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Wildearth Guardians v. United States Fish & Wildlife Service

United States District Court, D. Montana, Missoula Division

February 22, 2018



          Donald W. Molloy, District Judge

         Plaintiffs 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.


         CITES 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.

         Pursuant 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. (Id.)

         In 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, [1] 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.)

         In July 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. (Doc. 68.)


         Rule 19 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).

         Defendant-Intervenors 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.

         Pursuant 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).[2] 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. 1990).

         Defendant-Intervenors' 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.

         Given 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 . . . .").[3]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).

         Nor can 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, ...

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