by John M. Simpson.
In Center for Biological Diversity v. Bernhardt, ___ F.3d ___, No. 19-5152 (D.C. Cir. June 16, 2020), the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed a district court’s rejection of a challenge by animal rights groups to a decision by the U.S. Fish & Wildlife Service (FWS) to withdraw blanket findings as to whether the importation under the Endangered Species Act (ESA) of certain sport trophies of “threatened” species taken in other countries would enhance the survival and not be detrimental to the survival of those species.
FWS’ findings primarily involved sport-hunted African elephants in Zimbabwe. FWS had issued negative enhancement findings in 2014 and 2015 which were challenged by hunting groups. On the other hand, FWS had issued positive enhancement findings in 2016 and 2017 that were challenged by animal rights groups (Center for Biological Diversity (CBD) and Friends of Animals (FOA)). In response to a 2017 D.C. Circuit decision that had ruled that such findings were rules and were subject to the notice-and-comment provisions of the Administrative Procedure Act (APA), FWS withdrew all of the findings and announced that it would consider permit applications on a case-by-case basis through informal adjudication.
The court of appeals affirmed the district court’s determination that FWS’ withdrawal of the 2017 findings made CBD’s and FOA’s challenge to them moot:
[A]ppellants challenged one or more of the 2017 findings as unlawful under the APA for various reasons and requested that the court declare as much and set them aside. But after our opinion declared “findings” with identical procedural characteristics to be unlawful rules, and the government, through its March Memo, withdrew the 2017 findings, they no longer cause appellants any injury. Since we can do nothing to affect appellants’ rights relative to those now-withdrawn findings, appellants’ challenges to them are “classically moot.”
Slip. op at 8-9.
The D.C. Circuit also rejected the argument that, because the court had ruled in an earlier case that FWS’ findings were invalid because they were rules that required APA notice-and-comment, the withdrawal of such findings likewise required notice and comment:
[W]e are faced only with the repeal of a “rule” that illegally never went through notice and comment – in other words, a “non-rule rule.” We think the logic of American Telephone & Telegraph Co. [v. FCC, 978 F.2d 727 (D.C. Cir. 1992)] a fortiori leads to the conclusion that notice and comment was not required in this situation.
Id. at 14.
Finally, the court rejected the argument that it was unlawful for FWS to announce that it would in the future implement the ESA in this area through informal adjudication. The court found that CBD had no standing to raise this argument because its only alleged injury in fact was to its “interests in advocacy, participating in administrative proceedings, and lobbying” which are “not concrete [injuries] under our precedent.” Id. at 18. While FOA did have standing, the court rejected FOA’s position that FWS could make enhancement findings under the ESA only through rulemaking:
[T]he Act gives the Secretary broad authority to issue such regulations “as he deems necessary and advisable” … and nothing in the provision at issue prevents him from creating rules that in turn make use of subsidiary adjudications.
Id. at 20.
The outcome of this case was applauded by some commentators in the Southern African Development Community (SADC), which includes several countries like Zimbabwe and Botswana in which high populations of free-ranging African elephants are found and which historically have depended economically upon sport hunting. According to one publication, “this landmark court decision is [a] sweet and hard fought victory not only for the [Safari Club International] but also for the African countries that benefit from the hunting industry.” It criticized the “Western animal rights movement’s arrogant, neocolonial and racist Western attitude towards Africa that makes them think that Africa must continue to be told how to manage and use its wildlife.” The commentator continued:
The animal rights movement has continued to selfishly oppose wildlife hunting to suit their Western anti-use values that limit wildlife-rich and elephant overpopulated African countries’ opportunities to derive conservation and development benefits from the lucrative hunting industry.
This clash in views between Western animal rights activists and African range countries, which was apparent last year in the CITES Conference of the Parties (CoP 18), is not likely to die down.