Friends of Animals v. Zinke

UNITED STATES I)ISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) FRIENDS OF ANIMALS, ) ' et al., ) ) Plaintiffs, ) ) v. ) Case No. 17-cv-2530-RCL ) RYAN ZINKE, in his official capacity as ) Secretary of the United States Departnient of ) lnterior, et al., ) ) Defendants, ) ) and ) ) SAFARI CLUB INTERNATIONAL, et al., ) ) Defendant~lntervenors ) ) MEMORANDUM OPINION in Fall 2017, the U.S Fish and Wildlife Service (the “Service”) issued a new finding with respect to African elephants in Zirnbabwe, detennining that the permitted hunting of these elephants Will enhance the survival of the species, and thus paving the Way for the impoltation of sport-hunted elephant trophies into the United States. After the D,C. Circnit struck down two earlier country~Wide enhancement findings since the Service did not subject them to the public notice and comment required by the Adlninistrative Procedure Act (“APA”), see Safari Club [nt’l' v. Zr'nke, 878 F.3d 316, 331~»35 (D.C. Cir. 201'7) (“Safari Club H”), the Seivice withdrew a slew of other findings not subject to notice and connnent, including the 2017 Zimbabwe elephant findings Moving forward, the Sewice announced that it would no longer make these findings on a conntry-Wide basis, instead choosing to make its findings on a case-by-case basis upon application to import a sport-limited trophy. Two organizations Friends of Aninials (“FoA"’) and the Zinibabwe Conseivation Task Force (“ZCTF"’)_bring a five-count complaint challenging the actions of the government Second Ani. Coinpl., ECF No. 35. Upon inotion, Safai'i Ciub Interiiationai and the Nationai Rifle Association of Ainerica were permitted to intervene as defendants (tlie “intervenor-defendants"'). Order, ECF No. 26. ln claims one and two, plaintiffs challenge the now-withdrawn 2017 Ziinbabwe elephant findings Second Ain. Compl. W 132-147. lii their third cause of action, plaintiffs allege that the Sei"vice violated the APA by withdrawing the various enhancement and noii~deti'iment findings without soliciting public notice and comment Id. 111 148-54. In claiin fonr, plaintiffs argue that the Sei'vice violated the APA by withdrawing prior negative enhancement findings without following an alleged publication requirement Id. M 155-60. And in piaintiffs’ fifth cause of actionJ plaintiffs argue that the Service exceeded its statutory authority by creating a policy whereby enhancement findings would be made on a case-by-case basis. Id. ‘[H[ 161-65. Now, both the government and the inteivenor-defendants move to dismiss the complaint in its entirety. See Federal Defs." l\/lot. Dismiss, ECF No. 38', Inteiyenor-Defendants’ Mot. Disiniss, ECF No. 39. For the reasons set foitli herein, those motions will be GRANTED. I. BACKGROUND A. The Convention on International Trade in Endangered Species of Wild Fauna and Ffora and the Endangered S{)ecies Act Iinpoitation into the United States of threatened species such as African elepliaiits is governed by international convention and U.S. law. The Convention on international Trade in Endangered Species of Wiid Fauna and Floi'a (“CITES”), Mar. 3, 19737 27 U.S.T. iOS’/’, is a niuitiiateral treaty to which both the United States l\.) and Ziinbabwe are parties. See 16 U.S.C. § l538(c)(l) (incorporating CITES into U.S. domestic law through the Endangered Species Act). CITES regulates the international trade of protected plants and wildlife by estabiishing requirements for importing and exporting covered species categorized into three appendices based on the level of protection each requires See id. §§ 153 7a- 1539. Signatories to CITES, including the United States and Zinibabwe, agree that they “shail not allow trade in specimens of species included in Appendices l, ll and lll except in accordance with the provisions of’ the treaty. CITES, art. il.d. Elephants in Zimbabwe were listed on Appendix l until 1997 and now are listed on Appendix ll. Changes in List of Species in Appendices to the {CITES], 62 Fed. Reg. 44,627, 44,628-29 (Aug. 22, 1997). While Appendix l lists species “threatened with extinction which are or may be affected by trade,” ClTES, ait. ll(l), Appendix ll includes species that are not necessarily currently threatened but that may become threatened with extinction unless trade of specimens of such species is regulated Id. art. il(2). Under CITES, a species listed on Appendix il may be traded if the expoiting countries issue expoit permits Id. art. lV. ln issuing perinits, the exporting country must make certain findings, including that the specimen was legally acquired, and that trade of the specimen will not be detrimental to the survival of the species (a non~detriinent finding). Id. art. lV.2(a)-(b). “lt is undisputed that the proscriptions in [CITES] are a floor, not a ceiling, for protection oprpendix ll species.” Scifm'i Clirb H, 878 F.3d at 321 (D.C. Cir. 2017). lii fact, the treaty makes clear that it “in no way affect[s] the right of Pai'ties to adopt . . . stricter domestic measures regarding the conditions for trade, taking possession or transpoit of specimens of species included in Appendices l, ll, and ll, or the complete prohibition tliei'eof.” ClTES, art. XlV(l). To that end, Congress passed the Endangered Species Act (“ESA”) to provide for the conservation of “endangered"" and “tlireatened"' species 16 U.S.C. § 1531(b). Described as “tlie most comprehensive legislation for the presentation of endangered species ever enacted by any nation,"’ Tennessee Valley Airf'hori'ty v. Hi'l[, 437 U.S. 153, 180 (1978), the ESA not only implements Cl'l`ES into U.S law but also provides federal protection to species listed as endangered or threatened pursuant to its provisions See 16 U.S.C. §§ 1533(d), l538(a). Fui'therinore, the listing of a species as endangered or threatened does not depend on whether or how it is categorized under ClTES. See fd. § 1533(a)(1)(A). While the ESA generally forbids the importation of endangered species into the United States, id. § 1538(a)(i)(A); 50 C.F`R. § l7.21(b)5 the Act empowers the Seivice to issue regulations pertaining to threatened species “deem[ed] necessary and advisable to provide for the conservation of such species."’ 16 U.S.C. § 1533(d). 'i`he Service “inay by regulation prohibit with respect to any threatened species [ofwildlif`e] any act prohibited under 16 U.S.C. § 1538(a)(1)."" Id. Pursuant to this authority, the Seivice has issued a regulation that extends the ESA’s prohibitions on endangered species to all threatened species unless the Sei"vice has issued a special rule to govern a particular speciesl 50 C.F.R. §§ 17.31(a), (c); see also Sweef Home Chaprer of leys. for a Great Or. v. Babbi`n‘, 1 F.3d t, 5 (D.C. Cir. 1993). B. Factual and Procedural Background Since the African elephant (Loxodonta Afi‘i'cclna) has been listed as a threatened species under the ESA, 50 C.F.R. § 17.1l(h), it has been the subject of a special species-specific rule for importatioii. See id. § 17.40(e) (current rule). ln 1997, the ruie provided for a limited exception for the importation of African elephant ti'ophies into the United States from Zimbabwe and other countries, provided five conditions were met, including that “a determination [was] made that the killing of the animal whose trophy is 4 intended for import would enhance suivival of the species."' 50 C.F.R. § 17.40(e) (1992) (the “1997 Special Rule”). Under this rule, the Seivice made positive enhancement findings in l997 for importation of sport~hunted elephant trophies on a country-wide basis for Botswana, Naniibia, and Ziinbabwe. Secoiid Am. Compl. 11 74, ECF No. 35. That same year, in the proposed rule announcing the transfer of African elepliaiits from CITES Appendix l to Appendix ll, the agency wrote the following about enhancement findings: Tlie Seivice will make such findings on a periodic basis upon receipt of new information on the species' population or management The enhancement findings for inipoitation of sport-limited elephant trophies from Botswana, Namibia, and Zirnbabwe are on file in the Of`fice of i\/lanageinent Autliority and remain in effect until the Seivice finds, based on new information, that the conditions of the special rule are no longer met and has pubiished a notice of any change in the Federal Register. 62 Fed. Reg. 44,627-01, 44,633 (the “1997 Pi'oposed Rule”). The 1997 finding that the killing of African elephants in Zimbabwe whose trophies were intended for import would enhance survival of the species remained in effect until 2014. Second Am. Compi. il 83. ln Aprii of that year, the Service announced an interim suspension of the importation of elephant trophies from Z_imbabwe, citing insufficient information to make a positive enhancement finding See 79 lied Reg. 26,986-01. Notice of that decision was not published in the Federal Register until May 12, 2014. Id. Because the 1997 Proposed Ruie required the publication of` notice, this Court held that the suspension did not actually go into effect until l\/lay 12, 2014. Safari` Club v. Jewell, 213 F. Supp. 3d 48, 73 (D.D.C. 2016) (Safari' Club l). Tliat holding was not appealed ln July 2014, the Service made a final determination that the import of sport-hunted African elephant trophies taken in Zimbabwe would be suspended, as the Service was “unable to determine that the killing of the animal . . . Would enhance the survival of the species in the wild.” 79 lied Reg. 44459-01. ln 2015, the Service reaffirmed this decision, continuing its effect indefinitely 80 Fed. Reg. 42524-03. Tlie 2014 and 2015 findings were all made under the 1997 Special Rule. Second Ani. Conipl. 11 73. In 2016, the 1997 Special Rule for the importation of sport-limited Afi‘ican elephant trophies was amended to increase protections for elephants. 81 Fed. Reg. 36,388 (the “2016 Amendments”). The rule left in place the requirement “that the killing of the trophy animal will enhance the suivival of the species, ” while adding that the trophy must be “accoinpanied by a threatened species permit under 50 C.F.R. § 17.32.” 50 C.F.R. § 17.40(e)(6). i`he inteiveiioi‘~defeiidaiits challenged the 2014 and 2015 elephant findings in a case before this Court. Sq]fc:ri' Cli:b lirt’[ v. Jewell, Case No. 1:14~cv-670-RCL. Although this Court upheld the 2014 and 2015 elephant findings, see Squ'i Cli:b I, F. Supp. at 81 (D.D.C. 2016), the D.C. Circuit held that the findings were legislative rules that the Service failed to subject to public notice and comment under the APA. Safuri Club H, 878 F.3d at 333. lt therefore ordered this Couit to remand the case to the Service so that it could initiate proper rulemaking to address enhancement findings for the relevant time periods Id. at 336. Prior to the D.C. Circuit’s opinion, the Service issued the new enhancement finding at issue in this case. On November 16, 2017, the Service concluded that hunting elepliants in Zimbabwe enhances the survival of the species, opening the door for the importation of elephant trophies hunted in 2016, 20i7, and 2018. See 82 lied Reg. 54,405. Additionally, the Service stated that because the 2016 Ainendments require that “all imports will be accompanied by a threatened species permit evaluated through the ESA permit application process found at 50 C.F.R. § 17.32(a), lit would] no longer publish notice of changed enhancement findings for African elephant spoit-hunted trophies in the Federal Register.” Id. On November 22, 2017, plaintiffs filed this suit, asserting (1) that the Service failed to provide notice and the opportunity to comment before making the country-wide findings; and (2) that the Service failed to act iii accordance with the APA and the ESA . See generally Compl., ECF No. 1. .lust before the D.C. Cii'cuit‘s opinion in Sofor:' Cliib H, plaintiffs added a cause action challenging import permits granted under the 2017 findings See Arn. Compl., ECF No. 6. Then, the D.C. Circuit issued its opinion regarding the 2014 and 2015 elephant findings in Deceinber 2017. Safcrrr` Club H, 878 P.3d 316. ln response to that opinion, the Principal Deputy Director of the Service signed a memorandum on l\/larch 1, 2018, (the “Mai'ch Menio"’) announcing the withdrawal of the 2014 and 2015 Ziinbabwe elephant findings in response to the D.C. Circuit’s opinion in Scifcrri' Club H. Second Am. Compl. 11 123; lntei'venor-Defendants" Mot. Dismiss Ex. 1, ECF No. 42-1.l °‘Consistent with this approach,” the Service also withdrew the positive 2017 Zimbabwe elephant enhancement finding challenged in this case, along with various country-wide enhancement and non~detrinrent findings Intervenor-Defendants’ Mot. Disiniss Ex. 1; Second Ain. Coinpl. il 123. l\/loreover, the l\/larch l\/leino announced that “[a]t this time, when the Service processes [perinit application for the importation of sport-hunted trophies of these species], the Service intends to do so on an individual basis, including making ESA enhancement determinations, and ClTES non- ‘ The Court will consider the March Memo in conjunction with this motion. Defendants move to dismiss the case both for lack of jurisdiction under Rule 12(1))(1) and for failure to state a claim under Ruie 12(b)(6). Wlien considering a motion to dismiss for lack ot`jurisdiction, the court “is not limited .to the allegations of the complaint.” Hohri v. Um`tecr' Sm!es, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other groimds, 482 U.S. 64 (1987). Foi‘ 12(b)(6) motions, “where a document is referred to in the complaint and is central to plaintiffs claini, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.” Vai-ioiier v. Haiilmon, 77 F.Supp.Zd 91, 98 (D.D.C.1999) (citing Gi'eenbergv. Tlie Lr'fe Iiisiri'mice Compaiiy of Va., 177 F.3d 507, 514 (Gth Cir.1999)); see also Correc ]mhislri'es, I)1c. v. .S‘zuir Hol'di"ng L.P., 949 F.2d 42, 48 (2d Cii'.1991) (holding that district court may consider stock purchase agreement, offering memorandum, and warrant, on a motion to dismiss, even when these materials were not attached to complaint). l-lere, the March Memo is properly considered because it is central to the plaintiffs’ claims, and the complaint even quotes directly from it. Sec Second Am. Compl. ‘§ 127 detriment determinations when required for each application."' Intervenor-Defendants’ Mot. Dismiss Ex. l. In other words, the Service announced an intention “to grant or deny permits to import a sport-hunted trophy on a case-by-case basis."‘ ld. However, the l\)larch Merno makes clear that the Service intends to use the information cited in the 2017 Ziinbabwe lion and elephant findings and other withdrawn findings “as appropriate, in addition to the information it receives and has available when it receives each applicatioii, to evaluate individual permit applications.” ld.; Second Arn. Coinpl. ‘ll 127. ln response to the l\/lar'ch Memo, plaintiffs amended the complaint to remove the count related to individual permits and to add three new counts: (1) a claim challenging the Service’s failure to employ notice-and-comment rulemaking to withdraw all previous country-wide enhancement findings; (2) a claim that the Service failed to follow the 1997 Special Rule’s notice requirement before withdrawing the rules; and (3`) a claim that the Service violated the APA by changing to a case-by~case approach for making enhancement and non~detriment findings is in excess Of statutory authority and in violation of the APA. ld. jill 148-65. Both the government and the defendant-inteivenors move to dismiss the Second Amended Complaint in its entirety, challenging some claims under Rule 12(b)(1), some claims under 12(b)(6), and some claims under both. II. LEGAL STANDARD ln evaluating a motion to dismiss under either Rule 12(b)(l) or l?.(b)(6), the Cour't must “treat the cornplaint's factual allegations as true . . . and must grant plaintiff ‘thebenefit of all inferences that can be derived from the facts alleged.”’ Sporrow v. Um'led Ai`r Li`iies, liic., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schirler v. Ui'n'ted States, 617 F.2d 605, 608 (D.C. Cir. l979) (citations omitted)); see also Am_ Ncit'l lus. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). Nevertheless, the Couit need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiffs legal Conclusions. Bi‘oi-vm`ug v. Cli`mou, 292 F.3d 23 5, 242 (D.C. Cir. 2002). A. Subject Matter Jurisdiction Under Rule l2(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence See Lujmi v. Defenders of Wifdlr'fe, 504 U.S. 555, 561 (1992); Shekoycni v. Sfbley 111!'1 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 jui‘isdiction."' Kokkonen v. Gzrardr`au Lr`fe IH'S_. CO. of/_tm., 511 U.S. 375, 377 (1994); See also Ger.'. M'ofors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court of limited jurisdiction, we begin, and end7 with an examination of our jurisdiction.”). “fB]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.”’ Aki`nseye v. Di.'strr`ct ofColum.bia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting II?S. Col‘p. of[r'., Ll'a'. v. Compagm`e des chxites de Guiiiee, 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.” Ho)'irr', 782 F.2d at 241. Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [ofj whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. ofElecIious & Erhi`cs, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herberl v. Naz"l Acad. ofSci'S., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens Pharm., ]nc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). B. Failure to State a Claim “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint nrust contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”" As!icrofi v. Iql)ul, 556 U.S. 662, 678 (2009) (quoting Bell/_[Il. Coiy). v. Twombly, 550 U.S. 544, 570 (2007)). 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.” Ia'. at 678. r“l`he 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 566). A pleading must offer more than ""labels and conclusions”’ or a “‘formulaic recitation of the elements of a cause of action,”’ id. (quoting Twombly, 550 U.S. at 5 55), and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."’ Id. When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in the plaintiffs favor, and the Court should grant the plaintiff "'tl're benefit of all inferences that can be derived from the facts alleged.” Kowal v. AJCI Commc'ns Corp., l6 F.3d 1271, 1276 (D.C. Cir. 1994). 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 See id.; see also Br'Ou»'ni!'.rg v. Cf:`nlon, 292 F.3d 235, 242 (D.C. Cir. 2002). C. APA Notice-and-Comment Rule Making Under the APA, when an agency proposes to promulgate a rule, it must follow the procedures set out in 5 U.S.C. § 553. Among other tlrings, the statute requires the agency to publish a notice “of proposed rule making” in the Federal Register. fd. § 553(b). Then, it must “give interested persons an opportunity to participate in the rule making through submission” of cornments, which the agency must consider. [d. § 553(d). 10 III. ANALYSIS A. Plaintiffs’ challenges to the 2017 finding are moot. ln their first two causes of actiori, plaintiffs specifically challenge the 2017 elephant tinding, claiming it was issued arbitrarily and capriciously or otherwise not in accordance with law because: (1) the Service failed to solicit public notice and cominent; (2) the Service failed to provide a reasoned explanation for altering the status of elephants in Zinibabwe set forth in the 2014 and 2015 findings; and (3) the Service failed to adequately consider relevant criteria set forth in the ESA. Second Am. Compl. M 132-147. Plaintiffs ask this Couit to declare that the 2017 finding violates the APA and the ESA, to set aside the 2017 enhancement finding, and to enjoin the Service from issuing any permits pursuant to that findings ]d. at 28_29. But the positive 2017 finding was withdrawn by the March l\/leino. Under Aiticle lil, the “judicial power” extends only to “Cases’° and “Conti'oversies.” U.S. Const. art. lll, s 2. “'l`o qualify as a case tit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonoiisfor Ojj?ci'ol Engli`sh v. Ari`zouo, 520 U.S. 43, 67 (l997) (citations and internal quotation marks omitted). And “no justiciable controversy is presented . . . when the parties are asking for an advisory opinion, [or] when the question sought to be adjudicated has been mooted by subsequent developinents."" F)'crst v_ Co/ien, 392 U.S. 83, 95 (1968). A “case is moot when the issues presented are no loirger ‘1ive’ or the parties lack a legally cognizable interest in the outcorne.” Powell v. McCornmck, 395 U.S. 486, 496 (1969). “Corrective action by an agency is one type of subsequent development that can moot a previously justiciable issue.” Nat. Res. Def. Counci`l, Im:. v. U.S. Nucleur Regi:laroiy Comm ’n, 680 F.2d 810, 814 (D.C. Cir. 1982). 11 Here, the challenged findings are no longer in effect 'l`lie Court, therefore, can provide the plaintiffs with no meaningful relief. The fact that they seek declaratory reliefmin addition to injunctive relief_does not change the analysis “_The Article lIl case or controversy requirement is as applicable to declaratory judgments as it is to other forms of relief."’ Conyers v. Reogan, 765 F.2d ll24, 1127 (D.C. Cir. 1985). The Court cannot set aside findings that have already been withdrawn And to declare that the withdrawn findings violate the APA or ESA for the purpose of instructing the Service how to approach future findings amounts to an advisory opinioir. Federal courts “are riot `iri the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.” Spencer v. Kcriino, 523 U.S. 1, 18 (1998). Plaintiffs argue that claims one and two fall under the capable-of-repetition-yet-evading- review exception to the mootness doctrine. A case is capable of repetition and yet evades review when “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action."’ Clarke v. United Smres, 915 F.2d 699, 704 (D.C. Cir. 1990). Plaintiffs argue that this exception applies to our case because the Service stated it will use the information from the withdrawn findings as appropriate to evaluate individual permit applications Pls.’ Opp. l\/lot. Dismiss 18, ECF No. 47. Tlre Court is not persuaded Whether or not the Service relies on the same information to make its individual enhancement determinations does not give the withdrawn country-wide findings any operational effect in and of themselves lnstead, the proper vehicle to challenge the Service’s methods in coming to an enhancement finding is to challenge the new enhancement determinations themselves_findings that affect the ability to import a sport-hunted trophy. ln other words, these new enhancement findings do not create a live controversy over the withdrawn ones_ Furthermore, plaintiffs do not-and could not~»-»argue that were the Service to issue a counti 7-wide enhancement finding like the one challenged in this case that it would evade review. After all, the D.C. Circuit effectively reviewed the 20l4 and 2015 enhancement findings in Safc.'ri` Clz:b H. And plaintiffs cannot keep their claims alive on the basis that future litigation challenging the issuance of specific imports permit might evade review. If the concern is that those individual adjudication decisions are too short in duration to be fully litigated, the capable-of-repetitioii-yet- evading~review exception can be applied in that context. 'l`he voluntary cessation doctrine is equally inapplicable The idea behind the exception is that a “defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Fri'ends ofEm‘Ih v. Lar'dlm»v, 528 U.S. 167, 189 (2000) (internal citations omitted). Here, the 2017 finding suffered from the same procedural deficiencies as the 2014 and 2015 findings from Sufm'i' Clal') H: 'l`he Service failed to employ notice-and-comment rulemaking in enacting what amounted to a legislative rule. See Sqfari Club H, 878 F.3d at 333. So, the withdrawal of the 2017 finding was not a voluntary cessation but rather a corrective action by the Service. And “[c]orrective action by an agency is one type of subsequent development that can moot a previously justiciable issue.” Nor. Res. Def Coimci`l, 680 F.2d at 814. This is “more accurately characterized as the provision of appropriate relief to petitioner than as the ‘cessation of illegal conduct.”’ Id. at 814 n.8. Because claims one and two challenge the withdrawn 2017 country-wide elephant finding, there is no live controversy Moreover, rio mootness exception applies The Court lacks jurisdiction to hear these claims, and they must be DISMISSED_ 13 B. Plaintiffs’ challenge to the March Memo’s rescission of prior enhancement and non-detriment findings must be dismissed either for lack of standing or because of collateral estoppel. Iii its third cause of action, plaintiffs allege the Service violated the APA by rescinding prior enhancement and non-detriirient findings in the March Menio without public notice and comment Secoiid Am. Coiiipl. 1111 148-54. This claim greatly broadened the scope of this action: plaintiffs challenge not only the rescission of prior Zimbabwe elephant findings but rather the withdrawal of “all previous countrywide enhancement findings” in the l\/larch 1\/lemo.2 See id. il 149; Pls.’ Opp. Mot. Dismiss 41. These included findings from rirany countries involving lions and hontebok in addition to elephants. Federal Defendants’ l\/lot. Disniiss l5-~l6. Tliey included both positive enhancement findings (such as the 2017 Zirnbabwe findings), paving the way for the importation of sport-hunted elephant trophies, and negative enhancement findings (such as the 2015 Zimbabwe elephant findings), prohibiting the importation of such trophies Second Am. Compl. 11 l23; lnterveiior-Defendants’ Mot. Dismiss EX. 1. For the reasons stated below, plaintiffs lack standing to maintain a challenge to the rescission of any positive enhancement findings or any non-elephant or non-Zimbabwe findings And although plaintiffs may sufficiently allege facts supporting standing to challenge the withdrawal of some of the negative findings prohibiting trophy imports plaintiffs are collaterally estopped from bringing those claims So, plaintiffs’ third cause of action will be DISMISSED. 2 In addition to the 2017 elephant findings the March Memo withdrew the following enhancement findings 1997, 2014, and 2015 findings for elephants in Zinibabwe; l997, 2014, and 2015 findings for elephants in Tanzania; a 1995 finding for elephants in South Africa; a 1997 finding for bontebok taken in South Africa; 2016 and 2017 findings for lions in Soutii Africa; a 1997 finding for elephants in Botswana; a 1995 finding for elephants in Namibia; a 2012 finding for elephants in Zambia; a 2017 finding for lions in Zambia; and the 2017 finding for elephants in Zambia. lntervenor-Defendants’ Mot. Dismiss Ex. l, ECF No. 42»1. Additionally, the Service withdrew the following CITES non-detriment findings: 2014, 20l5, and 2017 finding for elephants in Tanzania; and 2017 finding for elephants in Zambia. ]d 14 i. Plainiijjfs lack slanding fo challenge the withdrawal of positive enhancement findings or any non-elephant ar non-Zinibabwe negative findings ln order to bring suit, litigants must establish Article lll standing Cn'. for Law & Ea'ae. v. Dep ’1‘ ofEdac_, 396 F.Bd 1152, 1156_57 (D.C. Cir. 2005). Standing consists of three eleinents: (l) the plaintiff must have suffered injury in fact, an actual or imminent invasion of a legally protected, concrete and paiticularized interest; (2) there must be a causal connection between the alleged injury and the defendants conduct at issue', and (3) it must be “1il