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Guardians v. United States Fish & Wildlife Service

United States District Court, D. Montana, Missoula Division

October 26, 2018



          Donald W. Molloy, District Judge

         Plaintiffs WildEarth Guardians and the Center for Biological Diversity (collectively "Plaintiffs") seek declaratory and injunctive relief against the United States Fish and Wildlife Service and related officials and entities (collectively the "Service") for violating the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") in their administration of a wildlife export program under the Convention on International Trade in Endangered Species ("CITES").[2] Because the continued administration of the CITES Program does not amount to "major Federal action" triggering NEPA, summary judgment is granted in favor of the Service on Plaintiffs' NEPA claims. Plaintiffs prevail, however, on their ESA claims because the incidental take statement for Canada lynx does not set adequate triggers and fails to minimize take.


         I. CITES

         CITES is an international agreement governing trade in imperiled species of flora and fauna. 27 U.S.T. 1087. Currently, there are 183 parties to the Convention, which the United States joined in 1975. AR00004. In the United States, the Service functions as both management and scientific authority for administering CITES, 16 U.S.C. § 1537a(a), and has used its rulemaking authority under the ESA, 16 U.S.C. § 1540(f), to promulgate implementing regulations, 50 C.F.R. §§ 23.1-23.92. These regulations include prohibitions on the import or export of CITES-listed animals, live or dead, whether whole or part, unless expressly authorized by valid CITES documents or specifically exempted from CITES documentation requirements. 50 C.F.R. § 23.13(a).

         The Service maintains a tagging and permitting system to control and facilitate the export of certain species. Animal species covered by CITES are listed in three Appendices. Appendix I is comprised of species threatened with extinction that are or may be affected by trade. CITES, art. II(1). CITES strictly bans all commercial, international trade in Appendix I species, but allows for some scientific and zoological non-commercial trade. Id. at art. III(1)-(3). Appendix II is comprised of species that are not presently threatened with extinction, but may become so if their trade is not regulated. Id. at art. II(2). Appendix II includes species in which trade is controlled to avoid utilization incompatible with their survival, or with the survival of Appendix I species because of factors such as similarity of appearance to other species. Id. International trade in these species is prohibited unless subject to a valid CITES export permit. Id. at art. IV. Appendix III is comprised of species protected in at least one member country when the country has asked other CITES parties to assist it in controlling trade in those species. Id. at art. II(3). All international trade in Appendix III species is prohibited unless subject to a valid CITES export permit. Id. at art. V.

         In 2007, the Service issued regulations implementing the CITES program for certain Appendix II species in the United States, including bobcats, gray wolves, river otters, Canada lynx, and brown (grizzly) bears. 72 Fed. Reg. 48, 402 (Aug. 23, 2007); 50 C.F.R. § 23.69. Certain requirements must be met before these species can be exported from the United States. Specifically, the Service must determine that the export will not be "detrimental to the survival of the species," including finding that (1) harvest of the animals is sustainable and (2) the specimen to be exported was legally obtained. 50 C.F.R. §§ 23.61(a), 23.60. "Detrimental activities" include "unsustainable use and any activities that would pose a net harm to the status of the species in the wild." 50 C.F.R. § 23.61(b). In making a "non-detriment finding," the Service must consider whether the proposed activity is sustainable use, prevents over-utilization of the species, poses harm to the status of the species in the wild, leads to long-term declines, or leads to significant habitat or range loss or restriction. 50 C.F.R. § 23.61(c). The Service's findings must be based "on the best available biological information." 50 C.F.R. § 23.61(f).

         Since the late 1970s, the Service has allowed states and tribes to apply for the opportunity to directly distribute CITES tags to individual hunters and trappers under the CITES Program. 50 C.F.R. § 23.69(b). To participate, interested states and tribes must submit information on population condition, harvest control measures, total allowable harvest, tagging or marking requirements, habitat status, and any management plans for the species in the state or tribal area. 50 C.F.R. § 23.69(b)(1). "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." AR000008. The state or tribe must also submit annual "activity reports" on the effects of the Program. 50 C.F.R. § 23.69(b)(3).

         The Service annually distributes export tags to approved states and tribes, which are then distributed to trappers, hunters, or other individuals seeking to export furbearer species.[3] To be eligible for export, Appendix II furbearer species' skins and pelts must be tagged with serially unique and non-removable CITES tags. 50 C.F.R. § 23.69(c). Properly tagged skins and pelts may then be exported from the United States through designated wildlife ports. Id. Under this export system, the states and tribes regulate harvest and domestic trade of species, providing information to the Service for continued participation in international trade. AR00020. The Service's role is limited to the regulation of international export, ensuring CITES is implemented and enforced. Id. The record contains hundreds of pages of approval documents for various state and tribal programs, AR02173-355, and thousands of records of approved states' and tribes' annual reports, AR02679-20305.

         In the recent past, commercial exportation of wild bobcats, river otters, gray wolves, Canada lynx, and brown bears total:







51, 472

65, 603

57, 405

30, 312

River otters

22, 327

33, 461

26, 329

10, 365

Gray wolves





Brown bears






2, 996

3, 425

1, 781



76, 815

102, 512

85, 520

41, 027

(Doc. 97 at ¶ 1.) These species are discussed individually below.

         Gray Wolves. Gray wolves were listed as endangered under the ESA in 1978, 43 Fed. Reg. 9, 607 (Mar. 9, 1978), and included in the CITES Appendix II in 1979, AR00169. Pursuant to congressional rider, the Northern Rocky Mountain wolf population, including wolves in Montana, were removed from the ESA listing in 2011. 76 Fed. Reg. 25, 590 (May 5, 2011). Only Montana and Alaska are approved for wolf exports. AR00011, 14190. Alaska has reported no recent significant changes in its gray wolf abundance and Montana has reported that its "gray wolf population is healthy and stable," with population numbers above recovery goals. AR00014.

         Bobcats. Bobcats were included in CITES Appendix II in 1977. AR00161. The Service has approved 41 states and 32 tribes for bobcat exports under CITES. AR00017, 19, 187. The nationwide bobcat population is estimated to have increased since 1981, remaining stable since 2010. AR00013. There is a nationwide non-detriment finding for bobcat. AR00025.

         River Otters. The river otter was included in Appendix II in 1977. AR00167. The Service has approved 40 states and 16 tribes for river otter export under CITES. AR00018, 20, 189. There is also a nation-wide non-detriment finding for river otter. AR00025.

         Canada lynx. Canada lynx were included in Appendix II in 1977. AR00165. In 2000, the Service listed the distinct population segment of Canada lynx in the contiguous United States as threatened with extinction under the ESA. 65 Fed. Reg. 16, 052 (Mar. 24, 2000). In Alaska, where lynx are not listed under the ESA, harvest of lynx is allowed. AR00014, 188. Alaska, however, has reported no significant change in Canada lynx abundance. AR00014. In the contiguous United States, bobcat trapping has resulted in incidental take of lynx. AR21077. The Service has approved bobcat pelt exports from 14 states and three tribal areas that include habitat for ESA-listed lynx. AR20992.

         Brown bears. Brown (or grizzly) bears were listed in Appendix II in 1979. AR00163. Alaska is the only state approved for export of brown bears. AR00186.

         II. Procedural and Administrative History

         This action was originally filed as a NEPA challenge by Plaintiff WildEarth Guardians ("WildEarth") in May 2016. (Doc. 1.) However, in December 2016, the parties moved for a joint stay of the proceedings, pending the Service's decision to undertake the NEPA process and draft an environmental assessment ("EA") for the CITES Program. (See Doc. 42.) On February 8, 2017, the Service issued a Draft EA, and, following a public notice and comment period, the Service issued its Final EA and Decision Notice on May 18, 2017. (See Doc. 54.) The EA includes four alternatives: (1) a preferred and "no action" alternative maintaining the current CITES Program, AR00012-21; (2) a "no tag" alternative, under which the Service would not issue or require tagging prior to export, AR00021-23; (3) a "no permit" alternative, under which the Service would deny export of CITES Program species from the wild, AR00023-24; and (4) a "no approved CITES export program" in which the Service would eliminate its CITES Program but still allow export on a case-by-case basis, AR00024-25.[4] Ultimately, the EA found that the preferred "no action" alternative would have no significant impact on the human environment and would best permit the streamlined, efficient review of state and tribal furbearer regimes. AR00011, 12. The Service issued a Finding of No. Significant Impact ("FONSI"). AR00068-73.

         In July 2017, WildEarth filed an amended complaint, updating its NEPA claims in light of the EA and adding claims under the ESA. (Doc. 62.) In 2012, the Service had issued a Biological Opinion under Section 7 of the ESA to evaluate the effect on Canada lynx of bobcat trapping in states and tribal areas approved under the CITES program. AR21057-58, 77-78. The 2012 Opinion renewed, modified, and extended a 2001 Biological Opinion. See AR21013-33. The Service found that since 2001, the take of lynx attributable to the Program was limited to eight trappings where the lynx were released unharmed. AR21077. The Service determined that the export of bobcat pelts or parts under the CITES Program will not jeopardize the continued existence of the Distinct Population Segment of Canada lynx. AR21078.

         The 2012 Biological Opinion incorporated an Incidental Take Statement, which remains in effect. Id. Under that Statement, "two (2) lynx may be killed and two (2) injured annually due to trapping over the 10-year term of th[e] biological opinion." AR21002. The Statement requires that when issuing bobcat tags, the Service must provide states and tribes with "information on lynx identification, life-history, recovery needs, and references to current and ongoing methodologies to reduce mortality and injury to lynx when trapping bobcat." AR21002-03. The Service implements this measure by preparing a brochure and issuing it to states and tribes. AR21002; see AR21034-53.

         In July 2017, Plaintiff Center for Biological Diversity filed a separate action, raising similar NEPA challenges. See CV 17-99-M-DWM. The two cases were consolidated, (Doc. 68), and the WildEarth case designated the lead case. All docket references are therefore to documents filed in CV 16-65-M-DWM. Additionally, the Montana Trappers Association, National Trappers Association, and Fur Information Council of America (collectively "Defendant-Intervenors") have been granted leave to intervene. (See Docs. 21, 44.)

         Summary Conclusion

         The parties fundamentally disagree about the nature and scope of the Program and environmental review at issue. Both the Service and Defendant-Intervenors argue that the CITES Program is merely an administrative framework that streamlines CITES compliance determinations, AR00003, but does not directly affect either trapping or exports, AR00026, 27. Under their view, the CITES Program "does not eliminate any federal permitting requirements for exporters, nor does it command changes to state and tribal permitting regimes." (Doc. 108 at 9.) The Service therefore insists that the relevant analysis is that of the Program itself, "not... subsequent actions taken pursuant to or consistent with the Program," such as localized management decisions. (Id.)

         On the other hand, "the crux of Plaintiffs' claim is that the [CITES] Program increases exports, which in turn increases trapping, which in turn harms Plaintiffs' members." (Doc. 112 at 8.) According to Plaintiffs, the Service and Defendant-Intervenors "attempt to relegate the Program to a mere paperwork exercise with no real world effects." (Doc. 117 at 9.) They allege that the record shows localized declines and other concerns for CITES species, (see SUF, Doc. 97 at ¶ 58), and that trapping activities increase when state export programs are approved, (id. at ¶ 60). Plaintiffs insist the record shows a direct connection between the CITES Program and trapping, as the Service alone controls whether furbearers can be exported, see 50 C.F.R. § 23.13(a), and the Program stands in the place of individual determinations for each export permit, AR00003.

         Both parties are partially correct. The continued administration of the CITES Program does not amount to "major Federal action" triggering NEPA. But, the incidental take statement for Canada lynx is remanded to the Service.


         Plaintiffs claim the Service violated NEPA when it did not adequately analyze the direct, indirect, and cumulative effects of the Program and when did not prepare an EIS. Plaintiffs further argue that the 2001 and 2012 Biological Opinions and Incidental Take Statement referenced and incorporated in the EA are deficient under the ESA. Those claims, as well as the Service's standing challenge, are addressed below.

         I. Legal Standards Applicable to All Claims

         A. Administrative Procedure Act

         Under the Administrative Procedure Act ("APA"), a "reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (NEPA and ESA). The scope of review is narrow, and a court should "not [] substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or agency expertise." Id.

         B. Summary Judgment

         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment is particularly applicable to cases involving judicial review of final agency action. Occidental Eng'r Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." City & Cty. of S.F. v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (alteration in original) (quotation marks omitted).

         II. Standing

         The Service first argues that Plaintiffs do not have Article III standing. To have standing, "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61 (1992)). Plaintiffs, as the party seeking to invoke the court's jurisdiction, bear the burden of establishing standing. Id. This Court previously denied a motion to dismiss on these same grounds. (See Doc. 35.)[5] However, unlike the pleading stage, where Plaintiffs were merely required to allege facts demonstrating each element, Spokeo, Inc., 136 S.Ct. at 1547, at summary judgment Plaintiffs "can no longer rest on such mere allegations but ...

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