species list do not violate the ESA or its
regulations but section 4 of the Act gives the Secretary broad authority to issue regulations
“deem[ed] necessary and advisable” to protect threatened species 16 U.S.C. § 1533(d). Given
that section 9(c) makes imports of threatened species on Appendix ll presumptively valid under
the ESA and section 4 gives the agency broad discretion to protect threatened species the Court
finds that the statute is silent on the issue of whether an agency regulation can rebut the statutory
presumption

Given this the Court must next determine whether the agency’s interpretation is “based on

a permissible construction of the statute,” Chevron, 467 U.S. at 843, and reasonable to warrant

28

deference Pauley, 501 U.S. at 702. The Court holds that it is. The Secretary acted within her
statutorily-delegated authority to prohibit imports of all threatened species see 50 C.F.R.
§ 17.31(a) - and could have stopped there - but instead allowed the agency to carve out species
from these prohibitions with special rules 50 C.F.R. § 17.31(c). ln doing so, the Secretary
provided that these special rules would establish “all the applicable prohibitions and exceptions”
for the species 50 C.F.R. § 17.31(c) (emphasis added); see also 50 C.F.R. § 17.8 (setting
conditions for imports of threatened, CITES Appendix ll wildlife “[e]xcept as provided in a special
rule”). lt was not unreasonable for the Secretary to interpret the Special Rule as rebutting the
statutory presumption, particularly in light of her broad authority and discretion to promulgate
regulations to protect threatened species See Sweet Home Chapter of Cmtys, 515 U.S. at 708.
Accordingly, the Court holds that the Special Rule rebuts the section 9(c) presumption

IIl. The Service Was Not Required to Provide Additional Explanation or Solicit Public

Comment on the Special Rule after the Enhancement Finding Requirement Was
Removed from CITES.

Plaintiffs argue that the Service acted in an arbitrary and capricious manner when it failed
to solicit public comment and explain why it maintained the enhancement finding requirement in
the Special Rule after CITES no longer required it. Pls.’ Mot. at 51 (emphasizing that the Service
added the requirement to the rule in 1992 because CITES mandated it).

An agency’s action “is arbitrary and capricious” if it fails to “examine the relevant data and
articulate a satisfactory explanation for its action including a rational connection between the facts
found and the choice made.” Sw. Power Pool, lnc. v. FERC, 736 F.3d 994, 997 (D.C. Cir. 2013),
quoting Motor Vehicle Mfrs. Ass ’n, 463 U.S. at 43. lf an agency “changes course” it “must

‘provide reasoned explanation for its action.”’ National Ass ’n of Home Builders v. EPA, 682 F.3d

29

1032, 1038 (D.C. Cir. 2012), quoting FCC v. Fox T. V. Stations, lnc., 556 U.S. 502, 515 (2009).
Additionally, “changes in factual and legal circumstances may impose upon the agency an
obligation to reconsider a settled policy or explain its failure to do so.” Bechtel v. FCC, 957 F.2d
873, 881 (D.C. Cir. 1992). Plaintiffs cite no case law where an agency must provide ongoing
explanation and public comment for regulations when the regulation and justification for the
regulation remain unchanged See Pls’ Mot. 51-55.

ln 1992, the Service added the enhancement finding requirement to the Special Rule. 57
Fed. Reg. at 35,473; 50 C.F.R. § 17.40(e)(3)(iii). lt did this as part of its decision on a petition to
elevate the African elephant from the ESA threatened list to the endangered list. 57 Fed. Reg. at
35,473. The agency decided to keep the species on the threatened list and to allow the importation
of sport-hunted elephant trophies under “prescribed conditions” Id.

The Service explained that allowing imports of sport-hunted elephant trophies was a “form
of consumptive utilization” that “provide[s] important revenues for elephant conservation to range
states.” 57 Fed. Reg. at 35,485. CITES required importing countries to make “a determination
that the killing of elephants for sport-hunting enhances the survival of the species by providing
financial support programs for elephant conservation” and that this requirement applied to species
on CITES Appendix l. Id. Accordingly, the agency recognized that imports can contribute to
elephant conservation and that an enhancement finding requirement was a mechanism to ensure
that an import does so. The agency added the enhancement requirement to the Special Rule,
aligning U.S. regulations for importing African elephant trophies with CITES’ requirements Id.

ln 1994, the treaty’s signatories eliminated the requirement ln 1997, elephants from

Botswana, Namibia, and Zimbabwe were transferred from Appendix l to Appendix ll - which has

30

never required an enhancement finding Pls.’ Mot. at 52; Fed. Defs.’ Mem. at 34. Throughout
this time, all African elephants remained on the threatened list under the ESA, and the Service
made no changes to the Special Rule, maintaining the enhancement finding requirement under
U.S. law.

Plaintiffs do not challenge the agency’s addition of the requirement to the Special Rule in
1992. Rather, they complain that the agency improperly kept the requirement in U.S. law after
CITES was amended to remove it from the treaty. Pls’ Mot. at 51-52 (arguing that the agency
“passively modified” the rule Without providing for public notice and comment). But CITES
allows signatories to enact stricter regulations than those found in the treaty, setting a floor on the
protections signatory nations must give to covered species but not a ceiling CITES art. XlV(l )(a).
Moreover, the agency did not modify the rule or “chang[e] course” in 1992 by leaving the
requirement in place, Nat’l Ass ’n of Horne Builders, 682 F.3d at 103 8, so the agency did not need
to “provide reasoned explanation for its action.” Fox T. V. Stations, Inc. , 556 U.S. at 515. Although
one reason for adding the requirement changed when CITES was amended, another reason -
ensuring that imports generate “revenues for elephant conservation to range states” _ did not
change 57 Fed. Reg. at 35,485. Thus, an underlying rationale for the requirement remained the
same, and the Service did not need to re-explain that rationale Bechtel, 957 F.2d at 881.

IV. The Service Did Not Apply Withdrawn Guidelines or Illegally Require Sport-Hunting
to “Ensure” the Survival of the Species

Plaintiffs next argue that the Service applied illegal guidelines and the Wrong standard in
issuing the enhancement findings Pls’ Mot. at 43_49. They contend that the agency improperly
used guidelines that were the subject of prior litigation and withdrawn by the agency more than

twenty years ago. Pls.’ Mot. at 43-44 (comparing the withdrawn guideline factors including

31

whether the population was increasing or stable and a country’s management program, goals and
ability to control poaching, with the challenged enhancement findings Which considered
Zimbabwe’s elephant population trends management plans and laws and poaching). Federal
defendants argue that plaintiffs did not make this claim in their amended complaint and that this
Court has already ruled that the agency did not use these guidelines Fed. Defs.’ Mem. at 24-25,
citing Marcum, 810 F. Supp. 2d at 72 n.3. The Court agrees that plaintiffs did not raise this claim
in their complaint, and in any event, it does not find that the “overlap” that plaintiffs assert
demonstrates that the agency relied on the withdrawn guidelines Marcum, 810 F. Supp. 2d at 72
n.3 (“The fact that there was some overlap between the Withdrawn Safari Club guidelines and the
factors [the Service] considered in denying plaintiffs’ permit applications doesn’t mean that [the
Service] reinstituted those guidelines . . . .”).

Plaintiffs also argue that the agency applied the wrong standard in the enhancement
findings requiring a showing that sport-hunting elephants in Zimbabwe ensures the species’
survival, not just enhances it. Pls.’ Mot. at 47 (contending that the agency “continue to focus on
the negative implications of issues other than sport hunting” and improperly considered how much,
instead of whether, sport hunting enhances elephant survival). Comparing the 1997 finding to the
recent findings plaintiffs note that the agency made a positive finding in 1997 despite expressing
the same concerns set forth in the recent findings - “lack of government funding, increase in
human-elephant conflicts criticism of the CAMPFIRE district councils and poor infrastructure.”
Pls’ Mot. at 45; see also id. at 47-48 (arguing the challenged findings “focused on a lack of
recently updated elephant data, an incorrectly perceived drastic decline in population, and incorrect

anecdotal evidence of an increase in poaching” and issues other than sport hunting).

32

But plaintiffs fail to recognize the difference in the quality and amount of information the
agency had in 1997 compared to the information it had in 2014 and 2015. While many of the same
concerns expressed in the recent findings existed in 1997, the agency had facts before it at that
time showing the concerns were being addressed. For example, in 1997, survey issues like double
counting were addressed with additional surveys including an independent one conducted by Price
Waterhouse in 1996. 1997 Finding, AR at 2557. Concems in 1997 about CAMPFIRE’s district
councils retaining excess funds Were addressed with information on how some of its districts were
reducing the amount of hinds that they retained. Id. , AR at 2559. Moreover, the 1997 finding was
made against a backdrop of estimates showing a growing elephant population - estimates in which
the agency had confidence Id., AR at 2557-57. In contrast, the record indicates that the same
concerns were no longer being addressed in 2014 and 2015, and that the information that supported
the agency’s conclusions in 1997 Was stale by 2014 and 2015, See, e.g., July 2014 Finding, AR at
4507, 4510, 4516; 2015 Finding, AR at 7261-63, 7272.

ln making an enhancement finding pursuant to the Special Rule, the Service reviewed “the
status of the population and the total management program for the elephant in each country to
ensure the program is promoting the conservation of the species.” 1997 Proposed Rule, 62 Fed.
Reg. at 44,633. ln 1997, it carried out this analysis by reviewing the status of the elephant
population in Zimbabwe, Zimbabwe’s management plan, its management program including
CAMPFIRE, its regulations and enforcement, sustainable use in the country, and its
implementation of CITES. See 1997 Finding, AR at 2557_60. ln carrying its reviews in 2014 and
2015, the agency reviewed these same factors July 2014 Finding, AR at 4507-17 (reviewing

management plans population status regulation and enforcement, sustainable use, revenue

33

utilization by CAMPFIRE, and local conservation efforts); 2015 Finding, AR at 7256-73 (same).
Plaintiffs did not challenge either the standard the Service applied in making the 1997 finding or
the data and information it reviewed. And the Court is not persuaded that this standard was wrong
now.

Plaintiffs would have the agency focus only on whether sport-hunting generates revenue
for species conservation and whether the presence of hunters deters poaching But these factors
address only the first part of the inquiry, and taken as true, they would always result in an positive
enhancement finding lnstead, the agency examines not only whether these factors exist but their
effect on the species as a whole: whether fees generated by U.S. hunters are in fact being used to
promote conservation and how they are being used under the govemment’s management plan and
sport-hunting pro gram, whether their use is improving the species’ prospects for survival into the
future, and how the species would fare if U.S. hunters could not import trophies See 62 Fed. Reg.
at 44,633. The Court holds that this inquiry is appropriate because the agency must find a causal
connection between “the killing of the animal whose trophy is intended for import” and the
“survival of the species” ~ not just the survival of a single or some elephants. 50 CFR
§ 17.40(e)(3)(iii) (emphasis added). Thus generating hunting fees and deterring poaching in
specific instances do not show enhancement, without a showing that a government is properly
using funds and protecting the species more broadly. Accordingly, the Court holds that the agency

did not apply an improper standard in issuing the three challenged findings

34

V. The Three Findings

A. The Service Properly Based the April 2014 Finding on New Information but
Failed to Provide the Required Notice in the F ederal Register Before Changing
the Zimbabwe Finding

Plaintiffs argue that the Service bound itself to changing the Zimbabwe enhancement
finding based only on new information and after publishing notice of the change in the Federal
Register. Pls.’ Mot. at 14-18; Pls.’ Opp./Reply at 2-6. They further argue that the agency’s failure
to comply with these commitments tainted both the April and July 2014 Findings. Id.

ln the 1997 Proposed Rule announcing the transfer of African elephants in Zimbabwe,
Botswana, and Namibia from Appendix l to Appendix ll, the agency wrote the following about
the enhancement findings for the three countries:

The Service will make such findings on a periodic basis upon receipt of new
information on the species’ population or management The enhancement
findings for importation of sport-hunted elephant trophies from Botswana,
Namibia, and Zimbabwe are on file in the Office of Management Authority
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 a
notice of any change in the Federal Register.
62 Fed. Reg. at 44,633.

Plaintiffs argue that this statement bound the Service to base any change to the findings for
these three countries “on new information, that the conditions of the special rule are no longer
met” and keep the 1997 Finding in effect until it published notice of the change in the Federal
Register. See Pls.’ Mot. at 14~18; Pls.’ Opp./Reply at 2-4. They contend the agency’s failure to
follow these binding procedures makes April and July 2014 enhancement findings invalid. See id.

Federal defendants argue that the Service is bound only by the Special Rule, as published

in Code of Federal Regulations, and not by the text of the preamble to the 1997 Proposed Rule.

35

See Fed. Defs.’ Mem. at 31; Fed. Defs.’ Reply at 23_24. Given the mandatory language in the
preamble and the Service’s actions after announcing the changed Zimbabwe finding, the Court
finds that the preamble is binding on the agency.

Generally speaking, preambles to rules are not binding agency actions subject to judicial
review, Nat. Res. Def. Council v. EPA, 559 F.3d 561, 564_65 (D.C. Cir. 2009), and agency
statements “having general applicability and legal effect” are to be published in the Code of
Federal Regulations. Id., citing Federal Register Act, 44 U.S.C. § 1510(a)-(b) and 1 C.F.R. § 8.1.
But in certain circumstances a preamble may be legally binding Kennecott Utah Copper Corp.
v. U.S. Dep’t of Interior, 88 F.3d 1191, 1222-23 (D.C. Cir. 1996) (intemal citations omitted)
(holding that whether a preamble is binding on an agency “hinges upon whether the preamble has
independent legal effect, which in turn is a function of the agency’s intention to bind either itself
or regulated parties” and even without an express statement, a court may “infer that the agency
intended the preamble to be binding if what it requires is sufficiently clear”). Accordingly, the
Court must consider Whether this preamble is binding

“[A]n agency pronouncement will be considered binding as a practical matter if it either
appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.”
Elec. Prii)acy Info. Ctr. v. U.S. Dep ’t of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011), quoting
Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002); see also Wildearth Guardians v.
Salazar, 783 F. Supp. 2d 61, 72 (D.D.C. 2011) (intemal quotation marks omitted) (“Generally
speaking ‘an agency pronouncement is transformed into a binding norm if the statement’s

’,?

language, context, and available extrinsic evidence indicate the agency so intended. ), quoting

36

Empresa Cubana Exportada de Alimentos y Productos Varios v. U.S. Dept. of Treasury, 516 F.
Supp. 2d. 43, 58 (D.D.C. 2007).

1. The preamble contains exclusively mandatory language

An agency statement will be considered binding if it “is in purpose or likely effect one that
narrowly limits administrative discretion” Guardian Fed. Sav. & Loan Ass ’n v. Fed. Sav. & Loan
Ins. Corp., 589 F.2d, 658, 666-67 (D.C. Cir. 1978). lndeed, “the mandatory language of a
document alone can be sufficient to render it binding,” Gen. Elec., 290 F.3d at 383; Crnty. Nutrition
Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (“[W]e have . . . found decisive the choice
between the words ‘will’ and ‘may.”’); compare Am. Bus. Ass’n v. United States, 627 F.2d 525,
532 (finding use of the word “will” to be evidence that an agency statement is a binding norm)
with Guardian Fed., 589 F.2d at 666 (finding use of the word “may” to be evidence that an agency
statement is a non-binding, “general statement of policy”). “lf a statement denies the
decisionmaker discretion . . . then the statement is binding.” McLouth Steel Prods. Corp. v.
Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988). And “procedures may be binding on an agency
when they affect individuals’ rights.” Chiron Corp. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 1999);
see also Mass. Fair Share v. Law Enf’t Assistance Admin., 758 F.2d 708, 711-12 (D.C. Cir. 1985)
(holding that an agency is bound by its manual’s procedures for grant-funding).

The language here appears to be binding on its face: the Service “will make such
findings . . . upon receipt of new information” 1997 Proposed Rule, 62 Fed. Reg. at 44,633
(emphasis added). lt adds that the positive enhancement finding for the three countries would
“remain in effect until [the agency] 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.”

37

Id. While this language gives the Service discretion to change the enhancement finding, it does
not leave the agency discretion on how it will change the finding lt must do so only with new
information and after publishing notice in the Federal Register. The preamble’s mandatory
language “strongly suggest[s] that [it] is not just a musing about what the agency might do in the
future.” McLouth, 838 F.2d at 1321, quoting Crnty. Nutrition Inst., 818 F.2d at 948. lndeed, the
text leaves less room for discretion than have other pronouncements the D.C. Circuit concluded
were binding See, e.g., McLouth at 1320-21 (finding language in the preamble of an EPA
regulation on how it would compute contamination levels using a particular model binding because
it stated that the model “will be used to predict the various toxicants” despite equivocal statements
such as the model, “while providing important input to a delisting decision, are not necessarily the
sole basis for such a decision”). The text at issue here contains no such equivocal language

2. The Service has applied the preamble to indicate it is binding

Even without express language that indicates an agency’s intent to bind itself, a court may
infer such intent so long as what the preamble “requires is sufficiently clear.” Kennecott, 88 F.3d
at 1223. “Agency intent is ‘ascertained by an examination of the provision’s language, its context,
and any available extrinsic evidence.”’ Chiron, 198 F.3d at 944, quoting Doe v. Hampton, 566
F.2d 265, 281 (D.C. Cir. 1977); see also McLouth, 838 F.2d at 1321 (“More critically than [the
agency’s] language adopting the model, its later conduct applying it confirms its binding
character.”).

Federal defendants do not argue the language is not mandatory but instead point to context
and extrinsic evidence to argue that it should be not read as mandatory. They argue that when the

Service intends to bind itself, it publishes the statement in the Code of Federal Regulations, and

38

that as soon as the conditions of the Special Rule were not satisfied, it was required to halt
importation - “regardless of whether its inability to make a positive finding [was] based on new
information or [on the] lack of information.” Fed. Defs.’ Reply at 23-24; see Fed. Defs.’ Mem. at
31. But the agency’s current characterization of the statement bears “little weight The agency’s
past characterizations and more important the nature of its past applications . . . are what count.”
McLouth, 838 F.2d at 1320; see also Cmty. Nutrition lnst., 818 F.2d at 946 (noting that “courts are
to give far greater weight to the language actually used by the agency” than to the agency’s current
characterization of that language).

ln support of their first argument, defendants point to two special rules that govern other
species Fed. Defs.’ Mem. at 31, citing 50 C.F.R. §§ 17.40@)(2), (n)(2). These special rules
provide for publication of notice in the Federal Register when the Service intends to authorize
imports Id. But an agency need not publish a commitment in the Code of Federal Regulations to
bind itself. Kennecott Utah Copper Corp., 88 F.3d at 1222-23 (internal citations omitted).

The Service next argues that as soon as it was unable to make a positive enhancement
finding, the conditions of the Special Rule were no longer satisfied and it was required to halt
imports regardless of the availability of new information Fed. Defs.’ Reply at 24. But rather
than proving it did not intend to be bound by the preamble, the Service’s actions shows the
opposite As federal defendants note, 50 C.F.R. § 17.40(e)(3)(iii)(C) requires the Service to make
an enhancement finding before allowing imports of sport-hunted African elephant trophies from
any country. And the requirement that the Service base any withdrawal of the enhancement
findings for Botswana, Namibia, and Zimbabwe on new information and afier publishing notice

in the Federal Register appears only in the preamble So in theory, the Service would be

39

correct - if it had no intention to be bound by the preamble, it could have halted imports as soon
as it found it was unable to make the positive enhancement finding
But that is not what happened. lnstead, on May 12, 2014, the agency published notice in

the Federal Register that it was suspending importation on an interim basis See 79 Fed. Reg.
26,986. lt wrote:

[W]e recognize that our inability to make a finding is based primarily on a

lack of information, not on specific information that shows that Zimbabwe’s

management is not enhancing the survival of the species Therefore, the

Service is actively pursuing additional information from the Government of

Zimbabwe, as well as other sources in an effort to make a final

determination on whether African elephant sport-hunted trophies taken in

2014 could be imported into the United States.
Id. at 26,987. This statement indicates that the Service knew of its prior commitment to base the
suspension of its enhancement findings on new information and intended to be bound by that
commitment lndeed, the Court notes that while federal defendants contend that the preamble’s
statement on how it would change the finding are not binding, it separately asserts that “the only
documents relevant to the standard the Service uses for enhancement findings under the special
rule are the preamble to the rule itself and Service’s enhancement findings.” Fed. Defs.’ Mem. at
23 (emphasis added). This further suggests the Service gives significant weight to the preamble’s
authority. Given all of this the Court concludes that the agency bound itself to comply with its
statements in the preamble

But that does not end the inquiry. The Court must next consider whether the agency

complied with its commitments

40

3. The Service based the interim finding on new information

The agency’s own statements repeatedly indicated the agency did not have much
information and no new information from Zimbabwe before suspending imports Service Bulletin,
AR at 3021 (describing “available data” to the agency as “limited”); April 2014 Finding, AR at
3823 (_ stating the “most significant aspect of our analysis is the lack of recent data on what is
occurring in Zimbabwe”); 79 Fed. Reg. 26,986_87 (stating the interim suspension was “due
primarily to the Service having insufficient information on the status of elephants in Zimbabwe
and the current management program in Zimbabwe” and that the “inability to make a finding is
based primarily on a lack of information, not on specific information that shows that Zimbabwe’s
management is not enhancing the survival of the species”).

By the July 2014 Finding, the agency had received information from the government of
Zimbabwe and other sources but found that this additional information still did not support a
positive finding July 2014 Finding, AR at 4505, 4507. Plaintiffs argue that even though the
Service received this information, the finding was still based on a “lack” of information Pls.’
Mot. at 27.

Plaintiffs’ argument on the April 2014 Finding appears to be that the agency is only allowed
to change the finding based on information provided by the government of Zimbabwe. But this
cannot be the case lf it were, Zimbabwe could simply refuse to provide the Service any
information and keep the Service’s enhancement finding in place in perpetuity. Even the original
positive enhancement finding from 1997 relied on third party data. See, e.g., 1997 Finding, AR at
2557 (citing an independent population survey by Price Waterhouse). The Service committed to

keep the enhancement finding in place until it found the Special Rule’s conditions were no longer

41

met “based on new information” - not “based new information from the exporting country.” So
the April 2014 Finding is not improper simply because the Service had not yet received
information from Zimbabwe.

4. The Service failed to comply with its commitment to provide public
notice of the April 4, 2014 change

The Service also promised in the 1997 Proposed Rule that the finding would “remain in
effect until [it] . . . published a notice of any change in the Federal Register.” 62 Fed. Reg. at
44,633. The Service did not do so until May 12, 2014, but it made the suspension effective April
4, 2014. 79 Fed. Reg. at 26,986. The Court /finds that this violated the commitment in the
preamble F ederal defendants argue the error is harmless because hunters had actual notice of the
change, given the agency’s Service Bulletin and announcement of the suspension on its website.
Fed. Defs.’ Mem. at 32-33. But the agency did not say that the finding would remain in effect
until it posted a notice on its website, or issued a bulletin, or hunters received actual notice of a
change lt said the finding would “remain in effect” until the agency “published a notice of any
change in the Federal Register.” 62 Fed. Reg. at 44,633. The agency failed to live up to this
commitment

Because remand cannot resolve this issue, the Court holds that the appropriate remedy is
to order that the effective date of the 2014 interim suspension is not April 4, 2014 but May 12,
2014, the date of the Federal Register notice The result is that imports of trophies from elephants

sport-hunted in Zimbabwe from April 4, 2014 to May 11, 2014 may proceed.14

 

14 Given its holding, the Court does not reach the question of whether the agency sought to
correct the alleged problems with the April 2014 Finding retroactively without authority.

42

B. The July 2014 Finding is Not Arbitrary and Capricious.

After issuing the April interim finding, the agency received information from a number of
sources including the government of Zimbabwe, hunting organizations and numerous
individuals See, e.g., July 2014 Finding, AR at 4507-17. The agency reviewed the information
but did not change the interim finding

Plaintiffs argue that the July 2014 Finding violated the 1997 commitment to base a change
to the finding on “new information.” Pls.’ Mot. at 27 (asserting that “[i]n July, the Service

333

continued to base its decision on a ‘lack of information ). But the document plaintiffs quote states
that the April 2014 Finding was based on a “lack of information” and that the July 2014 Finding
was based on a “lack of current information.” Id., quoting AR 196 at 4443. Plaintiffs do not
dispute, and the record shows that the government of Zimbabwe provided information to the
agency, which the agency considered before issuing the July 2014 Finding Pls.’ Mot. at 27; see,
e.g., Response to Questions Raised by FWS to Address the USA Endangered Species Act by
ZPWMA, AR 7 at 1925-56 (“ZPWMA Response to Questions”). Accordingly, the Court holds
that the July 2014 Finding did not violate the Service’s commitment15

Plaintiffs also argue that the luly 2014 Finding was arbitrary and capricious because the
Service “ignored, rejected or discounted” the information ZWPMA and others provided to the

agency. Pls.’ Mot. at 28. The Court’s role in deciding this issue is narrow. An agency’s decision

is presumed valid, see Citizens to Preserve Overton Park, 401 U.S. at 415, and the Court cannot

 

15 The Service also did not violate the commitment to publish “any change” to the
enhancement finding in the Federal Register when it issued the finding on July 17 (and 22), 2014
but did not publish notice of it until July 31, 2014 because the July final finding did not change the
April interim finding

43

“substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass ’n, 463 U.S. at 43; see
also Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (holding that after a “careful study of the
record, [the court] must take a step back from the agency decision” and “look at the decision not
as the chemist, biolo gist or statistician that [it is] qualified neither by training nor experience to be,
but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain
minimal standards of rationality”).

Plaintiffs present competing analyses of the information before the Service, but the Court’s
role is not to choose among the competing views presented. lt is to determine whether the Service
examined the relevant data and articulated a satisfactory explanation for its finding, “including a
‘rational connection between the facts found and the choice made.”’ Alpharma, Inc., 460 F.3d
at 6, quoting Motor Vehicle Mjrs. Ass ’n, 463 U.S. at 43. With this narrow mandate in mind, and
as explained further below, the Court concludes that the July 2014 Finding is not arbitrary and
capricious

1. Population Status

Plaintiffs contend that the agency improperly analyzed population data in the July 2014
Finding Pls.’ Mot. at 22, 28_30. For 2007, the lUCN’s 2013 Africa Report estimated the
population in Zimbabwe was 99,107 elephants July 2014 Finding, AR at 4510. Of that total,
eighty-five percent (84,416) was classified as “definite” Id. For 2012, the report estimated the
population had increased to 100,291, but only forty-seven percent (47,366) was classified as
“definite.” Id.

Plaintiffs cite an email to the Service from Dr. Holly Dublin, senior adviser and chair of

the lUCN’s Afiican Elephant Specialist Group, about the 2013 Africa Report Pls.’ Mot. at 28,

44

citing May 30, 2014 email string, AR 151 at 4166. Dr. Dublin wrote that the agency’s description
of the population being “reduced” from 84,416 in 2007 to 47,3 66 in 2013 is based only on the data
from the “definite” category. May 30, 2014 email string AR at 4166. She stated that the reason
for the decline in “is NOT due to an observed decline, but rather due to the fact that much of data
thc estimate is based on were considered ‘out of datc’ by our systcm.” Id. (cxplaining that the
database categorizes survey data into four categories - definite, probable, possible and speculative
_ “to reflect the uncertainty in the population estimates at the national and regional levels”). ln
Zimbabwe’s case, she elaborated, “much of the data on population estimates is out of date, which
has resulted in those data being moved ‘down’ in terms of the category of reliability. That should
not be interpreted to mean that we believe the elephant populations have declined, just that we
have greater uncertainty about the numbers.” Id. Citing Dr. Dublin’s email, plaintiffs argue that
agency ignored or did not give sufficient weight to the numbers of elephants that fell outside the
“definite” category. Pls Mot. at 28.

While the agency’s statement in the April 2014 Finding that the population “had been
reduced to 47,366” was misleading its statements in the July 2014 Finding about the reliability of
the survey data came directly from the 2013 Africa Report See 2013 Africa Report, AR at 3626-
27. The report shows that 304 elephants were counted by aerial total counts (labeled “AT” in the
report’s table) in 2010. Id., AR at 3627. The report fi,irther ranked the reliability of the surveys
reflected in it, from “A” (best) through “E” (worst). Id., AR at 3627 n.2. Only a 2010 survey
conducted by Selier & Page, which only covered three of forty-one areas received an “A” ranking

Id., AR at 3626_27. The 2013 Africa Report summarized:

45

Very few new surveys were conducted in Zimbabwe since 2007, covering
a small percentage of the overall population Half of the estimates included
in the current update are now older than 10 years resulting in an overall
degradation of the quality of data from Zimbabwe. This lack of systematic
and updated monitoring data is of serious concern for possibly the third
largest elephant population in Africa. As a result of the data degradation,
the DEFINITE category has seen a drop of 41,536, while the
SPECULATIVES have increased by 45,084. Only 8 of the estimates in this
update were as a result of repeated surveys increasing the number of
DEFlNlTE elephants by 3,759.

Id., AR at 3627.

The record does not indicate that the agency ignored the other survey categories or that it
concluded the elephant population had in fact declined by half. See July 2014 Finding AR at 4510
(acknowledging that the 2013 Africa Report estimated more than 100,000 elephants in Zimbabwe
and the government of Zimbabwe estimated the same). Rather, the agency’s concern was that the
survey data was unreliable See id. The record - and, indeed, Dr. Dublin’s email - confirmed that
the reliability of the data had declined since the 1997 Finding See, e.g., May 30, 2014 email
string AR at 4166. ,

Plaintiffs also challenge the statement in the July 2014 Finding that in 2012, “[o]nly 304 .
. . were counted by aerial or ground counts while the remaining 41 ,840 . . . were counted through
sample counts or dung counts . . . a less accurate methodology.” AR at 4510. Plaintiffs assert the
agency “failed to comprehend the IUCN Report and how population surveys are conducted.” Pls.’
Mot. at 29. But plaintiffs’ argument about survey methodology does not undermine the fact that
only 47,3 66 elephants surveyed were considered “definite” in 2012, compared to the much higher
number in that category in 2007. 2013 Africa Report, AR at 3626. Again, the Service’s concern
was not that the population had in fact declined but that survey data was old, making the estimates

less reliable than when it made the affirmative finding in 1997. Compare CITES Doc. 10.88,

46

Consideration of Proposals for Amendments of Appendices l or ll at 10th Conf. of Parties (1997),
AR 19 at 2542 (“CITES Doc. 10.88”) (“Zimbabwe has carried out a regular series of aerial surveys
of its elephant population since 1980 using standard sample count techniques Zimbabwe has one
of the best sets of elephant population data in Africa.”), with 2013 Africa Report, AR at 3627
(“Half of the estimates included in the current update arc now older than 10 years resulting in an
overall degradation of the quality of data from Zimbabwe.”).

The July 2014 Finding was not based solely on the population numbers but in part on the
conclusion that the available population data was inadequate to determine the status of the
population or to understand Zimbabwe’s management of the species See, e.g., July 2014 Finding,
AR at 4516 (concluding that “it does not appear that Zimbabwe has adequate information on
elephant populations to establish scientifically defensible hunting quotas”).

2. Poaching

Plaintiffs next contend that the agency improperly analyzed poaching data, pointing again
to the email from Dr. Dublin, Pls.’ Mot. at 30, quoting May 30, 2014 email string AR at 4167
(stating that the agency’s “extrapolation of the [Monitoring the lllegal Killing of Elephants
(“MIKE”)] PlKE figures to the national level based on the data from one or two MlKE sites . . .
probably also deserve closer scrutiny”). Plaintiffs do not argue that the poaching data from the
two locations is wrong16 but that the Service over-extrapolated the data nationwide and failed to

analyze how the import ban Would affect the country’s ability to fight poaching Pls.’ Mot. at 30-

 

16 Plaintiffs do emphasize that the agency relied on inaccurate press reports about the number
of elephants killed in the Hwange poisoning in the April 2014 Finding Pls.’ Mot. at 10, but the
Service corrected that statement in its subsequent findings July 2014 Finding AR at 4513 n.l;
2015 Finding AR at 7266 n.l;

47

31. They also contend the agency “rejected concrete data presented by ZPWMA and others that
hunters and hunting concession provide a major deterrent to poaching.” Id. at 31. According to
plaintiffs poaching is not a new problem in Zimbabwe, and the Service had only the Hwange
poisoning incident and the incorrectly extrapolated MlKE/PlKE data to support the change in
position from 1997 to 2014. Pls.’ Opp./Reply at 9 10.

F ederal defendants argue that the agency did not rely solely on the poaching data for the
finding but considered it evidence that poaching remains a concern in Zimbabwe. Fed. Defs.’
Mem. at 12_13. ln any event, the record shows other information indicating that poaching was an
ongoing problem, See lnforrnation Memo. for the Director, J an 8, 2014, AR 79 at 3625
(memorandum stating that the United States has sanctions in place for senior officials of the
government of Zimbabwe for public corruption and citing articles and unofficial reports “that
Zimbabwean government officials may be financially linked to sport hunting”); lnformation
Memo. for the Director, J an 6, 2014, AR 76 at 3610 (draft memorandum reflecting “reports of
government corruption, including politicization of hunting quota distribution and abuse of ration
quotas as well as purported direct and indirect participation in wildlife trafficking by Zimbabwean
politicians defense forces and intelligence officers”). Regarding the role of hunters in deterring
poaching, federal defendants emphasize that Zimbabwe’s budget for the ZPWMA to manage
wildlife, including deterring poach, is insufficient to carry out its statutory mandate, even with
hunting revenues Fed. Defs.’ Mem. at 13. Further, because hunting concessions are not allowed
in national parts‘ “it is unlikely the density of hunters is sufficient to adequately deter poaching”

Id. at 14, citing July 2014 Finding, AR at 4512-13.

48

As with its analysis of the population data, the agency did not ignore or disregard evidence
in the record about poaching or how hunters help deter it, but Weighed it differently than the
plaintiffs would have

3. Wildlife Laws and Regulations and the Elephant Management Plan

Plaintiffs contend that Zimbabwe’s elephant conservation and management laws plans
and strategies Were the same in 1997 as they were in 2014, and the Service acted in an arbitrary
and capricious manner when it found them sufficient in 1997 but “abruptly” found them
insufficient in 2014. Pls.’ Mot. at 27_28 n.13. But plaintiffs ignore the difference between the
quality and substance of the information before the agency in 1997 and before it in July 2014.

The record indicates that when the agency made its 1997 finding a CITES report showed
that the predecessor agency to ZPWMA provided assurances that the “current poor state of
finances and general organization” of the agency was improving CITES Doc. 10.88, AR at 2541;
see also id. at 2547 (“The status of DNPWLM changed on 1 July 1996 to become a statutory
‘Fund’, responsible for financing operations directly from wildlife revenue . . . managed by the
Director on behalf of the Accounting Officer for the Ministry of Environment and Tourism, who
is in turn accountable to Parliament.”).

Plaintiffs emphasize that the Service incorrectly cited this 1997 CITES report as a source
for more recent concerns about ZPWMA’s weak financial base, lack of management skills

17

inadequate or old equipment, and poor infrastructure. ln fact, the information came from the

1997 CITES report CITES Doc. 10.88, AR at 2547; see also Fed. Defs.’ Reply at 6

 

17 See April 2014 Finding AR at 3822 (first stating the concerns came from a 2013 CITES
report); July 2014 Finding AR at 4511-12 (then stating the concerns came from a 2002 CITES
panel report).

49

(acknowledging errors). Plaintiffs contend these errors are “[e]mblematic of the Service’s careless
treatment of the facts.” Pls.’ Opp./Reply at 7.

The 1997 CITES report was however, not the only basis in the record for the agency’s
concerns about Zimbabwe’s management of elephants A 2013 report submitted to the CITES
Conference of the Parties stated:

Governance indicators are mixed, with a much lower than average World
Bank ‘rule of law’ score, but the second highest law enforcement ratio of
any group. Zimbabwe is the country that pulls these scores down in both

cases, especially the ‘rule of law’ score, indicating that far greater
challenges exist in that country.

Monitoring of illegal trade in ivory and other elephant specimens Elephant Trade lnformation
System (ETIS) Report of TRAFFIC, Mar. 3-14, 2013, AR 42 at 3320-22 (describing rule of law
in Botswana, Namibia, and Zimbabwe) (emphasis added).

Further, the rec`ord includes press articles from 2013 that reflect concerns about the
government’s ability to enforce its wildlife laws and regulations Zimbabwe elephants a jumbo
problem, G. Staden, Sept. 10, 2013, AR 44 at 3394 (reporting statement of ZPWMA spokesperson
that “[l]aw enforcement requires operational equipment such as patrol kits uniforms radio
communication kits Vchicles boats, tracking equipment [eg GPS],” but “[c]urrently, most of the
existing field equipment is old and obsolete”).

So while plaintiffs are correct that the Service misattributed of statements from a 1997
CITES report about Zimbabwe’s wildlife management, the record nonetheless supports the
conclusion that Zimbabwe’s elephant management and laws are an area of continuing concern

See July 2014 Finding AR at 4511 (stating the Service needed a better understanding ZPWMA’s

50

budget and operations as well as how money generated by elephant hunting impacts ZPWMA’s
efforts including its in anti-poaching efforts before it could issue a positive enhancement finding).

ln sum, plaintiffs challenge specific parts of the Service’s analysis of the record and even
identify errors in its citation of the 1997 CITES report, but their arguments do not lead the Court
to conclude that the agency failed to make a “rational connection between the facts found and the

35

choice made Alpharma, lnc., 460 F.3d at 6 (citations omitted) (intemal quotation marks
omitted). The Service properly weighed the competing data and information before it, and
reasonably determined that, taken to gether, they indicate that allowing imports of trophies of sport-

hunted elephants from Zimbabwe would not enhance the survival of the species

C. The March 2015 Finding is Not Arbitrary and Capricious.

For the same reasons that the Court holds the July 2014 Finding was not arbitrary and
capricious it holds the same for the 2015 Finding Plaintiffs’ challenges to this finding assert the
same types of arguments raised against the July 2014 Finding: that the Service did not properly
analyze or consider data about the elephant population, anti-poaching efforts or the role of hunters
on the ground and financially toward in those efforts However, plaintiffs’ myriad arguments at
bottom, challenge how the agency weighed competing data before it - a task that that is left to the
expertise of the agency. See Marsh, 490 U.S. at 375-77; Am. Wildlands v. Kempthorne, 478 F.
Supp. 2d 92, 96 (D.D.C. 2007), aff’d, 530 F.3d 991 (D.C. Cir. 2008), quoting Carlton v. Babbitt,
900 F. Supp. 526, 530 (D.D.C.1995) (recognizing “the expertise of the [Service] in the area of
wildlife conservation and management”).

The Service declined to make a positive enhancement finding for Zimbabwe in 2015

because much of the data before it Was preliminary or incomplete or reflected proposals that had

51

not yet been implemented See, e.g., 2015 Finding AR at 7261 (stating that the government of
Zimbabwe was in the process of creating a new management plan, which was not completed when
the 2015 Finding was issued in March, and the existing plan did not provide measurable goals);
id., AR at 7263 (stating that the new population data from the Pan African Aerial Elephant Survey
was provisional); id., AR at 7266 (finding data about hunting revenues insufficient). While
plaintiffs present numerous ways that the agency could have analyzed the data to reach a different
result, the Court cannot hold that the agency’s conclusion was irrational or unsupported by the
record.

For example, plaintiffs argue that the Service based the 2015 Finding on a lack of current
and adequate population data When the 2014 Pan Afiican Aerial Elephant Survey, which estimated
a population of 82,000-83,000 elephants provided “sufficient population data.” Pls.’ Mot. at 33,
citing 2015 Finding, AR at 7263. But even plaintiffs acknowledge that the survey was not final,
but “preliminary” and “provisiona .” Pls.’ Mot. at 33. Given this it was rational for the Service
to decide not to give this preliminary estimate the weight that plaintiffs do. See In re Polar Bear
ESA Listing & § 4(d) Rule Litig., 794 F. Supp. 2d 65, 90 n.28 (D.D.C. 2011) (accepting “as
reasonable” agency’s explanation that it declined to find “preliminary, alpha-level population
models which came relatively late in the decision-making process” sufficiently persuasive to
warrant an endangered listing for the polar bear).

Plaintiffs also argue that the agency should have compared this preliminary estimate to the
estimate of 66,000 elephants in the 1997 finding or to the 2014 IUCN estimate found in the April
and July 2014 Findings instead of a 2001 survey. Pls.’ Mot. at 33, citing 2015 Finding, AR at

7263. But the record shows that a stated objective of the 2014 Pan Afiican Aerial Elephant Survey

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was to produce results “[d]irectly comparable with 2001 population estimates,” Which showed
“(-6%) since 2001 .” Nat’l Survey of the Elephant in Zimbabwe: 2014 Some Preliminary Results,
AR 274 at 5841, 5854. ln light of this the Court does not find that the agency’s comparison of
the 2014 estimate to 2001 estimate was unreasonable

Plaintiffs also spend much time arguing that the statement of an agency employee _ that
“assuming that the population is close to what they claim (100,000 elephants), removal of 500
elephants is not a problem” - shows that the 2014 preliminary estimate of 82,000-83,000 elephants
shows hunting benefits sufficient to qualify as “enhancement” Pls.’ Mot. at 35-36 (arguing that
the population is “at least relatively close to” 100,000, so removal of 500 elephants through hunting
“is not a problem”), quoting email from T. Van Norrnan to C. London (Sept. 22, 2014), AR 228 at
4640; see also Pls.’ Opp./Reply at 16.

But, again, all of these arguments about how much weight the agency gave the population
data and what other data it was compared against present precisely the type of issues that courts
must leave to the expertise of the agency. See Marsh, 490 U.S. at 375~77. The question for the
Court is not whether plaintiffs’ competing analysis of the data is better than the agency’s but
whether the agency’s analysis was rational. Alpharma, Inc., 460 F.3d at 6; Ethyl Corp., 541 F.2d
at 36.

Plaintiffs present other, similar criticisms of the Service’s analysis

0 They argue the agency incorrectly analyzed or misstated poaching data. See
Pls.’ Mot. at 35, citing AR 177a at 4335-17 (arguing that the agency
incorrectly analyzed the MlKE data and ignored reports that poaching in the
two MlKE areas in Zimbabwe has “decreased substantially”); Pls. Mot. at
35_36, citing AR at 7263 (arguing the agency incorrectly stated that the
PlKE numbers increased in 2012 but backed away from its use of the

MlKE/PlKE data in the 2015 Finding after Dr. Dublin sent a second letter).
Data from ZPWNA showed, however, that the number of elephants poached

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from 2009 through 2013 increased. See ZPWMA Response to Questions
AR at 1936 (estimating the number of poached elephants in 2009 at 145, in
2010 at 77, in 2011 at 223, in 2012 at 212, and in 2013 at 293).

Plaintiffs argue that the 2015 Finding Wrongly stated the agency received
no information on the number of prosecuted poaching crimes or the average
sentence or penalty in Zimbabwe. Pls.’ Mot. at 38, citing 2015 Finding AR
at 7263. The record shows that while Zimbabwe provided some data on
poaching convictions the information was piecemeal and did not show
Zimbabwe’s enforcement of its poaching laws and regulations over time
lnformation from ZPWMA, AR 276 at 5871_72, 5874 (“ZPWMA
lnformation”).

Plaintiffs argue the Service improperly relied on a CITES report, which
noted that sixty-five percent of ivory trade between 2006 and 201 1 occurred
since 2009, to conclude “that illegal ivory trade is increasing” but ignored
declines in poaching in the three years before and “offered no data about
poaching” in the more recent years of 2012 to 2013, when “poaching may
have leveled off or decreased.” Pls.’ Mot. at 39 (emphasis added), citing
2015 Finding AR at 7265. But, again, ZPWNA’s own numbers show
poaching increased from 2009 through 2013. ZPWMA Response to
Questions AR at 193 6.

Plaintiffs argue the agency wrongly stated that Zimbabwe had a hunting
quota of 500 in 2015, when the government had proposed a quota of 380
for that year. Pls.’ Mot. at 36, citing ZPWMA lnformation, AR at 5882-
83. But the 380 quota was only a proposal, as plaintiffs later concede Id.;
see also Pls.’ Opp./Reply at 17 (“[T]he document SCl/NRA cited does
establish a proposed quota of 380.”) (emphasis added).

Plaintiffs assert the agency wrongly stated that “the number of problem
animals may equal or exceed the number of elephants taken through sport-
hunting,” 2015 Finding AR at 7267, when the government of Zimbabwe
addressed this assertion Pls.’ Mot. at 39, citing ZPWMA Information, AR
at 5880-81. But Zimbabwe’s data again was piecemeal, providing
snapshots of offtake as a result of human-elephant conflicts rather than a
review of offtake over time See ZPWMA lnformation, AR at 5881.

Plaintiffs contend that the Service disregarded infomiation describing
contributions two outfitters made to the CAMPFIRE program and local
communities focusing instead on perceived flaws in the accounting of the
revenue handled by CAMPFIRE, which it did not do in 1997. But the 2015
Finding acknowledged that “[e]ffective conservation work is being carried
out in some independently managed areas” 2015 Finding AR at 7271; see

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also lnforrnation Mem. for the Associate Dir. (Oct. 28, 2014), AR 252 at
5727-28 (stating that information from organizations outfitters and
professional hunting organizations “did indicate that hunting in Zimbabwe
was providing some benefit to elephants”). However, the Service
concluded that it did not have “clear information on the significance
[CAMPFIRE lands] play in elephant conservation” or “how much revenue
is generated by elephant hunting.” See 2015 Finding AR at 7269-71.

¢ Plaintiffs argue the agency ignored or discounted operator-provided
information Pls.’ Mot. at 37 (asserting the agency gave “inadequate weight
and consideration” to information showing that sport hunting is a solution

to elephant conservation problems), citing AR 8 at 1959-60, AR 239 at
4734~36, and AR 249 at 5704-05.

These arguments not only ask the Court to substitute its judgment for that of the agency
but also misperceive the regulatory standard. The issue before the agency is not the status of the
population or the management plan in isolation So whether the population estimate or
PlKE/MlKE levels or number of poaching arrests or annual hunting quota was at a particular a
number at a specific point in time is not the question Rather, the question is whether, taken
together, the information before the agency showed that “the killing of the animal whose trophy is
for import would enhance survival of the species.” 50 C.F.R. § 17.40(e); see also 1997 Proposed
Rule, 62 Fed. Reg. at 44,633. As explained above, determining whether imports support
conservation does not simply involve finding whether hunters pay fees into the government’s
confers or deter some poachers but whether hunters’ fees and activities more broadly improve the
ability of the species to survive overall.

The 2015 Finding explained that this regulatory standard was not satisfied because of a
number of ongoing concerns including with Zimbabwe’s ability to manage its elephants its ability
to incorporate new survey data into its management, and its capacity to enforce its laws regarding

elephant management See 2015 Finding AR at 7272-73. The Service stated that it needed more

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reliable information to be able to make a causal connection between imports of sport-hunted
elephant trophies and enhancement of the elephant’s survival in Zimbabwe. While plaintiffs
identify mis-sourced data, point to information the agency could have interpreted differently, and
reiterate that the agency had to reissue findings and notices to correct technical errors the Court
holds that the agency rationally determined that the status of the elephant population and
Zimbabwe’s management of the population did not warrant a positive enhancement finding based
on the record before it Upon careful review of the parties’ arguments and the record, the Court
holds the agency’s 2015 Finding was not irrational, arbitrary, or capricious
CONCLUSION

For the reasons stated above, the Court will grant plaintiffs’ motion for summary judgment
on the issue that the Service failed to publish notice of the changed Zimbabwe enhancement
finding in the Federal Register until May 12, 2014 and deny the remainder of plaintiffs’ motion
The Court will grant federal defendants’ motion for summary judgment in all other respects The

Court will also order that the effective date of the April 2014 Finding is May 12, 2014. A Separate

_K£e< <~ sowa/we

RoYE‘L-“, C. LAMBERTH
United States District Judge

order will issue

DATE; september z_°, 2016

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