United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. Molloy, District Judge
WildEarth Guardians ("Guardians) and Center for
Biological Diversity (the "Center") (collectively
"Plaintiffs") are suing the United States Fish and
Wildlife Service (the "Service") and its related
entities (collectively referred to as "Federal
Defendants") on the grounds that they failed to comply
with environmental and regulatory procedures in the
administration and implementation of a federal export program
that allows certain animal pelts and parts to be exported
from the United States pursuant to the Convention on
International Trade in Endangered Species
("CITES"). The Montana Trappers Association,
National Trappers Association, and the Fur Information
Council of America (collectively
"Defendant-Intervenors") intervened, and now seek
to dismiss this action pursuant to Rules 12(b)(7) and 19 of
the Federal Rules of Civil Procedure on the grounds that the
Plaintiffs have not joined and cannot join as indispensable
parties certain states and Native American tribes. (Doc. 75.)
The Federal Defendants, (Doc. 79), and Plaintiffs, (Doc. 80),
oppose the motion. Argument was heard on February 22, 2018.
The motion is denied.
is a multilateral treaty that aims to protect wildlife by
regulating trade in certain species that are vulnerable to,
or adversely affected by, trade. 27 U.S.T. 1087 (March 3,
1973). The export of pelts and other parts of certain
forbearing animals, including bobcats, Canada lynx, gray
wolves, brown bears, and river otters, is regulated under
Appendix II of the Treaty. Id.; 50 C.F.R. §
23.91. A CITES export permit or certificate is therefore
required for the export of pelts or other parts of those
furbearing animals. The Service has promulgated regulations
prohibiting the import or export of any CITES-listed animals
unless expressly authorized by valid documents or
specifically exempted from documentation requirements.
See 50 C.F.R. pt. 23.
to these regulations, anyone seeking to export pelts or parts
of furbearing species listed in Appendix II must acquire tags
and permits either directly from the Service's Division
of Management Authority or from a state or tribe approved to
distribute tags and/or permits. In the second instance,
interested states and tribes can apply to the Division of
Management Authority, and if approved, given tags and permits
for distribution to trappers, hunters, or other individuals.
In this process, a state or tribe must provide sufficient
information for the Service to determine that its management
program and harvest controls are appropriate to ensure that
CITES furbearers harvested within its jurisdiction are
legally acquired and that export will not be detrimental to
the survival of the species in the wild. See 50
C.F.R. § 23.61. Approved states and tribes are given
serially unique CITES export tags. (Doc. 62 at ¶ 20.)
These states and tribes must, in turn, require that specimens
of the species for which they have export program approval
are tagged with these tags as evidence of legal acquisition.
2016, Guardians filed this lawsuit, alleging that the
Service's CITES export program is a major federal action
that significantly affects the human environment and that the
Service violated the National Environmental Policy Act
("NEPA") when it failed to prepare an Environmental
Assessment ("EA") or Environmental Impact Statement
("EIS") in conjunction with the program. After the
lawsuit was filed,  the case was stayed while the Service
prepared an EA and issued a Finding of No Significant Impact,
concluding that "continuing the CITES Export Program in
its current form will not have a significant effect on the
quality of the human environment under the meaning of
[NEPA]." (FONSI, AR000073). During the public comment
period, a number of states provided comments on the EA,
including Wyoming, Wisconsin, North Carolina, and New Mexico.
(See Docs. 76-3, 76-4, 76-5, 76-6.)
2017, Guardians filed a Supplemental and Amended Complaint,
alleging the CITES EA failed to adequately consider
alternatives, disclose environmental impacts, analyze
"bycatch" species, and analyze the environmental
effects of the Canada lynx incidental take statement. (Doc.
62 at ¶¶ 47-53.) Guardians further alleges that an
EIS should have been prepared, (id. at ¶ 54),
and that the Canada lynx 2012 Biological Opinion and
incidental take statement were arbitrary and capricious in
violation of the Endangered Species Act ("ESA"),
(id. at ¶¶ 55-58). Also in July 2017, the
Center filed a separate lawsuit challenging the CITES EA,
alleging that the Service violated NEPA when it failed to
adequately evaluate the effects of the CITES program, failed
to provide a rational basis for the Finding of No Significant
Impact, and failed to prepare an EIS. (See CV
17-99-M-DWM, Doc. 1). The two actions were consolidated.
of the Federal Rules of Civil Procedure sets "[t]he
framework for determining whether a party is necessary and
indispensable." Am. Greyhound Racing, Inc. v.
Hull, 305 F.3d 1015, 1022 (9th Cir. 2002). An
examination under Rule 19 has two parts. A district court
must first determine whether a party is "required"
under Rule 19(a). "If the absent party is required and
cannot be joined, the court must next determine whether the
party is 'indispensable.'" Kescoli v.
Babbitt, 101 F.3d 1304, 1309 (9th Cir. 1996). "The
moving party has the burden of persuasion in arguing for
dismissal. Clinton v. Babbitt, 180 F.3d 1081, 1088
(9th Cir. 1999). "Dismissal, however, is not the
preferred outcome under the Rules." Askew v. Sheriff
of Cook Cty., Ill. 568 F.3d 632, 634 (7th Cir. 2009).
argue that the states and tribes that participate in the
CITES program, (see Docs. 76-1, 76-2), are required
and indispensable parties that cannot be joined due to their
sovereign immunity, requiring dismissal.
Defendant-Intervenors' attempt to turn the jurisdictional
truth of the states' and tribes' sovereign immunity
to their advantage is unpersuasive. See Dine Citizens
Against Ruining Our Env't v. U.S. Office of Surface
Mining Reel. & Enforc, 2013 WL 68701, at *2 (D.
Colo. Jan. 4, 2013). "By th[eir] logic, virtually all
public and private activity" affecting states and tribes
"would be immune from any oversight under the
government's environmental laws." Id. That
is not the case.
to Rule 19(a), a party whose joinder "will not deprive
the court of subject matter jurisdiction" is required to
be joined to the action if that person has a "legally
protected interest" in the subject of the litigation
which would be impaired or impeded if it was not party to the
suit. Fed.R.Civ.P. l9(a)(1)(B)(i). A "legally protected
interest" "does not require a property right,
" Am. Greyhound Racing, Inc., 305 F.3d at 1023,
but must be "more than a financial stake and more than
speculation about a future event, " Makah Indian
Tribe v. Verity (Makah), 910 F.2d 555, 558 (9th Cir.
primary obstacle here is that this is an administrative
procedure case. Plaintiffs seek judicial review under the APA
of the Service's compliance with NEPA and the ESA in its
administration of a nation-wide export regime. (See
Doc. 62 at ¶ 5; CV 17-99-M-DWM, Doc. 1 at ¶ 8.)
"Generally, there is no legally protected interest in
particular agency procedures." Makah, 910 F.2d
at 558; see Cachil Dehe Band of Wintun Indians of the
Colusa Indian Comty. v. California, 547 F.3d 962, 971
(9th Cir. 2008) ("[A]n absent party has no legally
protected interest at stake in a suit merely to enforce
compliance with administrative procedures."). In
administrative procedure cases, absent states and tribes are
not be prejudiced because everyone has "an equal
interest in an administrative process that is lawful."
Makah, 910 F.2d at 559; see N. Alaska Envt'l
Ctr. v. Hodel, 803 F.2d 466, 469 (9th Cir. 1986) (noting
that while all miners affected by a mining plan would be
"interested, " they did not have a "legal
entitlement to any given set of procedures").
Essentially, any interest held by the states and tribes is
coextensive with the interest held by the public at large.
the procedural nature of this case, Defendant-Intervenors
clarified during argument that the states' and
tribes' interest in this action is limited to the extent
an injunction may result. Plaintiffs' counsel then stated
that no such injunctive relief would be sought. The primary
interest identified by Defendant-Intervenors is therefore no
longer viable. And, insofar as Defendant-Intervenorsrely on
the states' and tribes' financial interest in
trapping, such an interest is not sufficient under Rule
19(a). Makah, 910 F.2d at 558. Equally unpersuasive
is the Defendant-Intervenors' insistence that states are
solely tasked with wildlife management. See Baldwin v.
Fish & Game Comm'n of Mont., 436 U.S. 371, 386
(1978) ("[T]he State's control over wildlife is not
exclusive and absolute in the face of federal regulation and
certain federally protected interests . . .
.").Pursuant to the ESA, the federal government
has the authority to impose conditions on conservation,
see 16 U.S.C. § 1539(a)(2)(B), and agencies
have discretion in pursuing their conservation mandate,
see Pyramid Lake Paiute Tribe of Indians v. U.S.
Dep't of Navy, 898 F.2d 1410, 1418 (9th Cir. 1990).
Accordingly, states and tribes do not satisfy the threshold
for a legally protected interest under Rule 19(a).
Defendant-Intervenors show that the states and tribes are not
adequately represented, the second consideration under Rule
19(a). "A non-party is adequately represented by
existing parties if: (1) the interests of the existing
parties are such that they would undoubtedly make all of the
non-party's arguments; (2) the existing parties are
capable of and willing to make such arguments; and (3) the
non-party would offer no necessary element to the proceeding
that existing parties would neglect." Sw. Ctr. for
Biological Diversity v. Babbitt,150 F.3d 1152, ...