ROYCE C. LAMBERTH, United States District Judge.
Plaintiffs Safari Club International and the National Rifle Association challenge the federal government's suspension of imports of trophies from elephants sport-hunted in Zimbabwe. On April 4, 2014, the U.S. Fish and Wildlife Service ("the Service") suspended imports of these trophies on an interim basis. On July 31, 2014, the Service published notice finalizing the April decision, prohibiting imports of trophies from elephants sport-hunted from April 4, 2014 through the remainder of the year. And on March 26, 2015, it announced a suspension of imports for the 2015 hunting seasons and future hunting seasons. The Service explained that it suspended imports because it could no longer make the finding required under its regulations "that the killing of the animal whose trophy is intended for import would enhance survival of the species" — referred to as an enhancement finding. Plaintiffs assert that the three decisions are invalid due to a number of procedural defects and because they are arbitrary and capricious. For the reasons set forth below, the Court will grant plaintiffs' motion for summary judgment in part on the issue that the Service failed to comply with its commitment not to change the enhancement finding before publishing notice in the Federal Register. It will deny plaintiffs' motion on all other issues. The Court will grant defendants' motion for summary judgement in part on all issues except it will deny the motion on the issue of its commitment to publish notice of changes in the Federal Register. The Court will also order that the effective date of the April 2014 interim suspension is May 12, 2014, not April 4, 2014.
Importation into the United States of threatened species such as African elephants is governed by international convention and U.S. law.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 ("CITES"), is a multilateral treaty that regulates the international trade of protected wildlife and plants. The treaty establishes requirements for importing and exporting covered species and categorizes them into three appendices, depending on the level of protection each species requires. Relevant here, Appendix I covers species threatened with extinction, see CITES art. II.1, and Appendix II covers species for which trade is controlled to avoid trade incompatible with the species'
Under the treaty, a species listed on Appendix I may only be traded if both the importing and the exporting countries issue import and export permits, respectively. In issuing these permits, each country's designated authority must make a number of findings, including that the trade of the species "will be for purposes which are not detrimental to the survival of the species." Id., art. III.2(a), III.3(a). This determination is sometimes referred to as a "non-detriment finding," and both the importing and the exporting countries must separately make this finding before each can issue the required permit. Id.
Before 1994, the treaty required importing countries to also determine that the import of an Appendix I species "would enhance the survival of the species." This determination is sometimes referred to as an "enhancement finding." CITES Res. Conf. 2.11. (Annex 1), AR 249 at 5563;
A species listed on Appendix II requires the exporting country to issue an export permit, including making the non-detriment finding described above. CITES, art. IV. The importing country is not required to issue an import permit or make a non-detriment finding, and the treaty has never required enhancement findings for Appendix II species. Id.
Described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the Endangered Species Act ("ESA") is a federal statute that seeks "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." ESA, 16 U.S.C. § 1531(b) (2010). The Act implements CITES into U.S. law. §§ 1532(4), 1537a, 1538(c).
Separately, the Act also provides federal protection to species listed as endangered or threatened pursuant to its provisions, and the listing of a species as endangered or threatened does not depend on whether or how it is categorized under CITES. See §§ 1533(a)(1), 1533(d), 1538(a).
With respect to threatened species, the Act mandates:
16 U.S.C. § 1533(d). The Act also gives the Secretary authority to promulgate regulations to "prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) ... with respect to endangered species." Id.
The Secretary has exercised the authority under section 1533(d) by issuing a regulation that extends the Act's prohibitions on endangered species to all threatened species, 50 C.F.R. § 17.31(a), unless the agency has issued a special rule to govern a specific species. § 17.31(c) ("Whenever a special rule in §§ 17.40 to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the applicable prohibitions and exceptions.").
In 1978, the Service listed African elephants as a threatened species under the Endangered Species Act and simultaneously issued a special rule for them. Listing of the African Elephant as a Threatened Species, 43 Fed. Reg. 20499 (May 12, 1978); 50 C.F.R. § 17.11(h); 50 C.F.R. § 17.40(e) ("Special Rule"). The Special Rule allows imports of sport-hunted trophies of African elephants under the following conditions:
50 CFR § 17.40(e)(3)(iii).
Subpart (C) of the Special Rule contains an enhancement finding requirement that was added to the Special Rule in 1992, when all African elephants were on Appendix I and CITES required both non-detriment and enhancement findings to trade an Appendix I species. 57 Fed. Reg. at 35,473-01. Although CITES no longer requires enhancement findings for Appendix I species, the enhancement finding requirement remains in U.S. law in the Special Rule governing African elephants. See id.
Signatories to CITES hold regular meetings called the Conference of the Parties to review the treaty's operation and the listing of species under its appendices. When CITES was first implemented, African elephants appeared on Appendix I. In 1997, signatories to the treaty transferred three African elephant populations — from Zimbabwe, Botswana, and Namibia — from Appendix I to Appendix II. Changes in List of Species in Appendices to the CITES, Proposed Rule, 62 Fed. Reg. 44627, 44629 (proposed Aug. 22, 1997) ("1997 Proposed Rule"). The consequence of this downlisting is that under the treaty, a hunter need obtain only an export permit issued by the exporting country to bring home a sport-hunted elephant trophy from one of those three countries. Import permits were no longer required.
After this downlisting and other changes to the CITES appendices, the Service published the 1997 Proposed Rule advising the public of these changes and proposing to amend U.S. regulations to incorporate "all changes in CITES Appendices I and II that were approved by the Conference of the Parties." 62 Fed. Reg. at 44,634.
Because of "the complexity of the terms of the CITES downlistings" and "the high public interest" in the species, the Service specifically explained how these changes affected the treatment of African elephants under U.S. law. Id. at 44,633. First, it reiterated the four requirements under the Special Rule to import a sport-hunted trophy. Id., citing 50 C.F.R. § 17.40(e) (stating that an import will be authorized when the trophy "has (1) originated in a country for which the Service has received notice for that country's African elephant ivory quota for the year of export; (2) the permit requirements of the regulations for CITES permits (50 CFR 13 and 23) have been met; (3) the Service has determined that the take of the trophy for import would enhance the survival of the species; and (4) the ivory has been marked as outlined in the special rule"). It explained that a species' downlisting under CITES does not alter requirements under U.S. law:
Id. In other words, the conditions of the Special Rule — including the enhancement finding requirement — would continue to apply after the Appendix II listing for elephants from Botswana, Namibia, and Zimbabwe took effect, even though the requirement was no longer imposed by the treaty. See id. The Service then stated that it reviews "the status of the population and the total management program for the elephant in each country to ensure the program is promoting the conservation of the species" when making an enhancement finding under the Special Rule. Id.
The "practical effect" of the CITES downlistings was that "an import permit will no longer be required for non-commercial imports of African elephant sport-hunted trophies from these countries only. Only a CITES export permit from the
The 1997 Finding for Zimbabwe remained in effect until April 4, 2014, when the Service announced it could no longer make the finding for imports from that country. It is this changed enhancement finding that plaintiffs challenge.
On April 4, 2014, the Service announced a suspension of imports of sport-hunted African elephant trophies taken from Zimbabwe. Service Suspends Import of Elephant Trophies from Tanzania and Zimbabwe, April 2014, AR 196 at 3021-22 ("Service Bulletin"). It stated that "[i]n Zimbabwe, available data, though limited, indicate a significant decline in the elephant population. Anecdotal evidence, such as the widely publicized poisoning last year of 300 elephants in Hwange National Park,
In its finding, the Service cited an International Union for Conservation of Nature ("IUCN") Elephant Database Report ("2013 Africa Report")
On May 12, 2014, the Service published notice of the suspension in the Federal Register. Notice of Interim Suspension on Importation of Zimbabwean Elephant Trophies, 79 Fed. Reg. 26,986 (May 12, 2014). The Service Bulletin stated that the suspension applied to elephants taken in all of 2014, but the Federal Register notice changed the effective date to elephants taken on or after April 4, 2014. Id. The Service also stated, "[W]e recognize that our inability to make a finding is based primarily on a lack of information, not on specific information that shows that Zimbabwe's management is not enhancing the survival of the species," and it indicated that it was "actively pursuing additional information from the Government of Zimbabwe" and other sources to make a final determination. 79 Fed. Reg. at 26,987.
The agency requested information from the government of Zimbabwe on April 4, 2014. Letter to ZPWMA Director, Apr. 4, 2014, AR 74 at 3604-05.
After receiving information from the government, the Service issued its final enhancement determination on July 22, 2014. Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe during 2014 (July 22, 2014), AR 206 at 4505-4517 ("July 2014 Finding").
With respect to population, the Service cited data from the 2013 Africa Report, which showed the 2007 total population estimate at 99,107. July 2014 Finding, AR at 4510. The report categorized data into the categories of definite, probable, possible, and speculative to reflect the level of certainty associated with particular counts within the total population estimate. May 30, 2014 email string, AR 151 at 4166. Of the 99,107 total elephants in 2007, eighty-five percent or 84,416 were classified as "definite,"
The Service received a number of documents regarding the management plan, including the Policy and Plan for Elephant
Regarding Zimbabwe's applicable laws and regulations, the agency found that they provided for sufficient penalties for poaching "[i]f properly enforced." AR at 4511. The Service, however,
Id.
With respect to the country's annual hunting quota, the Service found that while the methodology for determining the quota was based on "sound wildlife management principles used globally," 79 Fed. Reg. at 44,461, it did not receive "specific information on how quotas are established" or whether they were "reasonable or beneficial to elephant populations and, therefore whether sport hunting is enhancing the survival of the species." July 2014 Finding, AR at 4515.
The finding also discussed the CAMPFIRE project, a program that "has been the model for community-based conservation efforts in several other African countries and identified as an innovative program in the past." Id. The agency found that CAMPFIRE has been criticized for "excessive retention of generated funds by district councils," reducing the program's effectiveness. Id. It stated that information the program provided to a CITES panel of experts in 2002 indicated this problem was improving, but the Service had no current information on the situation. "[W]ithout current information on how [CAMPFIRE] funds are utilized and the basis for hunting off-takes," the Service stated it could not assess whether sport-hunting would enhance the survival of the species. Id., AR at 4515-16.
The Service acknowledged some "bright spots" in elephant conservation by nongovernmental entities and individuals in the country but did not change its finding. Id., AR at 4517. It stated the finding would be re-evaluated in December 2014. Id., AR at 4505.
The Service received more information from the government of Zimbabwe on December 10, 2014, as well as information from plaintiffs Conservation Force and Safari Club International in late 2014 and early 2015. Enhancement Finding for African Elephants Taken as Sport-Hunted Trophies in Zimbabwe On or After January 1, 2015, AR 344 at 7256-73, 7258 ("2015 Finding").
On March 26, 2015, the Service issued the 2015 Finding for trophies of elephants taken in Zimbabwe as of January 1, 2015. Id., AR at 7256-73. The Service again determined that it was unable to make an enhancement finding and extended the import suspension to the 2015 hunting season and future seasons. Id., AR at 7256. It said that the suspension could be lifted if the agency received addition information on the status and management of the species that satisfied the Special Rule. See id.
As with the July 2014 Finding, the Service found no "specific measurable outcomes" against which to review implementation
Regarding the elephant population, ZPWMA provided information about two surveys conducted in 2012-13, one in Save Valley Conservancy and the other in Gonarezhou National Park and the surrounding areas. Id., AR at 7262. The first survey counted 1,538 elephants in an aerial survey. Id. Based on nine years of aerial surveys, the Service noted a short-term increase in population density of 9.5 percent, but also found that the trend in the last three years of survey was only a 2.2 percent increase and noted that "conditions were such that double counting may have occurred." Id.
The second survey estimated 10,151 elephants in the surveyed area — "the highest estimate since sample surveys began there in 1975." Id. The Service stated that while the apparent population increase was "excellent news," the reported carcass ratio was low and could indicate that the survey did not accurately detect all the carcasses. Id., AR at 7263.
The Service cited the 2014 Pan African Aerial Elephant Survey as reporting a provisional population estimate of 82,000-83,000 elephants, a six percent decline since 2001 surveys. Id. Further, figures presented at the March 2013 CITES conference indicated that from 2002-2010, the percentage of illegally killed elephants ("PIKE") in the Chewore area was twenty-four percent but in 2011, it was sixty-seven percent. Id. The Service explained that a PIKE level of fifty percent higher or means "half or more of all carcasses were the result of illegally killed elephants," indicating "that the elephant population is very likely to be in net decline." Id.
With regard to Zimbabwe's laws, it found that the Parks and Wildlife Act "includes sections on virtually every aspect of ZPWMA, including requirements for annual financial audits and reporting to the central government," along with substantial penalties for the unlawful possession of or trading in ivory. Id. But again, the Service did not receive adequate information on enforcement. Id.
While ZPWMA reported that "elephant hunting contributes in excess of US$14 million annually and that approximately 30% of [its] revenue is from hunting, of which the elephant is the major contributor," the Service was concerned it did not have information on how much money is generated by elephant hunting specifically, how the funds are distributed, or how they impacted enforcement of the country's laws and regulations, day-to-day management, or anti-poaching efforts. Id., AR at 7264.
The Service considered information from third parties about ZPWMA's budget and
Regarding sustainable use, the Service stated it had not received adequate information about offtake in Zimbabwe. Id. The export quota in 2014 and 2015 was 500 elephants per year, and it had been at that number since 2004. Id. The Service noted that for the April and July 2014 Findings, it had not received information on the number of trophies exported annually or of elephants killed by categories of offtake
The Service also highlighted the lack of information on how the government sets quotas and allocates them spatially. Id., AR at 7267. It noted that quotas are set to "maximize the sustainable production of high-quality trophies," which caused the Service to question if quotas are set for each hunting area based on the overall quota or to facilitate management goals for each area. Id., AR at 7268. The Service emphasized that ZPWMA only provided "a general overview" of setting quotas for all species. Id.
As for CAMPFIRE, as in the July 2014 Finding, the Service was unable to determine how much revenue elephant sport-hunting provides, and how much of that comes from U.S. hunters. Id., AR at 7271.
The Service concluded that the suspension could be lifted if additional information showed that the conditions of the Special Rule had been satisfied. Id., AR at 7256. It published notice of the finding in the Federal Register on July 17, 2015. Notice of Continued Suspension of Imports of Zimbabwe Elephant Trophies Taken On or After April 4, 2014, 80 Fed. Reg. 42,524 (July 17, 2015).
On April 21, 2014, plaintiffs filed suit challenging the April 4, 2014 decision. Compl. [Dkt. # 1], Safari Club Int'l v. Jewell, 14-cv-670-RCL. On December 26, 2014, the Court denied defendants' motion
On June 30, 2016, plaintiffs filed a related case challenging the Service's March 26, 2015 suspension of imports of elephant trophies sport-hunted in Zimbabwe. Compl. [Dkt. # 1], Safari Club Int'l v. Jewell, 15-cv-1026-RCL; Notice of Related Case [Dkt. # 10]. Friends of Animals and the Zimbabwe Conservation Task Force were granted leave to intervene in the related lawsuit. Min. Order (Aug. 21, 2015). The Court granted the parties' motion for a proposed joint consolidated briefing schedule for the two related cases. See Min. Order (Jul. 21, 2015). The parties have briefed the motions for summary judgment,
Summary judgment is appropriate when the pleadings and evidence show that "there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). However, in cases involving review of agency action under the Administrative Procedure Act ("APA"), Rule 56 does not apply due to the limited role of a court in reviewing the administrative record. Select Specialty Hosp.-Akron, LLC v. Sebelius, 820 F.Supp.2d 13, 21 (D.D.C. 2011). Under the APA, the agency's role is to resolve factual issues and arrive at a decision that is supported by the administrative record, and the court's role is to "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977).
Under the APA, a court must "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), in excess of statutory authority, § 706(2)(C), or "without observance of procedure required by law." § 706(2)(D). However, the scope of review is narrow. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The agency's decision is presumed to be valid, see Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814, and the court must not "substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856. A court must be satisfied,
In reviewing an agency's interpretation of a statute, courts use the two-step analysis outlined in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Step one involves determining whether Congress has spoken directly to the precise question at issue. If it has, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress," and that is the end of the matter. Id.; Nat'l Treasury Emps. Union v. Fed. Labor Relations Auth., 392 F.3d 498, 500 (D.C. Cir. 2004). If the statute is silent or ambiguous on the question, Chevron instructs the Court to go on to a second step and determine "whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An agency's interpretation will warrant deference if it is reasonable. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991).
Plaintiffs assert a number of procedural and substantive defects with the three enhancement findings for Zimbabwe. They contend with respect to all three findings that the agency (1) violated APA rulemaking requirements by not providing for notice and comment before issuing them; (2) applied prohibited guidelines and the wrong standard in making the findings; (3) failed to overcome a statutory presumption in Section 9(c)(a) of the Endangered Species Act governing these imports; and (4) violated the APA by failing to explain why it maintained the enhancement finding requirement in the Special Rule after the requirement was eliminated from CITES.
Plaintiffs further argue that the April 2014 Finding violated binding commitments the agency made concerning how it would change the enhancement finding, failed to request information from reliable sources and misinterpreted available information in making the finding, and sought to correct the problems with the April 2014 Finding retroactively without authority to do so. With respect to the July 2014 Finding, they argue that it was arbitrary and capricious because it was based on a lack of information and because the Service improperly analyzed the information it did have. Finally, they argue the March 2015 Finding was arbitrary and capricious because the agency improperly analyzed the data.
For the reasons set forth below, the Court will grant federal defendants' cross-motion for summary judgment on all issues except it will grant plaintiffs' motion for summary judgment on the issue that the agency failed to comply with its binding commitment not to change the 1997
The APA requires that "[g]eneral notice of proposed rule making shall be published in the Federal Register" and after providing this notice, "the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments." 5 U.S.C. § 553(b)-(c). Plaintiffs argue that the enhancement findings are substantive rules, subject to the APA's notice and comment requirement. See Pls.' Mot. at 49-50 (citing authority that distinguish between substantive rules and interpretive rules). Intervenor-defendants agree that the findings are rules. Intervenors' Mem. at 5-6. While plaintiffs are correct that interpretive rules are not subject to the notice and comment requirements, 5 U.S.C. § 553(b)(3)(A), the Court must first address the threshold question of whether the findings are rules in the first place.
The APA defines "`rule' very broadly," Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002), to mean "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency." 5 U.S.C. § 551(4). The APA defines "rule making" as the "process for formulating, amending, or repealing a rule." § 551(5).
"[A]n agency pronouncement that lacks the firmness of a [prescribed] standard ... is not a rule." Sugar Cane Growers Co-op. of Fla., 289 F.3d at 95, citing Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997); see also Sprint Corp. v. FCC, 315 F.3d 369, 373 (D.C. Cir. 2003) (holding that only an "agency's imposition of requirements that affect subsequent [agency] acts and have a future effect on a party before the agency triggers the APA notice requirement," in contrast to an informal adjudication, which "lacks the firmness of a [prescribed] standard") (internal quotations omitted). While "[t]he line between [adjudication and rulemaking] is frequently a thin one," Gen. Am. Transp. Corp. v. Interstate Commerce Comm'n, 883 F.2d 1029, 1030 n.2 (D.C. Cir. 1989), quoting City of Chicago v. Fed. Power Comm'n, 458 F.2d 731, 739 (D.C. Cir. 1971), the Court concludes that the enhancement findings are adjudications.
The Supreme Court has explained the "basic distinction between rulemaking and adjudication" as a difference between "proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other." United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 244-15, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216-17, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring) (stating that the "central distinction between rulemaking and adjudication" is that "rules have legal consequences only for the future").
In Franks v. Salazar, this Court held that enhancement findings made in the context of import permits that individuals must obtain to import a species on CITES Appendix I are adjudications. 816 F.Supp.2d 49 (D.D.C. 2011). In that case, the Service conditioned the grant of a permit
The Court recognizes that these findings bear some of the characteristics of a rule: they do not require individuals to submit permit applications, they affect a group of hunters and not individual permit applicants, and they operate both prospectively and retrospectively. But substantively, the findings are adjudications because they do not "promulgat[e] policy-type rules or standards," but rather "adjudicate disputed facts in particular cases." Fla. E. Coast Ry. Co., 410 U.S. at 245, 93 S.Ct. 810.
An agency decision made by applying facts to existing regulatory standards does not become a rule merely because the decision was not made in response to a pending matter before the agency. In Safe Extensions, Inc. v. FAA, the FAA promulgated a series of "advisory circulars" that changed which types of products needed to pass a safety test and made the test itself more stringent. 509 F.3d 593, 596 (D.C. Cir. 2007). This change was not made in response to a matter then before the agency, and it constituted a departure from what had been FAA standard operating procedure for thirty-five years. See id. The D.C. Circuit held that the advisory circulars were informal adjudications not subject to the APA's notice and comment requirement. Id. at 604.
Like the adjudication at issue in Safe Extensions, the enhancement findings at issue here do not become rules merely because they were not made in the context of a specific permit application. The Special Rule governing elephants requires the Service to make an enhancement finding before allowing the importation of sport-hunted African elephants. 50 C.F.R. § 17.40(e)(3)(iii)(C). That rule has been in effect since 1992, and the Service has not changed the rule here. It has not created a new rule, and it has not even changed the criteria it uses in applying that rule. Instead, it has merely evaluated the status of African elephants in Zimbabwe and their management by the government there, applied the Special Rule, and arrived at an agency decision. This is the hallmark of adjudication. See Fla. E. Coast Ry. Co., 410 U.S. at 245, 93 S.Ct. 810.
Also, contrary to plaintiffs' argument, see Pls.' Opp./Reply at 24-27, the fact that the findings affect a group of people and have prospective effect do not make them rules. First, adjudications do not become rules merely because they impact a broad class of individuals. See Goodman v. FCC, 182 F.3d 987, 993-94 (D.C. Cir. 1999) (holding that an FCC order was an adjudication, and not a rulemaking, even though it impacted the validity of licenses held by non-parties to the proceeding). "Just as a class action can encompass the claims of a large group of plaintiffs without thereby becoming a legislative proceeding, an adjudication can affect a large group of individuals without becoming a rulemaking." Id. at 994; see NLRB v. Bell Aerospace Co., 416 U.S. 267, 292, 94 S.Ct. 1757, 40
Second, adjudications can, and necessarily do, have prospective effect. They "generally provide a guide to action that the agency may be expected to take in future cases." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765-66, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). A rule of law announced in an adjudication with exclusively prospective effect can be accepted as binding with "new analysis[] in subsequent adjudications." Bowen, 488 U.S. at 221, 109 S.Ct. 468 (holding that otherwise, "it would constitute rulemaking"). The enhancement findings at issue here do not have exclusively prospective effect, and the Service has made clear they can be revised with new facts and a new analysis. See April 2014 Finding, AR at 3823; July 2014 Finding, AR at 4505, March 2015 Finding, AR at 7256.
Further, the enhancement findings do not set "policy-type rules or standards" for future enhancement findings. They do not establish the conditions that must be satisfied for the agency to allow imports. The Special Rule and its preamble did that. See 50 C.F.R. § 17.40(e)(3)(iii) (establishing the four requirements for imports, including the enhancement finding); see also 1997 Proposed Rule, 62 Fed. Reg. at 44, 633 (stating the agency would review "the status of the population and the total management program for the elephant in each country to ensure the program is promoting the conservation of the species"). Rather, the findings "adjudicate[d] disputed facts." Fla. E. Coast Ry. Co., 410 U.S. at 245, 93 S.Ct. 810. They analyzed the status of the population in Zimbabwe and the management program there to determine "if the killing of the animal whose trophy is intended for import would enhance survival of the species." 50 C.F.R. § 17.40(e)(3)(iii) And while the result of the adjudication — no enhancement finding — has the prospective effect of suspending imports from Zimbabwe, that effect will remain in place only until new facts arise to change the results of the agency's analysis — which occurs against existing regulations. See Franks, 816 F.Supp. at 59 (ruling that the decision to grant or deny import permits involves an evaluation of the permit applications "against the existing regulatory standards"). Accordingly, the Court holds that the Service's enhancement findings are adjudications not subject to the notice and comment requirements of the APA.
Plaintiffs also challenge the three findings on the grounds that the Service failed to rebut a statutory presumption in the ESA. Pls.' Mot. at 55-61.
Section 9(c) of the Endangered Species Act makes it unlawful to engage in trade of species in violation of CITES. 16 U.S.C. §§ 1538(c)(1), 1532(4). It also provides:
16 U.S.C. § 1538(c)(2).
Plaintiffs contend that the Service failed to rebut this presumption because the provision requires the Service to presume that all conditions of the Special Rule are met, including the enhancement finding requirement, absent facts to the contrary. Pls.' Mot. at 55-61 (arguing that the Service must make "an affirmative finding based on the facts available at the time of the importation" but here the Service only "lacked" sufficient information to make a positive finding).
Defendants argue that the Special Rule rebuts the presumption. Fed. Defs.' Mem. at 36-40; see also Safari Club Int'l v. Babbitt, No. MO-93-CA-001, 1993 WL 13932673 at *12 (W.D. Tex. Aug. 12, 1993) ("The Service has interpreted § 9(c)(2) to raise a presumption of the legality of importing trophies which could be rebutted by the promulgation of a special protective regulation pursuant to § 4(d) of the Act, 16 U.S.C. § 1533(d).").
Under Chevron, the Court must first consider whether the statute is unambiguous on the issue. If it is, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress," and that is the end of the matter. Chevron, 467 U.S. at 842-13, 104 S.Ct. 2778; Nat'l Treasury Emps. Union, 392 F.3d at 500. If the statute is silent or ambiguous on the question, Chevron instructs the Court to then determine "whether the agency's answer is based on a permissible construction of the statute." 467 U.S. at 843, 104 S.Ct. 2778. An agency's interpretation will warrant deference if it is reasonable. Pauley, 501 U.S. at 702, 111 S.Ct. 2524.
Section 4 of the ESA gives the Secretary broad authority to protect threatened species. 16 U.S.C. § 1533(d) (authorizing the Secretary to promulgate regulations she "deems necessary and advisable"); see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 708, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (describing this authority as "broad administrative and interpretive power" and holding that "[f]ashioning appropriate standards for issuing permits under § 10 for takings that would otherwise violate § 9 necessarily requires the exercise of broad discretion").
Section 4 also authorizes the Secretary to extended the prohibitions on endangered species to threatened ones. 16 U.S.C. § 1533(d). The Secretary exercised this authority with a single blanket regulation covering all threatened species, but allowed for the agency to carve out certain species from these prohibitions by issuing species-specific rules.
50 C.F.R. § 17.31 (emphasis added). The Service issued just such a special rule to govern African elephants.
While the Court agrees that plaintiffs' reading of the statute offers one interpretation, it does not agree that this is the only reading or that Congress "unambiguously expressed [its] intent" on the issue. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Section 9(c) of the Act establishes a presumption that imports of Appendix II species not on the endangered species list do not violate the ESA or its regulations, but section 4 of the Act gives the Secretary broad authority to issue regulations "deem[ed] necessary and advisable" to protect threatened species. 16 U.S.C. § 1533(d). Given that section 9(c) makes imports of threatened species on Appendix
Given this, the Court must next determine whether the agency's interpretation is "based on a permissible construction of the statute," Chevron, 467 U.S. at 843, 104 S.Ct. 2778, and reasonable to warrant deference. Pauley, 501 U.S. at 702, 111 S.Ct. 2524. The Court holds that it is. The Secretary acted within her statutorily-delegated authority to prohibit imports of all threatened species, see 50 C.F.R. § 17.31(a) — and could have stopped there — but instead allowed the agency to carve out species from these prohibitions with special rules. 50 C.F.R. § 17.31(c). In doing so, the Secretary provided that these special rules would establish "all the applicable prohibitions and exceptions" for the species. 50 C.F.R. § 17.31(c) (emphasis added); see also 50 C.F.R. § 17.8 (setting conditions for imports of threatened, CITES Appendix II wildlife "[e]xcept as provided in a special rule"). It was not unreasonable for the Secretary to interpret the Special Rule as rebutting the statutory presumption, particularly in light of her broad authority and discretion to promulgate regulations to protect threatened species. See Sweet Home Chapter of Cmtys., 515 U.S. at 708, 115 S.Ct. 2407. Accordingly, the Court holds that the Special Rule rebuts the section 9(c) presumption.
Plaintiffs argue that the Service acted in an arbitrary and capricious manner when it failed to solicit public comment and explain why it maintained the enhancement finding requirement in the Special Rule after CITES no longer required it. Pls.' Mot. at 51 (emphasizing that the Service added the requirement to the rule in 1992 because CITES mandated it).
An agency's action "is arbitrary and capricious" if it fails to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Sw. Power Pool, Inc. v. FERC, 736 F.3d 994, 997 (D.C. Cir. 2013), quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856. If an agency "changes course" it "must `provide reasoned explanation for its action.'" National Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012), quoting FCC v. Fox T.V. Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). Additionally, "changes in factual and legal circumstances may impose upon the agency an obligation to reconsider a settled policy or explain its failure to do so." Bechtel v. FCC, 957 F.2d 873, 881 (D.C. Cir. 1992). Plaintiffs cite no case law where an agency must provide ongoing explanation and public comment for regulations when the regulation and justification for the regulation remain unchanged. See Pls.' Mot. 51-55.
In 1992, the Service added the enhancement finding requirement to the Special Rule. 57 Fed. Reg. at 35,473; 50 C.F.R. § 17.40(e)(3)(iii). It did this as part of its decision on a petition to elevate the African elephant from the ESA threatened list to the endangered list. 57 Fed. Reg. at 35,473. The agency decided to keep the species on the threatened list and to allow the importation of sport-hunted elephant trophies under "prescribed conditions." Id.
In 1994, the treaty's signatories eliminated the requirement. In 1997, elephants from Botswana, Namibia, and Zimbabwe were transferred from Appendix I to Appendix II — which has never required an enhancement finding. Pls.' Mot. at 52; Fed. Defs.' Mem. at 34. Throughout this time, all African elephants remained on the threatened list under the ESA, and the Service made no changes to the Special Rule, maintaining the enhancement finding requirement under U.S. law.
Plaintiffs do not challenge the agency's addition of the requirement to the Special Rule in 1992. Rather, they complain that the agency improperly kept the requirement in U.S. law after CITES was amended to remove it from the treaty. Pls.' Mot. at 51-52 (arguing that the agency "passively modified" the rule without providing for public notice and comment). But CITES allows signatories to enact stricter regulations than those found in the treaty, setting a floor on the protections signatory nations must give to covered species, but not a ceiling. CITES art. XIV(1)(a). Moreover, the agency did not modify the rule or "chang[e] course" in 1992 by leaving the requirement in place, Nat'l Ass'n of Home Builders, 682 F.3d at 1038, so the agency did not need to "provide reasoned explanation for its action." Fox T.V. Stations, Inc., 556 U.S. at 515, 129 S.Ct. 1800. Although one reason for adding the requirement changed when CITES was amended, another reason — ensuring that imports generate "revenues for elephant conservation to range states" — did not change. 57 Fed. Reg. at 35,485. Thus, an underlying rationale for the requirement remained the same, and the Service did not need to re-explain that rationale. Bechtel, 957 F.2d at 881.
Plaintiffs next argue that the Service applied illegal guidelines and the wrong standard in issuing the enhancement findings. Pls.' Mot. at 43-49. They contend that the agency improperly used guidelines that were the subject of prior litigation and withdrawn by the agency more than twenty years ago. Pls.' Mot. at 43-44 (comparing the withdrawn guideline factors, including whether the population was increasing or stable and a country's management program, goals, and ability to control poaching, with the challenged enhancement findings, which considered Zimbabwe's elephant population trends, management plans and laws, and poaching). Federal defendants argue that plaintiffs did not make this claim in their amended complaint and that this Court has already ruled that the agency did not use these guidelines. Fed. Defs.' Mem. at 24-25, citing Marcum, 810 F.Supp.2d at 72
Plaintiffs also argue that the agency applied the wrong standard in the enhancement findings, requiring a showing that sport-hunting elephants in Zimbabwe ensures the species' survival, not just enhances it. Pls.' Mot. at 47 (contending that the agency "continue to focus on the negative implications of issues other than sport hunting" and improperly considered how much, instead of whether, sport hunting enhances elephant survival). Comparing the 1997 finding to the recent findings, plaintiffs note that the agency made a positive finding in 1997 despite expressing the same concerns set forth in the recent findings — "lack of government funding, increase in human-elephant conflicts, criticism of the CAMPFIRE district councils, and poor infrastructure." Pls.' Mot. at 45; see also id. at 47-48 (arguing the challenged findings "focused on a lack of recently updated elephant data, an incorrectly perceived drastic decline in population, and incorrect anecdotal evidence of an increase in poaching" and issues other than sport hunting).
But plaintiffs fail to recognize the difference in the quality and amount of information the agency had in 1997 compared to the information it had in 2014 and 2015. While many of the same concerns expressed in the recent findings existed in 1997, the agency had facts before it at that time showing the concerns were being addressed. For example, in 1997, survey issues like double counting were addressed with additional surveys, including an independent one conducted by Price Waterhouse in 1996. 1997 Finding, AR at 2557. Concerns in 1997 about CAMPFIRE's district councils retaining excess funds were addressed with information on how some of its districts were reducing the amount of funds that they retained. Id., AR at 2559. Moreover, the 1997 finding was made against a backdrop of estimates showing a growing elephant population — estimates in which the agency had confidence. Id., AR at 2557-57. In contrast, the record indicates that the same concerns were no longer being addressed in 2014 and 2015, and that the information that supported the agency's conclusions in 1997 was stale by 2014 and 2015. See, e.g., July 2014 Finding, AR at 4507, 4510, 4516; 2015 Finding, AR at 7261-63, 7272.
In making an enhancement finding pursuant to the Special Rule, the Service reviewed "the status of the population and the total management program for the elephant in each country to ensure the program is promoting the conservation of the species." 1997 Proposed Rule, 62 Fed. Reg. at 44,633. In 1997, it carried out this analysis by reviewing the status of the elephant population in Zimbabwe, Zimbabwe's management plan, its management program including CAMPFIRE, its regulations and enforcement, sustainable use in the country, and its implementation of CITES. See 1997 Finding, AR at 2557-60. In carrying its reviews in 2014 and 2015, the agency reviewed these same factors. July 2014 Finding, AR at 4507-17 (reviewing management plans, population status, regulation and enforcement, sustainable use, revenue utilization by CAMPFIRE, and local conservation efforts); 2015 Finding, AR at 7256-73 (same). Plaintiffs did not challenge either the standard the Service applied in making the 1997 finding or the data and information it reviewed. And
Plaintiffs would have the agency focus only on whether sport-hunting generates revenue for species conservation and whether the presence of hunters deters poaching. But these factors address only the first part of the inquiry, and taken as true, they would always result in an positive enhancement finding. Instead, the agency examines not only whether these factors exist but their effect on the species as a whole: whether fees generated by U.S. hunters are in fact being used to promote conservation and how they are being used under the government's management plan and sport-hunting program, whether their use is improving the species' prospects for survival into the future, and how the species would fare if U.S. hunters could not import trophies. See 62 Fed. Reg. at 44,633. The Court holds that this inquiry is appropriate because the agency must find a causal connection between "the killing of the animal whose trophy is intended for import" and the "survival of the species" — not just the survival of a single or some elephants. 50 CFR § 17.40(e)(3)(iii) (emphasis added). Thus, generating hunting fees and deterring poaching in specific instances do not show enhancement, without a showing that a government is properly using funds and protecting the species more broadly. Accordingly, the Court holds that the agency did not apply an improper standard in issuing the three challenged findings.
Plaintiffs argue that the Service bound itself to changing the Zimbabwe enhancement finding based only on new information and after publishing notice of the change in the Federal Register. Pls.' Mot. at 14-18; Pls.' Opp./Reply at 2-6. They further argue that the agency's failure to comply with these commitments tainted both the April and July 2014 Findings. Id.
In the 1997 Proposed Rule announcing the transfer of African elephants in Zimbabwe, Botswana, and Namibia from Appendix I to Appendix II, the agency wrote the following about the enhancement findings for the three countries:
62 Fed. Reg. at 44,633.
Plaintiffs argue that this statement bound the Service to base any change to the findings for these three countries "on new information, that the conditions of the special rule are no longer met" and keep the 1997 Finding in effect until it published notice of the change in the Federal Register. See Pls.' Mot. at 14-18; Pls.' Opp./Reply at 2-4. They contend the agency's failure to follow these binding procedures makes April and July 2014 enhancement findings invalid. See id.
Federal defendants argue that the Service is bound only by the Special Rule, as published in Code of Federal Regulations, and not by the text of the preamble to the
Generally speaking, preambles to rules are not binding agency actions subject to judicial review, Nat. Res. Def. Council v. EPA, 559 F.3d 561, 564-65 (D.C. Cir. 2009), and agency statements "having general applicability and legal effect" are to be published in the Code of Federal Regulations. Id. citing Federal Register Act, 44 U.S.C. § 1510(a)-(b) and 1 C.F.R. § 8.1. But in certain circumstances, a preamble may be legally binding. Kennecott Utah Copper Corp. v. U.S. Dep't of Interior, 88 F.3d 1191, 1222-23 (D.C. Cir. 1996) (internal citations omitted) (holding that whether a preamble is binding on an agency "hinges upon whether the preamble has independent legal effect, which in turn is a function of the agency's intention to bind either itself or regulated parties" and even without an express statement, a court may "infer that the agency intended the preamble to be binding if what it requires is sufficiently clear"). Accordingly, the Court must consider whether this preamble is binding.
"[A]n agency pronouncement will be considered binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that indicates it is binding." Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011), quoting Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002); see also Wildearth Guardians v. Salazar, 783 F.Supp.2d 61, 72 (D.D.C. 2011) (internal quotation marks omitted) ("Generally speaking, `an agency pronouncement is transformed into a binding norm if the statement's language, context, and available extrinsic evidence indicate the agency so intended.'"), quoting Empresa Cubana Exportada de Alimentos y Productos Varios v. U.S. Dept. of Treasury, 516 F.Supp.2d 43, 58 (D.D.C. 2007).
An agency statement will be considered binding if it "is in purpose or likely effect one that narrowly limits administrative discretion." Guardian Fed. Sav. & Loan Ass'n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 666-67 (D.C. Cir. 1978). Indeed, "the mandatory language of a document alone can be sufficient to render it binding," Gen. Elec., 290 F.3d at 383; Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) ("[W]e have ... found decisive the choice between the words `will' and `may.'"); compare Am. Bus. Ass'n v. United States, 627 F.2d 525, 532 (D.C.Cir.1980) (finding use of the word "will" to be evidence that an agency statement is a binding norm) with Guardian Fed., 589 F.2d at 666 (finding use of the word "may" to be evidence that an agency statement is a non-binding, "general statement of policy"). "If a statement denies the decisionmaker discretion ... then the statement is binding." McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988). And "procedures may be binding on an agency when they affect individuals' rights." Chiron Corp. v. NTSB, 198 F.3d 935, 944 (D.C. Cir. 1999); see also Mass. Fair Share v. Law Enf't Assistance Admin., 758 F.2d 708, 711-12 (D.C. Cir. 1985) (holding that an agency is bound by its manual's procedures for grant-funding).
The language here appears to be binding on its face: the Service "will make such findings ... upon receipt of new information." 1997 Proposed Rule, 62 Fed. Reg. at 44,633 (emphasis added). It adds
Even without express language that indicates an agency's intent to bind itself, a court may infer such intent so long as what the preamble "requires is sufficiently clear." Kennecott, 88 F.3d at 1223. "Agency intent is `ascertained by an examination of the provision's language, its context, and any available extrinsic evidence.'" Chiron, 198 F.3d at 944, quoting Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977); see also McLouth, 838 F.2d at 1321 ("More critically than [the agency's] language adopting the model, its later conduct applying it confirms its binding character.").
Federal defendants do not argue the language is not mandatory but instead point to context and extrinsic evidence to argue that it should be not read as mandatory. They argue that when the Service intends to bind itself, it publishes the statement in the Code of Federal Regulations, and that as soon as the conditions of the Special Rule were not satisfied, it was required to halt importation — "regardless of whether its inability to make a positive finding [was] based on new information or [on the] lack of information." Fed. Defs.' Reply at 23-24; see Fed. Defs.' Mem. at 31. But the agency's current characterization of the statement bears "little weight. The agency's past characterizations, and more important, the nature of its past applications... are what count." McLouth, 838 F.2d at 1320; see also Cmty. Nutrition Inst., 818 F.2d at 946 (noting that "courts are to give far greater weight to the language actually used by the agency" than to the agency's current characterization of that language).
In support of their first argument, defendants point to two special rules that govern other species. Fed. Defs.' Mem. at 31, citing 50 C.F.R. §§ 17.40(j)(2), (n)(2). These special rules provide for publication of notice in the Federal Register when the Service intends to authorize imports. Id. But an agency need not publish a commitment in the Code of Federal Regulations to bind itself. Kennecott Utah Copper Corp., 88 F.3d at 1222-23 (internal citations omitted).
The Service next argues that as soon as it was unable to make a positive enhancement finding, the conditions of the Special Rule were no longer satisfied and it was required to halt imports, regardless of the availability of new information. Fed. Defs.'
But that is not what happened. Instead, on May 12, 2014, the agency published notice in the Federal Register that it was suspending importation on an interim basis. See 79 Fed. Reg. 26,986. It wrote:
Id. at 26,987. This statement indicates that the Service knew of its prior commitment to base the suspension of its enhancement findings on new information and intended to be bound by that commitment. Indeed, the Court notes that while federal defendants contend that the preamble's statement on how it would change the finding are not binding, it separately asserts that "the only documents relevant to the standard the Service uses for enhancement findings under the special rule are the preamble to the rule itself and Service's enhancement findings." Fed. Defs.' Mem. at 23 (emphasis added). This further suggests the Service gives significant weight to the preamble's authority. Given all of this, the Court concludes that the agency bound itself to comply with its statements in the preamble.
But that does not end the inquiry. The Court must next consider whether the agency complied with its commitments.
The agency's own statements repeatedly indicated the agency did not have much information and no new information from Zimbabwe before suspending imports. Service Bulletin, AR at 3021 (describing "available data" to the agency as "limited"); April 2014 Finding, AR at 3823 (stating the "most significant aspect of our analysis is the lack of recent data on what is occurring in Zimbabwe"); 79 Fed. Reg. 26,986-87 (stating the interim suspension was "due primarily to the Service having insufficient information on the status of elephants in Zimbabwe and the current management program in Zimbabwe" and that the "inability to make a finding is based primarily on a lack of information, not on specific information that shows that Zimbabwe's management is not enhancing the survival of the species").
By the July 2014 Finding, the agency had received information from the government of Zimbabwe and other sources, but found that this additional information still did not support a positive finding. July 2014 Finding, AR at 4505, 4507. Plaintiffs argue that even though the Service received this information, the finding was still based on a "lack" of information. Pls.' Mot. at 27.
The Service also promised in the 1997 Proposed Rule that the finding would "remain in effect until [it] ... published a notice of any change in the Federal Register." 62 Fed. Reg. at 44,633. The Service did not do so until May 12, 2014, but it made the suspension effective April 4, 2014. 79 Fed. Reg. at 26,986. The Court finds that this violated the commitment in the preamble. Federal defendants argue the error is harmless because hunters had actual notice of the change, given the agency's Service Bulletin and announcement of the suspension on its website. Fed. Defs.' Mem. at 32-33. But the agency did not say that the finding would remain in effect until it posted a notice on its website, or issued a bulletin, or hunters received actual notice of a change. It said the finding would "remain in effect" until the agency "published a notice of any change in the Federal Register." 62 Fed. Reg. at 44,633. The agency failed to live up to this commitment.
Because remand cannot resolve this issue, the Court holds that the appropriate remedy is to order that the effective date of the 2014 interim suspension is not April 4, 2014 but May 12, 2014, the date of the Federal Register notice. The result is that imports of trophies from elephants sport-hunted in Zimbabwe from April 4, 2014 to May 11, 2014 may proceed.
After issuing the April interim finding, the agency received information from a number of sources, including the government of Zimbabwe, hunting organizations, and numerous individuals. See, e.g., July 2014 Finding, AR at 4507-17. The agency reviewed the information but did not change the interim finding.
Plaintiffs argue that the July 2014 Finding violated the 1997 commitment to base a change to the finding on "new information." Pls.' Mot. at 27 (asserting that "[i]n July, the Service continued to base its decision on a `lack of information'"). But the document plaintiffs quote states that the April 2014 Finding was based on a "lack of information" and that the July 2014 Finding was based on a "lack of current information." Id., quoting AR 196 at 4443. Plaintiffs do not dispute, and the record shows, that the government of Zimbabwe provided information to the agency, which the agency considered before issuing the July 2014 Finding. Pls.' Mot. at 27; see, e.g., Response to Questions Raised by FWS to Address the USA Endangered
Plaintiffs also argue that the July 2014 Finding was arbitrary and capricious because the Service "ignored, rejected or discounted" the information ZWPMA and others provided to the agency. Pls.' Mot. at 28. The Court's role in deciding this issue is narrow. An agency's decision is presumed valid, see Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. 814, and the Court cannot "substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856; see also Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (holding that after a "careful study of the record, [the court] must take a step back from the agency decision" and "look at the decision not as the chemist, biologist or statistician that [it is] qualified neither by training nor experience to be, but as a reviewing court exercising [its] narrowly defined duty of holding agencies to certain minimal standards of rationality").
Plaintiffs present competing analyses of the information before the Service, but the Court's role is not to choose among the competing views presented. It is to determine whether the Service examined the relevant data and articulated a satisfactory explanation for its finding, "including a `rational connection between the facts found and the choice made.'" Alpharma, Inc., 460 F.3d at 6, quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856. With this narrow mandate in mind, and as explained further below, the Court concludes that the July 2014 Finding is not arbitrary and capricious.
Plaintiffs contend that the agency improperly analyzed population data in the July 2014 Finding. Pls.' Mot. at 22, 28-30. For 2007, the IUCN's 2013 Africa Report estimated the population in Zimbabwe was 99,107 elephants. July 2014 Finding, AR at 4510. Of that total, eighty-five percent (84,416) was classified as "definite." Id. For 2012, the report estimated the population had increased to 100,291, but only forty-seven percent (47,366) was classified as "definite." Id.
Plaintiffs cite an email to the Service from Dr. Holly Dublin, senior adviser and chair of the IUCN's African Elephant Specialist Group, about the 2013 Africa Report. Pls.' Mot. at 28, citing May 30, 2014 email string, AR 151 at 4166. Dr. Dublin wrote that the agency's description of the population being "reduced" from 84,416 in 2007 to 47,366 in 2013 is based only on the data from the "definite" category. May 30, 2014 email string, AR at 4166. She stated that the reason for the decline in "is NOT due to an observed decline, but rather due to the fact that much of data the estimate is based on were considered `out of date' by our system." Id. (explaining that the database categorizes survey data into four categories — definite, probable, possible and speculative — "to reflect the uncertainty in the population estimates at the national and regional levels"). In Zimbabwe's case, she elaborated, "much of the data on population estimates is out of date, which has resulted in those data being moved `down' in terms of the category of reliability. That should not be interpreted to mean
While the agency's statement in the April 2014 Finding that the population "had been reduced to 47,366" was misleading, its statements in the July 2014 Finding about the reliability of the survey data came directly from the 2013 Africa Report. See 2013 Africa Report, AR at 3626-27. The report shows that 304 elephants were counted by aerial total counts (labeled "AT" in the report's table) in 2010. Id., AR at 3627. The report further ranked the reliability of the surveys reflected in it, from "A" (best) through "E" (worst). Id., AR at 3627 n.2. Only a 2010 survey conducted by Selier & Page, which only covered three of forty-one areas, received an "A" ranking. Id., AR at 3626-27. The 2013 Africa Report summarized:
Id., AR at 3627.
The record does not indicate that the agency ignored the other survey categories or that it concluded the elephant population had in fact declined by half. See July 2014 Finding, AR at 4510 (acknowledging that the 2013 Africa Report estimated more than 100,000 elephants in Zimbabwe and the government of Zimbabwe estimated the same). Rather, the agency's concern was that the survey data was unreliable. See id. The record — and, indeed, Dr. Dublin's email — confirmed that the reliability of the data had declined since the 1997 Finding. See, e.g., May 30, 2014 email string, AR at 4166.
Plaintiffs also challenge the statement in the July 2014 Finding that in 2012, "[o]nly 304 ... were counted by aerial or ground counts, while the remaining 41,840 ... were counted through sample counts or dung counts, ... a less accurate methodology." AR at 4510. Plaintiffs assert the agency "failed to comprehend the IUCN Report and how population surveys are conducted." Pls.' Mot. at 29. But plaintiffs' argument about survey methodology does not undermine the fact that only 47,366 elephants surveyed were considered "definite" in 2012, compared to the much higher number in that category in 2007. 2013 Africa Report, AR at 3626. Again, the Service's concern was not that the population had in fact declined but that survey data was old, making the estimates less reliable than when it made the affirmative finding in 1997. Compare CITES Doc. 10.88, Consideration of Proposals for Amendments of Appendices I or II at 10th Conf. of Parties (1997), AR 19 at 2542 ("CITES Doc. 10.88") ("Zimbabwe has carried out a regular series of aerial surveys of its elephant population since 1980 using standard sample count techniques. Zimbabwe has one of the best sets of elephant population data in Africa."), with 2013 Africa Report, AR at 3627 ("Half of the estimates included in the current update are now older than 10
The July 2014 Finding was not based solely on the population numbers but in part on the conclusion that the available population data was inadequate to determine the status of the population or to understand Zimbabwe's management of the species. See, e.g., July 2014 Finding, AR at 4516 (concluding that "it does not appear that Zimbabwe has adequate information on elephant populations to establish scientifically defensible hunting quotas").
Plaintiffs next contend that the agency improperly analyzed poaching data, pointing again to the email from Dr. Dublin. Pls.' Mot. at 30, quoting May 30, 2014 email string, AR at 4167 (stating that the agency's "extrapolation of the [Monitoring the Illegal Killing of Elephants ("MIKE")] PIKE figures to the national level based on the data from one or two MIKE sites... probably also deserve closer scrutiny"). Plaintiffs do not argue that the poaching data from the two locations is wrong
Federal defendants argue that the agency did not rely solely on the poaching data for the finding but considered it evidence that poaching remains a concern in Zimbabwe. Fed. Defs.' Mem. at 12-13. In any event, the record shows other information indicating that poaching was an ongoing problem. See Information Memo. for the Director, Jan. 8, 2014, AR 79 at 3625 (memorandum stating that the United States has sanctions in place for senior officials of the government of Zimbabwe for public corruption and citing articles and unofficial reports "that Zimbabwean government officials may be financially linked to sport hunting"); Information Memo. for the Director, Jan. 6, 2014, AR 76 at 3610 (draft memorandum reflecting "reports of government corruption, including politicization of hunting quota distribution and abuse of ration quotas, as well as purported direct and indirect participation in wildlife trafficking by Zimbabwean politicians, defense forces, and intelligence officers"). Regarding the role of hunters in deterring poaching, federal defendants emphasize that Zimbabwe's budget for the ZPWMA to manage wildlife, including deterring poach, is insufficient to carry out its statutory mandate, even with hunting revenues. Fed. Defs.' Mem. at 13. Further, because hunting concessions are not allowed in national parts, "it is unlikely the density of hunters is sufficient to adequately deter poaching." Id. at 14, citing July 2014 Finding, AR at 4512-13.
As with its analysis of the population data, the agency did not ignore or disregard evidence in the record about poaching or how hunters help deter it, but weighed it differently than the plaintiffs would have.
Plaintiffs contend that Zimbabwe's elephant conservation and management laws, plans, and strategies were the same in 1997 as they were in 2014, and the Service acted in an arbitrary and capricious manner when it found them sufficient in 1997 but "abruptly" found them insufficient in 2014. Pls.' Mot. at 27-28 n.13. But plaintiffs ignore the difference between the quality and substance of the information before the agency in 1997 and before it in July 2014.
The record indicates that when the agency made its 1997 finding, a CITES report showed that the predecessor agency to ZPWMA provided assurances that the "current poor state of finances and general organization" of the agency was improving. CITES Doc. 10.88, AR at 2541; see also id. at 2547 ("The status of DNPWLM changed on 1 July 1996 to become a statutory `Fund', responsible for financing operations directly from wildlife revenue ... managed by the Director on behalf of the Accounting Officer for the Ministry of Environment and Tourism, who is in turn accountable to Parliament.").
Plaintiffs emphasize that the Service incorrectly cited this 1997 CITES report as a source for more recent concerns about ZPWMA's weak financial base, lack of management skills, inadequate or old equipment, and poor infrastructure.
The 1997 CITES report was, however, not the only basis in the record for the agency's concerns about Zimbabwe's management of elephants. A 2013 report submitted to the CITES Conference of the Parties stated:
Monitoring of illegal trade in ivory and other elephant specimens, Elephant Trade Information System (ETIS) Report of TRAFFIC, Mar. 3-14, 2013, AR 42 at 3320-22 (describing rule of law in Botswana, Namibia, and Zimbabwe) (emphasis added).
Further, the record includes press articles from 2013 that reflect concerns about the government's ability to enforce its wildlife laws and regulations. Zimbabwe elephants a jumbo problem, G. Staden, Sept. 10, 2013, AR 44 at 3394 (reporting statement of ZPWMA spokesperson that "[l]aw enforcement requires operational equipment such as patrol kits, uniforms, radio communication kits, vehicles, boats, tracking equipment [eg GPS]," but "[c]urrently, most of the existing field equipment is old and obsolete").
So while plaintiffs are correct that the Service misattributed of statements from a 1997 CITES report about Zimbabwe's wildlife management, the record nonetheless supports the conclusion that Zimbabwe's elephant management and laws are an area of continuing concern. See July
In sum, plaintiffs challenge specific parts of the Service's analysis of the record and even identify errors in its citation of the 1997 CITES report, but their arguments do not lead the Court to conclude that the agency failed to make a "rational connection between the facts found and the choice made." Alpharma, Inc., 460 F.3d at 6 (citations omitted) (internal quotation marks omitted). The Service properly weighed the competing data and information before it, and reasonably determined that, taken together, they indicate that allowing imports of trophies of sport-hunted elephants from Zimbabwe would not enhance the survival of the species.
For the same reasons that the Court holds the July 2014 Finding was not arbitrary and capricious, it holds the same for the 2015 Finding. Plaintiffs' challenges to this finding assert the same types of arguments raised against the July 2014 Finding: that the Service did not properly analyze or consider data about the elephant population, anti-poaching efforts, or the role of hunters on the ground and financially toward in those efforts. However, plaintiffs' myriad arguments, at bottom, challenge how the agency weighed competing data before it — a task that that is left to the expertise of the agency. See Marsh, 490 U.S. at 375-77, 109 S.Ct. 1851; Am. Wildlands v. Kempthorne, 478 F.Supp.2d 92, 96 (D.D.C. 2007), aff'd, 530 F.3d 991 (D.C. Cir. 2008), quoting Carlton v. Babbitt, 900 F.Supp. 526, 530 (D.D.C. 1995) (recognizing "the expertise of the [Service] in the area of wildlife conservation and management").
The Service declined to make a positive enhancement finding for Zimbabwe in 2015 because much of the data before it was preliminary or incomplete or reflected proposals that had not yet been implemented. See, e.g., 2015 Finding, AR at 7261 (stating that the government of Zimbabwe was in the process of creating a new management plan, which was not completed when the 2015 Finding was issued in March, and the existing plan did not provide measurable goals); id., AR at 7263 (stating that the new population data from the Pan African Aerial Elephant Survey was provisional); id., AR at 7266 (finding data about hunting revenues insufficient). While plaintiffs present numerous ways that the agency could have analyzed the data to reach a different result, the Court cannot hold that the agency's conclusion was irrational or unsupported by the record.
For example, plaintiffs argue that the Service based the 2015 Finding on a lack of current and adequate population data when the 2014 Pan African Aerial Elephant Survey, which estimated a population of 82,000-83,000 elephants, provided "sufficient population data." Pls.' Mot. at 33, citing 2015 Finding, AR at 7263. But even plaintiffs acknowledge that the survey was not final, but "preliminary" and "provisional." Pls.' Mot. at 33. Given this, it was rational for the Service to decide not to give this preliminary estimate the weight that plaintiffs do. See In re Polar Bear ESA Listing & § 4(d) Rule Litig., 794 F.Supp.2d 65, 90 n.28 (D.D.C. 2011) (accepting "as reasonable" agency's explanation that it declined to find "preliminary, alpha-level population models, which came relatively late in the decision-making process," sufficiently persuasive to warrant an endangered listing for the polar bear).
Plaintiffs also spend much time arguing that the statement of an agency employee — that "assuming that the population is close to what they claim (100,000 elephants), removal of 500 elephants is not a problem" — shows that the 2014 preliminary estimate of 82,000-83,000 elephants shows hunting benefits sufficient to qualify as "enhancement." Pls.' Mot. at 35-36 (arguing that the population is "at least relatively close to" 100,000, so removal of 500 elephants through hunting "is not a problem"), quoting email from T. Van Norman to C. London (Sept. 22, 2014), AR 228 at 4640; see also Pls.' Opp./Reply at 16.
But, again, all of these arguments about how much weight the agency gave the population data and what other data it was compared against present precisely the type of issues that courts must leave to the expertise of the agency. See Marsh, 490 U.S. at 375-77, 109 S.Ct. 1851. The question for the Court is not whether plaintiffs' competing analysis of the data is better than the agency's, but whether the agency's analysis was rational. Alpharma, Inc., 460 F.3d at 6; Ethyl Corp., 541 F.2d at 36.
Plaintiffs present other, similar criticisms of the Service's analysis.
These arguments not only ask the Court to substitute its judgment for that of the agency but also misperceive the regulatory standard. The issue before the agency is not the status of the population or the management plan in isolation. So whether the population estimate or PIKE/MIKE levels or number of poaching arrests or annual hunting quota was at a particular a number at a specific point in time is not the question. Rather, the question is whether, taken together, the information before the agency showed that "the killing of the animal whose trophy is for import would enhance survival of the species." 50 C.F.R. § 17.40(e); see also 1997 Proposed Rule, 62 Fed. Reg. at 44,633. As explained above, determining whether imports support conservation does not simply involve finding whether hunters pay fees into the
The 2015 Finding explained that this regulatory standard was not satisfied because of a number of ongoing concerns, including with Zimbabwe's ability to manage its elephants, its ability to incorporate new survey data into its management, and its capacity to enforce its laws regarding elephant management. See 2015 Finding, AR at 7272-73. The Service stated that it needed more reliable information to be able to make a causal connection between imports of sport-hunted elephant trophies and enhancement of the elephant's survival in Zimbabwe. While plaintiffs identify mis-sourced data, point to information the agency could have interpreted differently, and reiterate that the agency had to reissue findings and notices to correct technical errors, the Court holds that the agency rationally determined that the status of the elephant population and Zimbabwe's management of the population did not warrant a positive enhancement finding based on the record before it. Upon careful review of the parties' arguments and the record, the Court holds the agency's 2015 Finding was not irrational, arbitrary, or capricious.
For the reasons stated above, the Court will grant plaintiffs' motion for summary judgment on the issue that the Service failed to publish notice of the changed Zimbabwe enhancement finding in the Federal Register until May 12, 2014 and deny the remainder of plaintiffs' motion. The Court will grant federal defendants' motion for summary judgment in all other respects. The Court will also order that the effective date of the April 2014 Finding is May 12, 2014. A separate order will issue.
