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 ln claims one and two, plaintiffs challenge the now-withdrawn 2017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. Ԥ 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