Dallas Safari Club v. Bernhardt

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DALLAS SAFARI CLUB, et al., )
)
Plaintiffs, )
)
v. ) Case No. 19-cv-03696 (APM)
)
DAVID BERNHARDT, et al., )
)
Defendants. )
_________________________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiffs in this case are the Dallas Safari Club, the Namibian Ministry of the Environment

and Tourism, the Namibian Association of Community Based Natural Resource Management

Support Organizations, and a group of individual elephant sport hunters seeking to import their

sport-hunted elephant trophies into the United States (together, “Plaintiffs”). They bring this

lawsuit to challenge Defendant United States Fish and Wildlife Service’s failure to act on pending

elephant trophy import permit applications. Now before this court is Plaintiffs’ Motion for a

Preliminary Injunction, in which Plaintiffs ask the court to require the Service to process pending

and subsequently filed permit applications. See Pls.’ Mot. for Prelim. Inj., ECF No. 11. Because

Plaintiffs have failed to show that Defendant’s inaction has irreparably harmed the organizational

Plaintiffs, their members, or the individual hunter Plaintiffs, the court denies the motion for a

preliminary injunction.
 I.

A. Statutory and Regulatory Background

Two legal regimes govern the importation of sport-hunted African elephant trophies: the

Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq., and the Convention on International

Trade in Endangered Species of Wild Fauna and Flora (“CITES”), Mar. 3, 1973, 27 U.S.T. 1087,

T.I.A.S. No. 8249. CITES is a multilateral treaty that aims to protect wildlife that is vulnerable to

or adversely affected by commercial or non-commercial trade, which Congress has implemented

into domestic law through the ESA. 16 U.S.C. §§ 1537a, 1538(c).

The ESA prohibits, among other things, importing into the United States species of fish

and wildlife listed as endangered. Id. § 1538(a)(1). The ESA also authorizes the United States

Fish and Wildlife Service (“Service”) to extend those prohibitions to species of fish or wildlife

listed as threatened through species-specific rulemaking. See id. § 1533(d); 50 C.F.R. § 17.31(c).

The Service has established a permitting process to grant exceptions to some protections for

threatened species. See 50 C.F.R. § 17.32.

The African elephant is listed as a threatened species under the ESA, see 43 Fed. Reg.

20,499 (May 12, 1978); 50 C.F.R. § 17.11(h), and the Service has promulgated a species-specific

rule extending certain protections to the African elephant, 50 C.F.R. § 17.40(e). Notwithstanding

these protections, the Service permits a sport-hunted African elephant trophy to be imported into

the United States if various conditions are satisfied. 81 Fed. Reg. 36,388 (June 6, 2016); 50 C.F.R.

§ 17.40(e). One of these conditions is that the Service has determined “that the killing of the trophy

animal will enhance the survival of the species”—this is known as an “enhancement finding”—

and issued a threatened species permit under 50 C.F.R. § 17.32(a). 50 C.F.R. § 17.40(e)(6)(i)(B).

This enhancement finding is made by the Branch of Permits within the Division of Management

2
Authority, which is part of the Service’s International Affairs Program. Federal Def.’s Resp. to

Pls.’ Mot. for Preliminary Inj., ECF No. 16 [hereinafter Def.’s Opp’n], Ex. A, ECF No. 16-1

[hereinafter Alvarez Decl.], ¶ 7.

The ESA also prohibits any trade in animal specimens that violates CITES, a multilateral

treaty—of which the United States is a signatory—that regulates international trade of various

species through a system of permits and certificates. 16 U.S.C. § 1538(c)(1); CITES, Art II. The

African elephant is included among the species whose trade is regulated by CITES. Though the

process differs slightly depending upon the country of origin, generally speaking, African elephant

specimens may be shipped internationally under CITES so long as the exporting country issues a

permit and the permit accompanies the specimen and is presented for validation at the time of

trade. CITES, Art. IV, ¶¶ 2, 4. In some instances, an import permit is also required. The import

permit requires the importing country to find that trade in the specimen will be for purposes which

are not detrimental to the survival of the species involved (“non-detriment finding”), Art. III, ¶

3(a), and that the specimen is not to be used for primarily commercial purposes, Art. III, ¶ 3(c);

see also 50 C.F.R. § 23.61 (listing factors to be considered in issuing a non-detriment finding); id.

§ 23.62 (listing factors to be considered in making a finding of not for primarily commercial

purposes). The Branch of Permits within the Service is responsible for making the required

findings and issuing or denying the CITES import permit. Alvarez Decl. ¶ 11.

B. Factual Background

To recap, all African elephant trophy imports require the Service to make an enhancement

finding and issue an ESA permit. In addition, certain African elephant trophy imports also require

a non-detriment finding and CITES import permit. Historically, the Service made periodic

countrywide enhancement findings and non-detriment findings, as appropriate, which applied to

3
all sport-hunted elephant trophies taken in the particular country during specific time periods.

See Alvarez Decl. ¶ 16.

Such periodic determinations came to a halt, however, according to Plaintiffs, due to a

“Presidential tweet[].” Pls.’ Mem. of P. & A in Support of Mot. for Prelim. Inj., ECF No. 11-1

[hereinafter Pls.’ Mot.], at 5. The tweet at issue was preceded by the Service’s decision to lift the

suspension on Zimbabwe’s ESA enhancement finding, which had been imposed in 2014.

Pls.’ Mot. at 10–11, 14. In a Federal Register Notice dated November 17, 2017, the Service

announced the enhancement finding as to Zimbabwe for elephants taken on or after January 21,

2016; indicated it would make a new enhancement finding at the start of 2019 for, at least, the

2019 hunting season; and stated that it would review import applications “on a case-by-case basis.”

82 Fed. Reg. 54,405, 54,405–08 (Nov. 17, 2017). According to Plaintiffs, “[t]he decision to lift

the suspension on elephant imports gathered spontaneous criticism in the media.” Pls.’ Mot. at 15.

The media storm prompted President Trump to tweet on the same day, November 17, 2017:

“Put big game trophy decision on hold until such time as I review all conservation facts. Under

study for years. Will update soon with Secretary Zinke. Thank You!” Donald J. Trump

(@realDonaldTrump), Twitter (Nov. 17, 2017). 1 Two days later, President Trump again tweeted:

“Big-game trophy hunting decision will be announced next week but will be very hard pressed to

change my mind that this horror show in any way helps conservation of Elephants or any other

animal.” Donald J. Trump (@realDonaldTrump), Twitter (Nov. 19, 2017). 2 As a result of the

President’s proclamations, Plaintiffs contend, “[n]o elephant import permit from any country has

been processed, issued or renewed since that first tweet on November 17, 2017.” Pls.’ Mot. at 16.

1
Available at https://twitter.com/realdonaldtrump/status/932397369655808001.
2
Available at https://twitter.com/realdonaldtrump/status/932397369655808001.

4
 Meanwhile, the Service’s prior negative enhancement findings for Zimbabwe in 2014 and

2015 were under attack in litigation. In 2016, a district court rejected the argument that those

findings were invalid because they were adopted without notice and comment. See Safari Club

Int’l v. Jewell, 213 F. Supp. 3d 48, 62 (D.D.C. 2016). But in December 2017, the D.C. Circuit

reversed, finding that the countrywide enhancement findings at issue constituted rules under the

Administrative Procedure Act (“APA”) and thus were subject to the requirement of notice and

comment. See Safari Club Int’l v. Zinke, 878 F.3d 316, 332–36 (D.C. Cir. 2017). The court

“remand[ed] the case to the Service so that it [could] initiate rule making to address enhancement

findings for the time periods at issue.” Id. at 336. In response to that ruling, the Service issued a

memorandum announcing withdrawals of various countrywide findings and explaining that “[a]t

this time . . . [the Service] intends to grant or deny permits to import a sport-hunted trophy on a

case-by-case basis.” Def.’s Opp’n at 7–8 (quoting Def.’s Opp’n, Ex. B, ECF No. 16-2, at 2–3).

The Service concedes that, since issuing this memorandum, it has “worked on reviewing [trophy

permit] applications, but has not issued any final determination on these pending applications.”

Id. at 8.

C. Procedural History

Plaintiffs filed this suit on December 11, 2019. Compl., ECF No. 1. Two months later,

Plaintiffs moved for preliminary injunctive relief. See Pls.’ Mot. for Prelim. Inj., ECF No. 11.

Specifically, they ask this court to “issue an injunction requiring [Defendant] to expeditiously and

in no event later than 90 days process all pending applications for elephant import permits and

subsequently received applications.” Pls.’ Mot. at 43. For the reasons that follow, the court denies

Plaintiffs’ motion.

5
 II.

Preliminary injunctive relief is an “extraordinary and drastic remedy” that is “never

awarded as [a matter] of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citations and

internal quotation marks omitted). A court may only grant the “extraordinary remedy . . . upon a

clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). The

movant’s burden is still higher where, as here, the movant’s requested “injunction is mandatory—

that is, [ ] its terms would alter, rather than preserve, the status quo by commanding some positive

act.” Singh v. Carter, 185 F. Supp. 3d 11, 17 (D.D.C. 2016) (quoting Electr. Privacy Info. Ctr. v.

Dep’t of Justice, 15 F. Supp. 3d 32, 39 (D.D.C. 2014)). Courts in this Circuit have required the

party seeking such a mandatory injunction to “meet a higher standard than in the ordinary case by

showing clearly that he or she is entitled to relief or that extreme or very serious damage will result

from the denial of the injunction.” Id. (quoting Electr. Privacy Info. Ctr., 15 F. Supp. 3d at 39).

Specifically, a plaintiff must show that: (1) it “is likely to succeed on the merits”; (2) it “is

likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities

tips in [its] favor”; and (4) “an injunction is in the public interest.” Winter, 555 U.S. at 20 (citations

omitted). In this jurisdiction, courts evaluate the four preliminary injunction factors on a “sliding

scale”—if a “movant makes an unusually strong showing on one of the factors, then it does not

necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar.

Corp, 571 F.3d 1288, 1291–92 (D.C. Cir. 2009). Winter, however, called that approach into

question and sparked disagreement over whether the “sliding scale” framework continues to apply,

or whether a movant must make a positive showing on all four factors without discounting the

importance of a factor simply because one or more other factors have been convincingly

6
established. See Archdiocese of Washington v. Washington Metro. Area Transit Auth., 897 F.3d

314, 334 (D.C. Cir. 2018) (explaining that the D.C. Circuit “has not yet decided whether Winter .

. . is properly read to suggest a ‘sliding scale’ approach to weighing the four factors be

abandoned”).

Regardless of whether the sliding scale framework applies, a movant must at minimum

demonstrate irreparable harm, which has “always” been “[t]he basis of injunctive relief in the federal

courts.” Sampson v. Murray, 415 U.S. 61, 88 (1974) (quoting Beacon Theatres, Inc. v. Westover,

359 U.S. 500, 506–07 (1959)); see also Younger v. Harris, 401 U.S. 37, 46 (1971) (noting that

irreparable injury is “the traditional prerequisite to obtaining an injunction”). “A movant’s failure

to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even

if the other three factors entering the calculus merit such relief.” Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). Indeed, if a court concludes that a movant

has not demonstrated irreparable harm, it need not even consider the remaining factors. See CityFed

Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

A number of principles apply when evaluating whether an alleged harm is “irreparable.”

First, “the injury must be both certain and great; it must be actual and not theoretical.” Wis. Gas

Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). The party seeking relief must show that the

complained-of injury is so imminent that there is a clear and present need for equitable relief. Id.

Second, the movant must “substantiate the claim that irreparable injury is ‘likely’ to occur.” Id.

(citation omitted). That means a party cannot rely on bare allegations of harm, but instead must

come forward with “proof that the harm has occurred in the past and is likely to occur again, or

proof indicating that the harm is certain to occur in the near future.” Id. Third, the moving party

7
must establish causation. That is, it “must show that the alleged harm will directly result from the

action which the movant seeks to enjoin.” Id.

III.

The court finds that injunctive relief is not warranted because Plaintiffs have failed to show

irreparable harm as to any Plaintiff. Accordingly, the court need not consider any of the other

preliminary injunction factors. See CityFed Fin. Corp., 58 F.3d at 747; Sataki v. Broad. Bd. of

Governors, 733 F. Supp. 2d 22, 48 (D.D.C. 2010).

A. The Individual Plaintiffs’ Claims

In support of their motion for a preliminary injunction, Plaintiffs provide declarations from

sport hunters and individual Plaintiffs Larry Atlas Cheek, Joe Lane Easter, Daniel Crippen, and

David Crippen. See Pls.’ Mot., Ex. 2, ECF No. 11-3 [hereinafter Hunters’ Decl.]. They also

submitted the declaration of Donald Troy Moritz, who is not a named Plaintiff but a member of

organizational Plaintiff Dallas Safari Club. See Pls.’ Mot., Ex. 10, ECF No. 11-11 [hereinafter

Moritz Decl.]. Plaintiffs argue that each of the individual hunters is “being denied the trophies

from their hunts, resulting in both emotional and monetary injury.” Pls.’ Mot. at 28. None,

however, makes out irreparable harm.

As an initial matter, both Cheek and Moritz lack standing to challenge the Service’s

inaction, as neither has a pending import permit application. See Summers v. Earth Island Inst.,

555 U.S. 488, 493 (2009) (explaining that a plaintiff “bears the burden of showing that he has

standing for each type of relief sought”); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 907 n.8

(1990) (Blackmun, J., dissenting) (noting that, when seeking a preliminary injunction, the

movant’s burden to demonstrate standing “will normally be no less than that required on a motion

for summary judgment” (internal quotation marks and citation omitted)). While Cheek submitted

8
a trophy import permit application in April 2017, the Service denied his application in July 2017,

see Def.’s Opp’n, Ex. C, ECF No. 16-3, at 24–25, and he does not appear to have submitted

another. Similarly, according to agency records, Moritz does not have a pending application.

Def.’s Opp’n at 15 n.6. Plaintiffs do not contest these fact assertions, see generally Pls.’ Mem. of

P. & A. in Reply to the Government’s Resp. to Mot. for Prelim. Inj., ECF No. 17, so the court

accepts them as true. As neither Cheek nor Moritz has a pending application or represents that he

will submit a new application, the relief each seeks would not remedy any actual injury either is

suffering. Accordingly, they both lack standing to bring a claim against Defendant.

1. The hunter Plaintiffs’ emotional harm

The remaining hunter Plaintiffs—Joe Lane Easter, Daniel Crippen, and David Crippen—do

have pending applications, and so the court turns to their claimed injuries. Each Plaintiff states

that the Service’s failure to process his application has caused him “great anguish,” because each

has been unable to “bring back the trophy from [his] hunt and . . . [the Service] can give [him] no

information as to when, if ever, [his] import permit application will be processed.” Hunters’ Decl.

at 2–5. But the hunters’ claimed emotional injuries, as presented, do not rise to the level of

irreparable harm. Plaintiffs’ statements are contained in identically worded, four-paragraph

declarations, which provide no detail about how the stalled processing of their applications has

individually affected them. The boilerplate and conclusory quality of these declarations undercuts

their claims of “great” harm.

But even assuming “the sincerity of declarants’ disappointment,” “the inability to import

elephant trophies does not result in a ‘certain and great’ harm,” Safari Club Int’l v. Jewell, 47

F. Supp. 3d 29, 34 (D.D.C. 2014), much less an irreparable one, see League of Women Voters of

U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016). “Notwithstanding the ‘great emotional significance’

9
of an elephant trophy,” the Plaintiff hunters have already “engage[d] in the core recreational

activity of hunting.” Safari Club, 47 F. Supp. 3d at 35. They do not complain of any impairment

of activities resulting from the delay in processing their permit applications. Cf. Fund for Animals

v. Norton, 281 F. Supp. 2d 209, 213–14, 219–22 (D.D.C. 2003) (describing the irreparable

aesthetic harm that the organizational plaintiff would experience at the killing of 525 mute swans

because its members “regularly observe, photograph, and study mute swans”). Additionally,

Plaintiffs were on notice that their applications could take a significant amount of time to process.

The Service’s regulations state that “[t]he Service will process all applications as quickly as

possible,” but that “we cannot guarantee final action within the time limit you request.” 50 C.F.R.

§ 13.11(c). Plaintiffs’ disappointment in delayed processing, while understandable, is diminished

because delay was always a possibility. Finally, Plaintiffs’ emotional distress will be alleviated

when the Service issues a decision granting or denying their permit applications, and thus it cannot

be said that the harm they face is “irreparable.” Cf. League of Women Voters, 838 F.3d at 9 (finding

that organization’s mission was harmed because “after the registration deadlines for the November

election pass, there can be no do over and no redress” (internal quotations removed)).

At bottom, Plaintiffs’ distress is not the sort of extreme emotional distress that might warrant

the extraordinary relief of a preliminary injunction. Cf. Colo. Wild Horse v. Jewell, 130 F. Supp.

3d 205, 220 (D.D.C. 2015) (recognizing that emotional distress might rise to irreparable harm

where the claimed injury is observing the killing of a large number of animals).

2. The hunter Plaintiffs’ economic harm

The hunter Plaintiffs also claim economic harm, and here their argument is two-fold. First,

Plaintiffs allege that the hunter Plaintiffs have incurred expenses through their travels to Africa,

“obtaining the necessary permits to hunt an elephant, hiring guides, effecting the hunt and in

10
preserving his or her trophy.” Pls.’ Mot. at 28. These “injuries,” however, are costs that the

individual Plaintiffs sustained before any delay in receiving an import permit. Thus, these costs

cannot have been caused by any action or inaction on Defendant’s part.

Plaintiffs’ second economic harm argument is that the hunter Plaintiffs face the “additional

irreparable injury resulting from risk of loss due to theft . . . as well as the risk that ivory from

legally taken elephants may be diverted to the black market.” Id. at 29. They also cite the rising

cost of storing their trophies abroad. Id.

Here, too, Plaintiffs fall far short of the necessary showing of irreparable harm. None of the

hunter Plaintiffs claims to be actually paying additional costs for storing his trophy. Only Moritz

offered evidence of paying fees for the “monthly warehousing” of his trophies, see Moritz Decl.

at 7, but he has no pending application, so his costs cannot be attributed to the Service’s alleged

inaction. Plaintiffs also offer a declaration from Debbie Peake, the owner of a taxidermy shop in

Botswana, who asserts that her facility will soon have to charge clients for the storage of elephant

trophies because the delay in obtaining approval to ship the stored trophies increases the risk of

theft. See Pls. Mot., Ex. 4, ECF No. 11-4. But Plaintiffs offer no evidence that any hunter Plaintiff

or any member of an organizational Plaintiff stores his or her trophy with Peake’s company and

thus will face increased fees or the heightened risk of theft. Thus, Peake supplies no evidence to

establish irreparable harm as to these Plaintiffs.

But even assuming that record evidence supported Plaintiffs’ claims as to the storage fees

and the risk of theft, Plaintiffs’ argument would fare no better. Courts in this Circuit have

recognized that economic loss can constitute irreparable injury only in limited circumstances:

where “monetary loss . . . threatens the very existence of the movant’s business,” Wis. Gas Co.,

758 F.2d at 674, or where the claimed economic loss is unrecoverable, Nat’l Mining Ass’n v.

11
Jackson, 768 F. Supp. 2d 34, 53 (D.D.C. 2011). And, although Plaintiffs in this case claim their

losses would be unrecoverable because their claims arise under the APA, this fact “does not, in

and of itself, compel a finding of irreparable harm.” Id. Rather, the harm must be “more than

simply irretrievable; it must also be serious in terms of its effect on the plaintiff.” Mylan Pharms.,

Inc. v. Shalala, 81 F. Supp. 2d 30, 42 (D.D.C. 2000). The anticipated injury here—paying more

in fees—“do[es] not rise to the level of ‘irreparable’ harm necessary to warrant the extraordinary

remedy of a preliminary injunction.” Boivin v. U.S. Airways, Inc., 297 F. Supp. 2d 110, 118–19

(D.D.C. 2003) (finding that the forced sale of a house, boat, or stock does not amount to irreparable

harm). Nor are Plaintiffs’ allegations as to the risk of theft enough absent corroborating evidence,

since “[b]are allegations of what is likely to occur are of no value.” Wis. Gas Co., 758 F.2d at 674.

The speculative threat of theft is not of such imminence that there is a “a ‘clear and present’ need”

for equitable relief. Id.; see also Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d

108, 113 (D.D.C. 2015) (finding no irreparable harm where plaintiffs challenged a final rule that

would allow spouses of certain aliens to apply for employment authorization but failed to show

“with sufficient certainty” that the rule would result in increased job competition).

* * *

In sum, the court concludes that neither the individual hunter Plaintiffs’ alleged emotional

injuries nor their alleged economic injuries are sufficient to warrant the extraordinary relief of a

mandatory preliminary injunction.

B. Organizational Plaintiffs’ Claims

With respect to the organizational Plaintiffs— Dallas Safari Club (“DSC”), the Namibian

Ministry of the Environment and Tourism (“MET”), and the Namibian Association of Community

Based Natural Resource Management Support Organizations (“NASCO”)—Plaintiffs argue that

12
these organizations are suffering “irreparable harm derivatively.” Pls.’ Mot. at 29. The

organizational Plaintiffs’ primary contention is that the Service’s delay in processing permit

applications will decrease the popularity of sport hunting in Africa, resulting in a decrease in

funding for conservation efforts and ultimately a detrimental impact on “efforts to support the

recovery of African elephants and other endangered and threatened species in the elephant range

countries.” Id. at 29–42. Plaintiffs offer declarations from the heads of two of the three

organizational Plaintiffs, who testify that Defendant’s “hold on the processing of elephant import

permits causes irreparable injury . . . because it impedes the full recovery of the threatened African

elephant population,” Pls.’ Mot., Ex. 5, ECF 11-6 [hereinafter Mason Decl.], ¶ 4, and that

Defendant’s “failure . . . to grant elephant trophy import permits is undermining Namibia’s

conservation incentive mechanisms,” Pls.’ Mot., Ex. 7, ECF No. 11-8 [hereinafter Shifeta Decl.]

¶ 18. Based on these declarations, Plaintiffs maintain that they have shown irreparable harm.

The court is not persuaded. First of all, Plaintiffs again fall well short of supporting their

claims with proof. See Wis. Gas Co., 758 F.2d at 674 (“[M]ovant must provide proof that the harm

has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to

occur in the near future.” (emphasis added)). Plaintiffs assert, citing the declaration of Executive

Director Corey Mason, that Plaintiff DSC is injured by Defendant’s delay in processing the permit

applications because the “delay undoubtedly results in decreased membership to the organization.”

Pls.’ Mot. at 30. But Mason makes no representation at all about decreased membership. See

generally Mason Decl. Mason’s representation as to DSC members is that the Service’s delay in

processing permit applications “injures [DSC] members who have spent hundreds of thousands of

dollars in conducting hunts in Africa,” id. ¶ 2—again, an economic loss undertaken by DSC

members that is not caused by any action or inaction by Defendant.

13
 Likewise, with respect to MET and NASCO, Plaintiffs contend that “studies have shown

that most conservancies will shortly fail if elephant import permits are not processed,” Pls.’ Mot.

at 36, but they offer no evidence to support these representations. At the first step of their

speculative chain, Plaintiffs have provided no evidence that the suspension of elephant trophy

permits has decreased the popularity of sport hunting in these regions. At the second step,

Plaintiffs provide no evidence that any decrease in hunting has affected funding received by the

conservation groups. MET Minister Pohamba Shifeta avers that “[h]unting contributed

approximately 46% of the total cash income to conservancies in 2018,” Shifeta Decl. ¶ 7, yet

provides no comparable data from prior years by which this court could assess whether President

Trump’s 2017 tweet and the Service’s subsequent suspension of processing permit applications

has had a negative impact on cash income it received. And Plaintiffs provide no evidence at all

from NASCO as to how the suspension of permits has caused it programmatic or economic injury.

Furthermore, even assuming Plaintiffs had shown that the Service’s inaction in processing

permits resulted in decreased funding to NASCO and MET, as explained, “the standard for

showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not

sufficient to warrant this [c]ourt’s granting of a motion for a preliminary injunction.” Safari Club

Int’l v. Salazar, 852 F. Supp. 2d 102, 120 (D.D.C. 2012). In Safari Club, for example, the plaintiffs

sought to enjoin the enforcement of a final rule that would remove a regulation exempting three

antelope species from many ESA prohibitions, thereby requiring permits for sport hunting the

antelope. Id. at 104, 108. Much like the Plaintiffs here, Safari Club International argued that “[t]he

reality of conservation is that it is dependent upon funding,” and offered declarations from wildlife

ranchers who anticipated substantial economic loss resulting from the final rule. Id. at 119. The

court found this showing of alleged irreparable harm inadequate: “While the plaintiffs have

14
demonstrated that they are facing or may face significant economic loss, they have not

demonstrated that the existence of their businesses is imperiled” by the decrease in hunting and

any resulting loss in the economic value of ranching the antelope species. Id. at 120. So, too, in

this case. None of the organizational Plaintiffs alleges, much less demonstrates, that the

anticipated loss in revenue “threatens the very existence of the movant’s business.” Id. (quoting

Wis. Gas Co., 758 F. 2d at 674); see also Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34, 51–

52 (D.D.C. 2011) (finding that plaintiff failed to demonstrate irreparable harm where declarant

mentioned his company’s lost revenues and predicted that he “will be out of business within

[eighteen] months” because the declaration failed to “offer a projection of anticipated future losses,

tie that to an accounting of the company’s current assets, or explain with any specificity how he

arrived at the conclusion that he would be forced out of business in eighteen months”).

Accordingly, the court finds that the organizational Plaintiffs have failed to demonstrate

that they face irreparable harm absent a preliminary injunction.

IV.

Prior to concluding, the court notes that two additional considerations militate against

issuing a preliminary injunction in this case. The first is Plaintiffs’ delay in seeking preliminary

injunctive relief. Courts in this jurisdiction have found that “[a]n unexcused delay in seeking

extraordinary injunctive relief may be grounds for denial because such delay implies a lack of

urgency and irreparable harm.” Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005). The

D.C. Circuit has held that a delay of forty-four days before bringing action for injunctive relief

was “inexcusable,” and “bolstered” the “conclusion that an injunction should not issue,”

particularly where the party seeking an injunction had knowledge of the pending nature of the

alleged irreparable harm. Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975). Here,

15
the hunter Plaintiffs participated in their respective hunts in August 2017, Hunters’ Decl. at 2–4,

and they allege that their permit applications have been pending for over two years because of

President Trump’s November 2017 tweet, Compl. ¶¶ 58–59. Yet, Plaintiffs did not file this lawsuit

until December 11, 2019, see Compl., and did not move for injunctive relief until February 4,

2020, see Pls.’ Mot. for Prelim. Inj. Such a substantial delay stands in stark contrast to the high

bar Plaintiffs must clear to show irreparable harm. See, e.g., Frizzell, 530 F.2d at 987; Mylan

Pharms., 81 F. Supp. 2d at 44 (noting that delay of over two months in bringing action for

injunctive relief “militates against a finding of irreparable harm”); Delmatoff, Gerow, Morris

Langhans, Inc. v. Children’s Hosp. Nat’l Med. Ctr., CIV. A. No. 89–0219, 1989 WL 168856, at

*3 (D.D.C. May 3, 1989) (finding, in a trademark action, that “a substantial delay in moving for a

preliminary injunction indicates that no irreparable harm will result if such relief is denied”).

Second, the court cannot ignore the current COVID-19 pandemic and the particular

hardship a mandatory injunction would impose in the present situation. On March 11, 2020, the

World Health Organization publicly characterized COVID-19 as a pandemic. CENTERS FOR

DISEASE CONTROL AND PREVENTION, Coronavirus Disease 2019 (COVID-19): Situation Summary

(updated April 7, 2020). 3 On March 13, 2020, the President declared a National Emergency in an

effort to address the spread of COVID-19. See Declaring a National Emergency Concerning the

Novel Coronavirus Disease (COVID-19) Outbreak, Pres. Proc. No. 9994, 85 Fed. Reg. 15337,

2020 WL 1272563 (Mar. 13, 2020). On March 16, 2020, the President announced new guidance

to slow the spread of the virus, including limiting the gathering of groups to no more than 10

people and working or schooling from home whenever possible, OFFICE OF THE PRESIDENT OF THE

3
Available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.

16
UNITED STATES, The President’s Coronavirus Guidelines for America, (Mar. 16, 2020), 4 and on

March 29, 2020, he extended those guidelines at least until the end of April, OFFICE OF THE

PRESIDENT OF THE UNITED STATES, Remarks by President Trump, Vice President Pence, and

Members of the Coronavirus Task Force in Press Briefing, (Mar. 29, 2020). 5

The Office of Personnel Management has also been issuing guidance concerning the

continuity of Federal Government operations, including recommendations that agencies permit

employees to telework. See Dale Cabaniss, UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

Memorandum for: Heads of Executive Departments and Agencies. Subject: Coronavirus Disease

2019 (COVID-19); Additional Guidance, (Mar. 7, 2020). 6 The Office of Management and Budget

has asked agencies to “offer maximum telework flexibilities to all current telework eligible

employees, consistent with operational needs of the departments and agencies as determined by

their heads.” See Russel T. Vought, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF

MANAGEMENT AND BUDGET, Updated Guidance for National Capital Region on Telework

Flexibilities in Response to Coronavirus, Memorandum from the Acting Director of The Office of

Management and Budget to the Heads of Departments and Agencies, (Mar. 15, 2020). 7

In light of the unprecedented disruptions created by the COVID-19 pandemic and the

Service’s likely diminished capacity to process permit applications during this period—

particularly given Defendant’s representation that “[r]endering enhancement and non-detriment

findings on a case-by-case basis is a time consuming and resource intensive process,” Def.’s Opp’n

4
Available at https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_
315PM.pdf.
5
Available at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vice-president-pence-
members-coronavirus-task-force-press-briefing-14/.
6
Available at https://chcoc.gov/content/coronavirus-disease-2019-covid-19-additional-guidance.
7
Available at https://www.chcoc.gov/content/updated-guidance-national-capital-region-telework-flexibilities-
response-coronavirus.

17
at 36—this court finds it particularly unwise and not in the public interest to order the expeditious

processing of sport trophy permit applications during this time.

V.
For the foregoing reasons, the court denies Plaintiffs’ Motion for a Preliminary Injunction,

ECF No. 11.

Dated: April 9, 2020 Amit P. Mehta
United States District Court Judge

18