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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Safari Club wins Article III standing dispute in challenge to polar bear rule, but loses standing arguments in dispute over captive antelope rule

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In re Polar Bear Endangered Species Act Listing and Section 4(d) Litigation and Safari Club International, et al. v. Salazar, et al,
No. 08-881(EGS).  Misc. Action No. 08-764 (EGS).  MDL Docket No. 1993.  Nos. MISC.A. 08-764EGS, MDL.1993.  2009 WL 1750413 (D.D.C. June 22, 2009).
EMMET G. SULLIVAN, District Judge.

BACKGROUND: Plaintiffs Safari Club International ("SCI") and Safari Club International Foundation ("SCIF") bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"), against defendants Ken Salazar, Secretary of the Interior, H. Dale Hall, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively "FWS"), challenging the FWS's legal determination that the listing of the Polar Bear as threatened under the Endangered Species Act creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the Marine Mammal Protection Act.  Defendants argue that they are entitled to judgment on the pleadings because (1) plaintiffs have failed to state a claim upon which relief can be granted because the action they challenge is not final agency action for purposes of the APA; and (2) because plaintiffs lack standing to challenge the statements in the Final Rule related to the importation of polar bear trophies.

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THE FINAL RULE: On May 15, 2008, the FWS issued a final rule listing the polar bear (photo above from FWS by Dave Olsen) as a threatened species throughout its range. See 73 Fed.Reg. 28,212 (May 15, 2008) ("Final Rule"). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that "Under the MMPA, the polar bear will be considered a 'depleted' species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be avail-able under section 104(c)(5) of the MMPA."  73 Fed.Reg. at 28236.

 OPINION RE: FAILURE TO STATE A CLAIM.  The APA requires that the agency action in question must be final before a party may seek judicial review. 5 U.S.C. § 704...  Plaintiffs argue that although technically there may remain the additional step of the agency denying SCI members' permit applications, the FWS's determination in the Final Rule that import permits for polar bear trophies will no longer be granted is final for purposes of judicial review. This Court agrees...  here, if anything, the legal determination SCI and SCIF are challenging is even more final, as it definitively establishes that any applications for a Section 104(c)(5) permit will not be granted.

OPINION RE: STANDING.  To satisfy Article III of the Constitution's "case" or "controversy" requirement, a plaintiff ordinarily must establish that (1) he or she has "suffered an 'injury-in-fact' "; (2) there is a "causal connection between the injury and the conduct complained of"; and (3) the injury will likely be 'redressed by a favorable decision.' " See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).   Re: Injury in fact.  Some SCI members have scheduled and even paid for polar bear hunts in 2009 and 2010, and still others may decide not to plan hunts because they will no longer be permitted to import any trophy they may obtain if the hunt is successful...  they are not required to wait for the inevitable formal denial of their permit applications. Re: Causal Connection.   Plaintiffs' allegations that SCI members can no longer obtain import permits are not "speculative"; the Final Rule makes clear that the only possible response an individual applying for a permit to import a sport-hunted polar bear trophy can reasonably expect to receive is a denial of his or her application. In other words, the Final Rule is determinative. Therefore, plaintiffs have satisfied the causal connection requirement. See, e.g., Bennett, 520 U.S. at 170-71.  Re: Redressability.  This Court finds that if plaintiffs were to prevail on their claims and the Court were to enjoin the FWS from denying the import applications based on the Final Rule, plaintiffs' injuries would be redressed.

***

Friends of Animals v. Salazar, Civil Action 04-01660 (HHK),Civil Action 06-02120 (HHK), 2009 U.S. Dist. LEXIS 53919 (D.D.C. June 22, 2009).
HENRY H. KENNEDY, JR., District Judge.

BACKGROUND: In these consolidated cases, two sets of plaintiffs, Friends of Animals ("FOA") plaintiffs and Rebecca Ann Cary ("Cary") plaintiffs, bring an action against the Department of Interior, the Fish and Wildlife Service of the Department of Interior, and officials of these agencies in their official capacities (collectively, the "FWS"). The Safari Club International and Exotic Wildlife Association (collectively, the "Safari Club") also intervened as defendants. Plaintiffs allege that the FWS unlawfully promulgated a rule under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (the "ESA," or the "Act") exempting three endangered antelope species, the scimitar-horned oryx, the addax, and the dama gazelle (collectively, the "antelope" or the "antelope species"), when bred in captivity in the United States, from the import, take and other prohibitions contained in the Act...  Private ranches in the United States breed the antelope species in captivity. Some of these ranches allow sport hunters to kill antelopes for a fee. At the same time that the FWS listed the antelope as endangered, it also issued a rule ("Rule") under paragraph 10(a)(1)(A) of the Act excepting United States captive-bred members of the antelope species from the take and other prohibitions of section 9 of the ESA. 70 Fed. Reg. 52310 (Sept. 2, 2005). The FWS found, "based on information available to the Service, captive breeding in the United States has contributed significantly to the conservation of these species." Id. at 52315.

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Photo of a dama gazelle at Black Eagle Ranch.

RULING RE: ORGANIZATION STANDING BASED ON INFORMATIONAL INJURY.  Both plaintiffs assert organizational standing to challenge alleged violations of subsections 10(c) and 10(d) of the ESA based on an informational injury. They argue that these subsections grant a statutory right to information regarding each permit. The Rule, according to plaintiffs, eliminates these permit requirements and so deprives them of their statutory right to that information...  ESA Subsection 10(d) states that exceptions may only be granted if the FWS "finds and publishes its finding in the Federal Register that (1) such exceptions were applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy" of the Act. 16 U.S.C. § 1539(d). Such findings, plaintiffs contend, provide interested persons with important information that they would not otherwise be able to obtain. Without the opportunity to learn that the FWS issued a permit and the bases for the permit, according to plaintiffs, plaintiffs cannot ask the agency to reconsider its position or challenge a permit in court...   The court concludes that plaintiffs have suffered an informational injury which confers standing to challenge the Rule under subsection 10(c) of the Act.

RULING RE: REPRESENTATIONAL AND ORGANIZATIONAL STANDING.  FOA plaintiffs argue that Feral has standing to challenge the Rule because the Rule injures her aesthetic interest in viewing the antelope species in the wild. They state that Feral has visited Senegal to observe wild antelopes, has devoted herself to the preservation of wild antelopes, and intends to return to Africa to see them again. The Rule is fairly traceable to this injury, according to FOA plaintiffs, because it increases the incentive for poachers to kill wild members of the antelope species by creating a legal market for antelope parts and trophies...  The court finds that FOA plaintiffs do not have standing on this basis because even if Feral has suffered an injury, she has not demonstrated that it is fairly traceable to the Rule...  Also, beyond the deprivation of information that hinders plaintiff organizations in the informational service they provide to their members and their ability to participate in the subsection 10(c) process, plaintiffs have not demonstrated that the Rule hinders their activities in any other concrete way.

RULING ON THE MERITS: THE EXEMPTION VIOLATES THE ESA.  Plaintiffs argue that the FWS violated subsection 10(c) of the ESA when it issued a blanket exception for all per-sons who breed the antelope species in captivity in the United States without any requirement for an application and case-by-case assessment of that application. They argue that the plain language of subsection 10(c) demands that permits be issued on a case-by-case basis, pointing to provision that "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." See 16 U.S.C. §1539(c) (emphasis added). The FWS rejoins that the plain language dictates just the opposite and point to the language of paragraph 10(a)(1), which states that "the Secretary may permit . . . any act otherwise prohibited by section 9 . . . to enhance the propagation or survival of the affected species." See id. § 1539(a)(1) (emphasis added). The court concludes that plaintiffs are correct and that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application...  Subsection 10(c) reads, in part, "the Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. . . . Information received by the Secretary as part of any application shall be available to the public . . . ." 16 U.S.C. § 1539(d) (emphasis added). Through this language, Congress clearly contemplated that the FWS would exercise its authority to grant exceptions under "this section" (i.e., section 10) by responding to individual applications.