Friends of Animals v. Ashe

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
FRIENDS OF ANIMALS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-0653 (ABJ)
)
DANIEL M. ASHE, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiffs Friends of Animals and the Zimbabwe Conservation Task Force have brought

this action against federal defendants Daniel Ashe, Director of the U.S. Fish and Wildlife Service

(“FWS” or “the Service”), and Sally Jewell, U.S. Secretary of the Interior. They challenge the

decision by the Service to issue permits authorizing two American hunters to import the trophies

they garnered in legal hunts of black rhinoceros in Namibia. Plaintiffs contend that the issuance

of the permits violated the Administrative Procedure Act, the Endangered Species Act, and the

National Environmental Policy Act. Am. Compl. [Dkt. # 5]. The Ministry of Environment and

Tourism of the Republic of Namibia, which licensed the hunts, and the Dallas Safari Club and

Conservation Force, the organizations that helped the hunters obtain the challenged permits, have

all intervened in the case as defendants.

The federal defendants and the intervenors have moved to dismiss the case on the grounds

that plaintiffs lack standing and that several of their counts fail to state a claim. While it is

undisputed that the black rhinoceros is an endangered animal in need of the world’s protection,

plaintiffs have failed to show that they have standing to pursue their claims, and the Court will

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grant the motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). Furthermore, Count III also fails because it does not identify a final agency

action subject to challenge under the APA.

BACKGROUND

Both international convention and U.S. law govern the importation of endangered species

and the hunting trophies at issue in this case.

I. Legal Framework

A. The Convention on International Trade in Endangered Species of Wild Fauna
and Flora

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, including the black rhinoceros. Both the United States and Namibia

are signatories to the treaty. CITES categorizes covered species into three appendices depending

upon the level of protection the species requires, and it sets restrictions on their import and export.

The black rhinoceros falls under Appendix I of CITES, which applies to “all species threatened

with extinction which are or may be affected by trade.” CITES, Art. II(1).

Before a member country may import an Appendix I species, CITES requires the importing

country, among other things, to make a determination that “the import will be for purposes which

are not detrimental to the survival of the species.” CITES, Art. III(3)(a); Am. Compl. ¶ 33.

Correspondingly, the exporting country must make the same determination with respect to the

export. CITES, Art. III(2)(a).

Pursuant to the treaty, signatories establish country-by-country provisions governing the

trade of specific species. CITES signatories adopted a resolution in 2004 that set an annual export

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quota of five hunting trophies of adult male black rhinoceros from Namibia. Resolution Cong.

13.5 (Rec. CoP14), http://www.cites.org/eng/res/13/13-05R14C15.php. 1 There is no claim in this

case that this limit has been exceeded.

B. The Endangered Species Act

The Endangered Species Act is a U.S. law that seeks to conserve endangered and threatened

species, 16 U.S.C. § 1531, and implements the CITES treaty through U.S. law. Id. §§ 1537a;

1538(c). The Act authorizes the Secretary of the Interior to list species as “threatened” or

“endangered.” 16 U.S.C. § 1533. FWS, to which the Secretary has delegated the authority for

administering the Act, 2 has listed the black rhinoceros as “endangered.” Endangered and

Threatened Wildlife and Plants; Endangered Status for the Black Rhinoceros, 45 Fed. Reg. 47,352

(July 14, 1980).

The Act makes it unlawful to “take” – defined as, to “harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct,” 16 U.S.C.

§ 1532(19) – any listed species “within the United States or the territorial sea of the United States”

or “upon the high seas.” Id. § 1538(a)(1)(B)–(C). The Act also prohibits the import or export of

endangered species to or from the United States, except under certain circumstances. 16 U.S.C.

§§ 1538(a)(1)(A); 50 C.F.R. § 17.21(b). One of those circumstances is if the import or export

1 The Resolution set the same annual quota for black rhinoceros from South Africa.
Resolution Cong. 13.5 (Rec. CoP14).

2 The Department of Interior’s Fish and Wildlife Service is responsible for administering the
Act for terrestrial and freshwater species, and the Department of Commerce’s National Marine
Fisheries Service is responsible for administering it for most marine species. 50 C.F.R.
§ 402.01(b); Humane Soc’y of the U.S. v. Pritzker, 75 F. Supp. 3d 1, 6 (D.D.C. 2014), appeal
dismissed, No. 15-5038, 2015 WL 1619247 (D.C. Cir. Mar. 17, 2015).

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would “enhance the propagation or survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A).

The Service may issue permits authorizing the import of endangered species under this provision

if it makes the necessary enhancement finding. 3 Id. Before doing so, it must publish notice in the

Federal Register of each application for an import permit and allow interested parties to submit

objections. 50 C.F.R. § 17.22.

II. The Challenged Permits

Pursuant to Namibia’s annual export quota under the CITES treaty, Namibia’s Ministry of

Environment and Tourism (“the Ministry”) may issue up to five sport-hunting licenses for black

rhinoceros per year. Decl. of Malan Lindeque (“Lindeque Decl.”), Ex. 1 to Mot. to Dismiss for

Lack of Jurisdiction by Intervenors [Dkt. # 18] (“Intervenors’ Mot.”) ¶ 9. The Ministry, which is

responsible for the “management, protection and recovery” of Namibia’s black rhinoceros

population, authorizes limited hunts “to remove older post reproduction bulls” or “problem

animal[s]” that “disrupt[] or threaten[] the herd.” Lindeque Decl. ¶¶ 2–3, 9–10. The Ministry

charges fees for the sport-hunting licenses it issues, and the fees are deposited into Namibia’s

Game Products Trust Fund. Id. ¶¶ 13–14, 16. This fund pays for black rhinoceros conservation

projects approved by the Fund’s Board, such as “law enforcement and anti-poaching, community

benefits, and surveys.” Id.; see also Decl. of Simeon N. Negumbo, Ex. 2 to Intervenors’ Mot. ¶ 4.

Namibia’s decision to issue a hunting license does not depend on whether the United States

will authorize the import of the trophy. Lindeque Decl. ¶ 11 (“Whether the United States allows

the import of black rhino trophies from Namibia has no effect on [the Ministry’s] decision to certify

3 The Service is also responsible for making the determination required by CITES that the
import “will be for purposes which are not detrimental to the survival of the species. See 50 C.F.R.
§ 23.61(a). This determination is not at issue in this case.

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black rhino to be hunted or to offer up to five hunting licenses for black rhino annually.”) Indeed,

the decision to authorize a hunt does “not depend on the involvement of hunters from any specific

country or the issuance of an import permit by a foreign country.” Id. The Ministry issues hunting

licenses to citizens of countries other than the United States, and it has stated it will do so even if U.S.

import permits are no longer issued. Id.

In January 2014, the Dallas Safari Club, a hunting organization, held an auction for the

right to conduct one of the Ministry’s five rhinoceros hunts. See Pls.’ Consolidated Opp. [Dkt.

# 21] (“Pls.’ Opp.”) at 7, citing Decl. of Corey Knowlton, Attach. 3 to Mot. to Intervene by

Conservation Force and Dallas Safari Club [Dkt. # 4-10] (“Knowlton Decl.”) ¶ 3. Corey

Knowlton, a member of both Dallas Safari Club and Conservation Force, won the auction with a

bid of $350,000. Knowlton Decl. ¶¶ 2–3, 5. The hunt and bid were subject to numerous

conditions, one of which was that the $350,000 would be transferred to Namibia’s Game Products

Trust Fund only if the U.S. Fish and Wildlife Service issued an import permit for the trophy. Decl.

of John Jackson, Attach. 2 to Mot. to Intervene by Conservation Force and Dallas Safari Club

[Dkt. # 4-2] (“Jackson Decl.”) ¶ 21; Knowlton Decl. ¶¶ 3, 5; Pls.’ Opp. at 7. Conservation Force

agreed to help Knowlton obtain the permit, and on April 9, 2014, it filed an application with the

Service on Knowlton’s behalf for an import permit. Jackson Decl. ¶ 26; Knowlton Decl. ¶ 8; Am.

Compl. ¶ 64. Separately, Conservation Force filed an import permit application on behalf of its

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member Michael Luzich, who sought a permit for a trophy from a hunt he completed in 2013. Am.

Compl. ¶ 64. 4

The Service published notice of the permit applications in the Federal Register, see

Endangered Species; Marine Mammals; Receipt of Applications for Permit, 79 Fed. Reg. 65,981

(Nov. 6, 2014), Am. Compl. ¶ 65, and plaintiff Friends of Animals submitted comments in

opposition to the applications. Am. Compl. ¶¶ 9, 66. In March 2015, the Service advised

Conservation Force that it would grant the two permits if the funds from Dallas Safari Club’s

auction were transferred to Namibia’s Game Products Trust Fund. Jackson Decl. ¶ 28.

Conservation Force wired the $350,000 to the fund in March 2015, Jackson Decl. ¶ 29, and the

Service issued the import permits in April 2015. Am. Compl. ¶¶ 69, 72. Mr. Knowlton

participated in the hunt and killed a black rhinoceros the following month, on or around May 19,

2015. Am. Compl. ¶ 73.

III. Procedural History

On April 29, 2015, shortly after the Service issued the permits, Friends of Animals filed

this lawsuit seeking to set aside the permits as unlawful. Compl. [Dkt. # 1] ¶¶ 1–2. On May 21,

2015, plaintiff amended its complaint to add the Zimbabwe Conservation Task Force (“ZCTF”)

as a plaintiff. Am. Compl. The amended complaint consists of four counts. In Count I, plaintiffs

contend that the issuance of the permits was arbitrary, capricious, an abuse of discretion, and

contrary to the law, in violation of the Administrative Procedure Act (“APA”). Id. ¶ 99. In Count

II, plaintiffs maintain that defendants violated the APA by failing to publish their findings before

issuing the permits. Id. ¶ 101. In Count III, they contend that defendants have improperly

4 The Luzich hunt was not associated with the Dallas Safari Club. Conservation Force
agreed to represent Luzich in obtaining an import permit. Jackson Decl. ¶ 26 n.1.

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adopted a “policy and repeated practice” of issuing import permits in violation of the Endangered

Species Act and the APA. Id. ¶ 103–05. And in Count IV, they assert that defendants violated

the National Environmental Policy Act (“NEPA”) by failing to prepare an Environmental

Assessment or an Environmental Impact Statement (“EIS”) before granting the permits. Id.

¶ 107.

Conservation Force and Dallas Safari Club filed a motion to intervene so they could

defend the Service’s decision to issue the import permits to their members, which the Court

granted on June 12, 2015. Mem. Op. & Order (June 12, 2015) [Dkt. # 9]. The Ministry also

moved to intervene, and the Court granted that motion. Mem. Op. & Order (July 10, 2015) [Dkt.

# 15].

On July 15, 2015, federal defendants moved to dismiss plaintiffs’ action pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to a claim.

Federal Defs.’ Mot. to Dismiss [Dkt. # 17] (“Fed. Defs.’ Mot.”). The next day, intervenors moved

to dismiss for lack of jurisdiction. Intervenors’ Mot. The parties have fully briefed the motions.

Pls.’ Opp.; Fed. Defs.’ Reply in Supp. of their Mot. to Dismiss [Dkt. # 23] (“Fed. Defs.’ Reply”);

Reply of Conservation Force, Dallas Safari Club, and Republic of Namibia, Ministry of

Environment and Tourism [Dkt. # 24] (“Intervenors’ Reply”).

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must

“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,

216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

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(D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those

inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiffs’

legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan

v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363

F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an

examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),

quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S.

64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

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II. Failure to State a Claim

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,

the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions,” and “[s]econd, only a complaint that states a plausible claim for relief

survives a motion to dismiss.” Id. at 678–79. A claim is facially plausible when the pleaded

factual content “allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. at 678, citing Twombly, 550 U.S. at 556. “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 556.

ANALYSIS

To establish their standing to bring this action, plaintiffs must show three things: that they

have suffered an injury-in-fact, that is, “an actual or imminent invasion of a legally protected,

concrete and particularized interest;” that there is a causal connection between the alleged injury

and the conduct at issue; and that it is likely, and not merely speculative, that the Court can redress

the injury. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005), citing

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Plaintiffs must demonstrate standing for each

claim they assert. Daimler-Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185 (2000).

Organizations such as plaintiffs may assert standing on their own behalf under certain

circumstance or they may seek representational standing on behalf of their members. Nat’l Ass’n

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of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011). Plaintiffs here claim only

representational standing, Pls.’ Opp. at 13, n.12, so the Court will not address organizational

standing.

To have representational standing, an organization must show that “(a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane

to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires

the participation of individual members in the lawsuit.” Nat’l Ass’n of Home Builders, 667 F.3d

at 11, quoting Ass’n of Flight Attendants-CWA, 564 F.3d 462, 464 (D.C. Cir. 2009) and United

Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996).

Plaintiffs sue on behalf of themselves and their members. Am. Compl. ¶¶ 6, 11. Friends

of Animals alleges that its members “travel to, and reside and work in Namibia, and . . . derive

ongoing and lasting recreational, aesthetic, professional, moral, and spiritual benefits from

observing black rhinos in their native habitat in Namibia.” Id. ¶ 10. Both plaintiffs claim that their

“members are reasonably concerned that the issuance of permits to import sport-hunted

endangered animals, such as the permits for black rhinos, will increase the world-wide demand for

endangered animals and result in increased poaching and illegal trade.” Id. ¶ 12.

According to plaintiffs, an increase in poaching resulting from the issuance of import

permits would decrease their members’ “opportunities to observe black rhinos and other

endangered animals in the wild,” and “their enjoyment when they do observe [them] will be

decreased.” Am. Compl. ¶¶ 12, 15. Plaintiffs also allege that “the issuance of the import permits

at issue here will lead to future and additional issuances of permits to import sport-hunted trophy

parts to the United States.” Id. ¶ 13.

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 Finally, plaintiffs claim that their injuries can be redressed by an order from the Court:

[A]n order preventing the importation of endangered animal parts will
discourage U.S. trophy hunters from killing endangered animals abroad and
bringing them home to display as trophies. Such relief also will reduce the
international transportation and trade of endangered animals. Because
permits for endangered animal trophies contribute to a dual market for
endangered animals and their parts, preventing the importation of such
trophies will reduce supply and demand, and aid effective enforcement
measures against the trade in endangered animals.

Am. Compl. ¶ 18.

I. Plaintiffs Do Not Have Standing.

A. Injury in Fact

The parties do not dispute that individuals may suffer an injury in fact when their aesthetic

and recreational enjoyment of an area or wildlife is diminished. Friends of the Earth, Inc., 528

U.S. at 183 (“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they

use the affected area and are persons for whom the aesthetic and recreational values of the area

will be lessened by the challenged activity.”) But it is not enough to state that plaintiffs’ members

have a general interest in protecting the black rhinoceros or other endangered species. The alleged

harm must affect plaintiffs’ members in a “personal and individual way.” Ctr. for Bio. Diversity

v. U.S. Dep’t of the Interior, 563 F.3d 466, 478 (D.C. Cir. 2009) (holding that the plaintiffs’

concern that climate change would impact wildlife was too generalized and speculative to be

concrete, imminent injury) (quoting Defs. of Wildlife, 504 U.S. at 560 n.1).

The Supreme Court has explained that in order to meet this requirement, plaintiffs must

provide a “description of concrete plans,” which includes establishing that they will “use the area

affected by the challenged activity and not an area roughly in the vicinity of it,” and when. Defs.

of Wildlife, 504 U.S. at 565–66 (internal quotation marks omitted).

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 Federal defendants argue that plaintiffs’ alleged “concern” and “fear” about diminished

future opportunities to view black rhinoceros does not constitute injury in fact. Fed. Defs.’ Mot.

at 10. In response, plaintiffs have supplied a number of declarations, 5 only one of which asserts

any actual plans to view black rhinoceros in Namibia. See Decl. of John Grobler, Ex. 1 to Pls.’

Opp. [Dkt. # 21-1] (“Grobler Decl.”). 6 John Grobler, a member of Friends of Animals who lives

in Namibia, is a journalist who reports on “resource politics” in the country and has reported on

issues concerning black rhinoceros specifically. Grobler Decl. ¶¶ 2–5. He has personally viewed

black rhinoceros in the Kunene region of Namibia, and he avers that he last spotted one there in

1997. Id. ¶¶ 6, 13. More recently, he has traveled to the Kunene region “almost [e]very month

since July 2014” to investigate rhinoceros poaching, but he has not seen black rhinoceros there,

only occasional rhinoceros tracks. Id. ¶¶ 12, 13. Grobler states that black rhinoceros “are easier

to spot in Etosha National Park than in the Kunene,” and that he visited Etosha National Park in

August 2015 to view rhinoceros but was unsuccessful. Id. ¶¶ 13, 14. He “intend[s] to return in

the second week of September to the Kunene” to continue his investigations into poaching and

other illegal hunting operations. Id. ¶ 12. Based on these facts, plaintiffs state that Grobler “lives

in Namibia, where the endangered black rhinos live and are being killed by trophy hunters; he

regularly visits the areas where black rhinos live and has plans to continue doing so; and he has

5 The Court may consider materials outside the pleadings as it deems appropriate to decide
whether it has jurisdiction to hear the case. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).

6 The others declarations describe the organizational work of Friends of Animals and of
ZCTF and attach documents cited by plaintiffs in their opposition brief. See Decl. of Priscilla
Feral, Ex. 2 to Pls.’ Opp. [Dkt. # 21-2]; Decl. of Johnny Rodrigues, Ex. 3 to Pls.’ Opp. [Dkt. # 21-
3]; and Decl. of Michael Harris, Ex. 4 to Pls.’ Opp. [Dkt. # 21-4].

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observed black rhinos in the wild before in Namibia and hopes to able to continue to do so.” Pls.’

Opp. at 15–16. They argue that this is enough to allege an injury in fact. Id. at 15–17.

Federal defendants contend this does not establish that Grobler has “concrete plans” to “use

the area affected by the challenged activity” because the challenged permits were for imports from

hunts that were authorized for, and took place in, Mangetti National Park, and not either the

Kunene region or Etosha National Park. Fed. Defs.’ Reply at 5–6, quoting Defs. of Wildlife, 504

U.S. at 564–66 (explaining that Mangetti National Park is at least 250 miles from where Grobler

lives and at least the same distance from the Kunene region and Etosha National Park where he

has viewed rhinoceros in the past and plans to do so in the future); see also Intervenors’ Reply at

6.

Plaintiffs maintain that Grobler’s declaration is sufficient, and they point to a recent district

court decision on a motion to intervene to support their position. Pls.’ Opp. at 13, citing Safari

Club Int’l v. Jewell, No. 1:14-cv-00670-RCL, slip. op. at 6 (D.D.C. Mar. 12, 2015). The Safari

Club case involved a challenge to a ban on the import of all trophies of African elephants from

Zimbabwe. See Safari Club Int’l v. Jewell, 76 F. Supp. 3d 198, 202 (stating that in April 2014,

FWS announced the suspension of imports of legally sport-hunted elephants trophies from

Zimbabwe for the remainder of 2014). Friends of Animals and the Zimbabwe Conservation Task

Force sought to intervene in that case to defend the ban, and the court concluded that they had

standing when it permitted them to do so. Safari Club, slip. op. at 6. The defendants opposed their

intervention on the grounds that the member who submitted a declaration stated only that he had

viewed elephants in the past, and therefore he did not “present the kind of future concrete intentions

needed for Article III standing.” Id., quoting opposition to motion to intervene. But the court

concluded that the member involved, who lived in Zimbabwe and performed conservation work

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there, would suffer an injury in fact. The court took note of the member’s proximity to the affected

elephants: he did not need to specify future plans to go to Zimbabwe because he was already there,

and he worked regularly with elephants. Safari Club, slip. op. at 6–7. So the injury in fact

requirement was satisfied in that case because the declarant lived and worked in Zimbabwe where

he regularly viewed and worked with elephants, and the challenged action affected elephants

throughout the country.

Here, the challenged permits apply to trophies from two particular animals hunted in

Namibia’s Mangetti National Park in 2013 and 2015. Am. Compl. ¶¶ 64, 73; MET Permit to

Luzich to Hunt for Trophies [Dkt. # 22-1]. Grobler has not stated past or future plans to view

rhinoceros in Mangetti National Park, so unlike the declarant in Safari Club, it is not clear that

Grobler has any concrete plans to “use the area affected by the challenged activity,” as opposed to

some use an area “in the vicinity.” See Defs. of Wildlife, 504 U.S. at 564–66. But since plaintiffs

also allege – albeit conclusorily – that the import permits will affect not only the two deceased

rhinoceros but also rhinoceros that may be hunted in the future, Am. Compl. ¶ 13, and assuming

the Ministry has the power to authorize hunts throughout the country, see Lindeque Decl. ¶ 2,

Grobler’s plan to attempt to view rhinoceros in other regions in the future may give rise to the

thinnest reed of an injury in fact. 7 But even if it does, plaintiffs have not satisfied the causation

and redressability prongs of standing.

7 This conclusion is based solely on the injury that would be suffered by a reduction in the
number of rhinoceros to view; the Court need not reach the question of whether plaintiffs’
somewhat dubious prediction that even if one of their members were to finally spot a rhinoceros,
he or she would “not enjoy it as much” states an actual invasion of a concrete interest sufficient to
confer standing.

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 B. Causation

To show causation, plaintiffs must demonstrate a connection between the alleged injury

and the agency action at issue. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d at 1157, citing

Defs. of Wildlife, 504 U.S. at 560–61. The connection between the two must not be overly

attenuated or speculative, and the Supreme Court has warned that “when the plaintiff is not himself

the object of the government action or inaction he challenges, standing is . . . ordinarily

‘substantially more difficult’ to establish.” Id. at 562, quoting Allen v. Wright, 468 U.S. 737, 758

(1984). When, as here, an element of standing

depends on the unfettered choices made by independent actors not before
the courts and whose exercise of broad and legitimate discretion the courts
cannot presume either to control or to predict, . . . it becomes the burden of
the plaintiff to adduce facts showing that those choices . . . will be made in
such manner as to produce causation and permit redressability of injury.

Defs. of Wildlife, 504 U.S. at 562; see also United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C.

Cir. 1989) (rejecting allegations of causation that are “overly speculative,” particularly those that

involve “predictions of future events (especially future actions to be taken by third parties)”).

The primary action challenged here is the Service’s issuance of permits authorizing the

import of trophies from two specific, completed hunts. Am. Compl. ¶¶ 1, 13. Plaintiffs’ alleged

injury is the reduction in their members’ (or least one member’s) “opportunities to observe black

rhinos and other endangered animals in the wild” and a decrease in their “enjoyment when they do

observe” them. Am. Compl. ¶ 12. 8 While plaintiffs recognize that it is Namibia that would

8 In Count III, plaintiffs purport to challenge permits to be issued in the future, but those
challenges are not yet ripe and plaintiffs’ generalized attack on agency “policy” does not state a
claim. See Section II infra.

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authorize any hunt within its borders, they posit that there is a connection between the U.S. import

permits and the harms they fear they will suffer:

Plaintiffs’ injuries – brought on by the killing of black rhinos – are directly
caused by Defendants’ decision to issue permits for hunters to import black
rhino trophies into the United States. . . . While [the Ministry]’s decisions
to issue permits to kill black rhinos could cause injury to Plaintiffs, it will
do so only if hunters are willing to go there and pay to hunt rhinos. . . . [T]he
majority of those seeking to hunt rhinos are Americans and are not willing
to pay for the hunt if they cannot receive a permit to import the trophy back
to the United States.

Pls.’ Opp. at 17.

The Court holds that the alleged connection between the issuance of import permits for

trophies from completed legal hunts and a decrease in the opportunity to enjoy black rhinoceros in

the future is too attenuated and too dependent on the acts of third parties to supply the necessary

element of causation. Even plaintiffs acknowledge that their injuries are “brought on by the killing

of black rhinos.” Id. In other words, the direct cause of the feared reduction in the rhinoceros

population would be hunting, and the Service has no control over hunts in Namibia. 16 U.S.C.

§ 1538(a)(1)(B)–(C) (prohibiting the taking of endangered species within the United States, the

territorial seas of the United States, or upon the high seas). Whether the Service issues an import

permit or not, the Namibian Ministry remains free to license hunts in accordance with international

law, and it has stated its intent to do just that. Lindeque Decl. ¶ 11. 9 And even if the Service were

to issue scores of import permits for sport-hunted black rhinoceros from Namibia, the import

9 Indeed, this is exactly what happened from 2004, when the CITES signatories authorized
the annual quota, until 2013, when the Service issued the first import permit. See Pls.’ Opp. at 7
(stating that the first time FWS had issued an import permit for a black rhinoceros trophy was in
2013); Lindeque Decl. ¶ 11 (stating that the Ministry offered hunter permits for black rhinoceros
before the first U.S. import permit was issued).

16
permits would have no effect whatsoever if the Ministry did not authorize the permittees to hunt.

Thus, the Ministry – an independent third party not before this Court – stands in the middle of

plaintiffs’ chain of causation.

The Court recognizes plaintiffs’ sincere commitment to the preservation of endangered

animals, and this ruling does not suggest that there is no relationship between the importation of

trophies of endangered species and protecting these species. The underlying premise of the CITES

treaty and the Endangered Species Act is that regulating trade in protected species can serve as a

means to protect them. See CITES, Art. II; 16 U.S.C. § 1538(a). But the relationship between the

particular permits challenged here, which authorize the import of spoils of hunts that were entirely

within Namibia’s control, and plaintiffs’ feared diminished enjoyment of black rhinoceros in

Namibia in the future is too attenuated to confer standing on plaintiffs. See, e.g., Warth v. Seldin,

422 U.S. 490, 509 (1975) (holding that the line of causation between an adjacent town’s zoning

ordinance and taxpayers’ claimed injury of increased local taxes imposed by the authorities of

Rochester, where they lived, was not apparent from the complaint and resulted only from the

decisions of Rochester authorities, who were not parties to the case). Similarly, plaintiffs’

conclusory suggestion that the agency’s issuance of permits to particular hunters who obtained

Namibia’s permission to participate in one of Namibia’s five legal hunts will embolden poachers

also depends upon the actions of third parties who are not before the Court. Accordingly, the Court

holds that plaintiffs have failed to allege facts sufficient to demonstrate causation. 10

10 For these same reasons, plaintiffs do not have standing to pursue their NEPA claim. When
asserting a claim for a violation of NEPA, plaintiffs must “demonstrate a causal connection
between the agency action and the alleged injury.” City of Dania Beach, Fla. v. FAA, 485 F.3d
1181, 1186 (D.C. Cir. 2007). Plaintiffs complain that the Service did not issue an Environmental
Assessment or EIS, but assuming it was required to do so in this circumstance, plaintiffs cannot
link this omission to their claimed future injury.

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 C. Redressability

Plaintiffs also fall short in establishing the third element of standing. To show

redressability, it must be likely, and not merely speculative, that the Court can redress the claimed

injury. Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d at 1157, citing Defs. of Wildlife, 504 U.S.

at 560–61; 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); see also C-SPAN v. FCC,

545 F.3d 1051, 1054 (D.C. Cir. 2008).

Plaintiffs acknowledge this increased burden, but they point out that a plaintiff can

demonstrate standing by showing that the choices made by the regulated third parties “have been

or will be made in such manner as to produce causation and permit redressability of injury.” Pls.’

Opp. at 11, quoting C-SPAN, 545 F.3d at 1054. They contend that this Court can redress their

claimed injuries because “[a]n order preventing the importation of endangered animal parts will

discourage U.S. trophy hunters from killing endangered animals abroad . . . reduce international

transportation and trade of endangered animals,” discourage “a dual market for endangered

animals and their parts,” and “aid enforcement measures against trade in endangered animals.”

Am. Compl. ¶ 18. According to plaintiffs, an order invalidating the two challenged permits and

enjoining future permits would lead to fewer Americans killing black rhinoceros, thereby

redressing the alleged injury to their members’ interests in observing them. Pls.’ Opp. at 2–3.

Defendants argue that “the outcome of this litigation cannot prevent anyone from hunting

black rhinoceros in Namibia or anywhere else in Africa,” so the injury is not redressable. Fed.

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Defs.’ Mot at 18; see also Intervenors’ Reply at 14. The parties each cite separate decisions issued

in the same case, Fund for Animals v. Norton, to support their positions. See Fed. Defs.’ Mot. at

18–19; Mem. of Law in Supp. of Intervenors’ Mot. [Dkt. 18-1] (“Intervenors’ Mem.”) at 23–24;

Pls.’ Opp. at 21, 25.

In Fund for Animals, conservation organizations challenged the Service’s issuance of

imports permits for trophies of argali sheep that were killed in hunts authorized by the governments

of Kyrgyzstan, Mongolia, and Tajikistan. In deciding cross-motions for summary judgment, the

district court ruled that the plaintiff organizations lacked standing because they had not shown

redressability:

FWS’ import permits . . . do not authorize the killing of argali . . . . Instead,
it is the governments of Kyrgyzstan, Mongolia, and Tajikistan that authorize
the hunting and killing of argali . . . . [E]ven if the Service allowed no
import permits, the three governments would remain as free as they now are
to permit the sport hunting of argali in their own countries.

Fund for Animals v. Norton, 295 F. Supp. 2d 1, 7 (D.D.C. 2003), appeal dismissed No. 03-5373,

2004 WL 1562891 (D.C. Cir. July 9, 2004). Defendants and intervenors assert that this same

reasoning should apply here. Fed. Defs.’ Mot. at 18–19; Intervenors’ Mem. at 23–24; Intervenors’

Reply at 12.

In an effort to avoid a similar outcome, plaintiffs cite an earlier ruling arising out of the

same litigation. Pls.’ Opp. at 21, 25, citing Fund for Animals v. Norton, 322 F.3d 728, 733–34

(D.C. Cir. 2003). Before the district court ruled on summary judgment, it denied a motion to

intervene by the Mongolian government agency that authorized the argali hunts in that country.

322 F.3d at 731. Mongolia appealed, and the Court of Appeals reversed. It doing so, it held that

Mongolia had standing.

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 The threatened loss of tourist dollars, and the consequent reduction in
funding for Mongolia’s conservation program, constitute a concrete and
imminent injury. This injury is fairly traceable to the regulatory action – the
placement of the argali on the endangered list and the cancellation of import
permits – that the Fund seeks in the underlying lawsuit. And it is likely that
a decision favorable to [Mongolia] would prevent that loss from occurring.

Fund for Animals, 322 F.3d at 733.

Plaintiffs submit that the Mongolia ruling supports their position on redressability: “[I]n

finding intervenors’ injuries redressable, the D.C. Circuit did not consider the fact that the foreign

governments could continue to generate some money by selling hunting permits; instead, the D.C.

Circuit found it sufficient that a court order favorable to the foreign governments . . . allowing

American hunters to import argali sheep trophies . . . would redress the foreign governments’

alleged injuries of reduced income from trophy hunters.” Pls.’ Opp. at 25. In other words,

according to plaintiffs, the fact that Mongolia might still generate funds from other hunters did not

undermine its argument that suspending import permits would harm the country and that a court

order allowing permits would redress its harm. Therefore, plaintiffs contend, the fact that hunters

can still kill rhinoceros in Namibia does not negate their claim that upholding the permits will

harm their members’ interest in viewing rhinoceros, and so, an order invalidating the permits

would redress that harm.

Putting aside the question of whether this argument has any logical force in the case of the

permit issued for the animal that had already been killed, the D.C. Circuit’s decision did not turn

on the question of whether the challenged permits would reduce Mongolia’s revenues – a claim

that the party opposing intervention did not dispute. Fund for Animals, 322 F.3d at 733. It turned

on the conclusion that Mongolia’s sheep were the subject of the challenged action: “if the

complainant is an object of the action . . . there should be little question that the action or inaction

20
has caused his injury, and that a judgment preventing or requiring the action will redress it.” Id.

at 733–34 (quotation marks omitted). And though Mongolia was not itself the object of the agency

action, “sheep that Mongolia regards as its national property and natural resource plainly are its

subject.” Id. at 734. The Circuit Court saw “no meaningful distinction between a regulation that

directly regulates a party and one that directly regulates the disposition of the party’s property.”

Id. Thus, it held that Mongolia, as the object of the challenged action, had standing.

But plaintiffs here do not stand in a position that is analogous to that occupied by the

country authorizing the hunting of the sheep; 11 instead their position is indistinguishable from that

of the conservationist plaintiffs who were ultimately found to lack standing at the summary

judgement stage. Fund for Animals, 295 F. Supp. 2d at 7–8. Plaintiffs recognize that they are not

the object of the permitting process, see Pls.’ Opp. at 2, 9, 15, 17, but they argue that the choices

made by regulated third parties – in this case, the hunters – can “produce causation and permit

redressability of injury.” Pls.’ Opp. at 11, quoting C-SPAN, 545 F.3d at 1054; see also id. at 25

(arguing their “members are injured when trophy hunters kill black rhinos, and these injuries are

fairly traceable to Defendants’ decision to issue permits to hunters to import black rhinoceros

trophies”). But this ignores the role of the Ministry in authorizing any hunt and the fact that the

permitting process does not control foreign hunters or American hunters who do not seek to import

their trophies. The Ministry has made clear it will authorize the hunting of black rhinoceros in

11 The Circuit Court found that Mongolia’s national property was the object of the Service’s
action, and the possible loss of hunters’ fees and funds for its conservation programs was fairly
traceable to the challenged action and redressable by the court. Fund for Animals, 322 F.3d at 734.
The analog to Mongolia in this case is Namibia: the Service’s action affects Namibia’s national
property, the threatened loss of hunters’ fees and reduced funds for its conservation programs are
fairly traceable to the relief that plaintiffs seek, and a decision favorable to Namibia would redress
that injury. See Mem. Op. and Order [Dkt. # 15] at 4–5 (analogizing Namibia’s position here to
Mongolia’s in Fund for Animals and granting Namibia’s motion to intervene).

21
accordance with CITES, the international treaty, whether FWS issues permits or not. Lindeque

Decl. ¶ 11. So, as the district court held in Fund for Animals, 295 F. Supp. 2d 1, an order in

plaintiffs’ favor would not bring an end to the hunts or avert the harm to plaintiffs’ members. See

also Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 266–67, 276 (D.D.C. 2015) (rejecting

argument that allowing hunting of captive antelope could likely lead to increased killing and

poaching of wild antelope because any likelihood of increased efforts to hunt wild antelope remain

the “unfettered choice[] of these third parties”) (quoting Defs. of Wildlife, 504 U.S. at 562); Cary

v. Hall, No. 05-cv-4363, 2006 WL 6198320, *1–2, 7–8 (N.D. Cal. Sept. 30, 2006) (following Fund

for Animals and holding that redressability is not likely when the challenged agency is not the

entity that authorizes the sport hunting). Thus, the Court finds that even a favorable ruling in this

case would not redress plaintiffs’ alleged injuries.

Plaintiffs contend that they are not required to “show that a favorable decision will relieve

. . . every injury,” Pls.’ Opp. at 25–26, quoting Larson v. Valente, 456 U.S. 228, 244 n.15 (2008),

only that the “risk would be reduced to some extent if petitioners received the relief they seek.”

Id., quoting Massachusetts v. EPA, 549 U.S. 497, 525–26 (2007). According to plaintiffs, they do

not need to show that a court order would protect all black rhinoceros in Namibia from hunters or

even significantly reduce the risk that they will become extinct; they say they simply need to show

that the risk of rhinoceros dying will be “reduced to some extent.” Pls.’ Opp. at 26. But, as

explained above, there is no indication that an order from this Court would even accomplish that,

much less that it would “significant[ly] increase” the likelihood that plaintiffs would obtain relief

that redresses their injury. Klamath Water, 534 F.3d at 739, quoting Evans, 536 U.S. at 464. And

neither case cited by plaintiffs stands for the proposition that a plaintiff can show redressability

when a court order would not affect the alleged harm at all. See Larson, 456 U.S. at 242–43

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(holding that a plaintiff satisfies the redressability requirement when he shows that a favorable

decision will relieve a discrete injury to himself); Massachusetts, 549 U.S. at 525–26 (holding that

the plaintiffs showed redressability even though regulating motor-vehicle emissions in the United

States would not by itself reverse global warming, because reducing domestic emissions would

slow the pace of global emissions increases).

II. Count III Does Not Challenge an Agency Action or a Final Agency Action and is Not
Ripe.

In Count III, plaintiffs allege that federal defendants have adopted a “policy and repeated

practice of issuing permits to import sport-hunted trophies of endangered animals” in violation of

the ESA and the APA. Am. Compl. ¶ 105. Federal defendants have moved to dismiss this count

under Federal Rule of Civil Procedure 12(b)(6), and the intervenors also seek dismissal of the

count on the basis that it is “not justiciable.” 12 See Fed. Defs.’ Mot. at 20–23; Intervenors’ Mem.

at 32–34.

Section 702 of the APA provides judicial review to a “person suffering legal wrong because

of agency action, or adversely affected or aggrieved by agency action within the meaning of a

relevant statute.” 5 U.S.C. § 702. Section 704 provides for judicial review of “[a]gency action

made reviewable by statute and final agency action for which there is no other adequate remedy

in a court.” Id. § 704. An agency’s action is final if it 1) “marks the consummation of the agency’s

decisionmaking process” and 2) affects the “rights or obligations . . . [or the] legal consequences”

of the party seeking review. Bennett v. Spear, 520 U.S. 154, 177–78 (1997); Domestic Sec., Inc.

v. SEC, 333 F.3d 239, 246 (D.C. Cir. 2003).

12 Dismissal on the grounds of no final agency action under the APA is properly sought under
Rule 12(b)(6) because “the APA grants a cause of action rather than subject matter jurisdiction.”
Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 n.4 (D.C. Cir. 2006).

23
 The Supreme Court has held that a plaintiff may not use the APA to seek the “wholesale

improvement of [a] program by court decree.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891

(1990) (stating that programmatic improvements are normally made in the offices of the agency

or the halls of Congress). In National Wildlife Federation, the plaintiff challenged the Bureau of

Land Management’s “land withdrawal review program.” Id. at 875. The Supreme Court found

that the term “land withdrawal review program” did not refer to any specific agency orders or

regulations, but that it embraced “the continuing (and thus constantly changing) operations of the

BLM in reviewing withdrawal revocation applications and the classifications of public lands and

developing land use plans” as required by statute. Id. at 890. Therefore, the Court held, the

challenged “program” was not an “agency action” under section 702, but rather comprised “1250

or so individual classification terminations and withdrawal revocations.” Id.

The Supreme Court also held in National Wildlife Federation that the plaintiff had not

challenged a “final agency action” under section 704 because the claim was not ripe for judicial

review. “Under the terms of the APA, [a plaintiff] must direct its attack against some particular

‘agency action’ that causes it harm.” Id. at 891 (explaining that a regulation is normally considered

“ripe” for review when the “scope of the controversy has been reduced to more manageable

proportions, and its factual components fleshed out, by some concrete action applying the

regulation to the [plaintiff’s] situation in a fashion that harms or threatens to harm him”). So even

if the plaintiff were correct that the BLM’s “land withdrawal review program” was flawed, the

APA did not provide for judicial review of its operation as a whole; the statute only authorized

judicial review on a case-by-case basis, after the agency had taken a “concrete action . . . in a

24
fashion that harm[ed] or threaten[ed] to harm” a claimant. Id. at 891. 13 Even the fact that some

claimants had ripe claims did not make the entire “program” reviewable:

[T]he entire “program” – consisting principally of the many individual
actions referenced in the complaint, and presumably actions yet to be taken
as well – cannot be laid before the courts for wholesale correction under the
APA, simply because one of them that is ripe for review adversely affects
one of respondent’s members.

Id. at 893.

The Court holds that Count III presents the type of broad challenge that the Supreme Court

rejected in National Wildlife Federation. Plaintiffs seek judicial review not only of specific past

FWS permitting decisions but also of an alleged “policy” to grant import permits in the future.

Am. Compl. ¶¶ 13, 105. So even if plaintiffs could satisfy the elements of Article III standing,

plaintiffs’ objections to the Knowlton and Luzich permits do not give them a platform from which

they may request “wholesale correction” of the agency’s permitting program. Nat’l Wildlife Fed’n,

497 U.S. at 893; see also Corbell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“While a single

step or measure is reviewable, an on-going program or policy is not, in itself, a ‘final agency action’

under the APA.”).

Plaintiffs characterize Count III as challenging a “discrete policy” and not the agency’s

day-to-day operations, and they argue that the “policy” is final and determines the rights of those

with an interest in the permitting process and rhinoceros in Namibia. Pls.’ Opp. at 36, citing

Bennett, 520 U.S. at 178. But plaintiffs’ prediction that the agency will issue import permits to

hunters in the future is not enough to establish an application of the challenged “policy” that causes

13 The exception to this rule is that a substantive agency action is reviewable if, as a practical
matter, it requires a party to adjust his or her conduct immediately. Nat’l Wildlife Fed’n, 497 U.S.
at 891. That exception does not apply here.

25
or threatens harm to a particular claimant. Nat’l Wildlife Fed’n, 497 U.S. at 891. Accordingly,

plaintiffs’ challenge involves neither an “agency action” under section 702, nor a “final agency

action” under section 704, and any allegations about the future implementation of the Service’s

alleged “policy” are not yet ripe. 14 See also People for the Ethical Treatment of Animals, Inc. v.

FWS, 59 F. Supp. 3d 91, 98–99 (D.D.C. 2014) (“PETA I”) (dismissing case that alleged the Service

applied an improper policy in issuing import permits under the Endangered Species Act because

the court could not discern what the challenged policy was, and because the case was not ripe since

it did not concretely affect the plaintiff); People for the Ethical Treatment of Animals, Inc. v. FWS,

No. 1:15-cv-00600, 2015 WL 5474477, *1–2 (E.D. Va. Sept. 8, 2015) (dismissing case involving

the same allegations as in PETA I because the challenged agency action was not a “final agency

action” under the APA: a “[p]laintiff may not ‘challenge an entire program by simply identifying

specific allegedly-improper final agency actions within the program’”), quoting Sierra Club v.

Peterson, 228 F.3d 559, 567 (5th Cir. 2000).

14 This conclusion comports with the requirement under the APA that parties exhaust their
administrative remedies before seeking judicial review. The Service’s permitting decisions are
made on a case-by-case basis, see 50 C.F.R. § 17.22, and so they are adjudications that require
exhaustion. Marcum v. Salazar, 694 F.3d 123, 129 (D.C. Cir. 2012) (holding that the Service’s
decision to deny import permits for trophies from elephant hunted in Zambia was not ripe because
the applicants had not exhausted their administrative remedies); see also Franks v. Salazar, 816 F.
Supp. 2d 49, 59 (D.D.C. 2011).

26
 CONCLUSION

For the reasons stated above, the Court holds that plaintiffs do not have standing and that

Count III fails to state a claim. Accordingly, the Court will grant federal defendants’ and

intervenor defendants’ motions to dismiss. A separate order will issue.

AMY BERMAN JACKSON
United States District Judge

Date: March 24, 2016

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