 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 22, 2020                 Decided June 16, 2020

                        No. 19-5147

                   FRIENDS OF ANIMALS,
                       APPELLANT

                             v.

 DAVID LONGLY BERNHARDT, IN HIS OFFICIAL CAPACITY AS
         SECRETARY OF THE INTERIOR, ET AL.,
                   APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:17-cv-02530)


    Stephen R. Hernick argued the cause for appellant
Friends of Animals. With him on the briefs were Michael R.
Harris and Jennifer E. Best.

    Sommer H. Engels, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With her on the brief
were Eric A. Grant, Deputy Assistant Attorney General, and
Andrew C. Mergen and Avi M. Kupfer, Attorneys.

    Jeremy E. Clare and Michael T. Jean were on the brief
for intervenor-appellees Safari Club International and the
National Rifle Association of America. Christopher A.
Conte entered an appearance.
                             2

                        No. 19-5152

        CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,
                     APPELLANTS

                             v.

 DAVID LONGLY BERNHARDT, IN HIS OFFICIAL CAPACITY AS
 SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR, ET
                         AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:17-cv-02504)


    Tanya M. Sanerib argued the cause for appellants Center
for Biological Diversity, et al. With her on the briefs were
Anna E. Frostic and Sarah Uhlemann.

    Sommer H. Engels, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With her on the brief
were Jeffrey Bossert Clark, Assistant Attorney General, Eric
A. Grant, Deputy Assistant Attorney General, and Andrew C.
Mergen and Avi M. Kupfer, Attorneys.

    Jeremy E. Clare and Michael T. Jean were on the brief
for intervenor-appellees Safari Club International and
National Rifle Association of America.

    Before: GRIFFITH and PILLARD, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
                               3


    Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

     SILBERMAN, Senior Circuit Judge: These cases raise
some interesting administrative law questions. Appellants,
conservation organizations and a safari guide, challenge a
series of actions of the U.S. Fish and Wildlife Service
governing imports of sport-hunted animal trophies from
Africa. Appellants initially challenged certain “findings” the
Service made that would allow such trophies to be imported.
We subsequently reviewed a similar set of findings in another
case and concluded that they were legislative rules illegally
issued without notice and comment. The Service then
withdrew all its findings that suffered from the same
deficiency, including those challenged by appellants in the
two cases before us, and announced that in the future it would
proceed by informal adjudication. Nevertheless, appellants
wish to contest the withdrawn findings, claiming that they are
relied on in the Service’s informal adjudications. Appellants
assert, moreover, that it was illegal for the Service to abandon
its prior findings without engaging in APA informal
rulemaking, and that it also was illegal for the Service to
announce its intent to make the necessary findings through
informal adjudications in the future. We affirm the district
court’s thoughtful rejection of these claims in this
consolidated opinion.

                               I.

    The disputes in these cases arise from the Service’s
regulation of imports of certain sport-hunted animal trophies
from Africa. The Service is tasked with determining under
what conditions it will grant hunters permits to import
“sport-hunted trophies,” which it has termed “a whole dead
                               4

animal or a readily recognizable part or derivative of an
animal.” 50 C.F.R. § 23.74(b). We have previously
described at length the governing regulatory regime under the
Convention on International Trade of Endangered Species of
Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, and the
Endangered Species Act, 16 U.S.C. §§ 1531–1544. See
Safari Club Int’l v. Zinke (Safari Club II), 878 F.3d 316,
321–23 (D.C. Cir. 2017).

     We deal here with the requirements governing permits to
import trophies of species that are classified as “threatened.”
The Service, by legislative rule, has instituted a general ban
on importing such trophies, subject to species-specific
exceptions. Those exceptions, in turn, generally impose at
least two requirements before a permit may be granted:
First, the Service must determine that the killing of the trophy
animal will enhance the survival of the species (the
“enhancement” finding).             See, e.g., 50 C.F.R.
§ 17.40(e)(6)(i)(B) (African elephants); id. § 17.40(r) (lions)
(referencing § 17.32). Second, the Service must determine
that the proposed import will not be detrimental to the
survival of the species (the “non-detriment” finding). See id.
§ 23.61(a); see also id. § 17.40(e)(6)(i)(D) (referencing § 23);
id. § 17.40(r)(3) (same).

     For many years, the Service periodically made blanket
enhancement and non-detriment “findings” to govern all
applications to import particular species taken in particular
countries over a given time period. In 2014, for example,
the Service issued a negative enhancement finding for African
elephants taken as sport-hunted trophies in Zimbabwe. It
concluded that in the absence of current data it was unable
to determine that sport-hunting of elephants in Zimbabwe
would enhance the survival of the species. The Service
came to the same conclusion in 2015, extending the
                               5

suspension of imports through the 2015 hunting season and
future hunting seasons. As it had done for years, the Service
issued the 2014 and 2015 Zimbabwe elephant findings
without proceeding under § 553 of the Administrative
Procedure Act, which of course requires notice and comment.

     That led Safari Club International and the National Rifle
Association to seek judicial review of the 2014 and 2015
Zimbabwe elephant findings in our district court. They
argued, inter alia, that the “findings” were rules subject to the
notice-and-comment requirements of the APA. Before that
case came to our court, the Service issued two new positive
enhancement findings in late 2017. The Service determined
that the sport-hunting of elephants in Zimbabwe would
enhance the survival of the species during 2018, 2017, and
much of 2016. It came to the same conclusion with respect
to Zimbabwe’s lions.

     Appellants in the present cases, with interests opposite
from Safari Club and the NRA, then sued. One group, made
up of the Center for Biological Diversity, three other
conservation organizations, and a local safari guide
(collectively “the Center”), challenged the 2017 Zimbabwe
elephant and lion findings as arbitrary and capricious,
contrary to law, and—as Safari Club and the NRA had argued
about the 2014 and 2015 findings—in violation of the APA’s
rulemaking procedures. The second group, made up of
Friends of Animals and the Zimbabwe Conservation Task
Force (collectively “Friends of Animals”), challenged just the
2017 Zimbabwe elephant finding on largely the same
grounds.

    Before the district court decided the cases brought by the
conservation organizations, we agreed with Safari Club and
the NRA that the 2014 and 2015 Zimbabwe elephant findings
                               6

were not really the products of adjudications, but were
actually rules subject to the APA’s notice and comment
procedures. Safari Club II, 878 F.3d at 331–34. We
explained that the so-called “findings” did not adjudicate any
dispute between specific parties, resulted in no immediate
legal consequences for any specific parties, and were not
made “in the course of denying an application for an import
permit.” Id. at 334; see id. at 333–34. We instructed the
district court “to remand the case to the Service so that it may
initiate rule making to address enhancement findings for the
time periods at issue in this case.” Id. at 336. In other
words, we anticipated (but did not require) that the Service
would issue its enhancement determinations through
rulemaking.

     However, in March 2018, the Service issued a
memorandum withdrawing the disputed 2014 and 2015
findings “[i]n response to the D.C. Circuit Court’s opinion in
[Safari Club II].” 1 The “March Memo” also withdrew a
number of other enhancement and non-detriment findings,
including the 2017 Zimbabwe elephant and lion findings
challenged by the Center and Friends of Animals, as equally
illegal. The Memo acknowledged, however, that although
the withdrawn findings were no longer effective, the Service
intended to use the information relied upon in the defective
findings as appropriate when evaluating individual permit
applications. It also set forth the Service’s plan to make
future enhancement and non-detriment findings when
considering permit applications on a case-by-case basis—in
other words, by informal adjudication. The Center and
Friends of Animals then amended their respective complaints

    1
       Memorandum, Withdrawal of Certain Findings for
ESA-listed Species Taken as Sport-hunted Trophies (Mar. 1, 2018),
reproduced at No. 19-5152 J.A. at 49.
                               7

to add challenges to the March Memo on grounds we discuss
below. Safari Club and the NRA intervened as defendants
in each case.

     The district court dismissed the conservation
organizations’ challenges for lack of subject matter
jurisdiction and failure to state a claim, for largely identical
reasons. See Ctr. for Biological Diversity v. Zinke, 369 F.
Supp. 3d 164, 183 (D.D.C. 2019); Friends of Animals v.
Zinke, 373 F. Supp. 3d 70, 91–92 (D.D.C. 2019).
Appellants’ claims before us fall roughly into three
categories: (1) challenges to the 2017 Zimbabwe findings;
(2) challenges to the March Memo’s withdrawal of prior
findings; and (3) challenges to the March Memo’s
announcement that the Service now intends to make findings
on a case-by-case basis when considering individual permit
applications. We take the issues related to each category of
claims in turn.

                              II.

                              A.

      The district court first dismissed appellants’ respective
challenges to the 2017 Zimbabwe findings as moot, reasoning
that the March Memo had already eliminated their legal
effects. See Ctr. for Biological Diversity, 369 F. Supp. 3d at
173; Friends of Animals, 373 F. Supp. 3d at 83. The Center
contends that the Service actually has continued to rely on the
substance and conclusions of the 2017 findings in its
“case-by-case” permitting decisions (informal adjudications),
so a court order declaring those conclusions invalid would
still provide the Center with meaningful relief. And even if
its challenges to the 2017 findings are moot, the Center
argues, the “voluntary cessation” doctrine should apply.
                               8

Friends of Animals agrees that the March Memo amounts to
voluntary cessation and also presses the other exception to
mootness, contending the flaws in the 2017 Zimbabwe
elephant finding are capable of repetition yet would evade
review.       The government responds that while its
case-by-case permitting decisions may rely on information
cited in the withdrawn findings, the findings themselves
unquestionably no longer have any legal effect, and it is
inconceivable that the Service will attempt to reinstate
across-the-board findings without notice and comment in
light of our opinion in Safari Club II.

     We think the government is correct. We of course lack
power under Article III to decide an issue “when the question
sought to be adjudicated has been mooted by subsequent
developments.” Nat. Res. Def. Council, Inc. v. U.S. Nuclear
Regulatory Comm’n, 680 F.2d 810, 813–14 (D.C. Cir. 1982)
(internal quotation omitted). And we have recognized that
the government’s abandonment of a challenged regulation is
just the sort of development that can moot an issue. Gulf Oil
Corp. v. Brock, 778 F.2d 834, 840 (D.C. Cir. 1985). In both
cases before us, appellants challenged one or more of the
2017 findings as unlawful under the APA for various reasons
and requested that the court declare as much and set them
aside. But after our opinion declared “findings” with
identical procedural characteristics to be unlawful rules, and
the government, through its March Memo, withdrew the 2017
findings, they no longer cause appellants any injury. Since
we can do nothing to affect appellants’ rights relative to those
now-withdrawn findings, appellants’ challenges to them are
                                 9

“classically moot.” Akiachak Native Cmty. v. U.S. Dep’t of
the Interior, 827 F.3d 100, 106 (D.C. Cir. 2016).2

     That the Service subsequently has issued import permits
containing language that often matches that of the 2017
findings does not alter our conclusion. The March Memo
acknowledges that the Service intends to use “the information
cited in [the withdrawn] findings and contained in its files as
appropriate,” and that is “in addition to the information it
receives and has available when it receives each [permit]
application.” No. 19-5152 J.A. at 49–50 (emphasis added).
That is standard agency practice. But that practice does not
mean that the actual 2017 findings themselves are still in
effect.

     Nor are the alleged errors in the 2017 Zimbabwe findings
capable of repetition in a way that evades review. As noted
earlier, appellants challenged those findings both as in
violation of the APA’s rulemaking requirements and as
deficient in reasoning. We decided the rulemaking question
with respect to these sorts of findings in Safari Club II, but
then had no occasion to address the reasonableness of the
Service’s substantive conclusions. See 878 F.3d at 331.
There can be no “reasonable expectation” that the same
procedural error will recur in the face of our decision
forbidding the government from employing countrywide
findings as it did in Safari Club II without notice and
comment. People for the Ethical Treatment of Animals v.
Gittens, 396 F.3d 416, 423 (D.C. Cir. 2005) (internal
quotation omitted).

    2
       Appellants obviously contend that the withdrawal of the
2017 findings was itself unlawful, but as we will explain, they have
not shown that they have standing to bring those particular claims.
See infra Part II.B.1.
                             10

     As to the Service’s substantive conclusions, appellants
have not shown that “if a controversy of this sort occurred
again it would evade judicial review.” Id. at 424. Rather,
prior litigation in this area suggests such disputes—even over
permits—could be timely adjudicated. See generally Safari
Club II, 878 F.3d at 320–21 (reviewing 2014 and 2015
Zimbabwe countrywide elephant findings); Safari Club Int’l
v. Jewell (Safari Club I), 842 F.3d 1280, 1288 (D.C. Cir.
2016) (holding dispute over findings of limited duration to be
capable of repetition and therefore justiciable). Even if we
were to conclude that plaintiffs like those in Friends of
Animals v. Ashe, 174 F. Supp. 3d 20 (D.D.C. 2016), lack
standing to challenge an import permit after the subject
animal has been killed, see id. at 31–32, 34, that logic would
not defeat standing to challenge a permit regarding an animal
not yet hunted. And, if plaintiffs were to contend that
findings issued in the course of individual permitting
decisions were in fact rules that must go through notice and
comment, that claim, too, at least would present a live
controversy.

     The voluntary cessation exception does not apply either.
Appellants argue that the Service withdrew the 2017 findings
on its own initiative and that the identical language in its
subsequent permit decisions shows that the Service in fact has
“return[ed] to its old ways.” True the Vote, Inc. v. IRS, 831
F.3d 551, 561 (D.C. Cir. 2016) (internal quotation and
brackets omitted). The short answer is that the Service’s
withdrawals of the 2017 findings were not “voluntary.” The
2017 findings suffered from the same defects as the 2014 and
2015 findings we considered in Safari Club II. And that
case now makes clear that the Service cannot promulgate
freestanding countrywide enhancement findings without
going through notice and comment.
                              11

                              B.

                              1.

     Appellants’ second set of challenges is directed to the
March Memo’s withdrawal of more than twenty prior
enhancement and non-detriment findings. In both cases, the
district court concluded that appellants lack standing to
challenge the withdrawal of any positive findings, since those
findings allegedly are what harm appellants’ interests by
paving the way for import permits. See Ctr. for Biological
Diversity, 369 F. Supp. 3d at 175–177; Friends of Animals,
373 F. Supp. 3d at 84–87. In the Center’s case, the court
also reasoned that the withdrawal of negative findings that
govern time periods in the past did not plausibly cause an
injury to people who hope to see animals in the future: the
number of animals killed in the past is fixed, no matter how
many permits the Service now grants for animals killed
during that period. See Ctr. for Biological Diversity, 369 F.
Supp. 3d at 178–79. Nonetheless, the court concluded that
appellants in both cases have standing to challenge at least
some of the withdrawals of negative findings. Ctr. for
Biological Diversity, 369 F. Supp. 3d at 179; Friends of
Animals, 373 F. Supp. 3d at 87.

     Appellants before us contest only the district court’s
approach of evaluating the effect of each withdrawal in the
March Memo individually instead of considering the Memo
as a whole. But the court’s approach was proper under the
circumstances. “[S]tanding is not dispensed in gross,” Lewis
v. Casey, 518 U.S. 343, 358 n.6 (1996), and the March Memo
withdrew a host of similar but discrete regulatory actions
with—importantly—discrete effects. And the elimination of
many of those discrete actions caused no injury to appellants.
Appellants offer no other argument against the district court’s
                                12

conclusions that standing is lacking to challenge most of the
other withdrawals, so we will not disturb those conclusions on
appeal. See Huron v. Cobert, 809 F.3d 1274, 1280 (D.C.
Cir. 2016).

    This dispute turns out to be largely academic since all
agree (as do we) that appellants in each case have standing to
challenge at least one of the withdrawals in the March Memo,
which raises the key legal issues. Both sets of appellants
undeniably have standing to challenge the withdrawal of the
2015 Zimbabwe elephant finding, a determination that was
both negative and of indefinite duration. See Notice of
Continued Suspension of Imports of Zimbabwe Elephant
Trophies Taken On or After April 4, 2014, 80 Fed. Reg.
42,524, 42,527 (July 17, 2015). 3 And the Center has
standing also to challenge the withdrawal of the Service’s
2015 Tanzania elephant finding.4 Appellants meet the other
requirements for associational standing because the interests
the organizations seek to protect are germane to their
purposes, and neither the claims asserted nor the relief
requested requires their members to participate in the lawsuit.
See Am. Trucking Ass’ns v. Fed. Motor Carrier Safety Admin.,
724 F.3d 243, 247 (D.C. Cir. 2013).

                                 2.


    3
       See No. 19-5152 J.A. at 29 (alleging finding was negative
and indefinite); id. at 8, 82 (describing plans to see elephants in
Zimbabwe); No. 19-5147 J.A. at 26 (alleging finding was negative
and indefinite); id. at 41, 46–47, 49 (describing plans to see
elephants in Zimbabwe); id. at 53 (describing plans to see elephants
in Africa).
     4
       See No. 19-5152 J.A. at 29 (alleging finding was negative
and indefinite); id. at 8, 82 (describing plans to see elephants in
Tanzania).
                              13

     The core of appellants’ cases is their contention that the
Service was obligated to use § 553 of the APA—to employ
notice and comment rulemaking—to withdraw its prior
findings. It is, of course, black-letter administrative law that
ordinarily an agency that promulgates a rule under § 553’s
auspices must use the same procedure to revoke that rule.
See, e.g., Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir.
2017). Section 551(5) of the APA defines “rule making” to
include “agency process for formulating, amending, or
repealing a rule.” 5 U.S.C. § 551(5) (emphasis added).
The Supreme Court has explained that § 551 “mandate[s] that
agencies use the same procedures when they amend or repeal
a rule as they used to issue the rule in the first instance.”
Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015); see
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (noting that the APA “makes no distinction . . .
between initial agency action and subsequent agency action
undoing or revising that action”). Moreover, a legislative
rule issued under § 553 “modifies or adds to a legal norm
based on the agency’s own authority,” Ass’n of Flight
Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710, 716
(D.C. Cir. 2015) (emphasis deleted) (internal quotation
omitted), so a repeal of such a rule necessarily also modifies
the law, which is why it must go through notice and
comment. But we do not see how a government action that
illegally never went through notice and comment gains the
same status as a properly promulgated rule such that notice
and comment is required to withdraw it.

     Indeed, even if an agency issues a legislative rule under
§ 553, we have said that it should not apply the rule in an
adjudication if a court of appeals had concluded the rule is
illegal. See Am. Tel. & Tel. Co. v. FCC, 978 F.2d 727, 733
                                14

(D.C. Cir. 1992).5 To be sure, in American Telephone &
Telegraph Co., we considered but did not decide whether an
agency faced with a definitive judicial opinion that a
legislative rule violated the Constitution or an agency’s
substantive statute needed to go through notice and comment
to repeal the rule. And although there is never much to be
gained from comment—as opposed to a simple notice “for
good cause,” 5 U.S.C. § 553(b)(B)—where a rule has been
declared substantively illegal, it is not necessary to decide that
issue now. That is so because, as we noted, we are faced
only with the repeal of a “rule” that illegally never went
through notice and comment—in other words, a “non-rule
rule.” We think the logic of American Telephone &
Telegraph Co. a fortiori leads to the conclusion that notice
and comment was not required in this situation.

     Friends of Animals argues, however, that our decision in
Safari Club II was not really a rejection of the Service’s prior
findings because we did not “vacate” them. See 878 F.3d at
335–36. But relying on our prior decision in Sugar Cane
Growers Cooperative of Florida v. Veneman, 289 F.3d 89
(D.C. Cir. 2002), we made clear that the Service’s failure to
engage in notice and comment rulemaking for what were de
facto legislative rules was a serious violation of the APA,
which meant the findings had no legal effect. Safari Club II,
878 F.3d at 334–35. And since we rejected all of Safari
Club and the NRA’s substantive challenges to the findings in
question, there was no reason to style our disposition as a
vacatur. As noted earlier, our disposition anticipated that the

    5
        In that case, we had previously suggested that the rule was
illegal unless it was an exercise of enforcement discretion by the
FCC, a characterization the FCC subsequently disavowed. See
Am. Tel. & Tel. Co., 978 F.2d at 735–36; MCI Telecomms. Corp. v.
FCC, 765 F.2d 1186, 1190 n.4 (D.C. Cir. 1985).
                             15

Service on remand would use the procedures of § 553 to
make its “findings,” but we clearly did not make that
approach a requirement. So the Service was back at square
one and free to determine which APA procedure it would use
to implement its statute and regulations. And it is well
known that under the APA an agency has virtually unlimited
discretion as to the procedures it uses to implement its
legal/policy choices (assuming its substantive statutes don’t
restrict those procedures). See NLRB v. Bell Aerospace Co.,
416 U.S. 267, 291–94 (1974).

     We caution, however, that as we recently have reiterated,
if only part of a rule that has gone through notice and
comment is held illegal and an agency wishes to abandon the
whole rule, it is obliged to use notice and comment. See
Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 83–84 (D.C.
Cir. 2020). Similarly, it seems to us if a court only
remanded a rule for an adequate explanation, a repeal without
notice and comment would be unjustified. It is only when
an agency action is struck down because the agency failed to
promulgate the rule through proper procedures—as was true
of the findings in Safari Club II—or perhaps when a court
determines a legislative rule violates a statute, that § 553’s
full procedures would be unnecessary.

    Friends of Animals raises one additional challenge to the
withdrawal portions of the March Memo. In 1997, the
Service issued a rule as a part of the regime governing trophy
permits for African elephants that contains the following
language:
       The Service will make [enhancement] findings
       on a periodic basis upon receipt of new
       information on the species’ population or
       management. The enhancement findings for
                                16

        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.
Changes in List of Species in Appendices to the Convention
on International Trade in Endangered Species of Wild Fauna
and Flora, 62 Fed. Reg. 44,627-01, 44,633 (Aug. 22, 1997).
Friends of Animals reads these sentences to mean that the
Service must publish notice in the Federal Register (though
not necessarily in the form of a rule) any time it makes a
change to any enhancement finding for elephants in the three
countries listed. But the rule refers only to findings that
were on file when the rule was issued in 1997; subsequent
findings, such as the 2015 Zimbabwe elephant finding, are
not included. And as we have noted, Friends of Animals has
not shown that it has standing to challenge the withdrawal of
the 1997 Zimbabwe elephant finding. Friends of Animals’
arguments for a more expansive reading of the statute are
unpersuasive.6

                                C.

    We are left with appellants’ last argument, that it was
unlawful for the Service to announce it would proceed in the

    6
       Friends of Animals appears also to challenge the Service’s
move to future case-by-case determinations (which are not
published in the federal register) as a violation of the publication
language in the 1997 rule. See Friends of Animals, 373 F. Supp.
3d at 88. But again, the rule requires publication of changes only
to those findings that were on file at the time.
                             17

future to implement the Endangered Species Act through
informal adjudication. The government responds that the
March Memo is not even final agency action. It never gives
the March Memo an APA label, but it seems to us the Memo
might best be described as in part an interpretive rule
construing our decision in Safari Club II, see Wheeler, 955
F.3d at 83, and in part a policy statement setting forth the
agency’s plans for the procedural method it would use to
implement its responsibilities under the governing statute and
regulations. But in any event, because finality under the
APA is no longer considered jurisdictional, Marcum v.
Salazar, 694 F.3d 123, 128 (D.C. Cir. 2012), it is unnecessary
for us to decide whether the March Memo is final agency
action in light of our resolution of the merits below.

     It is necessary, however, to determine whether appellants
have standing to challenge the Service’s decision to make
findings on a case-by-case basis, which is rather tricky. The
Center contends that the move to making findings on a
case-by-case basis injures its members’ concrete interests
because doing so removes the possibility of flat bans on
trophy import permits, thus increasing the likelihood that
African wildlife will be hunted. The trouble with this theory
is that it assumes the Service will make substantively
different decisions depending on which procedure is used.
But the same statutory obligation to make enhancement
findings adheres in both contexts, and there is no reason to
expect that the Service’s procedural change will result in
more animals being killed.

     The Center also advances a theory of organizational
standing to challenge the move to case-by-case
determinations. Organizations can have standing in their
own right, but to determine whether an organization’s alleged
injury is “concrete and demonstrable” we are obliged to
                               18

consider whether the agency action injured the organization’s
interest and whether the organization used its resources to
counteract the harm. People for the Ethical Treatment of
Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1094 (D.C.
Cir. 2015) (internal quotation omitted). However, harms to
an organization’s interests in litigation, lobbying, or pure
issue advocacy do not qualify. Id. at 1093–94.

     In the Center’s case, unfortunately, all of the harms that it
alleged flow from the Service’s switch to case-by-case
determinations implicate the Center’s interests in advocacy,
participating in administrative proceedings, and lobbying.
As the Center and its members put it, the move to
case-by-case determinations will require them to expend more
time and resources tracking permit decisions in hopes of
commenting on and influencing them. No. 19-5152 J.A. at
12, 57–58, 73. And getting information to the Service to
foster reasoned decisionmaking will be more difficult. Id. at
58. The Center argues on appeal that it also has interests in
educating its members and the public, which will be impaired
by the Service’s choice not to use notice-and-comment
rulemaking. But this is too little too late; the harms the
Center actually articulated in its pleadings to support these
challenges are not concrete under our precedent.

     Friends of Animals, on the other hand, alleged from the
outset that its organizational interest in educating the public
would be impaired by the Service’s move to case-by-case
determinations. The organization’s president stated that it
“reports on the negative impacts of trophy hunting as well as
[its] progress in addressing this issue through its magazine
ActionLine, its website, education presentations to
professional associations, and outreach to other media
outlets.” No. 19-5147 J.A. at 51. Friends of Animals then
explained how the Service’s use of case-by-case
                                19

decisionmaking would harm those interests, as “it is critical”
to the organization’s educational work “to have up-to-date
information” on the Service’s policies. Id. at 57. The
organization accordingly has expended additional resources to
access the necessary information. Id. At the pleading
stage, those allegations suffice to establish Friends of
Animals’ standing to challenge the Service’s decision to make
findings on a case-by-case basis. See People for the Ethical
Treatment of Animals, 797 F.3d at 1094–95.7

     As to the merits, Friends of Animals understandably has
not challenged the March Memo on the basis that the Service
was obligated by the APA to implement its statutory
directives through rulemaking rather than through informal
adjudication. That argument would of course face an uphill
climb, since, as we noted, an agency has broad discretion to
choose whether to use rulemaking or adjudication—assuming
both options are authorized by the agency’s organic statutes.
Instead, Friends of Animals contends that a provision of the
Endangered Species Act allows the Service to make
enhancement findings only through rulemaking:
        Whenever any species is listed as a threatened
        species pursuant to subsection (c) of this
        section, the Secretary shall issue such
        regulations as he deems necessary and
        advisable to provide for the conservation of
        such species.     The Secretary may by
        regulation prohibit with respect to any
        threatened species any act prohibited under

    7
       The Service resists this conclusion on the ground that no
statute grants Friends of Animals a concrete interest in the
information it seeks. But for better or worse, that ship has sailed.
See People for the Ethical Treatment of Animals, 797 F.3d at 1104
(Millett, J., dubitante).
                                 20

         section 1538(a)(1) of this title, in the case of
         fish or wildlife . . . .
16 U.S.C. § 1533(d) (emphases added). Friends of Animals
reads the text above to require rulemaking at every regulatory
step of whatever regime the Secretary creates to protect
threatened species. But the Act gives the Secretary broad
authority to issue such regulations “as he deems necessary
and advisable,” id., and nothing in the provision at issue
prevents him from creating rules that in turn make use of
subsidiary adjudications.8

                                ***

         The judgments of the district court are affirmed.

                                                        So ordered.




     8
       Friends of Animals also contends that the Service’s move to
making findings on a case-by-case basis was itself a legislative rule
that required notice-and-comment rulemaking. But as Safari Club
and the NRA point out, Friends of Animals did not raise that
challenge in its complaint, which likely is why the district court did
not address it. We will not do so in the first instance.
