Animal Rights Challenge To Fish & Wildlife Service Sport Trophy Decision Fails In D.C. Circuit

• Published date: 26 June 2020
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Environmental Law, Trials & Appeals & Compensation
• Law Firm: Duane Morris LLP
• Author: Mr 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 Since we can do nothing to affect appellants' rights relative to those now-withdrawn findings, appellants' challenges to them are "classically moot."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...