United States District Court, D. Montana, Missoula Division
W. Molloy, District Judge
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"). 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
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. §
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.
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. §
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).
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. 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.
recent past, commercial exportation of wild bobcats, river
otters, gray wolves, Canada lynx, and brown bears total:
(Doc. 97 at ¶ 1.) These species are discussed
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.
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.
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
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.
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.
Procedural and Administrative History
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. 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").
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.
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
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.)
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.)
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.
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.
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.
Legal Standards Applicable to All Claims
Administrative Procedure Act
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.
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
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.) 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 ...