Friends of Animals v. Jewell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF ANIMALS,

Plaintiff,
Civil Action No. 14-cv-0357 (BAH)
v.
Judge Beryl A. Howell
SALLY JEWELL, in her official capacity as
Secretary of Interior, et al.,

Defendants,

v.

SAFARI CLUB INTERNATIONAL,

Defendant-Intervenor.

MEMORANDUM OPINION

Friends of Animals, an animal advocacy organization, brings suit against the National

Fish and Wildlife Services (“FWS”) and United States Department of Interior (collectively “the

Federal Defendants”), for a judgment declaring Title I, Section 127 of the Consolidated

Appropriations Act, 2014 (“Section 127”) unconstitutional or, alternatively, declaring that the

Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx,

Addax, and Dama Gazelle From Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg.

15,250 (March 19, 2014), violates the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et

seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.1 See First Amended

Compl. for Injunctive and Declaratory Relief (“Am. Compl.”), ECF No. 10. Now pending

1
Although plaintiff’s Amended Complaint claims that the Reinstatement Rule violates both Section 10(c) and
Section 10(d) of the ESA, the plaintiff has expressly waived its claim regarding Section 10(d). See Pl’s Mot. for
Summ. J. at 1 n.1, ECF No. 16.

1
before the Court is the plaintiff’s Motion for Summary Judgment, ECF No. 16, the Federal

Defendants’ Cross Motion for Summary Judgment, ECF No. 17, and the Defendant-Intervenor

Safari Club International’s Cross-Motion for Summary Judgment, ECF No. 20. For the reasons

stated below, summary judgment is granted in favor of the Federal Defendants and the

Defendant-Intervenor.

I. BACKGROUND

The factual background of this dispute has been explained in great detail by this Court in

Safari Club International v. Jewell, 960 F. Supp. 2d 17, 22–46 (D.D.C. 2013), a related case in

which all the present parties participated. Accordingly, the Court will summarize below only

those issues most relevant to the present dispute.

This case involves issues surrounding the most effective method to conserve three

antelope species—the scimitar-horned oryx, dama gazelle, and addax—whose herds have

dwindled, if not disappeared, from their native environments in North Africa. 2 As of June 2013,

“[t]he oryx is believed to be extirpated in the wild, the addax numbers fewer than 300, and the

dama gazelle numbers fewer than 500.” 12-Month Findings on Petitions to Delist U.S. Captive

Populations of the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed.Reg. 33,790 (June

5, 2013). Despite dwindling wild populations, captive populations of the three antelope species

exist in the United States and other parts of the world. As of 2013, the FWS cited estimates from

the Sahelo-Saharan Interest Group that there were “about 4,000–5,000 scimitar-horned oryx,

2
The scimitar-horned oryx, which once had an extensive range in North Africa, stands about 47 inches tall and
weighs about 450 pounds with a generally pale coat and dark, reddish-brown neck and chest. See Listing Rule, 70
Fed. Reg. at 52,319. Adult oryx possess a pair of horns curving back in an arc up to 50 inches. See id. The addax,
which once existed throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile
River, stands about 42 inches tall and weighs around 220 pounds with a grayish-white coat and spiral horns which
twist up to 43 inches long. See id. The dama gazelle, the largest of the gazelles and the smallest of the three antelope
species at issue in this suit, was once common and widespread in arid and semi-arid regions of the Sahara. This
animal is about 39 inches tall at the shoulder and weighs about 160 pounds with a mostly reddish-brown body, but a
white head, rump, and underparts. See id. The dama gazelle’s horns extend back and up, reaching a length of about
17 inches long. See id.

2
1,500 addax, and 750 dama gazelle in captivity worldwide.” Id. at 33,791; see also Final Rule to

List the Scimitar-Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70

Fed. Reg. 52,319, 52,322 (Sept. 2, 2005).

The FWS, which is vested with the authority to designate the three antelope species as

endangered under the ESA, has spent two decades considering the three antelope species with

input from both commercial and non-profit groups interested in conserving the species for

different ends. These efforts culminated with the issuance, in 2005, of two rules, one of which

listed the three antelope species as endangered (the “Listing Rule”) and the other of which

provided a blanket exemption for U.S. captive-bred herds of the same species (the “Captive-bred

Exemption”). See Listing Rule, 70 Fed. Reg. 52,319; Exclusion of U.S. Captive-Bred Scimitar-

Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Captive-bred Exemption”),

70 Fed. Reg. 52,310 (September 2, 2005). The Captive-bred Exemption permitted “otherwise

prohibited activities that enhance the propagation or survival of the species[,]” including “take;

export or re-import; delivery, receipt, carrying, transport or shipment in interstate or foreign

commerce, in the course of commercial activity; or sale or offering for sale in interstate or

foreign commerce.” See Captive-bred Exemption, 70 Fed.Reg. at 52,311, 52,317.

The Captive-bred Exemption was almost immediately challenged in court. Two sets of

plaintiffs—including the plaintiff in the present dispute, Friends of Animals—filed lawsuits in

the United States District Court for the Northern District of California and the United States

District Court for the District of Columbia. The lawsuits were consolidated in this jurisdiction. 3

See Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 105–06 (D.D.C. 2009). In the

3
Prior to consolidation, the court in the Northern District of California ruled on a motion to dismiss for lack of
subject matter jurisdiction, which challenged those plaintiffs’ standing to bring suit. The court held that the
“Defenders of Wildlife [had] standing to pursue its claim that the [FWS] violated § 10 of the ESA by issuing a
regulation which permits the taking of the three antelope species on a categorical rather than case-by-case basis.”
See Cary v. Hall, No. 05-4363, 2006 WL 6198320, *13 (N.D. Cal. Sept. 30, 2006).

3
consolidated lawsuit, the plaintiffs alleged that the FWS unlawfully promulgated the Captive-

bred Exemption in violation of several sections of the ESA and the National Environmental

Policy Act, 42 U.S.C. § 4321, et seq. See id. at 106. In ruling on the parties competing motions

for summary judgment, the court first determined that the plaintiffs had standing only “to pursue

their claim that the FWS violated subsection 10(c) of the [ESA] when it promulgated the

[Captive-bred Exemption.]” Id. at 114–15. The court then granted summary judgment in favor

of the plaintiffs because the Captive-bred Exemption violated Section 10(c) of the ESA, which

provides that “[t]he Secretary shall publish notice in the Federal Register of each application for

an exemption or permit which is made under this section.” 16 U.S.C. § 1539(c). Specifically,

the court determined “that the text, context, purpose and legislative history of [Section 10] make

clear that Congress intended permits for the enhancement of propagation or survival of an

endangered species to be issued on a case-by-case basis following an application and public

consideration of that application” rather than in the form of a blanket exemption. Friends of

Animals, 626 F. Supp. 2d at 115. The court “remanded” the consolidated cases to the FWS “for

further proceedings consistent with the memorandum opinion[,]” leaving the decision of how

best to proceed to the agency’s discretion. See Order, No. 04-cv-01660, ECF No. 85-1, at 1;

Order, No. 06-cv-02120, ECF No. 44-1, at 1.

In response to the court’s decision declaring the Captive-bred Exemption invalid, various

organizations sought to delist the three antelope species, while the FWS took steps to revoke the

Captive-bred Exemption. On July 7, 2011, the FWS published a proposed rule to withdraw in

full the Captive-bred Exemption. See Removal of the Regulation that Excludes U.S. Captive–

Bred Scimitar–Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions, 76 Fed. Reg.

39,804 (July 7, 2011) (“Proposed Removal Rule”). On January 5, 2012, the FWS issued its final

4
rule removing the Captive-bred Exemption, effective April 4, 2012. See Removal of the

Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle

from Certain Prohibitions (“Removal Rule”), 77 Fed. Reg. 431 (January 5, 2012). The agency

issued the Removal Rule as a necessary step to comply with the 2009 decision in Friends of

Animals. The Removal Rule explained that:

This change to the regulations is in response to a court order that found that the
rule for these three species violated section 10(c) of the [ESA]. These three
antelope species remain listed as endangered under the [ESA], and a person will
need to qualify for an exemption or obtain an authorization under the current
statutory and regulatory requirements to conduct any prohibited activities.

Removal Rule, 77 Fed. Reg. at 431.

Shortly after the FWS issued the Proposed Removal Rule, but before issuance of the final

Removal Rule, Safari Club International (“SCI”) filed suit in this jurisdiction alleging that the

Federal Defendants violated the ESA and the APA by including U.S. captive-bred herds of the

three antelope species in the 2005 listing determination in the first instance, failing to remove

U.S. captive-bred herds from endangered species status after the 2009 decision in Friends of

Animals, and failing to respond in a timely manner to SCI’s 2010 petition for delisting. See

Safari Club Int’l, 960 F. Supp. 2d at 40. Thereafter, the Exotic Wildlife Association filed suit in

this Court on March 2, 2012, to invalidate and set aside the Removal Rule. See id. at 41.

Following consolidation of these two actions, this Court granted Friends of Animals’

motion to intervene as a defendant, as well as the motion of one other animal conservation

organization. See Safari Club Int’l v. Salazar, 281 F.R.D. 32 (D.D.C. 2012). 4 Following

extensive briefing, this Court upheld the Removal Rule as a “rational response” to the court’s

4
As part of its ruling permitting intervention, this Court determined that Friends of Animals possessed standing to
proceed as a party in the suit. See Safari Club Int’l, 281 F.R.D. at 41 (concluding that Friends of Animals “would
suffer an informational injury if the plaintiffs’ succeed in setting aside the Final Rule”).

5
2009 ruling in Friends of Animals holding the Captive-bred Exemption invalid. See Safari Club

Int’l v. Jewell, 960 F. Supp. 2d at 84. 5

This Court’s ruling did not conclude the litigation, however. On January 17, 2014,

President Obama signed into law the Consolidated Appropriations Act, 2014. Title I, Section

127 of the Act provides:

Before the end of the 60-day period beginning on the date of enactment of this
Act, the Secretary of the Interior shall reissue the final rule published on
September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other
provision of statute or regulation that applies to issuance of such rule.

Pub. L. No. 113-76, 128 Stat. 5, § 127. In other words, Congress mandated that the Secretary of

the Interior re-issue the Captive-bred Exemption. On March 19, 2014, FWS complied with

Section 127 and reinstated the Captive-bred Exemption. See Reinstatement of the Regulation

That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From

Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg. 15,250 (March 19, 2014).

All of this leads to the present dispute. After issuance of the Reinstatement Rule, Friends

of Animals brought this suit against the Federal Defendants alleging that the Reinstatement Rule

violated the ESA and the APA, see Am. Compl. at ¶¶ 90–97, and that Section 127 violated the

Constitution, see id. at ¶¶ 86–89. Subsequently, Safari Club International intervened as a

defendant in the suit. See Minute Order (April 2, 2014). Now pending before the Court is the

plaintiff’s Motion for Summary Judgment, ECF No. 16, which is opposed by both the Federal

Defendants and the defendant-intervenor Safari Club International, which parties have filed

cross-motions for summary judgment, see ECF Nos. 17 and 20, respectively.

5
This Court’s decision is currently on appeal to the D.C. Circuit. The D.C. Circuit has held the case in abeyance
pending resolution of the present motions. See Order, Case No. 13-5300, Doc. No. 1494915-2 (D.C. Cir. June 17,
2014). A related case pending before this Court, Friends of Animals v. Ashe, No. 13-cv-1580, is currently stayed
pending resolution of the motions for summary judgment in the present case, which may moot the plaintiff’s
challenge in that case. Accordingly, concurrently with the issuance of this Opinion, the Court will direct the parties
in Friends of Animals v. Ashe—the same parties to this suit—to file a joint status report indicating whether the stay
should be lifted and a proposed schedule for future proceedings.

6
II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when

the court finds, based upon the pleadings, depositions, and affidavits and other factual materials

in the record, “that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a), (c); see Tolan v. Cotton, 134 S. Ct. 1861,

1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A

genuine issue of material fact exists if the evidence, ‘viewed in a light most favorable to the

nonmoving party,’ could support a reasonable jury’s verdict for the non-moving party.”

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013) (quoting McCready v.

Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)).

In APA cases involving cross-motions for summary judgment, “the district judge sits as

an appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases). Accordingly, this Court

need not and ought not engage in lengthy fact finding, since “[g]enerally speaking, district courts

reviewing agency action under the APA’s arbitrary and capricious standard do not resolve

factual issues, but operate instead as appellate courts resolving legal questions.” James Madison

Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). Judicial review is limited to the

administrative record, since it “is black-letter administrative law that in an [Administrative

Procedure Act] case, a reviewing court should have before it neither more nor less information

that did the agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir.

2014) (internal citations and quotation marks omitted; alteration in original); see 5 U.S.C. §

706(2)(F) (“[T]he Court shall review the whole record or those parts of it cited by a party . . . .”);

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (in applying the arbitrary and

7
capricious standard under the APA, “[t]he focal point for judicial review should be the

administrative record already in existence . . . .” (quoting Camp v. Pitts, 411 U.S. 138, 142

(1973)).

III. DISCUSSION

Before turning to the merits of the plaintiff’s claims, both the Federal Defendants and the

defendant-intervenor challenge the plaintiff’s standing, which is a threshold issue requiring

resolution. The Court will therefore first examine the plaintiff’s standing to bring each claim in

this suit, concluding that the plaintiff maintains standing only to challenge whether the

Reinstatement Rule violates Section 10(c) of the ESA. The Court next addresses whether the

Reinstatement Rule violates Section 10(c) of the ESA, concluding that it does not.

A. The Plaintiff’s Standing

Article III of the Constitution restricts the power of federal courts to hear only “Cases”

and “Controversies.” “The doctrine of standing gives meaning to these constitutional limits by

‘identify[ing] those disputes which are appropriately resolved through the judicial process.’”

Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (alterations in original) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, (1992)).

The Supreme Court has explained that “the irreducible constitutional minimum of

standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560. A claimant must

show: (1) he or she has suffered an “injury in fact” that is (a) “concrete and particularized” and

(b) “actual or imminent, not conjectural or hypothetical;” (2) there must be “a causal connection

between the injury and the conduct complained of” such that the injury is “fairly traceable to the

challenged action of the defendant;” and (3) it must be “likely,” as opposed to merely

speculative, that the injury will be “redressed by a favorable judicial decision.” Id. (internal

8
quotations omitted). In short, “[t]he plaintiff must have suffered or be imminently threatened

with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action

of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc.

v. Static Control Components, Inc., 134 S.Ct. 1377, 1386 (2014).

Importantly, “a plaintiff must demonstrate standing for each claim he seeks to press and

for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734,

(2008) (internal quotations omitted). As explained below, the plaintiff has standing to challenge

whether the Reinstatement Rule violates Section 10(c) of the ESA, but lacks standing to pursue

its constitutional challenge to Section 127.

1. The Plaintiff Has Informational Standing to Challenge Whether the
Reinstatement Rule Violates Section 10(c) of the ESA.

The Court does not write on a blank slate in determining whether this plaintiff has

standing to challenge the Reinstatement Rule as violative of Section 10(c) of the ESA. Rather,

the plaintiff’s standing to challenge the Captive-bred Exemption (the precursor to the

Reinstatement Rule) has been dealt with in great detail in several prior decisions. On one prior

occasion, a court in this District analyzed whether Friends of Animals had standing to challenge

whether the Captive-bred Exemption violated Section 10(c) of the ESA. See Friends of Animals

v. Salazar, 626 F. Supp. 2d at 108. Similarly, in a precursor suit, a court from a different District

analyzed whether a different conservation organization had standing to challenge whether the

Captive-bred Exemption violated Section 10(c) of the ESA. See Cary v. Hall, No. 05-cv-4363,

2006 WL 6198320 (N.D. Cal. Sept. 30, 2006). In addition, this Court previously examined

whether Friends of Animals had standing to defend the FWS’s removal of the Captive-bred

Exemption. See Safari Club Int’l v. Salazar, 281 F.R.D. at 40. All three cases found the

9
environmental organization to have “informational standing” under Section 10(c). This action is

no different.

The D.C. Circuit recognizes that “a denial of access to information can work an ‘injury in

fact’ for standing purposes, at least where a statute (on the claimants’ reading) requires that the

information ‘be publicly disclosed’ and there ‘is no reason to doubt their claim that the

information would help them.’” ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011)

(quoting Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (quoting Fed. Election

Comm’n v. Akins, 524 U.S. 11, 21, (1998))). In Feld, the D.C. Circuit found that a plaintiff did

not have informational standing to sue a private defendant for its treatment of elephants under

Section 9 of the ESA, because “nothing in section 9 gives [the plaintiff] a right to any

information.” Feld, 659 F.3d at 23. While the plaintiff brought “suit under the ‘take’ provision

of ESA section 9, its claim to informational standing rests on section 10(c), which requires

public disclosure of information contained in permit applications.” Id. at 22. In other words, for

a party to maintain informational standing, the challenged action must violate the source of the

informational right. In Feld, the plaintiff alleged that the defendant’s treatment of animals

violated the take provision of Section 9, not the information provision of Section 10(c).

Accordingly, the plaintiff in Feld lacked informational standing to pursue its claim. Notably,

during its analysis, the Court cited Friends of Animals v. Salazar, 626 F. Supp. 2d at 111,

approvingly for “finding informational standing where plaintiffs alleged that the Fish and

Wildlife Service violated section 10(c) by promulgating a rule that eliminated permit

requirements for takings of certain antelope.” Feld, 659 F.3d at 24.

Here, just as in Friends of Animals v. Salazar, the plaintiff claims that the promulgated

rule (in this case, the Reinstatement Rule) violates Section 10(c) of the ESA. Consistent with

10
Feld, 659 F.3d at 24, Safari Club International v. Salazar, 281 F.R.D. at 40, Friends of Animals

v. Salazar, 626 F. Supp. 2d at 108, and Cary v. Hall, 2006 WL 6198320, the Court holds that the

plaintiff has informational standing to pursue its challenge under Section 10(c).

2. The Plaintiff Lacks Standing to Challenge the Constitutionality of
Section 127.

Although the plaintiff has informational standing to assert a challenge to the

Reinstatement Rule under Section 10(c), the plaintiff does not have standing to challenge the

constitutionality of Section 127. The plaintiff contends that it has both informational standing

and representational standing to challenge the constitutionality of Section 127. As discussed

below, the plaintiff is mistaken.

a) The Plaintiff Lacks Informational Standing.

While the plaintiff maintains informational standing to challenge whether the

Reinstatement Rule violates Section 10(c) of the ESA, the plaintiff does not have informational

standing to challenge whether Section 127 violates the Constitution. As discussed, for

informational standing to lie, the plaintiff must allege that the challenged action violates the

source of the plaintiff’s informational right. See Feld, 659 F.3d at 23–24. Unlike in the

plaintiff’s Section 10(c) claim, however, the plaintiff does not assert that the challenged action

violates the source of any informational right. Rather, the plaintiff contends that Section 127

violates the separation of powers doctrine embodied in the Constitution. See Pl.’s Mem. Supp.

Mot. Summ. J (“Pl.’s Mem.”), at 11, ECF No. 16-1. The plaintiff’s informational rights are not

implicated by its constitutional challenge and the plaintiff therefore lacks informational standing

to pursue its constitutional claim.

11
 b) The Plaintiff Lacks Representational Standing.

The plaintiff also claims representational standing to pursue its constitutional claim.

Organizations may “claim representational standing on behalf of their members,” so long as “[1]

[their] members would otherwise have standing to sue in their own right, [2] the interests [they]

seek[ ] to protect are germane to the organization’s purpose, and [3] neither the claim asserted

nor the relief requested requires the participation of individual members.” Natural Res. Def.

Council v. EPA, 755 F.3d 1010, 1016 (D.C. Cir. 2014) (citation omitted). Thus, a

representational standing analysis involves two distinct determinations: first, whether the

organizations have put forward members who “would otherwise have standing to sue in their

own right” and, second, whether the organizations themselves fulfill the remaining requirements

for representational standing. Id. In the present case, the plaintiff has not put forth a member

who would otherwise have standing to bring this constitutional challenge. Consequently, the

plaintiff does not have representational standing to bring their constitutional challenge.

The plaintiff asserts two potential injuries in the present case. First, the plaintiff argues

that its President, Priscilla Feral, has an “aesthetic interest in wild antelope,” and that Section 127

and the Reinstatement Rule harms this interest because of a resultant increase in poaching and

laundering of wild antelope. 6 See Pl.’s Mem. at 28–34; Decl. of Priscilla Feral in Supp. of Pl.’s

Mot. Summ. J. (“Feral Decl.”) at ¶42, ECF No. 16-2; Decl. of Priscilla Feral in Opp. to Defs’

and Intervenor’s Mots. Summ. J. (“Second Feral Decl.), ECF No. 21-1. Second, the plaintiff

asserts that Ms. Feral “has suffered aesthetic injury as a result of viewing tame animals in

captivity on canned hunting ranches.” Pl.’s Mem. at 34–35. Although the Federal Defendants

assert that the plaintiff has abandoned its theory of standing premised upon Ms. Feral’s interest

6
As used by the plaintiff, “[a]nimal laundering is the act of illegally trading, trafficking, or smuggling both live
animals and animal parts” whereby the wild animal “goes through a process to ‘cleanse’ its origin to make the
[animal] look like it was legally obtained.” See Ex. A, Feral Decl.

12
in domestic antelope, see Fed. Defs.’ Reply Supp. Cross-Mot. Summ. J. at 2, ECF No. 24, the

plaintiff has made no such waiver. Accordingly, the Court will address both of the plaintiff’s

remaining theories of standing.

i. Ms. Feral’s Aesthetic Interest in Wild Antelope

There are two overarching principles that apply to the plaintiff’s theory that Section 127

and the Reinstatement Rule harm her interest in wild antelope in Africa. First, this case involves

the purported “standing to challenge a [regulation and statute] where the direct cause of injury is

the independent action of a third party.” Renal Physicians Ass’n v. U.S. Dep’t of Health &

Human Servs., 489 F.3d 1267, 1269 (D.C. Cir. 2007). As will be discussed below, however,

“courts [only] occasionally find the elements of standing to be satisfied in cases challenging

government action on the basis of third-party conduct.” Nat’l Wrestling Coaches Ass’n v. Dep’t

of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004). Second, and relatedly, “when the plaintiff is not

himself the object of the government action or inaction he challenges, standing is not precluded,

but it is ordinarily ‘substantially more difficult’ to establish.” Defenders of Wildlife, 504 U.S. at

562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)); Renal Physicians, 489 F.3d at 1273

(noting “the heightened showing required of a plaintiff alleging injury from the government’s

regulation of a third party”).

The D.C. Circuit has identified “two categories of cases where standing exists to

challenge government action though the direct cause of injury is the action of a third party.”

Renal Physicians, 489 F.3d at 1275. “First, a federal court may find that a party has standing to

challenge government action that permits or authorizes third-party conduct that would otherwise

be illegal in the absence of the Government’s action.” Nat’l Wrestling Coaches, 366 F.3d at 940.

Importantly, in this category of cases, the challenged government conduct must authorize the

13
specific third-party conduct that causes the injury to the plaintiff. See Animal Legal Def. Fund,

Inc. v. Glickman, 154 F.3d 426, 440 (D.C. Cir. 1998) (“Supreme Court precedent establishes that

the causation requirement for constitutional standing is met when a plaintiff demonstrates that

the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries .

. . .”). In the present case, the challenged action—the reinstatement of the Captive-bred

Exemption—does not authorize the poaching of wild antelope in Africa. Second, standing has

been found “where the record present[s] substantial evidence of a causal relationship between

the government policy and the third-party conduct, leaving little doubt as to causation and the

likelihood of redress.” Nat’l Wrestling Coaches, 366 F.3d at 941 (emphasis added). The

plaintiff must allege facts that are “sufficient to demonstrate a substantial likelihood that the third

party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff

sought.” Renal Physicians, 489 F.3d at 1275 (emphasis added). The Reinstatement Rule

removes regulations regarding captive antelope, not wild antelope. As a result, the plaintiffs face

a “substantially more difficult” task in showing causation and redressability based on an injury to

their aesthetic interest in wild antelope. Spectrum Five LLC v. Federal Communications

Comm’n, 758 F.3d 254, 261 (D.C. Cir. 2014).

Like the plaintiff’s informational standing argument, prior courts have previously applied

these principles to the plaintiff’s standing argument. While those decisions are not binding on

this Court, they are nonetheless instructive with respect to the causation and redressability issues

present in this case.

In Cary v. Hall, the Northern District of California addressed whether a group of

environmental organizations had standing to challenge the Captive-bred Exemption based on an

14
injury resulting from their work with, and observation of, wild antelope.7 No. 05-cv-4363, 2006

WL 6198320 (N.D. Cal. Sept. 30, 2006). The court held that the plaintiffs could not demonstrate

the requisite causation to establish standing based on an injury to their interest in wild antelope. 8

Id. at *6–*7. The court noted that the Captive-bred Exemption “neither authorizes sport hunting

in North Africa nor authorizes the importation of trophies taken in the wild.” Id. As a result, the

“causal link between the challenged regulation and [the plaintiff’s] injury depends upon the

unfettered choices of third parties.” Id. In addition, the court noted that it would be unable to

redress the plaintiff’s injuries because “the legality of hunting the three antelope species in their

native habitat is a matter far beyond the court’s power.” Id.

Similarly, in Friends of Animals v. Salazar, the court followed the reasoning set out in

Cary v. Hall and determined that the plaintiff lacked standing relating to its interest in wild

antelope. The court held that any injury to the plaintiff’s aesthetic interest in wild antelope “was

not caused by the [Captive-bred] Rule because the [Captive-bred] Rule does not authorize the

take of wild antelopes or the importation of wild antelope parts or trophies.” 626 F. Supp. 2d at

109 (emphasis in original). In a carefully reasoned decision, the court examined the legislative

history of the ESA and the D.C. Circuit’s decision in Animal Welfare Institute v. Kreps, 561 F.2d

1002 (D.C. Cir. 1977), which held that a plaintiff had standing to challenge the Government’s

7
As noted above, Cary v. Hall was transferred to this District and consolidated with Friends of Animals v. Salazar,
626 F. Supp. 2d at 105.
8
Cary v. Hall described the causal theory as follows:
First, the challenged exemption will ‘send[ ] the signal’ that hunting the three antelope species in
the United States is acceptable. . . . It is not clear whether this signal can be picked up by hunters
around the world, only in the United States or nowhere beyond Texas, where most trophy hunting
of the three antelope species takes place. . . . In any event, a signal is being broadcast and sport
hunters somewhere, maybe everywhere, are tuning in. And for purposes of causation, these
hunters must be tuning in for the first time because there is no dispute that, as a matter of federal
law, it has long been legal to hunt captive-bred members of the three antelope species in the
United States. Next, at least some hunters who receive the signal will journey to North Africa to
search for one of the small number of scimitar-horned oryx, addax and dama gazelle that live in
the wild—all because these hunters picked up the signal. This is just so much speculation.

2006 WL 6198320, at *6.

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alleged failure to enforce the Marine Mammal Protection Act based on an injury to the plaintiff’s

aesthetic interest in South African seals. Friends of Animals distinguished Animal Welfare

Institute because unlike in Animal Welfare Institute, “there is no statutory language or legislative

history [in the ESA] to support the idea that Congress decided, or even considered, whether

permitting trade in species bred in captivity in the United States would create financial incentives

for increased poaching abroad.” 626 F. Supp. 2d at 109–110. Since there was not “any evidence

that the [Captive-bred Rule] actually does increase the financial incentives for taking the

antelope species in the wild,” the court ruled that the plaintiff lacked standing on that basis. Id.

at 110.

Finally, this Court addressed whether this plaintiff, Friends of Animals, had standing

such that it could intervene in a case challenging the Removal Rule. Although this Court did not

opine on whether Friends of Animals’ interest in wild antelope could sustain standing—holding,

consistent with the above analysis, that Friends of Animals had informational standing—this

Court cited with approval the analysis contained in Cary v. Hall and Friends of Animals v.

Salazar. See Safari Club Int’l v. Salazar, 281 F.R.D. at 41 (describing the “thorough analysis” of

the prior opinions).

Despite the plaintiff’s substantial burden to show causation and redressability, and the

prior findings by multiple courts, the plaintiff nonetheless claims that it has standing to sue based

on the harm to Ms. Feral’s aesthetic interest in wild antelope. To overcome the causation and

redressability concerns outlined by previous courts, the plaintiff claims that the requisite causal

connection was recognized by FWS when it considered whether to delist the antelope. See Pl.’s

Mem. at 30 (“FWS specifically found that captive African antelope in the United States can help

drive ‘increased take and trade in ‘laundered’ wild caught specimens.’” (citing 78 Fed. Reg.

16
33,790, 33,793)). Specifically, in 2013, the FWS considered whether captive antelope and wild

antelope should be afforded separate legal status under the ESA. The FWS noted that should

they be afforded separate status “the threat of overutilization would likely increase.” 78 Fed.

Reg. at 33,793. In such a situation, “the taxonomic species would potentially be subject to

increased take and trade in ‘laundered’ wild-caught specimens to feed U.S. or foreign market

demand because protected wild specimens would be generally indistinguishable from

unprotected captive-held specimens.” Id. As a result, the FWS concluded that the similarity-of-

appearance provision in Section 2(e) of the ESA would necessitate that the FWS “complete

separate similarity-of-appearance listings for captive-held animals,” which would “make captive

specimens subject to the same restrictions as listed wild specimens.” Id. Accordingly, the FWS

did not afford the captive antelope and the wild antelope separate legal status.

Although the statements by FWS in determining whether to list separately captive and

wild antelope shed light on the nature of the causal relationship between the two sets of animals,

they are not sufficient to establish causation and redressability in the present case. The FWS’s

statements that “the threat of overutilization [of wild antelope] would likely increase,” 78 Fed.

Reg. at 33,793, and that wild antelope “would potentially be subject to increased take,” id., do

not establish that it is substantially likely, as opposed to potentially possible, that the

Reinstatement Rule would result in harm to Ms. Feral’s aesthetic interest in wild antelope. See

Renal Physicians, 489 F.3d at 1275. While poachers might increase efforts to hunt wild

antelope, any such efforts remain the “unfettered choice[]” of these third parties. See Defenders

of Wildlife, 504 U.S. at 562. Moreover, although the plaintiff cites to scientific studies to

buttress its causal arguments, those studies do not concern wild antelope and have little, if any,

probative value here. See Exs. A, B, F, Second Feral Decl. (illegal ivory trade); Ex. C, Second

17
Feral Decl. (species native to Brazil); Exs. D, G, Second Feral Decl. (poaching in the abstract);

Ex. E, Second Feral Decl. (green python trade). The chain of causation is simply too speculative

and the possibility of redress too remote to afford standing to the plaintiff on this ground. “When

redress depends on the cooperation of a third party, ‘it becomes the burden of the [party asserting

standing] to adduce facts showing that those choices have been or will be made in such manner

as to produce causation and permit redressability of injury.’” U.S. Ecology, Inc. v. U.S. Dep’t of

Interior, 231 F.3d 20, 24–25 (D.C. Cir. 2000) (quoting Defenders of Wildlife, 504 U.S. at 562);

see also Klamath Water v. Fed. Energy Reg. Comm’n, 534 F.3d 735, 739 (D.C. Cir. 2008) (“In a

case like this, in which relief for the petitioner depends on actions by a third party not before the

court, the petitioner must demonstrate that a favorable decision would create ‘a significant

increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury

suffered.’” (quoting Utah v. Evans, 536 U.S. 452, 464 (2002))). The plaintiff has been unable to

meet this burden.

ii. Ms. Feral’s Aesthetic Interest in Captive Antelope

The plaintiff also asserts standing based upon the harm to Ms. Feral’s aesthetic interest

in captive antelope caused by “her visits to canned hunting ranches” and the “viewing [of] tame

animals that are later hunted in captivity.” See Pl.’s Mem. at 34–35. The plaintiff faces two

distinct problems with this formulation of Ms. Feral’s injury. First, regardless of whether the

Reinstatement Rule stands in this case, hunting of captive antelope will be permitted under the

Section 10 permitting process. Thus for the plaintiff’s injury to be capable of redress, Ms. Feral

must have visited and intend to visit ranches that hunt captive antelopes without an otherwise

valid permit under Section 10. Second, the plaintiff must adduce some evidence that Ms. Feral’s

alleged injury is imminent. Although the plaintiff argues in its brief that Ms. Feral “intends to

18
continue monitoring canned hunting ranches and visiting the antelope on these ranches,” see

Pl.’s Mem. at 34, Ms. Feral’s declaration states only that she will “continue to monitor the Y.O

Ranch and other sport-hunting facilities.” See Feral Decl. at ¶ 41. Ms. Feral does not describe

how she intends to “monitor” the Y.O. Ranch, whether by subsequent visits or otherwise.

According to the record, Ms. Feral’s last visit to a ranch containing captive antelope occurred in

2006. See id. at ¶ 39. In the intervening eight years, the plaintiff has not identified any visit to a

ranch containing captive antelope or any plans to visit such a ranch in the future. In contrast,

Ms. Feral’s declaration does express a concrete intention to visit wild antelope in Africa. See

Feral Decl. at ¶ 23 (“I intend to ensure that a member of the FoA staff or I continue our regular

travels to Africa to see . . . African antelopes . . . . In fact, I have plans to go to Senegal every

year between November and January to check on the recovery efforts.”).

The generalized statements offered by the plaintiff in the instant case are not sufficiently

concrete to satisfy the requirement of imminent injury. See, e.g., Summers v. Earth Island Inst.,

555 U.S. 488, 496 (2009) (holding that plaintiff’s “vague desire to return is insufficient to satisfy

the requirement of imminent injury”); Defenders of Wildlife, 504 U.S. at 564 (holding that “the

affiants’ profession of an ‘inten[t]’ to return to the places they had visited before . . . is simply

not enough” because “[s]uch ‘some day’ intentions—without any description of concrete plans,

or indeed any specification of when the some day will be—do not support a finding of the ‘actual

or imminent’ injury that our cases require” (emphasis in original)); WildEarth Guardians v.

Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013) (finding standing because members of environmental

group submitted affidavits attesting to their “specific plans to visit the area regularly for

recreational purposes”); Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (“[I]t will not do

for [the plaintiff] to assert generally that he might one day return to Nicaragua. More immediate

19
and concrete plans are necessary.”); cf. Mendoza v. Perez, 754 F.3d 1002, 1014 (D.C. Cir. 2014)

(finding that plaintiffs had standing as intended participants in job market where the plaintiffs

attested to their “specific experience,” the “particular working conditions that led them to leave

the industry; the specific wages and conditions they would require to accept new employment as

workers; the manner in which they have kept abreast of conditions in the industry; and . . . a

specific possible avenue for obtaining reemployment”).

* * *

Under any of the theories advanced by the plaintiff, the plaintiff lacks standing to pursue

its claim that Section 127 violates the Constitution. 9

B. The Reinstatement Rule Does Not Violates Section 10(c) of the ESA

The plaintiff devotes but a single sentence to its argument that the Reinstatement Rule

violates Section 10(c) of the ESA, directing the Court to the prior decision striking down the

Captive-bred Exemption in Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009).

See Pl.’s Mem. at 26. Were this Court considering the Reinstatement Rule solely by its own

9
Even if the plaintiff maintained standing to bring suit, Section 127 is valid under the Constitution. The plaintiff
argues that under United States v. Klein, 80 U.S. 128 (1871), Congress may not pass a statue dictating the result of
pending litigation without amending the substantive law, see Pl.’s Mem. at 12–24, a “proposition on which [the D.C.
Circuit] express[es] no view,” see Nat’l Coal. To Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001).
As the D.C. Circuit has recognized, “Klein’s exact meaning is far from clear,” see id. at 1097, and as another judge
on this Court has observed “Klein is rarely (if ever) successfully invoked in constitutional challenges to federal
statutes,” see Wazir v. Gates, 629 F. Supp. 2d 63, 66 (D.D.C. 2009). As a result, courts have upheld statutes with
analogous language against similar constitutional challenges under Klein. See, e.g., Save Our Mall, 269 F.3d at
1094–97 (holding that statute requiring the World War II Memorial be built consistent with the existing permits
“[n]ot withstanding any other provision of law” amended “the applicable substantive law” and did not run afoul of
Klein); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012) (holding that where “Congress has
directed the agency to issue [a] rule ‘without regard to any other provision of statute or regulation that applies to
issuance of such rule’ . . . Congress has amended the law” and does not offend the Constitution). Moreover, where
there is ambiguity regarding whether a statute amends the substantive law, and therefore whether it is constitutional,
“the court [is] obligated to impose [a] saving interpretation as long as it [is] a possible one.” Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429, 441 (1992). In the present case, Section 127 amends the applicable law and does not
run afoul of the Constitution. In addition, Section 127 does not run afoul of Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 225 (1995), which holds that Congress may not enact “legislation that prescribes what the law was at an
earlier time” and then require the law’s “application in a case already finally adjudicated.” Section 127 does not
establish what the law was at a prior time or require its application to a case already adjudicated. Rather, Section
127 directs the FWS to issue the Reinstatement Rule, thus establishing what the law will be prospectively.

20
terms, the Court might likewise agree with the prior decision. Unfortunately for the plaintiff,

however, Section 127 guides the Court’s analysis regarding the legality of the Reinstatement

Rule. Section 127 directs the FWS to reissue the rule “without regard to any other provision of

statute or regulation that applies to issuance of such rule.” Pub. L. No. 113-76, 128 Stat. 5, §

127. Accordingly, Section 10(c) does not apply to the Reinstatement Rule and the FWS’s

actions in promulgating the rule were compelled by the statute, consistent with congressional

intent, and therefore not arbitrary or capricious under the APA. See Sorenson Commc’ns Inc. v.

FCC, 755 F.3d 702, 707 (D.C. Cir. 2014) (“‘Normally, an agency rule would be arbitrary or

capricious if the agency has relied on factors which Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem, offered an explanation for its

decision that runs counter to the evidence before the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of agency expertise.’” (quoting Motor Vehicles

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the Federal Defendants and the

defendant-intervenor are entitled to summary judgment. Accordingly, the motions for summary

judgment of the Federal Defendants and the defendant-intervenor are granted and the plaintiff’s

motion for summary judgment is denied. An appropriate Order accompanies this Memorandum

Opinion.

Digitally signed by Hon. Beryl A. Howell, United
Date: March 4, 2015 States District Court Judge, U.S. District Court for the
District of Columbia
DN: cn=Hon. Beryl A. Howell, United States District
Court Judge, U.S. District Court for the District of
Columbia, o, ou,
email=Howell_Chambers@dcd.uscourts.gov, c=US

__________________________
Date: 2015.03.04 12:10:48 -05'00'

BERYL A. HOWELL
United States District Judge

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