UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE POLAR BEAR ENDANGERED
SPECIES ACT LISTING AND § 4(d)
RULE LITIGATION Misc. Action No. 08-764 (EGS)
MDL Docket No. 1993
This Document Relates To:
Safari Club International, et
al. v. Salazar, et al, No. 08-
881 (EGS)
MEMORANDUM OPINION
Plaintiffs Safari Club International (“SCI”) and Safari Club
International Foundation (“SCIF”) bring this action pursuant to
the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
(“APA”), against defendants Ken Salazar, Secretary of the
Interior, H. Dale Hall, Director of the United States Fish and
Wildlife Service, and the United States Fish and Wildlife Service
(collectively “FWS”), challenging the FWS’s legal determination
that the listing of the Polar Bear as threatened under the
Endangered Species Act creates a ban on the import of sport-
hunted polar bear trophies otherwise legal under the Marine
Mammal Protection Act. Pending before the Court is defendants’
Motion for Judgment on the Pleadings on the grounds that (1)
plaintiffs fail to state a claim upon which relief can be
granted, because plaintiffs fail to challenge a final agency
action as required for judicial review under the APA; or, in the
alternative, (2) plaintiffs lack standing to bring this action.1
Upon consideration of the defendants’ motion, the plaintiffs’
opposition, the defendants’ reply, the relevant law, and for the
reasons stated herein, the defendants’ motion is DENIED.
I. BACKGROUND
A. Statutory Background2
The Endangered Species Act, 16 U.S.C. § § 1531 et seq., was
enacted in 1973 “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 . . . .” 16
U.S.C. § 1531(b). Once a species is listed as endangered or
threatened, statutory prohibitions help ensure the survival and
recovery of the species. An endangered species is “in danger of
extinction throughout all or a significant portion of its range,”
1
Defendants originally filed a Motion to Dismiss.
Plaintiffs note that because defendants filed an Answer in
response to plaintiffs’ Complaint prior to filing their motion,
defendants motion should be a motion for judgment on the
pleadings, pursuant to Fed. R. Civ. P. 12(c). Opposition of
Plaintiffs Safari Club International and Safari Club
International Foundation to Motion to Dismiss (“Pl. Opp’n.”) at
6. Defendants do not dispute this and ask the Court to treat
their Motion to Dismiss as a motion for judgment on the
pleadings. Federal Defendants’ Reply Memorandum in Support of
Motion to Dismiss Plaintiffs’ Complaint (“Def. Reply”).
2
The Statutory Background section is taken largely, and at
times verbatim, from the discussion in defendants’ Memorandum in
Support of Motion to Dismiss Plaintiffs’ Complaint (“Def. Mem.”)
at 2-5.
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while a threatened species is “likely to become an endangered
species within the foreseeable future throughout all or a
significant portion of its range.” 16 U.S.C. § 1532(6), (20).
The ESA delegates authority to determine whether to list a
species as endangered or threatened to the Secretaries of
Commerce and Interior. The Secretary of the Interior has
jurisdiction over the polar bear. 16 U.S.C. § 1532(15).
The Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1361
et seq., was enacted in 1972 in response to a decline in marine
mammal populations. Administration of the MMPA, like the ESA, is
divided between the Department of the Interior and the Department
of Commerce, and, as with the ESA, the MMPA gives the Secretary
of the Interior jurisdiction over the polar bear. 16 U.S.C. §
1362(12)(A).
The MMPA prohibits the taking or importation of marine
mammals or marine mammal parts, unless a specified exception
applies. 16 U.S.C. § 1371(a). The term “take” means “to harass,
hunt, capture, or kill, or attempt to harass, hunt, capture, or
kill any marine mammal.” 16 U.S.C. § 1362(13). One exception to
the general prohibition allows the Secretary of the Interior to
issue permits authorizing the take of marine mammals for
importation of polar bear parts taken in sport hunts in Canada,
provided that specific requirements are met. 16 U.S.C. §
1374(c)(5). However, where the marine mammal at issue is
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“depleted,” the MMPA further restricts the purposes for which
such permits may be issued. 16 U.S.C. § 1371(a)(3)(B). Species
that are listed as endangered or threatened under the ESA, such
as the polar bear, are considered “depleted” for purposes of the
MMPA. 16 U.S.C. § 1362(1)(C). Where a species is depleted, the
Secretary may not allow importation “[e]xcept for scientific
research purposes, photography for educational purposes, or
enhancing the survival or recovery of [the] species or stock . .
. .” 16 U.S.C. § 1371(a)(3)(B). In addition, section 1372(b) of
the MMPA contains additional restrictions on importations of a
marine mammal from a species or stock that has been designated as
depleted. That section reads in relevant part:
Except pursuant to a permit for scientific research, or
for enhancing the survival or recovery of a species or
stock . . ., it is unlawful to import into the United
States any marine mammal if such mammal was -
. . .
(3) taken from a species or population stock
which the Secretary has, by regulation published in the
Federal Register, designated as a depleted species or
stock; . . .
Accordingly, where a marine mammal is from a species or stock
with a depleted status, Section 1372(b) allows importation only
for purposes of scientific research or enhancement of the
survival or recovery of the species or stock.
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B. Factual Background
1. The Final Rule
On May 15, 2008, the FWS issued a final rule listing the
polar bear as a threatened species throughout its range. See 73
Fed. Reg. 28,212 (May 15, 2008) (“Final Rule”). In responding to
comments the FWS had received regarding the proposed designation
of the polar bear as a threatened species, the FWS noted in the
Final Rule that
[U]nder the MMPA, the polar bear will be considered a
‘depleted’ species on the effective date of this
listing. As a depleted species, imports could only be
authorized under the MMPA if the import enhanced the
survival of the species or was for scientific research.
Therefore, authorization for the import of sport-hunted
trophies will no longer be available under section
104(c)(5) of the MMPA.
73 Fed. Reg. at 28236. Moreover, in response to a comment that
the FWS had not considered “the negative impacts of listing [the
polar bear as threatened] on the long-term management of polar
bears developed in Canada that intergrates susbistence harvest
allocations with a token sport harvest[,]” the FWS stated
We acknowledge the important contribution to
conservation from scientifically-based sustainable use
programs. Significant benefits to polar bear
management in Canada have accrued as a result of the
1994 amendments to the MMPA that allow U.S. citizens
who legally sport-harvest a polar bear from an MMPA-
approved population in Canada to bring their trophies
back into the United States.
. . .
While we recognize these benefits, the Service must
list a species when the best scientific and commercial
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information available shows that the species meets the
definition of endangered or threatened. The effect of
the listing, in this case an end to the import
provision under Section 104(c)(5) of the MMPA, is not
one of the listing factors. Furthermore, the benefits
accrued to the species through the import program do
not offset or reduce the overall threat to polar bears
from loss of sea ice habitat.
Id. at 28242.
2. Plaintiff’s Complaint
Plaintiffs bring this suit under the Administrative
Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA”), to challenge “the
FWS’s legal determination that the listing of the polar bear as
threatened under the ESA creates a ban on the import of sport-
hunted polar bear trophies otherwise legal under the MMPA.”
Compl. ¶ 2. According to the Complaint, SCI’s mission’s are “the
conservation of wildlife, protection of the hunter, and education
of the public concerning hunting and its use as a conservation
tool.” Compl. ¶ 15. SCI has approximately 53,000 members from
the United States and around the world, many of whom have hunted
polar bears and/or intend to hunt polar bears, and most of whom
desire to import into the United States the trophy of any polar
bear they have harvested or will harvest. Id. SCI has a “sister
organization,” SCIF, created for the purpose of carrying out its
conservation mission. Id. at ¶ 16.
SCI, SCIF, and SCI’s members complain that they are
adversely affected and aggrieved by the FWS’s determination that
imports of sport-hunted trophies from approved populations in
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Canada will no longer be allowed, and the agency’s refusal to
further process or accept applications for those import permits.
Id. at ¶ 12. Plaintiffs also allege that SCI and SCIF’s
interests in polar bear conservation and management efforts,
which they maintain are supported by U.S. sport hunters in
Canada, are harmed by the FWS’s determination because those sport
hunters may abandon sport hunting of polar bears if the imports
are not allowed. Id.
Plaintiffs ask this Court to (a) declare the FWS’s
determination erroneous; (b) set aside the portion of the Final
Rule establishing the import ban; and (c) order the FWS to
continue accepting and processing polar bear import permit
applications under the MMPA and other applicable law. Id. at ¶
9.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(c), a party may
move for judgment on the pleadings after the pleadings are
closed, but early enough not to delay trial. “The standard for
reviewing a motion for judgment on the pleadings is the same as
that applied to a motion to dismiss for failure to state a claim
upon which relief can be granted under Rule 12(b)(6).” Rafeedie
v. INS, 795 F. Supp. 13, 18 (D.D.C. 1992). To survive a motion
to dismiss, a complaint must contain only “a short and plain
statement of the claim showing that the pleader is entitled to
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relief,” and give the defendant “fair notice of the claims
against him.” Aktieselskabet AF 21 November 2001 v. Fame Jeans
Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (quoting Ciralsky v. CIA,
355 F.3d 661, 668-70 (D.C. Cir. 2004) (quoting Fed. R. Civ. P.
8(a))). “A court deciding a motion to dismiss must not make any
judgment about the probability of the plaintiff's success, for a
complaint may proceed even if it appears that a recovery is very
remote and unlikely, and a complaint may not be dismissed based
on a district court's assessment that the plaintiff will fail to
find evidentiary support for his allegations.” Id. (internal
quotations and citations omitted). Furthermore, “the court must
assume all the allegations in the complaint are true (even if
doubtful in fact), and the court must give the plaintiff the
benefit of all reasonable inferences derived from the facts
alleged.” Id. (internal quotations and citations omitted).
III. DISCUSSION
Defendants argue that they are entitled to judgment on the
pleadings because (1) plaintiffs have failed to state a claim
upon which relief can be granted because the action they
challenge is not final agency action for purposes of the APA; and
(2) because plaintiffs lack standing to challenge the statements
in the Final Rule related to the importation of polar bear
trophies. For the following reasons, the Court rejects both
arguments.
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A. Failure to State a Claim
The APA requires that the agency action in question must be
final before a party may seek judicial review. 5 U.S.C. § 704.
As both parties point out, the Supreme Court has established a
two-part test to determine when an agency action is considered
“final” for purposes of judicial review. See Def. Mem. at 9 and
Pl. Opp’n. at 8 (citing in Bennett v. Spear, 520 U.S. 154, 177-78
(1997)). In Bennett, the Supreme Court held
As a general matter, two conditions must be satisfied
for agency action to be ‘final’: First, the action must
mark the ‘consummation’ of the agency’s decisionmaking
process, . . . -it must not be of a merely tentative or
interlocutory nature. And second, the action must be
one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will
flow[.]’
520 U.S. at 177-78 (internal citations omitted).
Defendants maintain that plaintiffs are only challenging
“isolated statements in the preamble to the final regulation
discussing the separate issue of how the listing of the polar
bear under the ESA may affect the Service’s future enforcement of
the MMPA.” Def. Mem. at 9-10. Defendants argue that rather than
the consummation of the agency’s decisionmaking process on any
particular application for an import permit, these statements
simply discuss the applicability of the MMPA, “which the agency
will implement in future decisions if necessary.” Id. at 10.
Defendants also contend that plaintiffs’ challenge fails the
second part of the Bennett test because the Final Rule did not
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itself deny any pending import applications and therefore does
not determine plaintiffs’ rights or obligations. Id. In other
words, according to the defendants, the Final Rule “merely
summarizes the legal provisions the Service will apply moving
forward,” id., and does not have “any legal effect on Plaintiffs
or their individual members[.]” Id. at 11.
Plaintiffs, on the other hand, insist that they are
challenging a final agency action, i.e., the defendants’ legal
determination that by listing the polar bear as a threatened
species, the FWS can no longer issue import permits under the
MMPA. Plaintiffs argue that although technically there may
remain the additional step of the agency denying SCI members’
permit applications, the FWS’s determination in the Final Rule
that import permits for polar bear trophies will no longer be
granted is final for purposes of judicial review. This Court
agrees.
In Bennett v. Spear, the FWS determined that a reclamation
project undertaken by the Bureau of Reclamation (“Bureau”),
another agency under the Secretary of the Interior’s
jurisdiction, would impact two species of endangered fish. The
FWS issued a Biological Opinion identifying “reasonable and
prudent alternatives” that the FWS believed would avoid harm to
the fish, including maintenance of minimum water levels. 520
U.S. at 158-59. The Bureau informed the FWS that it intended to
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operate the reclamation project in compliance with the terms of
the Biological Opinion. Id. at 159. Plaintiff ranch operators
and irrigation districts sued the FWS and the Secretary of the
Interior, but not the Bureau or its officials, challenging the
Biological Opinion. Id. at 159. Plaintiffs claimed that the
“restrictions on water delivery ‘recommended’ by the Biological
Opinion ‘adversely affect plaintiffs by substantially reducing
the quantity of available irrigation water[.]’” Id. at 160
(internal citations omitted). The defendants moved to dismiss on
the grounds that plaintiffs lacked standing and that the
Biological Opinion was not final agency action for purposes of
judicial review under the APA. Id. at 161.
The defendants argued in Bennett that the Biological Opinion
was not final agency action because it did not “conclusively
determine how the reclamation project’s water would be
allocated.” Id. at 177. The Supreme Court rejected this
argument, finding that it was “uncontested” that the Biological
Opinion was the “consummation” of the agency’s decisionmaking
process - the first part of the two-part test for final agency
action - and that the second part of the test was also met
because “the Biological Opinion and accompanying Incidental Take
Statement alter the legal regime to which the action agency is
subject, authorizing it to take the endangered species if (but
only if) it complies with the prescribed conditions.” Id. at
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178. In other words, although there was another step between the
Biological Opinion and the plaintiffs’ alleged harm, i.e., the
Bureau’s compliance with the Biological Opinion, the Supreme
Court determined that the Biological Opinion was final agency
action for purposes of judicial review.
Similarly, in Appalachian Power Co., et al. v. Environmental
Protection Agency, 209 F.3d 1015 (D.C. Cir. 2000), the plaintiffs
challenged a Periodic Monitoring Guidance issued by the
Environmental Protection Agency that allegedly required states to
take certain action in connection with operating the states’
permit programs under the Clean Air Act. The defendant
Environmental Protection Agency argued that the Guidance was not
final agency action for purposes of judicial review. The Court
of Appeals for the District of Columbia Circuit rejected that
argument.
The short of the matter is that the Guidance, insofar
as relevant here, is final agency action, reflecting a
settled agency position which has legal consequences
both for State agencies administering their permit
programs and for companies like those represented by
petitioners who must obtain Title V permits in order to
continue operating.
209 F.3d at 1023.
As plaintiffs SCI and SCIF correctly point out in their
opposition to defendants’ motion, “here, if anything, the legal
determination SCI and SCIF are challenging is even more final, as
it definitively establishes that any applications for a Section
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104(c)(5) permit will not be granted[,]” whereas in Bennett the
Bureau could at least theoretically have chosen not to follow the
Biological Opinion’s restrictions. Pl. Opp’n. at 10. Moreover,
like the Guidance at issue in Appalachian Power, the FWS’s
determination regarding the import ban reflects “a settled agency
position which has legal consequences both for” the agency
administering the MMPA and for plaintiffs’ members “who must
obtain [import] permits in order to continue” importing polar
bear trophies. 209 F.3d at 1023. In fact, the defendants
themselves attached to their motion a letter dated July 29, 2008,
from the FWS to an individual who had submitted an application
for an import permit, which demonstrates this point.3 The letter
refers to the Final Rule and then states,
We are writing to inform you that as of the effective
date of the listing, May 15, 2008, importation of a
polar bear from Canada as a sport-hunted trophy that
was taken after February 18, 1997, is no longer an
activity that can be authorized under the Marine Mammal
Protection Act (MMPA). Therefore, we are unable to
continue processing the application that you submitted
to the U.S. Fish and Wildlife Service.
. . .
Since there is no permit authorization available to conduct
3
To be clear, the Court need not, and does not, rely on this
letter to reach its conclusion that the challenged action in this
case is final agency action. However, because defendants have
included the letter “for the Court’s information,” see Def. Mem.
at 11, n.2, the Court will reference the letter to illustrate the
FWS’s position that the Final Rule precludes the granting of any
permit to import a sport-hunted polar bear trophy into the United
States.
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your requested activity, we are administratively closing
your application file and returning the $100.00 permit
application processing fee you submitted with your
application.
. . .
In the future, should the MMPA be amended in a manner that
would allow for the importation of polar bear sport-hunted
trophies, we encourage you to submit a new permit
application to our office.
Def. Mem. Ex. 1 (July 29, 2008 Letter from Timothy J. Van
Norman, Chief, Branch of Permits, Fish and Wildlife Service to
import applicant (recipient’s name and address redacted)).
The letter expressly states the FWS’s position that in view
of the Final Rule, sport-hunted polar bear trophy importation “is
no longer an activity that can be authorized under the Marine
Mammal Protection Act,” and, as a result, the application file is
being administratively closed. The language in the Final Rule is
not of a “merely tentative or interlocutory nature[,]” but rather
represents the “‘consummation’ of the agency’s decisionmaking
process” and, as that language and the July 29, 2008 letter
clearly indicate, the Final Rule is “one by which ‘rights or
obligations have been determined,’” specifically, the right to
obtain an import permit. See Bennett, 520 U.S. at 177-78
(internal citations omitted).4
4
On March 24, 2009, defendants filed a Notice of
Supplemental Authority, citing Natural Resources Defense Council
v. EPA, 559 F.3d 561 (D.C. Cir. 2009) (“NRDC”), as support for
their position that the statements in the Final Rule regarding
the import ban are not final agency action. In NRDC, however,
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Accordingly, this Court finds that the action challenged by
SCI and SCIF is final agency action for purposes of judicial
review pursuant to the APA.
B. STANDING
Defendants argue in the alternative that plaintiffs’ suit
must be dismissed for lack of standing because plaintiffs have
not alleged facts to establish that they have suffered an injury-
in-fact that is fairly traceable to the challenged action. To
satisfy Article III of the Constitution’s “case” or “controversy”
requirement, a plaintiff ordinarily must establish that (1) he or
she has “suffered an ‘injury-in-fact’”; (2) there is a “causal
connection between the injury and the conduct complained of”; and
(3) the injury will likely be ‘redressed by a favorable
decision[.]’” See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). Defendants maintain that plaintiffs have not met
any of these three requirements and, in addition, that as an
the Court of Appeals for the D.C. Circuit found that in the
preamble that plaintiff challenged, the agency “spoke in the
conditional, suggesting that events in the various categories
‘may be exceptional events’ or ‘may qualify for exclusion under
this rule provided that all other requirements are met.’” 559
F.3d at 565 (citing 72 Fed. Reg. 13,564-65)(May 15, 2008). The
court also found that “[o]ther statements were equivocal, such as
the declaration, repeated several times in different forms, that
certain events are to be evaluated ‘on a case-to-case basis.’”
Id. In contrast, the language the FWS used in the Final Rule and
in the letter quoted herein is not in the least “conditional” or
“equivocal,” and there is no indication that permit applications
to import sport-hunted polar bear trophies will be evaluated on a
“case-to-case basis.”
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associational plaintiff SCI lacks standing because it cannot
establish that “at least one of its members would have standing
to sue in his own right[.]” See Sierra Club v. EPA, 292 F.3d 895,
898 (D.C. Cir. 2002).
At the outset, the Court notes that because the case is
“[a]t the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice, for on a
motion to dismiss[, similar to a motion for judgment on the
pleadings,] we ‘presum[e] that general allegations embrace those
specific facts that are necessary to support the claim.’” See
Bennett, 520 U.S. at 168 (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (quoting Lujan v. National Wildlife
Federation, 497 U.S. 871, 889 (1990)). Here, SCI and SCIF have
plead general factual allegations of injury resulting from the
Final Rule sufficient to overcome the defendants’ motion for
judgment on the pleadings.
1. Plaintiffs’ Allegations of an Injury-In-Fact
Defendants argue that plaintiffs have not alleged that the
Final Rule itself operated as a denial of any permit application
by an SCI member or that plaintiffs have suffered actual or
imminent injury. Def. Mem. at 12-13. Instead, defendants
contend that the plaintiffs’ injury “stems from the possibility
that the Service will act in accordance with the statements in
the Final Rule regarding the MMPA’s restrictions, thereby denying
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import applications from Plaintiff’s members.” In addition,
defendants argue that plaintiffs cannot rely on a “procedural
injury” - based on plaintiffs’ allegation that the FWS violated
the APA by failing to give the public adequate notice and
opportunity to comment on the isuse of whether the polar bear is
depleted under the MMPA - because plaintiffs have not established
that the “procedures in question are designed to protect some
threatened concrete interest of [plaintiffs] that is the ultimate
basis of [their] standing.” Def. Mem. at 14 (quoting Lujan, 504
U.S. at 573, n.8 and citing Florida Audubon Soc’y v. Bentsen, 94
F.3d 658, 664 (D.C. Cir. 1996)).
Plaintiffs’ Complaint alleges that since 1994, over 900
permits to import sport hunted-trophies have been issued by the
FWS, resulting in over $900,000 for polar bear research and
management programs. Compl. ¶ 30. Plaintiffs claim that in
March, April, and May of 2008, SCI members have successfully
sport-hunted polar bears from several of the Canadian polar bear
populations approved for imports under the MMPA, and that many of
these members submitted applications to import polar bear
trophies into the United States. Id. at ¶ 4. According to
plaintiffs, other members of SCI who had successfully hunted
polar bears during this time period have not yet submitted their
applications to FWS, and that “on information and belief,” the
FWS has informed SCI members that it will not be processing any
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permit applications to allow the import of polar bear trophies
now that the species is listed as “threatened” under the ESA.
Id.
As for particularized interests with respect to their
procedural claim, plaintiffs also complain that the FWS’s actions
harm SCI and SCIF’s interests in polar bear conservation and
management efforts, because U.S. hunters may abandon sport-
hunting of polar bears if imports are not allowed. Compl. ¶¶ 12,
17. Plaintiffs allege a direct injury to their conservation and
management interest because U.S. hunters pay $40,000 to $50,000
per polar bear hunt, and much of those funds go the local native
communities, providing “another incentive for these people to
accept the Western-based science and management that facilitates
polar bear conservation and that is required before the Service
will approve a population for import.” Id. at ¶ 42. Plaintiffs
note that the FWS has itself recognized the benefits of sport
hunting of polar bears and that the plaintiffs commented on the
proposed listing at every available opportunity for public
comments during the rulemaking process. Id. at ¶¶ 18, 42. Some
SCI members have scheduled and even paid for polar bear hunts in
2009 and 2010, and still others may decide not to plan hunts
because they will no longer be permitted to import any trophy
they may obtain if the hunt is successful. Id. at ¶ 39.
In Bennett, the Supreme Court found that the plaintiff ranch
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operators and irrigation districts had established an injury-in-
fact when the Biological Opinion was issued, despite the
existence of an additional step between the agency’s action and
the plaintiffs’ injury - that is the Bureau complying with the
Biological Opinion - and the possibility (which does not exist in
this case) that the Bureau might not follow the Biological
Opinion. As with the Bennett plaintiffs, SCI and SCIF have
sufficiently plead an injury-in-fact, and they are not required
to wait for the inevitable formal denial of their permit
applications. Moreover, plaintiffs have sufficiently plead that
the “procedures in question” threaten a “concrete interest,”
i.e., an interest in conservation that is impacted by the import
ban.
2. The Causal Connection Between the Alleged Injury and
the Defendants’ Conduct
Defendants next argue that plaintiffs cannot establish a
causal connection between their alleged injury and the
defendants’ conduct because “plaintiffs’ allegations of harm
hinge on speculation regarding the Service’s future actions[.]”
Def. Mem. at 16 (citing United Transp. Union v. ICC, 891 F.2d
908, 912 (D.C. Cir. 1989) (court may “reject as speculative
allegations of future injuries”). This argument is belied by the
very language in the Final Rule:
We note that, under the MMPA, the polar bear will be
considered a “depleted” species on the effective date
of this listing. As a depleted species, imports could
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only be authorized under the MMPA if the import
enhanced the survival of the species or was for
scientific research. Therefore, authorization for the
import of sport-hunted trophies will no longer be
available under section 104(c)(5) of the MMPA.
73 Fed. Reg. at 28236. Plaintiffs’ allegations that SCI members
can no longer obtain import permits are not “speculative”; the
Final Rule makes clear that the only possible response an
individual applying for a permit to import a sport-hunted polar
bear trophy can reasonably expect to receive is a denial of his
or her application. In other words, the Final Rule is
determinative. Therefore, plaintiffs have satisfied the causal
connection requirement. See, e.g., Bennett, 520 U.S. at 170-71
(finding that plaintiffs had met their “relatively modest” burden
at the pleading stage to establish a causal connection between
their alleged injury and the agency’s action, in view of the
“powerful coercive” and “virtually determinative” effect that the
FWS’s Biological Opinion would inevitably have on the manner in
which the Bureau would operate the project at issue).
3. Whether the Alleged Injury Would Be Redressed By A
Favorable Decision
Finally, defendants argue that the “broad relief” sought by
plaintiffs, i.e., setting aside the portions of the preamble to
the Final Rule and enjoining the FWS from refusing to process
import applications, would be “inappropriate.” According to the
defendants, if the FWS denies specific applications, the
plaintiffs must seek judicial review of the denials pursuant to
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the MMPA’s statutory scheme.
Plaintiffs respond that the review procedures for a denial
of an individual permit application under the MMPA are not an
adequate substitute for an APA challenge to a rule that impacts
numerous people. Nor would those procedures address the injuries
of SCI members who have hunted polar bears but have not applied
for a permit because such an application would be futile, or who
must decide whether to book or cancel a hunt without the ability
to import any resulting trophy. The Court agrees. In Bennett,
the Supreme Court found that setting aside the Biological Opinion
would likely redress the plaintiff’s injury because if the
Biological Opinion was set aside, the Bureau would not impose the
water level restrictions advised by that opinion. 520 U.S. at
171. Similarly, this Court finds that if plaintiffs were to
prevail on their claims and the Court were to enjoin the FWS from
denying the import applications based on the Final Rule,
plaintiffs’ injuries would be redressed.
IV. CONCLUSION
For the reasons stated herein, the defendants’ Motion for
Judgment on the Pleadings is DENIED. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed by: Emmet G. Sullivan
United States District Judge
June 22, 2009
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