                                                      UNITED STATES DISTRICT COURT
                                                      FOR THE DISTRICT OF COLUMBIA


                                                                            )
IN RE POLAR BEAR ENDANGERED                                                 )
SPECIES ACT LISTING AND § 4(d)                                              )
RULE LITIGATION                                                             ) Misc. No. 08-764 (EGS)
                                                                            ) MDL Docket No. 1993
                                                                            )
                                                                            )
This Document Relates To:                                                   )
                                                                            )
Safari Club Int’l, et al. v.                                                )
Salazar,1 et al., No. 08-881;                                               )
Hershey v. Salazar, et al.,                                                 )
No. 09-324; Kreider v. Salazar,                                             )
et al., No. 09-325; Atcheson,                                               )
et al. v. Salazar, et al.,                                                  )
No. 09-941                                                                  )
                                                                            )

                                                                MEMORANDUM OPINION

              On May 15, 2008, the U.S. Fish and Wildlife Service (“the

Service” or “the agency”) published its final rule listing the

polar bear as a threatened species under the Endangered Species

Act (“ESA”) because of anticipated impacts to its sea ice

habitat from increasing Arctic temperatures, which the agency

attributed to global greenhouse gas emissions and related

atmospheric changes.                                           See generally Determination of Threatened

Status for the Polar Bear (Ursus maritimus) Throughout Its

Range, 73 Fed. Reg. 28,212 (May 15, 2008) (“Listing Rule”).
                                                            
1
     Pursuant to Fed. R. Civ. P. 25(d), Interior Secretary Ken
Salazar is automatically substituted as a defendant for his
predecessor, Dirk Kempthorne, who was sued in his official
capacity.
This Court recently upheld the Listing Rule as a reasonable

exercise of agency discretion.                                   See In re Polar Bear Endangered

Species Act Listing and § 4(d) Rule Litigation, Misc. No. 08-

764, 2011 U.S. Dist. LEXIS 70172 (D.D.C. June 30, 2011).                                  The

four cases currently before the Court arise out of the Service’s

related determination that, as of the effective date of the

Listing Rule, sport-hunted polar bear trophies may no longer be

imported into the United States under the Marine Mammal

Protection Act (“MMPA”), 16 U.S.C. §§ 1361-1423h, which

generally prohibits the import of marine mammal species that the

Secretary has designated as “depleted.”

              The following plaintiffs have filed actions against the

Service asserting violations of the MMPA and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706:

                     Safari Club International and Safari Club International
                      Foundation (collectively, “SCI”);
                     Ronald Kreider (“Kreider”);
                     Donald Hershey (“Hershey”);2
                     Keith Atcheson, Keith Halstead, Ben Hamel, Marcus Hansen,
                      Aaron Nielson, Kevin Wieczorek, Dennis Dunn, and
                      Conservation Force (collectively, “Atcheson plaintiffs”).

Pending before the Court are the parties’ cross-motions for

summary judgment.

              The SCI plaintiffs challenge the Service’s legal

determination that imports of sport-hunted polar bear trophies
                                                            
2
     Plaintiffs SCI, Kreider, and Hershey jointly moved for
summary judgment and will be referred to collectively as the
“SCI plaintiffs.”
                                                               - 2 -
 
are no longer available as arbitrary, capricious, and contrary

to the plain language of the MMPA.      As the SCI plaintiffs note,

section 104(c)(5) of the MMPA specifically authorizes the import

of sport-hunted polar bear trophies from approved polar bear

populations in Canada.   The SCI plaintiffs argue, first, that

Congress plainly intended this authorization to take precedence

over the MMPA’s prohibition on importing depleted marine mammal

species.    The SCI plaintiffs further argue, however, that the

prohibition on importing depleted species does not apply to the

polar bear, which they claim was never properly designated as

depleted.   On the same grounds, the SCI plaintiffs challenge the

disposition of import permit applications submitted pursuant to

section 104(c)(5) of the MMPA by individual plaintiffs Hershey

and Kreider, which the Service administratively closed after the

publication of the Listing Rule.

     Having carefully considered plaintiffs’ motions, the

federal defendants’ and defendant-intervenors’ cross-motions,

the oppositions and replies thereto, the arguments of counsel at

a motions hearing held on April 13, 2011, the relevant law, the

full administrative record, and for the reasons set forth below,

the Court finds that the Service properly concluded that the

polar bear is a depleted species within the meaning of the MMPA

as of the publication of the Listing Rule.     The Court further

finds that the MMPA mandates the Service’s conclusion that

                                - 3 -
 
sport-hunted polar bear trophies are no longer eligible for

import as a result of the species’ depleted status.   Sport

hunting is not among the narrow, enumerated exceptions to the

MMPA’s ban on taking and importing depleted marine mammals.

Accordingly, the Court concludes that the Service did not err

when it administratively closed permit applications that were

pending when the Listing Rule took effect, including those

submitted by plaintiffs Hershey and Kreider.   The Court

therefore DENIES the SCI plaintiffs’ motion for summary judgment

and GRANTS the federal defendants’ and defendant-intervenors’

motions for summary judgment.

     Whereas the SCI plaintiffs primarily argue that the polar

bear is not a depleted species within the meaning of the MMPA,

the Atcheson plaintiffs, for their part, do not contest that the

polar bear was properly designated as depleted.   However, after

the publication of the Listing Rule, the Atcheson plaintiffs

nonetheless applied for permits to import their sport-hunted

polar bear trophies under section 104(c)(4)(A) of the MMPA,

which authorizes a narrow exception to the general prohibition

on importing depleted marine mammals for activities that will

“enhance” a depleted species, either by increasing its numbers

or by otherwise contributing to the recovery of the species.

The Service denied the Atcheson plaintiffs’ permit applications,

finding no evidence that either sport hunting itself or the

                                - 4 -
 
subsequent import of these specific sport-hunted polar bear

trophies would actually enhance the species within the meaning

of the statute.   The Atcheson plaintiffs challenge the denial of

their permit applications as arbitrary, capricious, contrary to

law, and procedurally deficient.

     Having carefully considered plaintiffs’ motions, the

federal defendants’ and defendant-intervenors’ cross-motions,

the oppositions and replies thereto, the arguments of counsel at

a motions hearing held on April 13, 2011, the relevant law, the

full administrative record, and for the reasons set forth below,

the Court finds that the Service reasonably concluded that the

Atcheson plaintiffs failed to meet the standard for an

enhancement exception to the MMPA’s ban on importing depleted

species.   Accordingly, the Court DENIES the Atcheson plaintiffs’

motion for summary judgment and GRANTS the federal defendants’

and defendant-intervenors’ motions for summary judgment.

I.   BACKGROUND

     A.    Statutory and Regulatory Background

     Congress enacted the MMPA to preserve and replenish marine

mammal populations.    See 16 U.S.C. § 1361(2).   The Secretary of

the Interior has jurisdiction over most marine mammals covered

by the MMPA, including the polar bear.    See id.

§ 1362(12)(A)(ii).    The Secretary has delegated his duties under

the MMPA to the Service.    See 50 C.F.R. § 403.02(f).

                                - 5 -
 
              The MMPA establishes a general moratorium “during which

time no permit may be issued for the taking of any marine mammal

and no marine mammal or marine mammal product may be imported

into the United States.”3                                        16 U.S.C. § 1371(a).   The statute

enumerates several exceptions to this general moratorium.                                         One

such exception authorizes the Service to issue permits for the

import of polar bear parts taken in sport hunts in Canada,

provided certain conditions are met.                                         See id. § 1374(c)(5).    In

1997, the Service issued regulations approving six Canadian

polar bear populations for so-called “trophy” imports: Southern

Beaufort Sea, Northern Beaufort Sea, Viscount Melville Sound,

Western Hudson Bay, Lancaster Sound, and Norwegian Bay.                                         See 50

C.F.R. § 18.30(i)(l).

              However, the MMPA imposes additional restrictions on the

taking and import of marine mammals from species that are

considered “depleted.”                                         A species is depleted within the meaning

of the MMPA when (1) the Secretary determines that the species

or population stock is below its “optimum sustainable

population” (“OSP”); (2) a state with management authority over

the species determines that the species or stock is below its

OSP; or (3) the species or population stock is listed as an



                                                            
3
     “Take” under the MMPA is defined as “to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill
any marine mammal.” 16 U.S.C. § 1362(13).
                                                                     - 6 -
 
endangered species or a threatened species under the ESA.   16

U.S.C. § 1362(1).

     Under section 101(a)(3)(B) of the MMPA, “no permit may be

issued for the taking of any marine mammal which has been

designated by the Secretary as depleted, and no importation may

be made of any such mammal.”   Section 102(b) further provides:

     [I]t is unlawful to import into the United States any
     marine mammal if such mammal was - (1) pregnant at the
     time of taking; (2) nursing at the time of taking, or
     less than eight months old, whichever occurs later;
     (3) taken from a species or population stock which the
     Secretary has, by regulation published in the Federal
     Register, designated as a depleted species or stock;
     or (4) taken in a manner deemed inhumane by the
     Secretary.

Pursuant to these two provisions, therefore, members of a

depleted marine mammal species or stock generally may not be

imported into the United States.

     The statute also enumerates some exceptions to this

prohibition.    Specifically, the Service may permit the take or

import of depleted marine mammal species “for scientific

research purposes, photography for educational or commercial

purposes, or enhancing the survival or recovery of a species or

stock . . . , or as provided for under paragraph (5) of this

subsection [authorizing the incidental, but not intentional,

taking of marine mammals during the course of specified

activities].”    Id. § 1371(a)(3)(B).



                                - 7 -
 
              To qualify for the narrow “enhancement” exception to the

prohibition on taking and importing depleted species, the

Service must determine that

              (1)            taking or importation is likely to contribute
                             significantly to maintaining or increasing
                             distribution or numbers necessary to ensure the
                             survival or recovery of the species or stock; and
              (2)            taking or importation is consistent (I) with any
                             conservation plan adopted by the Secretary under
                             [the MMPA] . . . or any recovery plan developed
                             under [the ESA] for the species or stock, or
                             (II) if there is no conservation or recovery plan
                             in place, with the Secretary’s evaluation of the
                             actions required to enhance the survival or
                             recovery of the species or stock in light of the
                             factors that would be addressed in a conservation
                             plan or a recovery plan.

Id. § 1374(c)(4)(A) (emphasis added).

              B.             Factual and Procedural Background

                             1.             The Listing Rule
              On May 15, 2008, the Service issued a final rule listing

the polar bear as a threatened species throughout its range.

See generally 73 Fed. Reg. at 28,212; ARL 117215-307.4                    Although


                                                            
4
     The facts in this background section are excerpted from the
administrative records for each of the agency actions before
this Court on review. Because the SCI plaintiffs have
challenged the Service’s legal conclusion, set forth in its
Listing Rule, that import permits for sport-hunted polar bear
trophies are no longer available under the MMPA, this Court will
consider portions of the administrative record for the Listing
Rule. Citations to the administrative record for the Listing
Rule will be abbreviated “ARL.” Citations to the administrative
records in the Hershey and Kreider cases will be abbreviated
“ARH” and “ARK,” respectively. Citations to the administrative
record for the “enhancement” case (Atcheson, et al. v. Salazar,
et al., No. 09-941) will be abbreviated “ARE”.
                                                               - 8 -
 
the Listing Rule does not purport to “designate” the polar bear

as a depleted species under the MMPA, the Service noted in

response to comments that

              [U]nder the MMPA, the polar bear will be considered a
              ‘depleted’ species on the effective date of this
              listing. As a depleted species, imports could only be
              authorized under the MMPA if the import enhanced the
              survival of the species or was for scientific
              research. Therefore, authorization for the import of
              sport-hunted trophies will no longer be available
              under section 104(c)(5) of the MMPA.

Id. at 28,236; ARL 117240.                                     The Service further noted:

              We acknowledge the important contribution to
              conservation from scientifically-based sustainable use
              programs. Significant benefits to polar bear
              management in Canada have accrued as a result of the
              1994 amendments to the MMPA that allow U.S. citizens
              who legally sport-harvest a polar bear from an MMPA-
              approved population in Canada to bring their trophies
              back into the United States.

              . . .

              While we recognize these benefits, the Service must
              list a species when the best scientific and commercial
              information available shows that the species meets the
              definition of endangered or threatened. The effect of
              the listing, in this case an end to the import
              provision under Section 104(c)(5) of the MMPA, is not
              one of the listing factors. Furthermore, the benefits
              accrued to the species through the import program do
              not offset or reduce the overall threat to polar bears
              from loss of sea ice habitat.

Id. at 28,242; ARL 117246.5



                                                            
5
     On May 23, 2008, the Solicitor of the Department of the
Interior issued a memorandum further explaining the legal basis
for the ban on importing sport-hunted polar bear trophies. See
ARL 117714. That memorandum is not before this Court on review.
                                                                 - 9 -
 
              The Service subsequently administratively closed all

applications for polar bear trophy import permits under section

104(c)(5) of the MMPA that were pending as of the date the

Listing Rule became effective.                                        See, e.g., ARK 104.

                             2.             Plaintiff SCI

              Shortly after the publication of the Listing Rule,

plaintiff SCI initiated an action in this Court challenging the

agency’s legal conclusion that sport-hunted polar bear trophies

are no longer eligible for import permits as a result of the

species’ threatened status.                                        See generally Complaint, SCI, et

al. v. Salazar, et al., No. 08-881 (D.D.C. May 23, 2008), Docket

No. 1.                 This action was consolidated with other related actions

for coordinated proceedings before this Court, pursuant to an

order of the Judicial Panel on Multi-District Litigation

(“MDL”).                     Certified Copy of Transfer Order, Docket No. 1.6

              On March 3, 2009, the federal defendants filed a motion to

dismiss plaintiff SCI’s complaint.                                          See generally Motion to

Dismiss, Docket No. 21.                                        This Court denied the federal

defendants’ motion to dismiss, finding that the agency’s

determination that polar bear trophy imports are no longer

available constitutes a “final agency action” for the purposes

of judicial review under the APA.                                        See In re Polar Bear
                                                            
6
     Unless otherwise specified, all references to pleadings,
proceedings, hearings, opinions, and orders can be found on the
Misc No. 08-764 docket.
                                                                   - 10 -
 
Endangered Species Act Listing and § 4(d) Rule Litigation, 627

F. Supp. 2d 16, 24 (D.D.C. 2009).    The Court further concluded

that plaintiff SCI has standing to bring this action.      Id. at

27.

            3.    Plaintiffs Hershey and Kreider

      Plaintiff Kreider attests that he traveled to Canada and

successfully took a polar bear on or about March 31, 2008, from

an approved polar bear population in the Northern Beaufort Sea.

Declaration of Ronald E. Kreider (“Kreider Decl.”), Docket No.

132-6, at ¶¶ 3-4.    He avers that he spent approximately $40,000

on his hunt.     Kreider Decl. at ¶ 5.   Plaintiff Kreider applied

to the Service for a permit to import his polar bear trophy on

April 4, 2008, and received confirmation that his application

was received on April 15, 2008.    Kreider Decl. at ¶¶ 6, 7.

Plaintiff Kreider’s permit application was administratively

closed on July 29, 2008, after the polar bear was listed as a

threatened species.    Kreider Decl. at ¶ 9.   The letter plaintiff

Kreider received from the Service indicated that “importation of

a polar bear from Canada as a sport-hunted trophy . . . is no

longer an activity that can be authorized under the [MMPA].”

ARK 104.    Accordingly, the Service informed plaintiff Kreider

that it would not be able to continue processing his application

and that his permit application processing fee would be

returned.    See ARK 104.   Plaintiff Kreider avers that he

                                - 11 -
 
currently pays monthly fees to keep his trophy in cold storage

in Canada.    Kreider Decl. at ¶ 10.     Plaintiff Hershey avers

nearly identical facts.     See generally Declaration of Donald C.

Hershey, Docket No. 132-7; see also ARH 102 (letter from the

Service to plaintiff Hershey dated July 29, 2008).

     Plaintiffs Hershey and Kreider filed petitions for review

of the disposition of their permit applications in the Eastern

District of Pennsylvania.     See generally Petition for Review,

Hershey v. Kempthorne, et al., No. 08-4660 (E.D. Pa. Sept. 26,

2008), Docket No. 1; Petition for Review, Kreider v. Kempthorne,

et al., No. 08-4662 (E.D. Pa. Sept. 26, 2008), Docket No. 1.

These actions were subsequently transferred to this Court for

coordinated proceedings under the ongoing MDL.       See Certified

Copy of Transfer Order, Hershey v. Salazar, et al., No. 09-324

(D.D.C. Feb. 11, 2009), Docket No. 18; Certified Copy of

Transfer Order, Kreider v. Salazar, et al., No. 09-325 (D.D.C.

Feb. 11, 2009), Docket No. 5.

             4.   The Atcheson Plaintiffs

     Each of the Atcheson plaintiffs purportedly took a polar

bear from the Gulf of Boothia polar bear population in Canada

between April 18, 1999 and May 29, 2005.       See Atcheson Plfs.

Mot. at 8.    The Gulf of Boothia population is not among the six

polar bear populations that the Service has approved for trophy

imports under section 104(c)(5) of the MMPA.      However, rather

                                - 12 -
 
than seeking trophy import permits pursuant to section

104(c)(5), each of the Atcheson plaintiffs sought a permit to

import his polar bear trophy pursuant to the narrow exception

set out at section 104(c)(4)(A) for activities that enhance the

survival or recovery of a depleted species.    The individual

Atcheson plaintiffs jointly submitted their applications for

trophy import permits through plaintiff Conservation Force on

July 9, 2008, after the effective date of the Listing Rule.     See

Atcheson Plfs. Mot. at 8; see also ARE 28-96.

     On February 2, 2009, the Service denied the Atcheson

plaintiffs’ permit requests.   See, e.g., ARE 449-50 (letter from

the Service to plaintiff Keith Atcheson dated Feb. 2, 2009).    In

its denial letter, the Service asserted that plaintiffs had

failed to provide sufficient evidence that either sport hunting

itself or the importation of their sport-hunted trophies would

enhance the survival or recovery of the polar bear.     See, e.g.,

ARE 449-50.

     On March 18, 2009, the individual Atcheson plaintiffs

jointly submitted a request for reconsideration, again through

plaintiff Conservation Force, which included additional

supporting documentation.   ARE 464.    This request was denied on

April 28, 2009.   See, e.g., ARE 592 (letter from the Service to

plaintiff Keith Atcheson dated Apr. 28, 2009).



                               - 13 -
 
              The Atcheson plaintiffs initiated an action in this Court

challenging the denial of their permit applications.                                        See

generally Complaint, Atcheson, et al. v. Salazar, et al., No.

09-941 (D.D.C. May 21, 2009), Docket No. 1.                                        This action was

subsequently consolidated as a tag-along action with the ongoing

MDL.             See Order Granting Motion to Consolidate Cases, Docket No.

112.

                             5.             Summary Judgment Briefing

              On the recommendation of the parties, cross-motions for

summary judgment in the actions filed by plaintiffs SCI,

Hershey, and Kreider were briefed jointly.                                        Cross-motions for

summary judgment in the action filed by the Atcheson plaintiffs

were briefed separately, but simultaneously.

              Plaintiffs filed their motions for summary judgment on

November 23, 2009.7                                        The federal defendants filed cross-motions

for summary judgment on January 7, 2010.8                                        This Court also


                                                            
7
     See generally Motion and Memorandum of Points and
Authorities by Safari Club International, Safari Club
International Foundation, Ronald Kreider, and Donald Hershey in
Support of their Joint Motion for Summary Judgment in the Import
Ban Cases, Docket No. 132, revised at Docket No. 136 (“SCI Plfs.
Mot.”); Statement of Points and Authorities in Support of
Atcheson et al. Plaintiffs’ Motion for Summary Judgment, Docket
No. 134 (“Atcheson Plfs. Mot.”).
8
     See generally Memorandum in Support of Defendants’ Cross-
Motion for Summary Judgment and in Opposition to Plaintiffs SCI
and Hershey/Kreider’s Motion for Summary Judgment, Docket No.
142 (“Fed Defs. SCI Mot.”); Federal Defendants’ Combined
Opposition to Plaintiffs Atcheson, et al.’s Motion for Summary
                                                                    - 14 -
 
permitted the following parties to intervene on behalf of the

federal defendants:

                    Humane Society of the United States, International Fund
                     for Animal Welfare, and Defenders of Wildlife
                     (collectively, “HSUS”);
                    Center for Biological Diversity, Natural Resources
                     Defense Council, and Greenpeace, Inc. (collectively,
                     “CBD”).

See Stipulation and Order Regarding Intervention, Docket No. 33,

at 4-5; see also Order Granting Oral Motion to Intervene, Docket

No. 112, at 2.                                The defendant-intervenors filed their cross-

motions for summary judgment on January 21, 2010.9                                                                                                    The Court

heard arguments on plaintiffs’ claims at a motions hearing held

on April 13, 2011.                                        The parties’ cross-motions for summary

judgment are now ripe for determination by the Court.

II.           STANDARD OF REVIEW

              The APA provides a right to judicial review of final agency

actions.                     Under the APA, federal agency actions are to be held

unlawful and set aside where they are “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A).
                                                                                                                                                                                               
                                                                                                                                                                                               
Judgment on Trophy Import Claims and Cross-Motion for Summary
Judgment, Docket No. 140 (“Fed Defs. Atcheson Mot.”).
9
     HSUS filed briefs on behalf of all defendant-intervenors in
this case. See generally Import-Ban Intervenors’ Memorandum in
Support of Motion for Summary Judgment and Opposition to
Plaintiffs’ Motion for Summary Judgment, Docket No. 152 (“HSUS
SCI Mot.”); Import-Ban Intervenors’ Memorandum in Support of
Motion for Summary Judgment and Opposition to Plaintiffs’ Motion
for Summary Judgment, Docket No. 154 (“HSUS Atcheson Mot.”).
                                                                                      - 15 -
 
     To make this finding, a court must determine whether the

agency “considered the factors relevant to its decision and

articulated a rational connection between the facts found and

the choice made.”     Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir.

2009) (citing Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, Inc., 462 U.S. 87, 105 (1983)).      The standard of review

under the APA is a narrow one.     Citizens to Pres. Overton Park

v. Volpe, 401 U.S. 402, 416 (1971).      The court is not empowered

to substitute its judgment for that of the agency.      Id.   An

agency’s permit decisions, in particular, are presumed to be

valid.   Envtl. Def. Fund v. Costle, 657 F.2d 275, 283 (D.C. Cir.

1981).

     This deferential standard does not, however, shield the

agency from a “thorough, probing, in-depth” review.      Id. at 415.

Administrative action must be invalidated as arbitrary where 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.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463

U.S. 29, 43 (1983).    This determination must be made solely on

the basis of the record before the agency when it made its

decision.   Camp v. Pitts, 411 U.S. 138, 142 (1973).

                                - 16 -
 
       Where the Court must review an agency’s interpretation of a

statute it is charged with administering, the Supreme Court’s

opinion in Chevron, U.S.A., Inc. v. Natural Resources Defense

Council provides the appropriate framework of review.      467 U.S.

837 (1984).     Both the agency and the reviewing court must give

effect to the Congress’s unambiguously expressed intent.       Id. at

842.   Therefore, the Court must first determine “whether

Congress has spoken directly to the precise question at issue.”

Id.    If the Court determines that the intent of Congress is not

clear from the statute, “the issue for the court is whether the

agency’s answer is based on a permissible construction of the

statute.”      Id. at 843.   In that case, the Court must uphold any

agency interpretation that is not “procedurally defective,

arbitrary or capricious in substance, or manifestly contrary to

the statute.”      United States v. Mead, 533 U.S. 218, 227 (2001)

(citing Chevron, 467 U.S. at 844).

III. DISCUSSION

       A.     The SCI Plaintiffs’ Claims

       The SCI plaintiffs claim that the Service erred when it

concluded that sport-hunted polar bear trophies are no longer

eligible for import under the MMPA as a matter of law.      The SCI

plaintiffs raise three primary arguments in support of this

claim.      First, plaintiffs argue that the provision of the MMPA

that allows for the import of polar bear trophies from Canada

                                  - 17 -
 
trumps the Act’s restrictions on importing depleted species and,

therefore, this provision continues to authorize imports from

approved polar bear populations, notwithstanding the species’

threatened status.    Second, the SCI plaintiffs argue that the

import restrictions for depleted species do not apply to the

polar bear because it was not properly designated as depleted

under the MMPA.    Finally, the SCI plaintiffs contend that, even

if the Listing Rule did serve to designate the polar bear as

depleted, the Service did not provide adequate notice that its

rule would have that effect.

        In the alternative, even assuming the import of sport-

hunted polar bear trophies is properly restricted as a result of

the species’ threatened status, the SCI plaintiffs assert that

these import restrictions only apply to a species that was

depleted at the time of taking.    Accordingly, plaintiffs

contend, their specific trophies are eligible for import because

they were taken from approved populations before the Listing

Rule took effect and before the bear became depleted under the

MMPA.

        Each of these arguments is addressed in turn.

             1.   Whether the MMPA Provisions Authorizing Import of
                  Sport-Hunted Polar Bear Trophies Take Precedence
                  over Restrictions on Importing Depleted Species

        As noted above, although the MMPA establishes a general

moratorium on the taking and import of marine mammals and marine

                                - 18 -
 
mammal products, the statute provides a specific exception for

importing polar bear parts taken in sport hunts from approved

populations in Canada.    Section 104(c)(5) reads, in relevant

part:

        The Secretary may issue a permit for the importation
        of polar bear parts (other than internal organs) taken
        in sport hunts in Canada to an applicant which submits
        with its permit application proof that the polar bear
        was legally harvested in Canada by the applicant.
        Such a permit shall be issued if the Secretary, in
        consultation with the Marine Mammal Commission and
        after notice and opportunity for public comment, finds
        that – (i) Canada has a monitored and enforced sport
        hunting program consistent with the purposes of the
        Agreement on the Conservation of Polar Bears;
        (ii) Canada has a sport hunting program based on
        scientifically sound quotas ensuring the maintenance
        of the affected population stock at a sustainable
        level; (iii) the export and subsequent import are
        consistent with the provisions of the Convention on
        International Trade in Endangered Species of Wild
        Fauna and Flora and other international agreements and
        conventions; and (iv) the export and subsequent import
        are not likely to contribute to illegal trade in bear
        parts.
(emphasis added).    Because nothing in this provision expressly

excludes “depleted” polar bears, the SCI plaintiffs argue that

the plain language of this provision requires the agency to

grant a permit to import any polar bear trophy taken from one of

the six populations that are currently approved for import,

regardless of whether the polar bear is considered depleted

under the MMPA, unless and until the agency alters its findings.

        The federal defendants reject plaintiffs’ plain meaning

reading of the MMPA.    To the contrary, they argue, “Congress did

                                - 19 -
 
not intend to allow for the importation of sport-hunted polar

bear trophies after the polar bear acquired its depleted

status.”    Fed. Defs. SCI Mem. at 16.   This Court agrees.

     As the federal defendants explain, the MMPA creates a

“stepwise” structure of prohibitions and exceptions.    First, the

statute imposes a general moratorium on the taking and

importation of marine mammals.    The statute creates exceptions

to this general moratorium, including an exception for

scientific research, for public display, for enhancement of the

species, for takes that occur incidental to commercial fishing

or other lawful activities, and for takes that prevent damage to

property or personal safety.     See 16 U.S.C. §§ 1371(a)(1), (2),

(4), (5).   One of the specified exceptions to the MMPA’s general

moratorium is the exception for importing polar bear trophies.

     The second “step” of the MMPA imposes additional

restrictions on taking and importation of depleted marine mammal

species or stocks.   Section 101(a)(3)(B) is clear that “no

importation may be made” of any depleted species except in

specified circumstances.   The statute establishes an outright

ban on the importation of depleted marine mammals unless it is

for one of these specified purposes.     See id. § 1371(a)(3)(B)

(“Except for scientific research purposes, photography for

educational or commercial purposes, or enhancing the survival or

recovery of a species or stock . . . no permit may be issued for

                               - 20 -
 
the taking of any marine mammal which has been designated by the

Secretary as depleted, and no importation may be made of any

such mammal.” (emphasis added)).

     Sport hunting is not among the narrow exceptions to the

prohibition on importing depleted species, and this Court

declines to imply any such exception.    See Sierra Club v. EPA,

719 F.2d 436, 453 (D.C. Cir. 1983) (“[W]hen a statute lists

several specific exceptions to the general purpose, others

should not be implied.”).   Therefore, under the MMPA’s stepwise

regime, while the importation of sport-hunted polar bear

trophies from Canada is a permissible exception to the general

moratorium on importing marine mammals and marine mammal

products, it is not an authorized exception where depleted

marine mammals are concerned.    The Court notes, further, that

nothing in section 104(c)(5) mandates permits for importing

sport-hunted polar bear trophies, contrary to the SCI

plaintiffs’ assertions.   Section 104(c)(5) merely provides that

the Secretary “may issue” such permits, provided certain

conditions are met.    By contrast, the statute’s prohibition on

importing depleted marine mammals contains no similarly

permissive language.   This provision plainly forbids importation

of depleted species in all but the most narrow of circumstances,

none of which apply here.



                                - 21 -
 
     The SCI plaintiffs contend that this plain-meaning reading

of the MMPA constitutes a repeal of section 104(c)(5) by

implication.      The Court finds this argument unpersuasive.   The

MMPA establishes different regimes for the taking and import of

marine mammals depending on the species’ status.     As the

defendant-intervenors note, the polar bear trophy import

provision may again be available if the polar bear “is recovered

to the degree where it is no longer threatened with extinction,

and therefore no longer listed under the ESA and depleted under

the MMPA.”    HSUS SCI Mot. at 2.   The Court declines to find that

the Service was required to expressly revoke its existing

approvals under section 104(c)(5) in order to effect a ban on

importing sport-hunted polar bear trophies.

     Accordingly, for the foregoing reasons, the Court finds

that the intent of Congress is clear, and the polar bear trophy

import provision at section 104(c)(5) must give way to

restrictions on importing depleted species.     The Court turns now

to the SCI plaintiffs’ argument that the import ban does not

apply to the polar bear because it was never designated as

depleted.

             2.    Whether the Service Properly “Designated” the
                   Polar Bear as a Depleted Species

     Even if the restrictions on importing depleted species take

precedence over the specific provision of the MMPA allowing


                                 - 22 -
 
import of sport-hunted polar bear trophies, the SCI plaintiffs

contend that those restrictions do not apply to the polar bear

because the polar bear was never properly “designated” as a

depleted species.   According to the SCI plaintiffs, the

restriction on importing depleted species only applies to a

species that the Secretary has determined, by special rule, is

below its optimum sustainable population (“OSP”).    It is

undisputed that the Service made no such determination with

respect to the polar bear.

     If the agency had conducted a separate rulemaking, the SCI

plaintiffs contend that it would likely not have designated the

polar bear as depleted.   The SCI plaintiffs assert that a

threatened species may be at or above its OSP at the time of

listing even if the species will likely experience a population

decline in the future.    In fact, the SCI plaintiffs insist that

the polar bear is currently at historically high population

numbers.    See SCI Plfs. Mot. at 28.   According to the SCI

plaintiffs, Congress did not intend for import restrictions to

apply to the polar bear and other similar species that are not

below their OSP.

     The federal defendants reject plaintiffs’ narrow reading of

the MMPA.   To the contrary, they argue that the text, structure,

and legislative history of the statute compel the agency’s

conclusion that the polar bear became depleted within the

                               - 23 -
 
meaning of the MMPA upon being listed as threatened under the

ESA and, therefore, that the prohibition on importing depleted

marine mammals applies to the polar bear.                                  Having carefully

considered the parties’ arguments, this Court agrees with the

federal defendants.

              As a threshold matter, the MMPA expressly identifies three

methods by which a species earns “depleted” status: (1) the

Secretary determines that a species or population stock is below

its OSP; (2) a state with management authority over a species

determines that such species or stock is below its OSP; or (3) a

species or population stock is listed as an endangered species

or a threatened species under the ESA.                                  16 U.S.C. § 1362(1).

None of these methods is particularly defined or otherwise

referred to as a “designation.”                                   The most natural reading of the

statute suggests that a species may be designated as depleted

through any one of these three methods.10

              Moreover, the overall structure of the MMPA makes clear

that Congress intended to prohibit the taking and import of all

depleted marine mammals, regardless of how a species earned its


                                                            
10
     Indeed, as the federal defendants point out, other
provisions of the MMPA indicate that marine mammals may be
designated as depleted by means of listing under the ESA. See
16 U.S.C. § 1371(a)(5)(E) (authorizing the incidental, but not
intentional, take of “marine mammals from a species or stock
designated as depleted because of its listing as an endangered
species or threatened species under the Endangered Species Act
of 1973” while engaging in commercial fishing operations).
                                                               - 24 -
 
depleted status.   The restriction on taking and import set out

at section 101(a)(3)(B) of the MMPA is the most significant

provision of the statute that applies specifically to depleted

species.   Under plaintiffs’ reading of the MMPA, this

prohibition would not apply to species that obtained their

depleted status through two of the three procedural methods that

the MMPA prescribes (e.g., listing under the ESA and state OSP

determination).    This strained reading would suggest that

Congress intended to deny these additional protections to the

majority of depleted species, based solely on the procedural

vehicle by which each species earns its depleted status.      The

SCI plaintiffs cite no legislative history or other authority to

suggest that Congress intended such a bizarre result.

     To the contrary, Congress recognized that species listed

under the ESA are “a fortiori not at their optimum sustainable

population.”   H.R. Rep. No. 97-228, at 16, reprinted in 1981

U.S.C.C.A.N. 1458, 1466.   In view of this legislative history,

the Court concludes that Congress did not intend the Service to

engage in duplicative rulemaking to determine whether a species

that has been listed under the ESA is also below its OSP.

     For the foregoing reasons, the Court finds that the MMPA’s

prohibition on importing depleted species applies to all

depleted species, regardless of the procedural method by which a

species earns its depleted status.      Accordingly, the Service

                               - 25 -
 
properly concluded that the prohibition on importing depleted

marine mammals applies to the polar bear by virtue of its

listing as a threatened species under the ESA.

          3.   Whether the Service Provided Inadequate Notice of
               the Polar Bear’s Depleted Status

     The SCI plaintiffs go on to argue that even if the Service

effectively designated the polar bear as a depleted species, the

agency failed to provide sufficient notice that its Listing Rule

would have that effect.   Had plaintiffs known, they claim that

they would have submitted additional comments, specifically on

the issue of whether the polar bear is below its OSP.    See SCI

Plfs. Mot. at 31 (citing Doe v. Rumsfeld, 341 F. Supp. 3d 1, 14

(D.D.C. 2004) (For plaintiffs to establish prejudice, they must

show that “had proper notice been provided, they would have

submitted additional, different comments that could have

invalidated the rationale” for the rule.)).   The federal

defendants respond that the agency was under no obligation to

provide notice that it was designating the polar bear as a

depleted species because the polar bear earned its depleted

status automatically as of the publication of the Listing Rule.

     As a threshold matter, the SCI plaintiffs have misconceived

the requirements of the MMPA.    Where a species earns its

depleted status by virtue of being listed as a threatened or

endangered species under the ESA, as discussed above, the


                                - 26 -
 
Service is not required to find that the species is also below

its OSP.   Therefore, even if the SCI plaintiffs had submitted

additional comments on the issue of whether the polar bear is

below its OSP, those comments would not have invalidated the

basis for the polar bear’s depleted status.

     To the extent any notice was required, however, the Court

is persuaded that the agency provided sufficient notice of the

potential effects of the Listing Rule and of the polar bear’s

depleted status.   See ARL 053477 (“Regarding ongoing importation

of polar bear trophies taken from approved populations in Canada

into the United States, we anticipate conducting an evaluation

of continuing the presently authorized imports.   Under the MMPA

Section 102 – Prohibitions [Importation of pregnant or nursing

animals; depleted species which includes those listed as

threatened or endangered under the ESA] it is unlawful to import

into the United States any marine mammal if the mammal was taken

from a species or stock that the Secretary has, by regulation

published in the Federal Register, designated as a depleted

species or stock.”).   The agency received comments in response

to this issue, including comments from plaintiff SCI expressing

concerns that listing under the ESA would make it “impossible

for U.S. citizens to import sport-hunted polar bear trophies

into the United States.”   ARL 124921-22.   The agency considered

and responded to these comments in the final Listing Rule.     See

                              - 27 -
 
ARL 117246.    It is disingenuous for the SCI plaintiffs now to

claim that they did not have adequate notice that the Listing

Rule would confer depleted status on the polar bear.    See also

Ctr. for Biological Diversity v. Kempthorne, No. 08-1339, 2008

U.S. Dist. LEXIS 52897, at *6-7 (N.D. Cal. July 11, 2008)

(noting that “Conservation Force has been on notice since the

publication of the proposed rule in January, 2007 that polar

bears were likely to be listed as a threatened species and that

such listing could potentially take effect immediately. . . .

Particularly with respect to hunts that would take place after

the nondiscretionary deadline for [the Service] to issue its

final determination in January, 2008, Conservation Force’s

members assumed the risk that they would be unable to import

their trophies.”).

     Accordingly, for the foregoing reasons, the Court finds

that the agency’s import ban determination, and subsequent

disposition of plaintiffs’ import permits, was not procedurally

flawed for lack of notice.

          4.     Whether the MMPA’s Import Ban Only Applies to
                 Species that Were Depleted at the Time of Taking

     Finally, the SCI plaintiffs argue in the alternative that

even if the restrictions on importing depleted species do apply

to polar bears as of the date of the Listing Rule, those

restrictions apply only to polar bears taken after that date.


                               - 28 -
 
In support of this interpretation, the SCI plaintiffs point

specifically to section 102(b)(3) of the MMPA, which provides

that importation of a depleted marine mammal is unlawful if

“such mammal was -- . . . taken from a species or population

stock which the Secretary has, by regulation published in the

Federal Register, designated as a depleted species or stock.”

Because a take can only occur “in the present,” the SCI

plaintiffs contend that this provision only prohibits imports of

marine mammals that were designated as depleted at the time of

taking.   See SCI Plfs. Mot. at 32-33.

     The federal defendants contend, by contrast, that nothing

in the statute can be construed as limiting the import

restriction to those marine mammals that already had acquired

depleted status at the time of taking.   This Court agrees.

     The Court is sensitive to the fact that plaintiffs Hershey

and Kreider expended significant sums to participate in an

arduous hunt, that they legally took polar bears from approved

Canadian populations, that they applied for import permits

before the effective date of the Listing Rule, and that they are

now paying to store their trophies in Canada indefinitely.

Nonetheless, this Court can only overturn the Service’s

disposition of plaintiffs’ permit applications where it finds

that the agency’s decision was arbitrary, capricious, or

contrary to law.   The SCI plaintiffs have identified no

                              - 29 -
 
substantial basis for such a finding in this case.                                      The plain

language of the MMPA simply does not support the SCI plaintiffs’

legal conclusion.                                       Indeed, the MMPA clearly dictates that “no

import may be made” of any marine mammal that has been

designated as depleted except in narrow circumstances that do

not apply here.                                   16 U.S.C. § 1371(a)(3)(B).     The Court therefore

declines to find that the Service acted arbitrarily,

capriciously, or contrary to law when it concluded that no

permit may be granted for the import of a sport-hunted polar

bear trophy as of the effective date of the Listing Rule,

regardless of when the trophy was taken.11

              For the foregoing reasons, the Court upholds the Service’s

legal determination that the polar bear is depleted within the


                                                            
11
     The SCI plaintiffs note that the other classes of species
for which importation is unlawful include marine mammals that
were “pregnant at the time of the taking,” 16 U.S.C.
§ 1372(b)(1), and marine mammals that were “nursing or less than
eight months old at the time of the taking,” id. § 1372(b)(2).
According to the SCI plaintiffs, these provisions suggest that
Congress intended for the same temporal restriction to apply to
takings of depleted marine mammals. The Court finds this
argument unpersuasive. Contrary to plaintiffs’ assertions, the
fact that Congress chose to restrict the importation of some
non-depleted marine mammals based on certain characteristics “at
the time of taking” but did not use the same language for
depleted species is strong evidence that Congress did not intend
for that restriction to apply to depleted marine mammals. As
the Supreme Court has often stated, “where Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion." Kucana v. Holder, 130 S. Ct. 827, 838
(2010) (citing Nken v. Holder, 129 S. Ct. 1749, 1759 (2009)).
                                                                  - 30 -
 
meaning of the MMPA by virtue of being listed as a threatened

species throughout its range under the ESA.   The Court also

upholds the Service’s legal determination that, as a result of

the polar bear’s depleted status, no permit may be granted to

import sport-hunted polar bear trophies under section 104(c)(5)

of the MMPA, as of the effective date of the Listing Rule and

until further notice.   Finally, the Court upholds the Service’s

disposition of the permit applications submitted by plaintiffs

Hershey and Kreider on these grounds.    Accordingly, the Court

DENIES the SCI plaintiffs’ motion for summary judgment and

GRANTS the federal defendants’ and defendant-intervenors’

motions for summary judgment.

     The Court turns now to the Atcheson plaintiffs’ claim.

     B.   The Atcheson Plaintiffs’ Claim

     Whereas the SCI plaintiffs primarily argue that the polar

bear is not a depleted species within the meaning of the MMPA,

the Atcheson plaintiffs contend that the Service should have

granted their trophy import permits despite the polar bear’s

depleted status, on a theory that sport hunting qualifies for

the “enhancement” exception to the prohibition on importing

depleted species.

     As noted above, the MMPA provides a narrow exception to the

general prohibition on importing depleted marine mammals where

it can be demonstrated that the permitted import will “enhance”

                                - 31 -
 
the species.                             16 U.S.C. § 1371(a)(3)(B).            Section 104(c)(4)(A)

sets out the circumstances under which a so-called “enhancement”

permit may be issued:

              A permit may be issued for enhancing the survival or
              recovery of a species or stock only with respect to a
              species or stock for which the Secretary, after
              consultation with the Marine Mammal Commission12 and
              after notice and opportunity for public comment, has
              first determined that –
              (1)            taking or importation is likely to contribute
                             significantly to maintaining or increasing
                             distribution or numbers necessary to ensure the
                             survival or recovery of the species or stock; and
              (2)            taking or importation is consistent (I) with any
                             conservation plan adopted by the Secretary under
                             [the MMPA] . . . or any recovery plan developed
                             under [the ESA] for the species or stock, or
                             (II) if there is no conservation or recovery plan
                             in place, with the Secretary’s evaluation of the
                             actions required to enhance the survival or
                             recovery of the species or stock in light of the
                             factors that would be addressed in a conservation
                             plan or a recovery plan.
              The Atcheson plaintiffs argue that sport hunting meets both

prongs of this standard.                                       With respect to the first prong, the

Atcheson plaintiffs assert that “[I]t is undisputed that sport

hunting of Canadian polar bear contributes significantly to the

‘maintenance’ of their numbers and distribution” necessary to

ensure the survival of the species.                                        Atcheson Plfs. Mot. at 14.

                                                            
12
     In this case, the Marine Mammal Commission (“MMC”) – the
federal agency charged with advising the Service on marine
mammal issues, including import permits – urged the Service to
deny the Atcheson plaintiffs’ enhancement permits. See ARE 401
(concluding based on the legislative history of the enhancement
exception that “Congress never intended sport hunting to be
considered an enhancement activity”).
                                                                  - 32 -
 
Plaintiffs point specifically to statements in the polar bear

Listing Rule where the Service recognized the “important

contribution to conservation that scientifically based

sustainable use programs can have.”                                           See ARL 117240.   Plaintiffs

also cite as support reports by Dr. Milton Freeman, a Senior

Research Scholar with the Canadian Circumpolar Institute at the

University of Alberta, which discuss the critical role that

Canada native Inuits play in polar bear conservation.                                            See

generally ARE 472-85.                                          According to plaintiffs, sport hunting

programs keep these native resource managers invested in polar

bear conservation, which helps maintain current numbers and

distribution of bears.                                         Finally, plaintiffs assert that sport

hunting may be said to increase polar bear numbers because the

portion of polar bear “tags” that are allocated to sport hunts

in Canada often go unused where a hunt is unsuccessful.13                                              See

Atcheson Plfs. Mot. at 15.

              With respect to the second prong, plaintiffs note that no

recovery plan currently exists for the polar bear.                                          Accordingly,

in order to grant plaintiffs’ request to import sport-hunted

polar bear trophies from the Gulf of Boothia population, the
                                                            
13
     The Court notes that under the Canadian polar bear
management system, native hunters are required to “tag” and
document every polar bear killed, either intentionally or
unintentionally, to ensure that established quotas are being
observed. Management agreements allow native communities to set
aside a certain number of the tags allocated to them each
harvest season for non-native sport hunters. See ARE 509.
                                                                     - 33 -
 
Service would have to find that importation is in line with the

factors that the Secretary deems likely to be addressed in a

conservation or recovery plan for the species.   See 16 U.S.C.

§ 1374(c)(4)(A)(ii).   The Atcheson plaintiffs assert that sport

hunting is the driving force behind polar bear conservation in

Canada because it provides Inuit hunters with a financial

incentive to stay within established quotas.   See Atcheson Plfs.

Mot. at 17.   Plaintiffs also assert that sport hunting is an

effective conservation tool for polar bears because sport

hunters tend to select large male bears rather than female bears

(whereas subsistence hunters are more opportunistic) and because

sport hunting keeps bear populations below maximum carrying

capacity, which leads to higher survival rates and better

overall population health.   See Atcheson Plfs. Mot. at 18.

Accordingly, the Atcheson plaintiffs conclude, provisions for

sport hunting would likely be included in a conservation or

recovery plan for the polar bear.

     As a threshold matter, the federal defendants point out

that each of the Atcheson plaintiffs took his bear from the Gulf

of Boothia polar bear population, which was never approved for

trophy imports pursuant to section 104(c)(5) of the MMPA.

Therefore, the federal defendants note, the Atcheson plaintiffs

would need to make a significant showing to demonstrate that the

importation of their trophies from a non-approved population

                              - 34 -
 
would enhance polar bear survival or recovery.                                    In denying the

Atcheson plaintiffs’ permit applications, the federal defendants

contend, the Service reasonably concluded that plaintiffs had

failed to carry their burden of demonstrating that importing

these specific sport-hunted polar bear trophies would meet both

prongs of the enhancement standard.14

              Having carefully considered the parties’ arguments, the

plaintiffs’ permit applications and requests for

reconsideration, and the agency’s responses thereto, this Court

agrees with the federal defendants.                                     Plaintiffs’ case boils down

to a bare assertion that sport hunting benefits polar bears

because it provides an incentive for native Inuit hunters to

adhere to established quotas.                                   However, while the agency

acknowledges that the participation of American hunters in

Canada’s sport-hunting program has “generated funds that have


                                                            
14
     Because the MMPA authorizes the Service to grant or deny
enhancement permits on a case-by-case basis, the federal
defendants assert that the language of the statute is inherently
ambiguous and that the agency’s permit denial decision should be
upheld as reasonable under step two of Chevron. See Fed. Defs.
Atcheson Reply at 19-23, Docket No. 176. The Court concurs that
a Chevron step two analysis is appropriate here, where Congress
expressly delegated to the Service the authority to grant import
permits on enhancement grounds, provided certain findings are
made. See Fontana v. Caldera, 160 F. Supp. 2d 122, 128-29
(D.D.C. 2001) (holding that statutory interpretations
promulgated in the context of informal adjudications may be
entitled to Chevron deference where the agency has made a
legally binding adjudication pursuant to a Congressional
delegation of authority), aff’d 334 F.3d 80 (D.C. Cir. 2003).
 

                                                               - 35 -
 
provided conservation benefits to polar bear populations and

supplied an incentive to Inuit hunters to support sustainable

harvest quotas,” see Fed. Defs. Atcheson Mot. at 26, the Service

concluded that these conservation benefits are not sufficient to

meet the statutory requirements for an enhancement permit under

the MMPA.   As the federal defendants point out, the standard for

granting an enhancement permit is not whether the permitted

activity would provide any conservation benefit to the species

but whether those benefits are significant and, indeed,

necessary to ensure the survival or recovery of the species.

Plaintiffs offer no substantial basis for this Court to find

that the Service arbitrarily concluded that importing these

specific polar bear trophies would not achieve the significant

conservation benefits required by the statute.

     Specifically, with respect to the first prong of the

enhancement standard, the agency concluded that plaintiffs

provided no scientific evidence that sport hunting “actually

reduces the number of bears taken from the set quota, [or]

provide[s] a means to contribute significantly to maintaining or

increasing the number of polar bears necessary for the survival

or recovery of the species.”   See ARE 449-50.   Although

plaintiffs’ supporting documentation shows the financial

benefits of sport hunting for local communities and native

guides, the agency nonetheless found no evidence that sport

                               - 36 -
 
hunting impacts the overall number of bears taken.    It is

eminently reasonable for the agency to conclude, therefore, that

neither sport hunting generally nor the specific imports at

issue would contribute significantly to “maintaining” the

distribution or numbers “necessary to ensure the survival or

recovery” of the species or stock.     See Franks v. Salazar, No.

09-942, 2011 U.S. Dist. LEXIS 115571, at *38-39 (D.D.C. Oct. 6,

2011) (holding that the Service reasonably denied permits to

import sport-hunted African elephant trophies where it found

insufficient evidence that the killing of African elephants

would “enhance” the survival of the species, even if, as a

general matter, sport hunting “may result in a net benefit to

African elephant populations”).

     Plaintiffs’ failure to satisfy the first criterion for

enhancement would itself be sufficient grounds to deny their

permit applications; however, the Service also found that

plaintiffs failed to satisfy the second prong of the enhancement

standard.   The second prong of this standard specifies that,

before an import permit may be issued on enhancement grounds,

the permitted import must be consistent with the Secretary’s

evaluation of what actions would likely be included in a

conservation or recovery plan for a depleted species, if no such

plan currently exists.   See 16 U.S.C. § 1374(c)(4)(A)(ii).

Here, the Service explained that because habitat loss was

                              - 37 -
 
identified as the primary threat to the polar bear in the

Listing Rule, any recovery plan for the species would likely

focus on “actions needed to prevent or reduce habitat

degradation or loss.”                                          See ARE 450.   Plaintiffs provided no

evidence in their permit applications indicating that either

sport hunting itself or the importation of these specific sport-

hunted trophies into the United States would prevent or reduce

habitat degradation or loss from sea-ice decline.                                          Accordingly,

the Court finds that the agency reasonably concluded that

neither sport hunting itself nor the import of these sport-

hunted trophies would likely be included in a conservation or

recovery plan for the polar bear as actions that are “required

to enhance the survival or recovery of the species.”15


                                                            
15
     In a related claim, the Atcheson plaintiffs argue that the
agency effectively established a new standard for granting an
import permit that would require an applicant to “engage in
activity that directly offsets the effects of the threat for
which a species was listed.” See Atcheson Plfs. Mot. at 12.
According to the Atcheson plaintiffs, this new standard
constitutes a new “rule” (or, at the least, a new agency
interpretation of the MMPA), and the agency was therefore
required to conduct appropriate notice-and-comment rulemaking
procedures under the APA, 5 U.S.C. §§ 552-53, and the Federal
Register Act (“FRA”), 44 U.S.C. § 1505. The Court finds that
plaintiffs’ claim is without merit. Permit decisions are
adjudications, not rulemakings. See Franks, 2011 U.S. Dist.
LEXIS 115571, at *21 (holding that the Service was not required
to conduct APA notice-and-comment rulemaking procedures when it
denied individual permits to import sport-hunted African
elephant trophies because “[a] permit decision-making proceeding
is clearly adjudication rather than rule-making.” (quoting Nat’l
Wildlife Fed’n v. Marsh, 568 F. Supp. 985, 992 n.12 (D.D.C.
1983))). Here, the Service made a fact-specific permit
                                                                     - 38 -
 
              In sum, the Court finds that the Service rationally

concluded on the basis of the record before it that the import

of these specific sport-hunted polar bear trophies is not

necessary to ensure the conservation or recovery of the polar

bear.               Plaintiffs have made no serious attempt to demonstrate

that this conclusion was irrational.                                                                           As the federal defendants

point out, many of plaintiffs’ factual assertions lack any

evidentiary support whatsoever.                                                                 Indeed, plaintiffs offer no

evidence that the import of a few bears taken between 1999 and

2005 from a population that was never approved for import under

the MMPA would achieve any of the conservation goals they

describe.

              In view of the lack of substantial contrary evidence, the

narrow standard of review this Court must apply, and the

deference owed to the agency’s reasonable interpretation of the

MMPA’s “enhancement” standard, the Court declines to find that

the Service’s denial of the Atcheson plaintiffs’ enhancement

permit applications was arbitrary, capricious, or contrary to

law.16               Accordingly, the Court DENIES the Atcheson plaintiffs’


                                                                                                                                                                                               
                                                                                                                                                                                               
determination that is binding only on these individual
applicants and has no broader applicability. Accordingly, the
Court concludes that the Service’s decision to deny the Atcheson
plaintiffs’ permit applications was not procedurally flawed for
failure to conduct rulemaking procedures.
 
16
     The Atcheson plaintiffs argue, in addition, that the
Service deprived them of procedural due process and violated
                                                                                      - 39 -
 
motion for summary judgment and GRANTS the federal defendants’

and defendant-intervenors’ motions for summary judgment.

IV.           CONCLUSION

              For the foregoing reasons, plaintiffs’ motions for summary

judgment are hereby DENIED, the federal defendants’ cross-

motions for summary judgment are hereby GRANTED, and the

defendant-intervenors’ cross-motions for summary judgment are

hereby GRANTED.

              An appropriate Order accompanies this Memorandum Opinion.

              SO ORDERED.

Signed:                      Emmet G. Sullivan
                             United States District Judge
                             October 17, 2011




                                                                                                                                                                                               
                                                                                                                                                                                               
rulemaking procedures when it failed to consider the additional
information they submitted in support of their request for
reconsideration. See Atcheson Plfs. Mot. at 28. The Court
concludes that this claim is without merit. The Atcheson
plaintiffs have simply misconstrued a statement made in the
agency’s denial letter, which read that the Service could not
consider “new information that changes the content of your
original application.” See ARE 456 (emphasis added). The
record suggests that the agency did, in fact, consider the
additional information submitted in support of plaintiffs’
request for reconsideration. See ARE 568 (“We received the
reconsideration package and are beginning to review the
material.”); ARE 571 (email stating that the Service staff “read
through the material submitted by [Conservation Force] . . . to
reconsider the denial of their polar bear trophy import permit
applications”). Accordingly, in the absence of more substantial
evidence to the contrary, the Court concludes that plaintiffs
were afforded the full process they were entitled to.
                                                                                      - 40 -
 
