United States Court of Appeals, District of Columbia Circuit
Safari Club International and National Rifle Association of America, Appellants
Sally Jewell, In her official capacity as Secretary of the Department of the Interior, et al., Appellees
September 19, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-00670)
Douglas S. Burdin argued the cause for appellants. With him
on the briefs were Christopher A. Conte, Michael T. Jean,
Anna M. Seidman, and Jeremy E. Clare.
B. Kranz, Attorney, U.S. Department of Justice, argued the
cause for appellees. With her on the brief were John C.
Cruden, Assistant Attorney General, and Matthew Littleton and
Meredith L. Flax, Attorneys.
E. Frostic was on the brief for amici curiae The Humane
Society of the United States, et al. in support of appellees.
Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior
the African elephant is protected under both domestic and
international law, the Interior Department's Fish and
Wildlife Service has long allowed American hunters who shoot
Tanzanian elephants to repatriate their trophies because,
according to the Service, doing so "would not be
detrimental to the survival of the species." 50 C.F.R.
§ 23.61(a). In 2014, however, the Service changed course
and indefinitely suspended issuance of import permits due in
part to a "significant decline in Tanzania's
elephant population." 2014 Non-Detriment Finding, at
Deferred Appendix 123. Two organizations representing hunters
challenged the suspension in district court as substantively
and procedurally flawed. Because no member of either group
had applied for a permit, the court dismissed the case for
lack of final agency action and for failure to exhaust
administrative remedies. For the reasons set forth below, we
Fish and Wildlife Service, part of the U.S. Interior
Department, is tasked with regulating the import of species
protected under the Convention on International Trade of
Endangered Species of Wild Fauna and Flora (CITES), Mar. 3,
1973, 27 U.S.T. 1087, which includes African elephants, or
Loxodonta africana, from Tanzania. See,
e.g., CITES art. III(3) & App'x I; 16 U.S.C.
§§ 1537a-1539; 50 C.F.R. §§ 17.11, 17.22.
Among its duties, the Service determines whether and under
what conditions hunters may receive permits to import
"sport-hunted trophies, " which "means a whole
dead animal or a readily recognizable part or derivative of
an animal." 50 C.F.R. § 23.74(b).
Service's permitting scheme is somewhat intricate, but
because it has faced many legal challenges, the particulars
have been thoroughly described in numerous opinions of this
court. See, e.g., Marcum v.
Salazar, 694 F.3d 123, 124-25 (D.C. Cir. 2012). An
abridged summary will do here.
threatened species, like African elephants, the Service must
ensure that two conditions are satisfied before it may grant
a permit. First, the Service's Division of Scientific
Authority must find that the "import will be for
purposes which are not detrimental to the survival of the
species." CITES art. III(3)(a); see 50 C.F.R.
§ 23.61. This determination is known as a
"non-detriment" finding. Second, the Service's
Division of Management Authority must find- the
"enhancement" finding-"that the killing of the
trophy animal will enhance the survival of the species."
50 C.F.R. § 17.40(e)(6)(i)(B). For example, sport
hunting might enhance the survival of a species where it
causes no measurable impact on its population and where
"revenues generated by sport hunting ha[ve] the
potential to provide conservation benefits to the
species." January 3, 2014, Information Memorandum, at
Deferred Appendix 122.
African elephant, along with a handful of other species, the
Service makes annual, blanket non-detriment and enhancement
findings that cover all applications filed for sport-hunted
trophies "taken" during that year. Although the
Service had long granted permits for sport-hunted Tanzanian
elephant trophies-meaning it had consistently made positive
non-detriment and enhancement findings-it reversed course in
2014. On February 21 of that year, the Division of Scientific
Authority completed its non-detriment finding for trophies
taken during calendar year 2014. Acknowledging its history of
finding sport hunting non-detrimental to the survival of
Tanzanian elephants, the Division explained that it could no
longer do so given the availability of more current
information demonstrating a significant decline in elephant
populations. The Division of Management Authority soon
followed suit, concluding that it could no longer find that
sport hunting would enhance the survival of the species. As a
result, the Service announced a "suspension on imports
of sport-hunted African elephant trophies taken in Tanzania .
. . during calendar year 2014." See April 4,
2014, Press Release, at Deferred Appendix 161.
the Service's suspension, two industry groups, Appellants
Safari Club International and the National Rifle Association
(collectively, "Safari Club"), filed suit on behalf
of their members, which include disappointed elephant
hunters, several of whom had planned hunts in Tanzania for
the fall of 2014. In its second amended complaint, Safari
Club alleged that the Service's decisionmaking suffered
from three flaws. First, it asserted that the 2014
non-detriment and enhancement findings were legislative rules
requiring notice-and-comment rulemaking (Count VI). Second,
it claimed that the Service failed to justify its decision to
require an ...