New England Anti-Vivisection Society v. Fish And Wildlife Service et alCross MOTION for Partial Summary JudgmentD.D.C.August 4, 2016IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. U.S. FISH & WILDLIFE SERVICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-00149 (KBJ) DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:16-cv-00149-KBJ Document 44 Filed 08/04/16 Page 1 of 3 1 Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Under Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h), Defendants, the U.S. Fish & Wildlife Service (“FWS”) and Dan Ashe, Director of FWS, hereby cross-move for summary judgment on the first through fourth claims in Plaintiffs’ Amended Complaint (Doc. 6), and submit the attached memorandum in support of this motion and in opposition to Plaintiffs’ motion for summary judgment (Doc. 39).1 Plaintiffs lack standing, thus depriving the Court of subject-matter jurisdiction. Alternatively, Plaintiffs claims fail on the merits. DATED this 3rd day of August 2016. Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/ Trent S.W. Crable Trent S.W. Crable, Trial Attorney Wildlife & Marine Resources Section /s/ Ruth Ann Storey Ruth Ann Storey, Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, DC 20044-7611 Telephone: (202) 305-0339 (Crable) Telephone: (202) 305-0493 (Storey) Fax: (202) 305-0275 Email: trent.crable@usdoj.gov Email: ruth.ann.storey@usdoj.gov Attorneys for Defendants 1 Both Plaintiffs and Federal Defendants have excluded Plaintiffs’ FOIA claim from the present summary judgment briefing. Case 1:16-cv-00149-KBJ Document 44 Filed 08/04/16 Page 2 of 3 2 Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. CERTIFICATE OF SERVICE I hereby certify that on August 3, 2016, I electronically filed the foregoing document and with the Clerk of the Court using the CM/ECF system, which will send notification of the filing to all parties. /s/ Trent S.W. Crable Case 1:16-cv-00149-KBJ Document 44 Filed 08/04/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. U.S. FISH & WILDLIFE SERVICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-00149 (KBJ) DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 1 of 57 i Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. TABLE OF CONTENTS PAGE LEGAL BACKGROUND .............................................................................................................. 2 I. The Endangered Species Act .............................................................................................. 3 II. CITES ................................................................................................................................. 3 III. The National Environmental Policy Act ............................................................................. 4 FACTUAL BACKGROUND ......................................................................................................... 6 STANDARD OF REVIEW ............................................................................................................ 7 ARGUMENT .................................................................................................................................. 8 I. The Court lacks subject-matter jurisdiction over Plaintiffs’ claims. .................................. 9 a. Plaintiff Georgia the chimpanzee lacks standing. ........................................................... 9 b. Plaintiffs Fauna Foundation, Primate Rescue Center, Chimps Inc., Jungle Friends Primate Sanctuary, and Cruelty Free International lack standing. .................................................................................................................. 9 c. Plaintiffs Jennifer Feuerstein, Brian Hare, Rachel Weiss, and Mary Lee Jensvold lack standing. ................................................................................. 13 d. Plaintiff New England Anti-vivisection Society lacks standing. .................................. 15 II. FWS Complied with the ESA. .......................................................................................... 19 a. The permit complies with the requirements of ESA section 10. .................................. 21 i. Chevron Step One. .................................................................................................... 20 A. The plain language and structure of the ESA supports FWS’s implementation of section 10(a)(1)(A) allowing indirect enhancement in the permitting process. ...................................................................................... 21 B. FWS’s implementation is consistent with ESA legislative history. ..................... 25 C. The purposes of the ESA are advanced by FWS’s implementation of the enhancement requirement for 10(a)(1)(A) permitting. ................................... 26 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 2 of 57 ii Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. ii. Chevron Step Two. ................................................................................................... 29 iii. Section 10(d). ............................................................................................................ 31 b. The permit complies with the requirements of ESA Section 7. ............................ 31 c. FWS has plainly determined that the export enhances the survival of the affected species—it has not delegated that duty. ............................................ 33 d. FWS’s decision was not arbitrary and capricious for any reason. ........................ 37 III. FWS Complied with CITES. ............................................................................................ 39 IV. FWS complied with NEPA. .............................................................................................. 39 CONCLUSION ............................................................................................................................. 45 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 3 of 57 iii Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. TABLE OF AUTHORITIES CASES PAGE Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) ........................................................................................... 8 Amoco Prod. Co. v. Watson, 410 F.3d 722 (D.C. Cir. 2005) ......................................................................................... 25 Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) ......................................................................................... 16 ASPCA v. Feld Entm’t, 659 F.3d 13 (D.C. Cir. 2011) ........................................................................................... 20 Back Country Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89 (D.D.C. 2006) ................................................................................... 42 Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) ........................................................................................................ 8, 36 Born Free v. Norton, 278 F. Supp. 2d 5 (D.D.C. 2003) ..................................................................................... 46 California v. Norton, 311 F.3d 1162 (9th Cir. 2002) ........................................................................................... 5 Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004) ......................................................................................... 10 Chesapeake Climate Action Network v. Exp.-Imp. Bank of the United States, 78 F. Supp. 3d 208 (D.D.C. 2015) ................................................................................... 20 Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984) .............................................................................................. 21, 22, 24 City of Las Vegas v. Lujan, 891 F.2d 927 (D.C. Cir. 1989) ........................................................................................... 8 Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152 (D.C. Cir. 2005) ....................................................................................... 19 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1 (D.D.C. 2014) ........................................................................................ 20 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 4 of 57 iv Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Engine Mfrs. Ass’n v. EPA , 88 F.3d 1075 (D.C. Cir. 1996) .......................................................................................... 22 Envtl. Def. Fund v. Costle, 657 F.2d 275 (D.C. Cir. 1981) ........................................................................................... 9 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ................................................................................... 44, 45 Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998) ..................................................................................................... 11, 14 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ........................................................................................................... 8 Food & Water Watch, 808 F.3d ............................................................................................................... 18, 19, 20 Friends of Animals v. Jewell, 2016 WL 3125204 (D.C. Cir. June 3, 2016) ............................................................. passim Friends of Animals, 626 F. Supp. 2d ................................................................................................................ 27 Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) ................................................................................... 13, 35 Illinois Commerce Commission v. Interstate Commerce Commission, 848 F.2d 1246 (D.C. Cir. 1988) ....................................................................................... 35 Judulang v. Holder, 132 S. Ct. 476 (2011) ................................................................................................... 8, 36 Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) ..................................................................................................... 16 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ......................................................................................................... 10 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................. passim Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ....................................................................................................... 4, 8 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 5 of 57 v Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Milk Indus. Found. v. Glickman, 132 F.3d 1467 (D.C. Cir. 1998) ....................................................................................... 47 National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ................................................................................................... 22, 31 National Mining Ass’n v. Kempthorne, 512 F.3d 702 (D.C. Cir. 2008) ......................................................................................... 31 Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011) ............................................................................................. 19 Nat’l Taxpayers Union v. United States, 68 F.3d 1428 (D.C. Cir. 1995) ......................................................................................... 18 Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930 (D.C. Cir. 2004) ................................................................................... 15, 17 Native Ecosystems Council v. United States Forest Service, 428 F.3d 1233 (9th Cir. 2005) ......................................................................................... 44 NEPA Coal of Japan v. Aspin, 837 F. Supp. 466 (D.D.C. 2003) ....................................................................................... 46 PETA v. USDA, 797 F.3d 1087 (D.C. Cir. 2015) ........................................................................................ 20 Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153 (9th Cir. 1998) ......................................................................................... 45 Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1 (D.D.C. 2014) ....................................................................................... 20 Public Citizen v. Dep’t of Justice, 491 U.S. 440 (1989) ................................................................................................... 11, 14 Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410 (9th Cir. 1990) ......................................................................................... 47 Rasul v. Bush, 542 U.S. 466 (2004) ......................................................................................................... 10 Renne v. Geary, 501 U.S. 312 (1991) ......................................................................................................... 10 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 6 of 57 vi Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ....................................................................................................... 4, 5 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ................................................................................................... 23, 27 Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C. Cir. 2009) ................................................................................... 8, 36 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) ..................................................................................................... 15, 17 Smith v. U.S., 507 U.S. 197 (1993) ......................................................................................................... 46 Southern California Edison Co. v. FERC, 195 F.3d 17 (D.C. Cir. 1999) ........................................................................................... 22 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ........................................................................................................... 10 Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 .................................................................................................................. 46 United States v. Menasche, 348 U.S. 528 (1955) ......................................................................................................... 25 United States v. Ron Pair Enters., 489 U.S. 235 (1989) ......................................................................................................... 22 Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th Cir. 2006) ......................................................................................... 47 Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519 (1978) ............................................................................................................ 4 W. Watersheds Project v. U.S. Forest Serv., 2012 WL 6589349 (D. Ariz. Dec. 17, 2012) ................................................................... 47 West v. Sec’y of Dep’t of Transp., 206 F.3d 920 (9th Cir. 2000) ............................................................................................. 5 Wong v. Bush, 542 F.3d 732 (9th Cir. 2008) ...................................................................................... 47-48 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 7 of 57 vii Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. XP Vehicles, Inc. v. United States Dep’t of Energy, 2016 WL 199401 (D.D.C. Jan. 15, 2016) .................................................................. 33, 41 STATUTES 5 U.S.C. § 706 ................................................................................................................................. 8 5 U.S.C. § 706(2)(A)....................................................................................................................... 8 16 U.S.C. § 1531(b) .................................................................................................................. 3, 28 16 U.S.C. § 1532(13) .................................................................................................................... 38 16 U.S.C. § 1532(19) .................................................................................................................... 25 16 U.S.C. § 1533 ........................................................................................................................... 24 16 U.S.C. § 1533(a)(3)(A) ............................................................................................................ 24 16 U.S.C. § 1534 ........................................................................................................................... 24 16 U.S.C. § 1535(b) ...................................................................................................................... 24 16 U.S.C. § 1536 ........................................................................................................................... 24 16 U.S.C. § 1536(a)(2) .................................................................................................................. 33 16 U.S.C. §§ 1537a ......................................................................................................................... 2 16 U.S.C. § 1537a(a)....................................................................................................................... 4 16 U.S.C. § 1538(a)(1) .................................................................................................................. 40 16 U.S.C. § 1538(a)(1)(A) ........................................................................................................ 3, 43 16 U.S.C. § 1538(c) ........................................................................................................................ 2 16 U.S.C. § 1539(a)(1) .................................................................................................................. 26 16 U.S.C. § 1539(a)(1)(A) ..................................................................................................... passim 16 U.S.C. § 1539(a)(1)(B) ............................................................................................................ 26 16 U.S.C. § 1539(c) ............................................................................................................ 3, 11, 12 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 8 of 57 viii Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 16 U.S.C. § 1539(d) ............................................................................................................ 3, 21, 39 16 U.S.C. § 1539(e) ...................................................................................................................... 26 16 U.S.C. § 1540(a) ...................................................................................................................... 38 16 U.S.C. §§ 1531–44 ..................................................................................................................... 2 42 U.S.C. §§ 4321 ........................................................................................................................... 4 42 U.S.C. §§ 4321-4370h ............................................................................................................... 4 42 U.S.C. §§ 4322(2)(C) ................................................................................................................. 4 FEDERAL REGULATIONS 40 C.F.R. § 1500.4(p) ..................................................................................................................... 5 40 C.F.R. § 1501.1 .......................................................................................................................... 4 40 C.F.R. § 1501.3 .......................................................................................................................... 5 40 C.F.R. §§ 1508.4 .................................................................................................................. 5, 44 40 C.F.R. § 1508.27(b)(4) ............................................................................................................. 45 40 C.F.R. § 1508.27(b)(5) ............................................................................................................. 45 40 C.F.R. § 1508.9 .......................................................................................................................... 5 40 C.F.R. §§ 1500–1508 .............................................................................................................. 4-5 43 C.F.R. § 46.205 .......................................................................................................................... 5 43 C.F.R. § 46.205(a)................................................................................................................ 6, 44 43 C.F.R. § 46.215 .................................................................................................................... 7, 44 44 Fed. Reg. 1957 ......................................................................................................................... 46 48 Fed. Reg. 34263-66 (July 28, 1983) ........................................................................................ 44 50 C.F.R. §§ 13.11 .......................................................................................................................... 3 50 C.F.R. § 13.12(a)(2) ................................................................................................................. 12 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 9 of 57 ix Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 50 CFR 13.21(b)(1) ....................................................................................................................... 39 50 C.F.R. § 13.48 .......................................................................................................................... 38 50 C.F.R. § 17.3 ............................................................................................................................ 40 50 C.F.R. § 17.11 .......................................................................................................................... 43 50 C.F.R. § 17.11(h) ....................................................................................................................... 2 50 C.F.R. § 17.21(b) ................................................................................................................. 3, 43 50 C.F.R. § 17.22 .......................................................................................................... 3, 39, 40, 43 50 C.F.R. § 17.22(a)...................................................................................................................... 12 50 C.F.R. §17.22(a)(1) .................................................................................................................. 43 50 C.F.R. § 17.22(a)(2) ................................................................................................................. 31 50 C.F.R. § 17.22(a)(2)(i) ............................................................................................................. 32 50 C.F.R. § 17.22(a)(2)(ii) ............................................................................................................ 40 50 C.F.R. § 17.22(a)(2)(v) ............................................................................................................ 40 50 C.F.R. Part 23........................................................................................................................... 43 50 C.F.R. § 23.13(a)...................................................................................................................... 43 50 C.F.R. §§ 23.18 .............................................................................................................. 4, 41, 43 50 C.F.R. §§ 23.13–23.36 ............................................................................................................... 3 50 C.F.R. § 23.41 .................................................................................................................... 41, 43 50 C.F.R. § 23.63 .......................................................................................................................... 41 50 C.F.R. § 23.91 .................................................................................................................. 2, 4, 43 50 C.F.R. § 402.02 .................................................................................................................. 33, 34 50 C.F.R. § 402.16 ........................................................................................................................ 34 50 CFR Chapter 1 ..................................................................................................................... 6, 42 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 10 of 57 x Case No. 16-cv-00149-KBJ Defs.’ Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 50 C.F.R., Chapter 1, Sub[chapter] B ............................................................................................. 6 50 C.F.R., Chapter 1, Subchapter B ........................................................................................ 42, 43 50 C.F.R., Chapter 1, Subchapter B, Part 17, Subpart B .............................................................. 43 80 Fed. Reg. 34,500 (June 16, 2015) .................................................................................. 2, 33, 36 80 Fed. Reg. 62,089 (Oct. 15, 2015) ............................................................................................... 6 81 Fed. Reg. 3,452 (Jan. 21, 2016) ................................................................................................. 6 81 Fed. Reg. 27,170 (May 5, 2016) ................................................................................................ 8 Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 11 of 57 1 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. In 2014, Yerkes National Primate Research Center agreed to donate eight of its chimpanzees—all of whom were born and raised in captivity at Yerkes—to Wingham Wildlife Park, a licensed and regulated zoo in the United Kingdom. AR 131–35. Section 9 of the Endangered Species Act (“ESA”) prohibits the exportation of endangered species, which includes chimpanzees, without an ESA permit. If Wingham were in the United States, no permit would be required. In preparation for the transfer of these chimpanzees, Wingham provided extensive training to its staff members, including several multi-week international trips for keepers to interact and work with chimpanzees. See, e.g., AR 49747. Wingham also constructed a new, extensive enclosure to house the chimpanzees, facilities that the chimpanzee experts who actually visited Wingham found to be “wonderful.” AR 1511 (comment of Jane Goodall supporting the permit); 1840 (primatologists’ comment describing the facilities very positively). Yerkes applied for the required export permit under ESA section 10(a)(1)(A). In deciding whether to grant the permit, the U.S. Fish and Wildlife Service (“FWS”) was presented with two choices: (1) issue the permit if appropriate, in which case the chimpanzees would likely be exported; or (2) not issue the permit if appropriate, in which case the chimpanzees would remain at Yerkes unless and until Yerkes made other arrangements. After making all the necessary findings, FWS issued the export permit to Yerkes. AR 49927–35. FWS found the permit would “enhance the survival of the species in the wild” because the permit provides $225,000 to a program to conserve wild chimpanzee populations in Africa. AR 49912–14. This finding was not extraordinary—it is consistent with the ESA and decades of FWS practice. Plaintiffs claim that FWS’s decision was arbitrary and capricious because: (1) in their view, ESA subsection 10(a)(1)(A) requires that the permitted act itself must enhance the survival of the species in the wild, although that subsection uses neither the word “must” nor the word “itself” Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 12 of 57 2 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. and FWS’s long-standing implementation of that subsection is supported by the ESA’s plain language, legislative history, and purposes; (2) FWS failed to consider the comments of experts, although the record demonstrates it expressly considered those comments; and (3) in their view, the National Environmental Policy Act (“NEPA”) requires FWS to prepare an EA or EIS for the permit decision, although FWS used a categorical exclusion. Plaintiffs’ other challenges, which they entirely fail to present, or present cursorily, also fail. But the Court cannot even consider the merits of Plaintiffs’ claims because they have failed to demonstrate standing, depriving the Court of subject-matter jurisdiction. For all these reasons, the Court should grant Defendants’ cross- motion for summary judgment on the first though fourth claims of the amended complaint. LEGAL BACKGROUND Chimpanzees (Pan troglodytes), including those bred and held in captivity, are listed as an endangered species under the ESA, 80 Fed. Reg. 34,500 (June 16, 2015), 50 C.F.R. § 17.11(h), and are also listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), 27 U.S.T. 1087, T.I.A.S. No. 8249, (1973); 50 C.F.R. § 23.91, a treaty that aims to protect wildlife by regulating trade in species that are vulnerable to, or adversely affected by, trade. Congress implemented CITES into domestic law through the ESA, 16 U.S.C. §§ 1537a, 1538(c). As a listed species, the exportation of chimpanzees is governed by the ESA and CITES. In addition, FWS must consider the National Environmental Policy Act when issuing a permit authorizing the exportation of chimpanzees. I. The Endangered Species Act The ESA contains both substantive and procedural requirements designed to promote its goal of conserving endangered and threatened species and their ecosystems. See 16 U.S.C. § 1531(b). Except in certain limited circumstances, ESA section 9 makes it unlawful for any “person” to Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 13 of 57 3 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. “export” endangered species. See 16 U.S.C. § 1538(a)(1)(A); 50 C.F.R. § 17.21(b). Section 10(a)(1)(A) of the ESA authorizes the Secretary to permit “under such terms and conditions as [s]he shall prescribe” “any [otherwise prohibited act, such as exportation] for scientific purposes or to enhance the propagation or survival of the affected species.” 16 U.S.C. § 1539(a)(1)(A). Applications for enhancement permits are subject to the notice and review provisions of Section 10(c). See 16 U.S.C. § 1539(c). Such permits may be granted only if the Secretary finds and publishes 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 set forth in section 1531 of this title.” 16 U.S.C. § 1539(d). FWS regulations set forth general application requirements and issuance criteria governing individual endangered species permits. 50 C.F.R. § 17.22; 50 C.F.R. §§ 13.11, 13.12. II. CITES FWS has promulgated regulations that prohibit import or export of CITES-listed animals, live or dead, whether whole or otherwise, unless expressly authorized by valid CITES export and import documents or specifically exempted. 50 C.F.R. §§ 23.13–23.36. The ESA designates the Department of the Interior as the United States’ Scientific and Management Authorities for purposes of the treaty, with all functions carried out through FWS. See 16 U.S.C. § 1537a(a). Chimpanzees are listed on CITES Appendix I. See 50 C.F.R. § 23.91. A CITES export permit or certificate is usually required for the exportation of a member of an Appendix I species. See CITES Art. III(1). But, importantly for this case, under paragraph 5 of CITES Article VII, where a Management Authority of the country of export is satisfied that any specimen of an animal species was bred in captivity, a certificate by that Management Authority to that effect shall be accepted in lieu of any of the permits or certificates required under the Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 14 of 57 4 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. provisions of Article III. See CITES Art. VII(5); see also 50 C.F.R. §§ 23.18, 23.41, 23.63. III. The National Environmental Policy Act NEPA, 42 U.S.C. §§ 4321–4370h, establishes a process for federal agencies to consider the environmental impacts of federal actions. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 558 (1978). In relevant part, NEPA requires that federal agencies prepare an environmental impact statement (“EIS”) for major federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4322(2)(C). NEPA’s intent is to focus federal agencies’ attention on a proposed action so that the consequences of the action may be studied before the action is implemented and potential adverse environmental impacts may be avoided. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; Marsh v. Or. Nat. Council, 490 U.S. 360, 371 (1989). NEPA’s mandate to the agencies, as stated above, is “essentially procedural.” Vt. Yankee, 435 U.S. at 558. NEPA itself “does not mandate particular results, but simply prescribes the necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Regulations promulgated by the Council on Environmental Quality (“CEQ”), 40 C.F.R. §§ 1500–1508, guide the application of NEPA and are entitled to substantial deference. Robertson, 490 U.S. at 355–56. They provide three ways for an agency to comply with NEPA. First, the agency may prepare an EIS: a detailed statement subject to extensive regulations regarding format, content, and methodology. See 40 C.F.R. § 1501.3 and Part 1502. Second, the agency may prepare an environmental assessment (“EA”). See id. §§ 1501.4(b), 1508.9. In contrast to the detailed EIS, an EA is meant to be a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether” an EIS is required. 40 C.F.R. § 1508.9(a)(1). Third, the agency may authorize an activity pursuant to a “categorical exclusion” (“CE”) if the agency reasonably determines that the action being authorized falls within the Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 15 of 57 5 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. scope of an existing CE category, and there are no extraordinary circumstances. The CEQ regulations authorize an agency to use a CE for a “category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations.” West v. Sec’y of Dep’t of Transp., 206 F.3d 920, 927 (9th Cir. 2000) (citing 40 C.F.R. § 1508.4). Indeed, the CEQ regulations encourage agencies to use CEs where appropriate. 40 C.F.R. § 1500.4(p). The only caveat is for “extraordinary circumstances in which [the] normally excluded action may have a significant environmental effect.” Id. § 1508.4. Before relying on a CE in a particular instance, an agency must determine that extraordinary circumstances do not exist. See California v. Norton, 311 F.3d 1162, 1177 (9th Cir. 2002). The Department of the Interior has adopted NEPA procedures, including categorical exclusions, which were codified October 15, 2008. See 43 C.F.R. § 46.205 (Actions categorically excluded from NEPA review); § 46.210 (Listing of Departmental categorical exclusions); § 46.215 (Categorical exclusions: Extraordinary circumstances). Agencies are not required to prepare an EA or EIS for actions subject to a CE. 43 C.F.R. § 46.205(a). In addition to the regulations, the Department adopted Part 516 of the Department Manual (“DM”) which identifies CEs that apply in a bureau-specific context. This includes a specific categorical exclusion for FWS’s issuance of permits for regulated activities involving wildlife, when the permits cause no or negligible environmental disturbance. 516 DM 8.5(C)(1) (“The issuance, denial, suspension, and revocation of permits for activities involving fish, wildlife, or plants regulated under 50 CFR Chapter 1, Sub[chapter] B, when such permits cause no or negligible environmental disturbance.”).1 1 Available at http://elips.doi.gov/ELIPS/DocView.aspx?id=1739 (last visited Aug. 3, 2016). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 16 of 57 6 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. FACTUAL BACKGROUND On June 16, 2015, FWS received Yerkes’s application to export eight chimpanzees to Wingham. AR 49546–87. Yerkes supplemented its application with additional materials on July 10, 2015, September 25, 2015, October 1, 2015, and January 13, 2016. AR 49588–688, 49732– 39, 49747–48, 49776–80.2 On October 15, 2015, FWS published in the Federal Register a notice of the application, which noted that public comments would be accepted until November 16, 2015. 80 Fed. Reg. 62,089; AR 289–91. On January 21, 2016, FWS published a notice in the Federal Register that it was reopening the comment period on the application and that public comments would be accepted until February 22, 2016. 81 Fed. Reg. 3,452; AR 49785. On May 2, 2016, Defendants issued the export permit with both general and special permit conditions. AR 49927–35. The special conditions require the Yerkes to report to FWS on the progress of the “Population, Health, and Environment program” Yerkes has pledged to fund. AR 49928. In preparing to issue the permit, FWS also produced or relied on several supporting documents, including: (1) an explanation why the permit meets the requirements for a categorical exclusion (“CE”) under NEPA, AR 49915–18;3 (2) an “enhancement finding” prepared by a biologist explaining FWS’s finding that the permit will enhance the propagation or survival of the species in the wild, AR 49912–14; (3) a “Section 10(d) Finding” explaining how the permit meets the requirements of section 10(d) of the ESA, AR 49919–20; (4) a memorandum that for the purpose of exportation, chimpanzees qualify as captive-bred for issuance of certificates under the provisions of paragraph 5 of CITES Article VII, AR 1–7; and (5) the “Programmatic Section 7 biological evaluation concurrence . . . .” AR 8–10. 2 The application materials record also include several instances of less formal supplementation. See AR 49689–784. 3 See also Departmental Manual, 516 DM 8.5(C)(1). FWS further determined that no extraordinary circumstances, i.e., exceptions to the categorical exclusion, apply to the permits. AR 49915–18; 43 C.F.R. § 46.215. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 17 of 57 7 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. In finding that the issuance of the permit would “enhance the survival of the species in the wild,” FWS made numerous findings regarding the contribution Yerkes pledged to make to further conservation of chimpanzees in the wild, the benefits that program will have on wild chimpanzees, the success of similar programs, the experienced caretakers at the receiving institution, the quality of the new facility that will receive the chimpanzees, the measures taken to ensure safe and humane transport for the chimpanzees, the extensive information considered, the consideration given to comments and other information submitted by the public, and the reasoning behind the findings made. AR 49912–14. FWS concluded that “the applicant has demonstrated that this action will enhance the survival of the species.” AR 49914. Also on May 2, 2016, FWS submitted to the Federal Register for publication notice that it issued the permit and made the ESA Section 10(d) findings. That notice was published in the Federal Register on May 5, 2016. See 81 Fed. Reg. 27,170; AR 49936–37. STANDARD OF REVIEW Review of Plaintiffs’ non-FOIA claims—all the claims now at issue—is governed by the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., City of Las Vegas v. Lujan, 891 F.2d 927, 932 (D.C. Cir. 1989). Under this standard: resolution does not require fact finding by the Court; review is limited to the administrative record; and the matter is properly decided on summary judgment as there are no disputed issues of material fact. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). A court may set aside a final agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of review is “narrow,” and the Court “is not to substitute its judgment for that of the agency.” Judulang v. Holder, 132 S. Ct. 476, 483 (2011) (quotation omitted). This review is “very deferential,” Rural Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 18 of 57 8 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009), especially where, as here, the agency is “making predictions, within its area of special expertise . . . .” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 93, 96, 103, 105–106 (1983); see also Judulang, 132 S. Ct. at 483 (Agencies “have expertise and experience in administering their statutes that no court can properly ignore.”); Marsh, 490 U.S. at 375–77; Am. Wildlands v. Kempthorne, 530 F.3d 991, 1000 (D.C. Cir. 2008). This standard “mandates judicial affirmance if a rational basis for the agency’s decision is presented . . . even though [a court] might otherwise disagree.” Envtl. Def. Fund v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (citations omitted). ARGUMENT Plaintiffs present a false dichotomy. They repeatedly suggest that the seven4 chimpanzees covered by the permit will either be (1) exported to a zoo in England if the permit is allowed to stand, or (2) “retired” as a group to a sanctuary in the United States if the permit is vacated. See, e.g., Doc. 39-1 (Pls.’ Br.) at 33 (permit denial “would allow the seven chimpanzees to instead be transferred to a sanctuary in the United States”); Doc. 6 (Am. Compl.) ¶¶ 19, 23, 26, 30. But this is not the choice presented to FWS when it receives a permit application. Instead, FWS must determine whether to: (1) issue the permit if appropriate, in which case the chimpanzees would likely be exported, or (2) not issue the permit if appropriate, in which case the chimpanzees would remain at Yerkes unless and until Yerkes chooses to make other arrangements, an independent choice it would make without involvement of the FWS.5 Thus, the appropriate 4 In February 2016, a representative of Yerkes informed FWS via telephone that one of the chimpanzees had died. The Service did not memorialize this information in writing, finding that so long as Yerkes would not seek to replace that animal with another it did not require a change to the permit application. 5 The possible outcomes of that third-party choice, including whether it may or may not result in the animals going to a sanctuary, would be pure speculation on the part of FWS, and FWS need not and should not engage in such speculation when making its permitting decisions. It also almost certainly is not the entire spectrum of choices available to Yerkes should the permit be vacated. Defendants are not aware of any legal obligation requiring Yerkes to relocate these chimpanzees at all. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 19 of 57 9 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. dichotomy is between sending the chimpanzees to Wingham or leaving them at Yerkes. But regardless, it is plain that Plaintiffs lack standing and their claims fail on the merits. I. The Court lacks subject-matter jurisdiction over Plaintiffs’ claims. As courts of limited jurisdiction, federal courts may decide cases only after the party asserting jurisdiction demonstrates that the dispute falls within the court’s jurisdiction. See Rasul v. Bush, 542 U.S. 466, 489 (2004). The burden of establishing subject-matter jurisdiction by a preponderance of the evidence rests on the party asserting jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). The presumption is that federal courts lack jurisdiction unless the record affirmatively establishes otherwise. Renne v. Geary, 501 U.S. 312, 316 (1991). Plaintiffs lack standing to challenge the issuance of the permit. To establish Article III standing, a plaintiff must show: (1) that it has suffered a concrete and particular injury in fact that is either actual or imminent; (2) the injury is fairly traceable to the alleged actions of the defendant; 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). As demonstrated below, Plaintiffs cannot show that any of them have Article III standing to challenge the permit. a. Plaintiff Georgia the chimpanzee lacks standing. Animals, including Georgia the chimpanzee, do not have standing for claims brought under the ESA, NEPA, or the APA. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1179 (9th Cir. 2004). b. Plaintiffs Fauna Foundation, Primate Rescue Center, Chimps Inc., Jungle Friends Primate Sanctuary, and Cruelty Free International lack standing. Plaintiffs argue that Fauna Foundation, Primate Rescue Center, Chimps Inc., Jungle Friends Primate Sanctuary, and Cruelty Free International have standing solely based on an “informational injury,” namely that because FWS did not “collect the information necessary to conclude that the authorized export will ‘enhance the survival’ of the chimpanzee species” these Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 20 of 57 10 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Plaintiffs were injured by the denial of their “right to receive and comment on such information before the FWS made the decision at issue, as required by Section 10(c) of the ESA.” Pls.’ Br. 38; see also Am. Compl. ¶¶ 14–18. This is not a cognizable injury. Section 10(c) of the ESA requires that: FWS “publish notice in the Federal Register of each application for an exemption or permit which is made under this section”; “[e]ach notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application”; and “[i]nformation received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.” 16 U.S.C. § 1539(c). While the D.C. Circuit recently found section 10(c) creates a right to information upon which a claim of informational standing can be predicated, Friends of Animals v. Jewell, No. 15-5070, 2016 WL 3125204, at *6 (D.C. Cir. June 3, 2016), this is not the end of the inquiry. Mere allegations of a deprivation may be adequate to survive a motion to dismiss, but as the case progresses, Plaintiffs’ burden increases and they must show that they have in fact been injured. See Lujan, 504 U.S. at 561. At summary judgment, Plaintiffs must provide facts demonstrating that they have been denied information that “must be publicly disclosed pursuant to a statute”; that is, they must be deprived information to which they are entitled under the statutory provision granting them a right to the information. See Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998) (citing Public Citizen v. Dep’t of Justice, 491 U.S. 440, 449 (1989)). Here, FWS provided all the “[i]nformation received by the Secretary as a part of [the] application . . . .” 16 U.S.C. § 1539(c). And Plaintiffs have not alleged otherwise. Instead, Plaintiffs claim they are injured because they did not receive information that FWS did not Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 21 of 57 11 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. receive but which they allege should have been provided to FWS.6 Plaintiffs misapprehend the scope of any informational right afforded under section 10(c). Friends of Animals v. Jewell in no way expanded FWS’s obligation: “the Secretary of the Interior must disclose information it receives in connection with any Section 10 permit.” 2016 WL 3125204, at *6. In issuing the permit here, FWS fully complied with its obligations under Section 10(c), negating any possibility of an informational injury because there is no information to which Plaintiffs are entitled that they did not receive. Plaintiffs’ argument that the relevant regulations require FWS to include additional information it did not receive is wholly meritless. First, section 10(c) does not require FWS to provide any information other than what it receives as part of the application. 16 U.S.C. § 1539(c). Even if the regulations required that certain information be included in an application, they in no way require FWS to make that information available if it is not provided. If Congress intended that FWS provide more information than what it received, it would have said so. Second, contrary to Plaintiffs’ characterization, 50 C.F.R. § 13.12(a)(2) does not “require the applicant for such permits to provide the FWS with the ‘location’ of the activity that will enhance the survival of the species.” Pls.’ Br. 38. All it requires is that an applicant include the “[l]ocation where the requested permitted activity is to occur or be conducted.” 50 C.F.R. § 13.12(a)(2). That information was included in the application and made available to the public. See, e.g., AR 49588–94. The same is true of the information required by 50 C.F.R. § 17.22(a) that Plaintiffs argue was not included: clause (vi) requires “a complete description, including photographs or diagrams, of the facilities to house and/or care for the wildlife and a resume of 6 Plaintiffs make a merits argument that FWS could not issue the permit absent these as-yet unknown details regarding the program to be funded by Yerkes. But even if that argument had merit—which it does not, see infra Argument II(c)—FWS has still provided all of the information it was required to provide. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 22 of 57 12 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. the experience of those person[s] who will be caring for the wildlife”; and clause (vii) requires a “full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit.” That information was also included in the application and made available to the public as required by section 10(c). See, e.g., AR 49588–90, 49644–89, 49721–31, 49735–39, 49763–64, 49770–73, 49776–79. The cases Plaintiffs cite, Pls.’ Br. 39–40, involved very different circumstances and thus do not support their argument. In Friends of Animals, the court found that the plaintiff suffered an informational injury by FWS’s creation of a “captive-bred exception” that “allowed qualified owners of domestic, captive-bred antelope to engage in activities otherwise prohibited by Section 9 of the ESA without applying for individual permits on a case-by-case basis.” 2016 WL 3125204, at *1. The court found that the “captive-bred exception” eliminated “the applicability of individual Section 10 permitting requirements that would otherwise have been necessary” and “[a]s a result, [plaintiff] is denied information relating to permitted takes of U.S. captive-bred herds of the three antelope species.” Id. at *6. In Gerber v. Norton, the Court found that the plaintiffs suffered an informational injury by FWS’s failure to disclose and make available a map that was included in the application materials, and that FWS “plainly misled [plaintiffs] and other interested members of the public into believing that a map of the mitigation site was not in the public record” when it in fact was. See 294 F.3d 173, 181 (D.C. Cir. 2002). In Federal Election Commission v. Akins, the Court found that the plaintiffs suffered an informational injury by the Commission’s determination that the American Israel Public Affairs Committee (“AIPAC”) is not a “political committee” under the Federal Election Campaign Act of 1971 (“FECA”), and that this determination deprived the public of information regarding AIPAC’s members, contributions, and expenditures, information the FECA requires be made publicly Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 23 of 57 13 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. available, barring public access to information that was otherwise required to be made available under law. See 524 U.S. 11, 13 (1998). Lastly, in Public Citizen v. U.S. Dep’t of Justice, the Court found plaintiffs suffered an informational injury by the Department’s determination that the Federal Advisory Committee Act (“FACA”) did not apply to the American Bar Association committee that vets candidates for federal judgeships, finding that plaintiffs had “specifically requested, and been refused, the names of candidates under consideration by the ABA Committee, reports and minutes of the Committee’s meetings, and advance notice of future meetings,” and that like when an agency denies requests under FOIA “refusal to permit appellants to scrutinize the ABA Committee’s activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue.” 491 U.S. 440, 449 (1989). In contrast to these cases, FWS here issued a permit and made available all the information it received. Plaintiffs have not and cannot show an injury-in-fact based on a denial of information when FWS made available all the information it was required to—the “information it receives in connection with any Section 10 permit.” Friends of Animals, 2016 WL 3125204, at *6. c. Plaintiffs Jennifer Feuerstein, Brian Hare, Rachel Weiss, and Mary Lee Jensvold lack standing. Aside from the alleged informational injury, which is not cognizable for the same reasons discussed above, see supra Argument I(b), these individual Plaintiffs’ allege that if the permit is upheld they will be deprived of their ability to visit and observe the chimpanzees in a humane setting. See Am. Compl. ¶¶ 19–27; Pls.’ Br. 42–44. This is neither a cognizable injury nor redressable by this lawsuit. First, these Plaintiffs have not even alleged that they currently are able to view these animals at all, much less in what they consider a humane setting. The chimpanzees are currently housed in a private research facility—these Plaintiffs have no right to visit with or observe these chimpanzees, and even if they did it would be within this institutional Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 24 of 57 14 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. setting.7 Since they cannot currently view these animals in a humane setting, it follows that they cannot be injured by not being able to view them in a humane setting in the future. Second, this alleged harm is not redressable by this lawsuit. If the permit is vacated, the chimpanzees would remain at Yerkes unless and until Yerkes chooses to relocate them. Plaintiffs’ suggestion that if the permit is vacated, the chimpanzees will “very likely . . . be relocated to a U.S. sanctuary,” Am. Compl. ¶ 24, is entirely speculative. Absent a showing of nonspeculative redressability, Plaintiffs lack standing. See, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004) (It is plaintiff’s burden to “adduce facts showing that [the regulated third-party’s] choices have been or will be made in such manner as to produce causation and permit redressability of injury.’” (citation omitted)); see also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44–46 (1976). Plaintiffs argue that “[i]t is well established that a ‘person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm’ if that decision adversely affects that individual’s ability to enjoy observing that animal.” Pls.’ Br. 42 (quoting Lujan, 504 U.S. at 566). It is clear from the context that this refers to a person who presently does and has an opportunity to “observe or work” with the subject animal.8 See Lujan, 504 U.S. at 566. Moreover, that statement was made in contrast to a previous hypothetical example of visitors to, or keepers at, the Bronx Zoo. The latter half of the statement (“the very subject of his interest will no longer exist”) refers to the present loss of the ability to observe or work with an animal. See id. This hypothetical should not be extended here, where these Plaintiffs do not currently have, nor even recently had, access to these chimpanzees much less a right to access 7 Defendants take no view on whether the institutional setting is a humane setting, but it appears from plaintiffs’ allegations that they would not consider viewing the chimpanzees in such a setting as meeting their desire to see the animals in what they consider a humane setting. See Doc. 39-25, Pls.’ Ex. 23 ¶ 10; Doc. 39-4, Pls.’ Ex. 2 ¶¶ 17–20. 8 This statement was nonbinding dictum. See Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1368 (2013). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 25 of 57 15 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. them. Consequently, the permitted export (or lack thereof) does not and cannot adversely affect their ability to enjoy observing these animals. Plaintiffs’ citation to Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) is similarly misplaced. In Glickman, one plaintiff was found to have standing in a lawsuit challenging certain U.S. Department of Agriculture (“USDA”) regulations on the ground that they violate the statutory mandate under the Animal Welfare Act by permitting “dealers, exhibitors, and research facilities to keep primates under inhumane conditions.” Glickman, 154 F.3d at 428. The one plaintiff found to have standing, Marc Jurnove, regularly and repeatedly visited, and planned to continue to regularly visit, a public zoo where he regularly observed the mistreatment of animals, who complained about this mistreatment to the authorities, and who learned that the authorities could not address this mistreatment because it was permitted by USDA regulations. See id. at 429–30. He then filed a lawsuit challenging those very regulations as inconsistent with the Animal Welfare Act. See id. The facts here are not remotely similar. Plaintiffs here: have not worked with, or even seen, these chimpanzees in years, animals currently housed at a research facility, a scenario that could legally continue indefinitely; have no present right or access to observe the chimpanzees; and complain that FWS injures them by permitting Yerkes to move the chimpanzees to a zoo in England because it is theoretically possible for the chimpanzees to be relocated to a facility Plaintiffs prefer. Glickman is entirely distinct and does not support their standing.9 d. Plaintiff New England Anti-vivisection Society lacks standing. Aside from their alleged informational injury, which fails for the reasons given above, see 9 Plaintiffs argue that to meet the redressability requirement they need only show that their preferred result is “likely,” Pls.’ Br. 44, but they ignore the requirement that it not be “speculative.” Lujan, 504 U.S. at 561; see also Nat’l Wrestling Coaches Ass’n, 366 F.3d at 938; Simon, 426 U.S. at 44–46. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 26 of 57 16 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. supra Argument I(b), the New England Anti-vivisection Society (“NEAVS”) asserts the challenged permit will hinder its “ability to carry out one of its key missions— i.e., its ‘Project R & R’ (Release and Restitution) Campaign” and NEAVS will be forced to expend more resources “attempting to rescue and protect the eight Yerkes chimpanzees” and to monitor “what happens to these chimpanzees and their progeny once they are shipped to England . . . .” See Pls.’ Br. 38– 42; see also Am. Compl. ¶¶ 11–13. But NEAVS’s cannot demonstrate an injury-in-fact by merely identifying government action that is contrary to its worldview and institutional aims. The President of NEAVS submitted a declaration wherein she states, among other things, that by issuing the permit FWS “is frustrating the explicit mission of NEAVS’ Project R&R campaign to provide chimpanzees used in biomedical research . . . release and restitution in sanctuaries where they will be ensured humane treatment . . . .” Doc. 39-24, Pls.’ Ex. 22 ¶ 4.10 This statement provides no facts as to how the issuance of the permit frustrates the Project R&R campaign and does not support any inference that the challenged permit thwarts NEAVS’s “daily operations” or “organizational activities” in any respect. NEAVS has therefore failed to demonstrate any cognizable injury to its interest. See Food & Water Watch v. Vilsack, 808 F.3d 905, 919–20 (D.C. Cir. 2015). NEAVS’s alleged “frustration” does not demonstrate standing to sue. For more than two decades, the D.C. Circuit has held that the government’s “frustration of an organization’s objectives ‘is the type of abstract concern that does not impart standing.’” Food & Water Watch, 808 F.3d at 919 (quoting Nat’l Taxpayers Union v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (Distinguishing “between organizations that allege that their activities have been impeded from those that merely allege that their mission has been compromised.”). 10 The declaration also alleges FWS failed to support its “decision” to issue the permit with certain statutorily required findings, and that this caused an informational injury. Pls.’ Ex. 22 ¶ 8. But this declaration pre-dates the issuance of the permit—it is dated April 25, 2016. When the permit was issued on May 2, 2016, FWS included all the statutorily required findings and the required publication of the notice was completed. See AR 49936–37. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 27 of 57 17 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Further, NEAVS’s alleged allocation of resources does not rise to the level of a cognizable injury. According to NEAVS, it: will be “forced to expend more resources attempting to rescue and protect the eight Yerkes chimpanzees”; “will have to spend more money monitoring what happens to these chimpanzees and their progeny once the chimpanzees are shipped to England”; would then need to “shift its efforts to advocate for the greatest protection possible for these animals under the laws of the United Kingdom”; and “will also have to spend additional resources counteracting the precedential effect of the FWS’s unlawful permit issuance . . . .” Pls.’ Ex. 22 ¶¶ 5–6. Insofar as these allegations are offered to support a purported “frustration of mission,” they do not demonstrate standing for the reasons set forth above. These allegations also do not support a diversion-of-resources injury because there is no injury-in-fact where, as here, an alleged “diversion” of resources in response to government action is exemplary of the plaintiff’s normal, day-to-day operations. Here, NEAVS admits that it regularly has “spent many years and considerable economic, personnel, and other resources advocating for protections for captive chimpanzees, particularly those used in laboratory research.” Pls.’ Ex. 22 ¶ 2; see also Am. Compl. ¶ 7. Insofar as NEAVS “complains” it has taken or will need to take such steps in response to the challenged permit, it is paradoxically “complaining” that the permit has compelled NEAVS to do the work it usually does. If this type of “self-serving observation” could manufacture injury-in-fact, then organizational plaintiffs such as NEAVS would be free to seek judicial review of any governmental action, no matter how remote, by electing to protest that action instead of other would-be targets for advocacy. See Nat’l Taxpayers Union, 68 F.3d at 1434. The D.C. Circuit has consistently rejected efforts to equate business-as-usual with injury- in-fact. See Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C. Cir. 2005) (no injury in fact where Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 28 of 57 18 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. government action prompted plaintiff to divert resources to “a more costly form of lobbying”). The D.C. Circuit most recently clarified that ordinary advocacy is not an injury-in-fact in Food & Water Watch, 808 F.3d at 920. In that case, a food safety advocacy organization challenged the Secretary of Agriculture’s promulgation of the “New Poultry Inspection System,” whereby the Secretary reallocated responsibility for the evaluation of chicken and turkey carcasses sold for human consumption. See id. at 910–12. In an effort to demonstrate organizational standing, plaintiff offered testimony that the new system of inspection would cause “all of the organization’s time and resources spent advocating against [the system] to have been wasted,” and that the organization “would have to increase the resources that it spends on educating the general public and its members” concerning the system’s alleged shortcomings. Id. at 920 (citation omitted). The D.C. Circuit concluded that this drain on resources had not “perceptibly impaired” plaintiff’s activities in any way, and thus failed to support an injury in fact. See id. at 921. The court noted two examples of organizational injury that might suffice: where the government limits an organization’s ability to seek redress as a matter of law, and where the government restricts the flow of information that an organization uses to educate its members. See id. at 920–21 (citing PETA v. USDA, 797 F.3d 1087, 1091–95 (D.C. Cir. 2015)).11 NEAVS’s alleged plan to use resources is essentially indistinguishable from the deficient allegations in Food & Water Watch. Premised as it is on NEAVS’s normal issue advocacy, this claim of organizational injury “comes perilously close to conferring standing on the 11 In PETA v. USDA, Plaintiff alleged that USDA’s denial of certain bird-related information sharply disrupted the organization’s normal mechanisms for identifying, publicizing, and redressing alleged mistreatment of birds. 797 F.3d at 1095–96. Instead of simply relying on USDA to investigate and publicize claims of mistreatment, PETA itself undertook substantial and unusual investigatory procedures, including “researching the labyrinth of local and state cruelty-to-animals and wildlife statutes, regulations, and policies” and preparing at least twelve administrative complaints. See id. at 1096. Accordingly, the D.C. Circuit concluded that USDA had impaired “the work in which [PETA] [is] engaged.” Id. at 1095. Here, on the other hand, NEAVS’s anticipated response to the challenged permit is the work in which the organization is normally engaged. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 29 of 57 19 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. impermissible basis of mere frustration of an organization’s objectives.” Chesapeake Climate Action Network v. Exp.-Imp. Bank of the U.S., 78 F. Supp. 3d 208, 235 (D.D.C. 2015) (citation omitted); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., 48 F. Supp. 3d 1, 23 (D.D.C. 2014) (no standing where challenged action did not “impede[] [plaintiff’s] programmatic concerns and activities, but fueled them”). As a theory of standing only slightly less abstract than a purported “frustration of mission,” therefore, NEAVS’s alleged “diversion of resources” falls short of demonstrating a concrete, particularized injury as required by Article III. As to NEAVS’s suggestion that the challenged permit will cause others to “send their chimpanzees to substandard facilities,” which NEAVS will have to expend resources to combat, Pls.’ Ex. 22 ¶ 6, that alleged injury is too speculative to be cognizable. See Food & Water Watch, 808 F.3d at 913 (“[W]e may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties).”) (citation and quotation marks omitted); see also ASPCA v. Feld Entm’t, 659 F.3d 13, 27–28 (D.C. Cir. 2011) (no support for “the key [causal] link in [plaintiff’s] standing argument, namely, that [defendant’s] use of bullhooks and chains fosters a public impression that these practices are harmless”). Because none of the plaintiffs have standing to sue, the Court should dismiss Plaintiffs’ amended complaint for want of jurisdiction. II. FWS Complied with the ESA. a. The permit complies with the requirements of ESA section 10. Section 10(a)(1) of the ESA provides that “[t]he Secretary may permit, under such terms and conditions as he shall prescribe—any act otherwise prohibited by [section 9] for scientific purposes, or to enhance the propagation or survival of the affected species . . . .” 16 U.S.C. § 1539(a)(1)(A). This broad grant of discretion is limited by the requirements of section 10(d), Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 30 of 57 20 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. which details that exceptions may be granted only if the Secretary “finds and publishes his findings 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 set forth in section 1531 of this title.” 16 U.S.C. § 1539(d). The plain language of section 10(a)(1)(A) allows for and does not preclude enhancement by indirect means. FWS, as the agency decision-maker, has also reasonably implemented this section to allow indirect enhancement to the propagation or survival of an affected species, such as contributions to conservation efforts that benefit the species in the wild. The plain language of the Act, its legislative history, and the purposes of the ESA support this reading of section 10(a)(1)(A). The language and structure of the ESA indicate Congress’s intent that FWS exercise its expertise to determine what activities qualify as enhancement. Because the determination of whether the permit is consistent with Section 10(a)(1)(A) is a matter of statutory interpretation, the framework of Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837 (1984), applies. Under step one, the Court asks “whether Congress has directly spoken to the precise question at issue,” for if “the intent of Congress is clear, that is the end of the matter . . . the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If the answer to that question is no, the Court must proceed to step two: “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 842–43. Deference to the agency’s interpretation is warranted when “Congress has not directly addressed the precise question at issue.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007) (citing Chevron, 467 U.S. at 837). i. Chevron Step One. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 31 of 57 21 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. “Of course, the starting point [for Chevron step one analysis], and the most traditional tool of statutory construction, is to read the text itself.” S. Cal. Edison Co. v. FERC, 195 F.3d 17, 23 (D.C. Cir. 1999) (citing Engine Mfrs. Ass’n v. EPA , 88 F.3d 1075, 1088 (D.C. Cir. 1996)). Other tools of statutory construction that may apply include review of the legislative history, reading the words of the statute “in their context and with a view to their place in the overall statutory scheme,” and consideration of the purposes of the statute. Nat’l Ass’n of Home Builders, 551 U.S. at 666 (citation omitted); Stafford v. Briggs, 444 U.S. 527, 535 (1980). A. The plain language and structure of the ESA allow for consideration of indirect enhancement. When statutory language is plain and unambiguous, the Court’s duty is to enforce the statute’s plain meaning. See United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989). The plainness of statutory language “is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (citation omitted). Section 10(a)(1)(A), provides that the Secretary may permit “any act otherwise prohibited by [section 9] for scientific purposes or to enhance the propagation or survival of the affected species[.] . . .” 16 U.S.C. § 1539(a)(1)(A). Plaintiffs mischaracterize the statute by insisting that the otherwise prohibited act itself must enhance the survival of the species. Pls.’ Br. 21–22. They do not provide support for this claim other than repeatedly citing fragments of section 10(a), which nowhere indicates that the act “itself” “must” contribute to the enhancement or survival of the species. In fact, neither the term “itself” nor “must” is found in the statutory language of 10(a)(1)(A) at all.12 The plain 12 See PETA v. FWS, No. 12-cv-04435 (C.D. Cal. Jan. 31, 2014), ECF No. 61 (citing 16 U.S.C. § 1539(a)(1)(A) (holding on this particular issue that this argument contained only conclusory statutory citations and that the claim that the use of the animals must contribute directly to the propagation or survival of the species in the wild was not supported by any other statutory basis.) Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 32 of 57 22 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. language instead supports the conclusion that the permitting of the otherwise prohibited act will, overall, contribute to the enhancement or survival of the species. The statute includes one example of a situation that would suffice as an enhancement: permitting acts necessary for the establishment and maintenance of experimental populations. It also clearly states that the instances where permits could be issued are “not limited” to that circumstance. 16 U.S.C. § 1539(a)(1)(A). Section 10(a)(1)(A) does not include the word “directly” before “enhance” and thus implicitly allows for consideration of direct or indirect enhancement; it certainly does not foreclose indirect opportunities for enhancement. As long as the permitting of an otherwise prohibited act is found by FWS to enhance the propagation or survival of a species in some way, even indirectly, and if FWS can make the required findings of section 10(d), then FWS may grant a permit for that otherwise prohibited act. Congress has spoken to the question at issue by using “may permit, under such terms and conditions as he shall prescribe.” Id. (emphasis added). The use of “may” indicates a broad grant of discretion to issue or deny permits and to determine what is sufficient to meet the enhancement standard for a permit. Throughout the ESA Congress largely uses the non- discretionary “shall” to direct agency activities. See 16 U.S.C. § 1533 (FWS “shall” determine which species qualify as endangered or threatened); 16 U.S.C. § 1534 (FWS and other agencies “shall” establish and implement a program to conserve fish, wildlife, and plants); and 16 U.S.C. § 1536 (federal agencies “shall” use their authorities to carry out conservation programs for endangered and threatened species). Alternatively, the use of the permissive “may” is uncommon in the ESA, indicating Congress’s belief that it did not need to direct agency conduct in granting section 10(a)(1)(A) permits, but instead would leave it to agency discretion and expertise. The instances in which Congress uses “may” are for actions and activities that require a high level of Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 33 of 57 23 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. discretion and judgment by the agency. See 16 U.S.C. § 1533(a)(3)(A) (FWS “may” revise critical habitat from time-to-time “as appropriate”); and 16 U.S.C. § 1535(b) (FWS “may” enter into cooperative agreements with states). The use of “may” in section 10(a)(1) likewise indicates that Congress intended that FWS would use its technical expertise to decide what activities qualify as enhancement, including indirect conservation contributions when appropriate. Since Congress made its intent clear, the Court, as well as the agency, are bound by Congress’s intent. See Chevron, 467 U.S. at 842–43. The Court “must give effect to the unambiguously expressed intent of Congress.” Id. at 843. Here, the clear intent of Congress was to leave the determination of what constitutes enhancement to the agency’s discretion and expertise. Further, the acts prohibited by section 9 include import, export, take,13 and, under certain circumstances, the sale, delivery, transport, or shipment of any endangered species. 16 U.S.C. § 1538(a)(1)(A)–(F). All of these acts can be permitted through section 10(a)(1)(A), yet it is hard to conceive how many of them would be able to directly contribute to the propagation or survival of a species. For instance, the shipment of an endangered species in the course of a commercial activity is itself unable to directly enhance the propagation or survival of an endangered species. Only when the shipment is linked to another action will it enhance the propagation or survival of the species, yet it may be permitted under section 10(a)(1)(A). Indeed, many acts prohibited by section 9 could only be allowed if the “enhancement” requirement may be met through indirect means, such as a monetary donation to a conservation project. Interpreting the language in section 10(a)(1)(A) to permit indirect enhancement ensures section 9 and section 10 of the ESA are both given their full meaning. It is a long-standing canon of statutory construction that if possible, statutory provisions are to be read to give effect to 13 “Take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 34 of 57 24 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. “every clause and word.” United States v. Menasche, 348 U.S. 528, 538–39 (1955). If direct enhancement were required of the acts above, many of the acts otherwise prohibited in section 9 could never be authorized through a permit, and would render the language “any act otherwise prohibited” superfluous. 16 U.S.C. § 1539(a)(1)(A) (emphasis added). By passing sections 9 and 10 simultaneously, Congress showed its intent for these sections to work together. Indirect enhancement, such as resource assistance to in situ conservation projects, enables sections 9 and 10 be read in conjunction to the maximum extent. Other than the requirements of section 10(d) and the language in 10(a)(1)(A) that permitting an otherwise prohibited activity should be for scientific purposes or to “enhance the propagation or survival” of a species, Congress provided no other standards to guide the conditions under which a section 10(a)(1)(A) permit should be granted or denied, unlike other instances in the ESA. For example, section 10 contains several examples of specificity that do not exist in section 10(a)(1)(A).14 Where Congress intended to limit FWS’s discretion in issuing authorizations or limiting the scope of exemptions, it did so by including specific, detailed criteria that must be met before a person can engage in otherwise prohibited activity. Section 10(a)(1)(A), however, contains none of these specific or detailed criteria, evidencing Congress’s intent that the permitting decision be left to the agency. Under section 10(a)(1)(A), Congress gave FWS the authority to regulate enhancement activities “under such terms and conditions as [the Secretary] shall prescribe.” 16 U.S.C. § 1539(a)(1). Thus, Congress specified that FWS set the terms and conditions to approve, regulate, and enforce activities that qualify as enhancement, as opposed to 14 For incidental take permits under section 10(a)(1)(B) the applicant must submit a detailed plan specifying the impact likely to result from a taking, steps the applicant will take to minimize such impacts, and why alternatives are not being used. 16 U.S.C. § 1539(a)(1)(B). Under section 10(b), Congress described with particularity what qualifies as “undue economic hardship’ and severely restricted the conditions under which such a permit is available. The exemption for native Alaskans in section 10(e) is specified in detail for who qualifies for the exemption and provides definitions and standards to limit the purpose of the taking and use of the specimen. 16 U.S.C. § 1539(e). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 35 of 57 25 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Congress determining or setting those terms and conditions. Plainly, Congress wrote section 10(a) to grant broad discretion to the Service in permitting otherwise prohibited activities where the object of the permit was to enhance the propagation or survival of the affected species, including appropriate indirect enhancement. As the D.C. Circuit recently found: “While the [ESA] contains specific guidelines when it comes to determining whether a species should be listed as endangered, FWS has flexibility under the [ESA] in assessing how to conserve a species after it has been listed as endangered.” Friends of Animals, 2016 WL 3125204, at *2. B. FWS’s implementation is consistent with the legislative history. If a statute’s language and context do not yield a plain meaning, the court may then look to the statute’s legislative history and purpose to determine its meaning. See Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 115 (D.C. Cir. 2009); Robinson, 519 U.S. at 341. The legislative history of the ESA does not shine much light on the issue of direct versus indirect enhancement, but the limited discussion of the section 10(a)(1)(A) permitting exception in H.R. Rep. No. 93- 412 (1973) does make clear that the Secretary has broad discretion in exercising permitting authority under section 10(a)(1)(A) restricted only by the requirements set by Congress: Sec. 10. (a) The Secretary is allowed to issue permits for actions otherwise prohibited for scientific purposes or for the purpose of enhancing the propagation or survival of the species affected. The restrictions upon the Secretary lie in the requirements of subsection (c), as later described. Any such activities to encourage propagation or survival may take place in captivity, in a controlled habitat or even in an uncontrolled habitat so long as this is found to provide the most practicable and realistic opportunity to encourage the development of the species concerned. They might even, in extraordinary circumstances, include the power to cull excess members of a species where the carrying capacity of its environment is in danger of being overwhelmed.15 H.R. Rep. No. 93-412, at 155–56 (1973) (emphasis added).16 15 What was at the time “subsection (a)” later became, and is now, subsection (a)(1)(A). Therefore the reference to subsection (a) here is a reference to the current subsection 10(a)(1)(A). Further, what was at the time “subsection (c)” is now, subsection (d). Therefore the reference to subsection (c) here is a reference to current subsection 10(d). 16 This report may be found in the docket at Document 20-4. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 36 of 57 26 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Plaintiffs’ narrow reading of this report does not show its true nature. A full reading demonstrates that Congress intended to restrict the Secretary’s broad discretion in granting permits under section 10(a)(1)(A) only by the requirements in section 10(d).17 Congress found these limited restrictions to be reasonable; therefore any exception, or permit, meeting these requirements may be granted. There is no mention in the legislative history or elsewhere that the “otherwise prohibited act” directly enhance the propagation or survival of a species. The legislative history also discusses the need for greater flexibility in the Act to better tailor it to meet endangered species’ needs. H.R. Rep. No. 93-412, at 140 (1973) (explaining the need for the 1973 Endangered Species Act); H.R. Rep. No. 95-1625 at 727, 738 (1978) (explaining the need for amendment to the 1973 Act to provide for even more flexibility). Allowing indirect enhancement to benefit a whole species rather than a small number of individuals is a way to introduce limited flexibility into the ESA to better address species’ needs.18 C. The purposes of the ESA are advanced by FWS’s implementation of the enhancement requirement for 10(a)(1)(A) permitting. The purposes of the ESA are to: provide a means whereby the ecosystem upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. 17 Plaintiffs’ claim that “[i]n drafting Section 10, Congress also made clear that ‘the effect of this subsection is to limit substantially the number of exemptions that may be granted,’” Pls.’ Br. 23, is somewhat misleading. The “subsection” referred to here is what was then subsection (c), which became subsection (d). That language does not speak to 10(a)(1)(A) at all, though it does stress that the true limiting principle to FWS’s permit authority is section 10(d), which without question has “limit[ed] substantially the number of exemptions that may be granted.” 18 Although the legislative history says little about what will qualify as an enhancement, it does show a commitment to protect species, not necessarily all of the particular individuals within a species. The report gives an example, explaining that permits to “cull excess members of a species where the carrying capacity of its environment is in danger of being overwhelmed” may qualify as enhancement. Thus, even if the enhancement afforded through permitting an otherwise prohibited act does not benefit all members of a species, or even the particular animals that are the object of the otherwise prohibited activity, the Secretary may still permit the act if the propagation or survival of the species is the object of the enhancement, and so long as FWS is able to make the required findings under section 10(d). Thus the conservation of every member of every species is not the ESA’s sole consideration. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 37 of 57 27 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 16 U.S.C. 1531(b). Yerkes’s pledge to donate money to be used for the conservation of chimpanzee habitat as a part of its permit provides a means through which the ecosystem of an endangered species may be conserved (the first listed purpose of the ESA), and is part of a program for the conservation of listed species (the second listed purpose of the ESA). The Integrated Population, Health, and Environment (“PHE”) program will address negative impacts humans have on chimpanzee populations and habitat. The final rule listing all chimpanzees as endangered noted that “[a]s human settlements expand and populations of chimpanzees and their habitats are reduced, the frequency of interactions between chimpanzees and humans or human waste increases, leading to greater risks of disease transmission with a similar magnitude of impact on wild chimpanzee populations as habitat loss and poaching.” 80 Fed. Reg. at 34,511. Yerkes’s donations to the PHE program will help address these risks to wild chimpanzee populations. Further, Yerkes must report on how the PHE addresses these threats, ensuring chimpanzees in the wild are benefited by this permit. See AR 115. FWS found that this permit will benefit wild chimpanzee populations because the PHE program will address the risks of “habitat destruction, disease, and chimpanzee-human conflict” by “providing increased access to family planning, hygiene and sanitation procedures, as well as provide education and outreach to address the negative effects of poaching and bushmeat trade, in addition to the roles and benefits of protecting chimpanzee populations.” AR 115. The program will be modeled on similar projects successful in achieving conservation outcomes benefiting wild gorillas by working with local communities. That the enhancement also benefits humans does not diminish that FWS found it will have a beneficial effect on wild chimpanzee populations, but rather is a significant aspect of that enhancement. These kinds of benefits are only possible through indirect enhancement. Accordingly, more can be done to meet the Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 38 of 57 28 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. purposes of the ESA when both direct and indirect enhancement is used. The chimpanzees in question were bred in captivity, and will never be released into the wild. If the permit is vacated, and the chimpanzees are not sent to Wingham, the purposes of the ESA will not be furthered because the captive chimpanzees will remain in an artificial habitat and nothing additional will be done to conserve the ecosystem in which wild chimpanzees live or otherwise to benefit chimpanzees in the wild. If the permit is upheld, the enhancement provided to the species by permitting the otherwise prohibited activity will occur. The purposes of the ESA are better served by allowing indirect enhancement to benefit more members of a species than is possible through direct enhancement. The section 10(a)(1)(A) permitting process is an important part of the program designed for the conservation of endangered and threatened species. In permitting an act normally prohibited by section 9, the enhancement requirement ensures that the program will be furthered because of the exception. In this case, the enhancement will improve the health and habitat of chimpanzees in the wild.19 It is important to note that monetary or resource contributions to conservation efforts do not always suffice as an enhancement. FWS considers each permit on a case-by-case basis. See AR 116. While there have been situations where these types of contributions to a conservation program on behalf of the species have been approved, there are many others that are not 19 Limiting the enhancement requirement to direct enhancement would not only harm entire species, it could harm individuals as well. For example, a permit was needed to import an endangered Bengal tiger that had been in an illegal circus in South America for its retirement at a sanctuary in the United States. Application to Import “Hoover” the Tiger, available at https://www.regulations.gov/document? D=FWS-HQ-IA-2015-0166-0004 (last visited July 23, 2016). Hoover was not able be released into the wild or bred to maintain genetic diversity, much like these chimpanzees. The sanctuary was unable to meet the enhancement requirement by simply importing the tiger because that tiger could not contribute to the enhancement or survival of its species in the wild. Id. Here the indirect enhancement benefited an individual as well as its species in the wild. Through a permit using indirect enhancement, this tiger was imported and placed in a sanctuary, which was agreed to be in its best interest. The permit was required to contribute to conservation of the endangered tiger species through a monetary contribution. Id. While the enhancement under the Secretary’s section 10(a)(1)(A) permitting authority is intended to benefit species as a whole, this example shows that indirect enhancement can also help individual animals, and that individuals, as well as entire species, would be harmed by not allowing indirect enhancement. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 39 of 57 29 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. approved. As a threshold matter, section 10(d) provides the sideboards to FWS’s issuance of enhancement permits under section 10(a)(1)(A). If the required findings cannot be made, such a permit will not be granted. FWS is committed to upholding the purposes of the ESA and every ESA 10(a)(1)(A) permit it approves contributes to providing a program for the conservation of the species or helps to conserve the ecosystems of threatened and endangered species. Permit applications that do not follow the purposes of the ESA to protect and conserve species’ and their habitats are not granted. Indirect enhancement is a tool Congress has permitted FWS to use to further the purposes of the ESA. ii. Chevron Step Two. If the Court concludes that it cannot resolve the precise question at issue on Chevron step one grounds, it should still uphold the permit because FWS’s construction of section 10(a)(1)(A) allowing the consideration of the funding of in situ conservation projects as a factor in meeting the enhancement requirement is a reasonable and permissible construction of the statute. See Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 709–10 (D.C. Cir. 2008). For the reasons provided in the step-one argument above as well as those below, FWS’s interpretation of section 10(a) is reasonable and entitled to deference. See Nat’l Ass’n of Home Builders, 551 U.S. at 665. The regulations guiding the granting of permits issued under section 10(a)(1)(A), promulgated through notice and comment rulemaking, support FWS’s interpretation of section 10(a)(1)(A). 50 C.F.R. § 17.22(a)(2). This regulation clearly contemplates consideration of both direct and indirect effects of permit issuance. Both criteria (ii) and (iii) explicitly include references to direct and indirect effects on wild populations and programs intended to enhance endangered species populations in the wild. The permit in this case will indirectly benefit wild populations of chimpanzees through the contributions pledged by Yerkes. It is therefore within Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 40 of 57 30 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. the range of situations anticipated by this regulation. Id. Plaintiffs’ attempt to support their claim by dissecting 50 C.F.R. § 17.22(a)(2), Pls.’ Br. 24– 25, fails. First, these regulations are general and meant to cover as best they can the wide range of permits that can be sought under section 10(a)(1)(A). Plaintiffs point to the first “issuance criteria,” where FWS should consider “[w]hether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit.” Pls.’ Br. 24. But this criterion does not apply here—this permit does not involve a change in status of the animals at issue. AR 49912 (“The 2.6 chimpanzees covered under this request are captive born chimpanzees and will remain in captivity, so the proposed transfer from Yerkes to Wingham, will not change the status of the animals.”) (citing 50 C.F.R. § 17.22(a)(2)(i)); see also AR 49916, 49920. Plaintiffs next refer to the criterion that FWS consider the “expertise, facilities, and other resources available to the applicant . . . .” Pls.’ Br. 24. This too is a general provision that simply does not apply here or in any case where the permitted activity—be it an export, import, sale, et cetera—involves a party other than the applicant receiving the animals. FWS’s “consideration” of that criterion under such circumstances could be to determine that the criterion is not relevant or that the expertise, facilities, and resources “available” to the applicant include the recipient’s. Lastly, when FWS issued the final rule listing all chimpanzees as endangered, it explained that contributions to conservation programs benefiting chimpanzees in the wild could be a basis for an enhancement permit under section 10(a)(1)(A). It explained that an “[e]nhancement may be direct, such as developing a vaccination to be administered to chimpanzees in the wild (in situ), or indirect such as contributions that are made to in situ conservation.” 80 Fed. Red. at 34,517. FWS also noted that the funding of in situ conservation is one of the benefits provided Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 41 of 57 31 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. by the ESA. Id. at 34,516. For all of the foregoing reasons, FWS’s interpretation of section 10(a)(1)(A) is reasonably and entitled to deference. iii. Section 10(d). Section 10(d) provides the limitation on FWS’s permitting discretion under 10(a)(1)(A). FWS made the 10(d) findings here and published them in the Federal Register, and thus complied with section 10(d). See, e.g., AR 49920, 49936–37. While Plaintiffs alleged a violation of section 10(d) in their amended complaint, Am. Compl. ¶ 149, they have not pressed that claim here. Having offered no argument or citations to the contrary, Plaintiffs should be found to have waived that claim. See XP Vehicles, Inc. v. U.S. Dep’t of Energy, No. 13-cv-37, 2016 WL 199401, at *6 (D.D.C. Jan. 15, 2016). b. The permit complies with the requirements of ESA Section 7. Plaintiffs argue in a footnote that FWS erred by relying on a programmatic concurrence to a biological evaluation to meet its obligations under section 7(a)(2) of the ESA. Pls.’ Br. 37 n.34. The Court should consider this “perfunctory argument” waived. Davis Broadcasting v. FCC, 63 Fed. Appx. 526, 527 (D.C. Cir. 2003). Moreover, Plaintiffs are wrong. Section 7(a)(2) provides that a federal agency that takes, authorizes, or funds any “action” must consult with FWS (or the National Marine Fisheries Service, depending on the species at issue) to ensure the action “is not likely to jeopardize the continued existence of” any threatened or endangered species, or destroy or adversely modify critical habitat. 16 U.S.C. § 1536(a)(2). It also provides that in making this determination the agency must use “the best scientific and commercial data available.” Id. The regulations define “action” to mean “all activities or programs of any kind . . . .” 50 C.F.R. § 402.02 (emphasis added). Because of the “large number of requests to import, re-import, export, re-export, trade in Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 42 of 57 32 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. interstate and foreign commerce, and take of captive-held and captive-bred” listed species, FWS prepared a “[p]rogrammatic Section 7 biological evaluation concurrence” to serve as the section 7 compliance document for its permitting program for any “import, re-import, export, re-export, interstate and foreign commerce, and take of captive-held and captive-bred live animal specimens of nonnative species listed under the [ESA].” AR 8–10. Such programmatic consultations are expressly permitted by the ESA and its regulations, 50 C.F.R. § 402.02, and Plaintiffs have not argued otherwise. Instead Plaintiffs mischaracterize the consultation document as determining that “no export of any endangered species ‘for scientific research purposes, and to enhance the propagation or survival of the species’ is ‘likely to adversely affect the survival of the species . . . .” Pls.’ Br. 37 n.34. But the consultation document applies only where the exported animals are “captive-held and captive-bred.” AR 8. Plaintiffs argue that the consultation document is “conclusory and fails to take into account” the specific comments as to this permit, and that 50 C.F.R. § 402.16 requires reinitiation of consultation if “new information reveals effects of the action that may affect listed species.” Pls.’ Br. 37 n.34. This argument fails on at least two grounds. Plaintiffs have not established that there is any “new information that reveals effects of the action that may affect listed species . . . in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16. They have not shown that the information they refer to was not previously considered, nor have they established that it “reveals” effects of the action that may affect listed species. Contrary to their assertions, the comments they refer to simply do not contain any new “scientific or commercial data,” much less the “best scientific or commercial data available.” See infra Argument II(d). FWS expressly considered the comments and found them unsupported, thus FWS necessarily found that this “information” does not “reveal effects of the action that may affect listed species.” AR 49913, Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 43 of 57 33 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 49920; see infra Argument II(d). Plaintiffs’ conclusory argument should be rejected. c. FWS has plainly determined that the export enhances the survival of the affected species—it has not delegated that duty. Plaintiffs’ argument that FWS has delegated its duty to find that the exportation would enhance the propagation or survival of chimpanzees in the wild, Pls.’ Br. 25–28, is wholly meritless. FWS’s “Enhancement Finding” document expressly finds that “the applicant has demonstrated that this action will enhance the survival of the species.” AR 49914. FWS’s section 10(d) finding also notes, among other things, that the permitting office “determined that the export of the chimpanzees would enhance the propagation or survival of the species.” AR 49920. Thus, there is no question FWS made the finding Plaintiffs claim it delegated.20 If one construes Plaintiffs’ argument as claiming that FWS’s enhancement finding was arbitrary and capricious because it lacked sufficient information to make that finding, then that argument would also fail. Plaintiffs first argue that FWS cannot properly make the required finding that the funded conservation program will in fact enhance the survival of the species because certain details for the program have not yet been finalized. Pls.’ Br. 25–26. But Plaintiffs offer nothing in support of that legal conclusion other than the comments submitted by researchers opposed to the permit—they do not cite to any statute, regulation, or court decision that supports their interpretation. See id. There is no authority requiring FWS to seek or generate any information, much less every detail requested by commenters about a plan for enhancement, before it can make its finding that a project enhances the survival of the species in the wild where it is able to make that finding based on the available information. When FWS made its decision, there was a plan before it for how the permit at issue would 20 Gerber v. Norton, 294 F.3d 173, 186 (D.C. Cir. 2002), and Illinois Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1259 (D.C. Cir. 1988), do not support Plaintiffs’ argument. Pls.’ Br. 37. Those cases both found that an agency must make a finding it is required to make. FWS did that here. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 44 of 57 34 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. enhance the propagation or survival of chimpanzees. See AR 49776–79. FWS reasonably found that plan was sufficient to support an enhancement finding. AR 49912–13. FWS’s determination here is a scientific one made by experts within the expert agency, and as such is entitled to substantial deference. See, e.g., Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 93, 96, 103, 105–106 (1983); Judulang v. Holder, 132 S. Ct. 476, 483 (2011); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009). FWS found that the pledged funding of $45,000/year for five years would be used to initiat[e] a new Integrated [PHE] program specifically focused on how [sustainability, human health, and population dynamics] can be addressed to ameliorate current risks, such as habitat destruction and disease, which face wild chimpanzees in East Africa. The PHE program will be patterned off similar projects that have been carried out in Uganda for wild gorillas. These gorilla projects have received funds from the Service through the Great Ape Conservation Fund and have demonstrated a very good record of utilizing funds effectively and efficiently. These projects have been very successful in achieving biodiversity conservation by working with local communities that surround several national parks where mountain gorillas are found. The PHE will focus on a chimpanzee population of no less than 100 individuals that is adjacent to a protected area in Uganda, Democratic Republic of Congo, Rwanda, or Tanzania. AR 49912. FWS also found that Habitat destruction, disease, and chimpanzee-human conflict, are among the major threats to chimpanzee populations in the wild. The PHE program will work toward ameliorating these risks by providing increased access to family planning, hygiene and sanitation procedures, as well as provide education and outreach to address the negative effects of poaching and the bushmeat trade, in addition to the roles and benefits of protecting chimpanzee populations. By providing these services, the PHE program will reduce the pressures on the chimpanzee’s habitat, and reduce the risks facing the species. AR 49913; see also 80 Fed. Reg. at 34,511 (Final Rule listing all chimpanzees as endangered species noted: “[a]s human settlements expand and populations of chimpanzees and their habitat are reduced, the frequency of interactions between chimpanzees and humans or human waste increases, leading to greater risks of disease transmission with a similar magnitude of impact on Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 45 of 57 35 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. wild chimpanzee populations as habitat loss and poaching” and that “[r]ural communities that share the same habitat as chimpanzees have no access to health care and are not vaccinated against diseases that can spread through ape populations and result in high mortality rates.”). There will always be some uncertainty as to whether granting a section 10(a)(1)(A) permit will have the intended enhancement effects. Whether the applicant has stated that they will use the imported or exported animals for breeding, to release them into the wild, for a specific research purpose, or to fund a conservation program, FWS cannot be certain that that purpose will be met. The planned breeding partner could die or be found to be infertile, the location for release into the wild could be discovered to be unsafe or the animal could be found to be unsuitable for release, the scientific purpose might be discovered to be useless, and so on. Plaintiffs erroneously suggest section 10(a)(1)(A) requires FWS to find that the permit “will” enhance the survival of the species. Pls.’ Br. 27. But section 10(a)(1)(A) does not demand a guarantee that the proposed action has or will enhance the survival of the species. In fact, such a requirement would preclude many otherwise qualifying activities that cannot progress until completion of the import, export, or other act that requires ESA authorization. Rather enhancement need only be the intended goal, so long as FWS can reasonably conclude it will have the intended benefit. See 16 U.S.C. § 1539(a)(1)(A). And that is necessarily so for the reason just described. Plaintiffs’ wholly unsupported claim that FWS had insufficient information to make a reasonable enhancement determination should fail. Plaintiffs’ next concern, that “FWS will have no jurisdiction over the seven chimpanzees, nor Wingham—nor, for that matter, even Yerkes—and hence the agency will have no ability to undo” the exportation, Pls.’ Br. 27, is misguided and, at least as it applies to Yerkes, incorrect. The conditions placed on the permit are not, as Plaintiffs claim, “worthless as both a legal and Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 46 of 57 36 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. practical matter.” Pls.’ Br. 27. Even if Yerkes’s long history working with United States agencies and compliance with permit requirements were not enough, AR 49912, it simply is not true that FWS would not have jurisdiction over Yerkes even after the exportation takes place and thus lack ability to ensure that Yerkes fulfills its commitments. While this is admittedly not a situation where revocation of the permit for noncompliance would be particularly effective, an enforcement action can still be brought against Yerkes if it fails to meet any of the permit conditions, including by failing to contribute the funds or failing to submit the annual reports that include the required information describing the program established for chimpanzees in the wild and how it is reducing threats to that population. Section 11(a) of the ESA allows the Secretary to access a civil penalty against any person (including Yerkes, see 16 U.S.C. § 1532(13)) who “knowingly violates . . . any provision of any permit or certificate.” 16 U.S.C. § 1540(a). The penalty for such a “knowing” violation is up to $25,000 per violation. The same section also contains a strict liability penalty of $500 for “[a]ny person who otherwise violates . . . any permit, or certificate issued hereunder.” Id. In addition, the FWS general permit regulations at 50 C.F.R. § 13.48 require any permit holder to comply with all permit conditions and section 13.50 requires a permit holder to assume all liability and responsibility for activities conducted under the permit. Thus, Yerkes remains responsible for complying fully with all permit conditions, including the special conditions on making the annual conservation contribution of $45,000 per year for five years and reporting on the implementation of the PSN chimpanzee program for the five-year period. These penalty provisions are available and a strong incentive for a public institution that wants to maintain its professional reputation.21 21 In addition, FWS can deny future applications submitted by Yerkes if they fail to comply with the conditions of this permit. Since Yerkes has had and will likely to continue to have the need to export and possibly import specimens, they have more at risk if they fail to meet the conditions. See 50 C.F.R. § 13.21(b)(1), (b)(3), and (d). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 47 of 57 37 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Finally, as to Plaintiffs’ claim that Yerkes “misrepresent[ed] the basis for [the] permit” and thus is untrustworthy, Pls.’ Br. 28, FWS did not come to that conclusion. AR 49920 (“[FWS] determined that Yerkes . . . had applied for the export permit in good faith.”). FWS specifically considered the “continuous situational changes throughout the application process” in determining that Yerkes had applied for the permit in good faith. Id. The documents submitted to FWS suggest that those organizations had agreed to accept donated funds but later withdrew that agreement. See, e.g., AR 49759 (“Having just learned the above information, unfortunately we are no longer comfortable moving forward in partnership with [Wingham] as a partial funder of the Kibale Chimpanzee Project’s snare removal program . . . .”). d. FWS’s decision was not arbitrary and capricious for any reason. Plaintiffs’ three additional arguments as to why they believe FWS’s issuance of the permit was arbitrary and capricious all fail. First, Plaintiffs suggest that Wingham may at some point attempt to breed these chimpanzees, and that European “authorities” “do not need or want any more.” Pls.’ Br. 28.22 Even if this is true, it is plainly not a factor FWS is required to consider when making its permitting decision. See, e.g., 16 U.S.C. § 1539(d); 50 C.F.R. § 17.22. Plaintiffs next claim FWS ignored the opinions of chimpanzee experts and comments opposing the permit. Pls.’ Br. 29. But FWS is not “allowing” Wingham or anyone else to breed the chimpanzees—the permit issued was solely for the exportation of the chimpanzees, and breeding was not a basis for the issuance.23 Nor is there any evidence the permitting will spur 22 The comments Plaintiffs’ cite state that, to them, the importation of more chimpanzees “does not make sense,” AR 349, or “is not a sensible option,” AR 49134-0004, due to “excess” chimpanzees in Europe. They do not appear to state that this situation is harmful to the survival of chimpanzees in the wild. 23 In addition, the act of breeding endangered species is not regulated under the ESA, including any breeding potentially conducted by Yerkes in the future with these same animals if the chimpanzees are not exported. See 16 U.S.C. § 1538(a)(1) for acts restricted under the ESA. See also 50 C.F.R. § 17.3 (“harass” within the definition of “take” when applied to captive wildlife “does not include generally accepted . . . (2) breeding procedures.”). Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 48 of 57 38 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. illegal trade. Moreover, FWS did not ignore the comments—it expressly found that While some commenters expressed viewpoints that the export of these chimpanzees will stimulate additional trade in this species, we have considered the probable direct and indirect effect which issuing the permit would have on wild chimpanzee populations under 50 CFR 17.22(a)(2)(ii), and determined that this action would not stimulate additional trade in this species. There is no evidence to suggest that similar exports of Appendix-I, endangered species authorized by the Service has resulted in increased unregulated trade in these species. AR 49913 (extraneous punctuation mark deleted).24 FWS further noted that it received 3,423 comments during the two 30-day public comment periods. All comments were reviewed for substantive information, including information submitted by [NEAVS], the Humane Society of the United States, and other sources. All of this information was evaluated by [the office that issued the permit] in relation to the criteria for issuing a permit for an endangered species under 50 CFR 17.22. AR 49920. Thus, contrary to Plaintiffs’ argument, FWS considered “[t]he opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application.” 50 C.F.R. § 17.22(a)(2)(v). The Service noted in its enhancement finding that there was simply no evidence to support those fears. There were two comment periods on this application and none of those commenters, including Plaintiffs, offered any evidence to support the claim that the permit would undermine their ongoing efforts to stave off the commercial transfer of chimpanzees rescued from the wild. All Plaintiffs have offered are several comments, including comments submitted by a plaintiff to this suit, and numerous other comments by individuals and groups that work to support chimpanzee sanctuaries, that express their unsupported opinion that granting the permit would somehow negatively affect chimpanzees in the wild. The Service expressly considered those comments, and, in their expert 24 Plaintiffs’ memorandum restates several comments stating that the permit will increase illegal trade, but those statements are wholly conclusory and not supported by any evidence. Further, the suggestion that this permit would set a “dangerous precedent” is unfounded given that FWS has for decades issued permits where the basis for the enhancement finding was that the applicant was supporting conservation efforts that enhanced the survival of the species by contributing needed monetary or other resources to ensure that the conservation efforts were successful. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 49 of 57 39 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. judgment, found the stated fears to be unsupported by any evidence that was before the agency. III. FWS Complied with CITES. Plaintiffs appear to have abandoned their claim brought under CITES—they did not offer argument in support of their CITES claim. Plaintiffs should be found to have waived that claim. See XP Vehicles, 2016 WL 199401, at *6. Even if Plaintiffs have not waived this claim, it is meritless. In their amended complaint, Plaintiffs alleged that FWS violated Article III of CITES because, according to them, “based on the record before the FWS, the agency cannot” make the necessary findings under Article III. Am. Compl. ¶ 154. Contrary to this allegation, the cited requirements of CITES Article III do not apply when the Management Authority of the country of export is satisfied that the specimen of an animal species was bred in captivity and a certificate by that Management Authority to that effect is provided. See CITES Art. VII(5); see also 50 C.F.R. §§ 23.18, 23.41, 23.63. That is the case here. AR 49927; see also, e.g., AR 49589–643 (permit application documentation that all eight chimpanzees were born in captivity). IV. FWS complied with NEPA. Plaintiffs contend that FWS is required to prepare an EA or EIS for the decision to grant the permit. Pls.’ Br. 30. Plaintiffs are wrong. For the approval of the permit, FWS relied upon a specific CE, and found no extraordinary circumstances applied to the issuance of the permit. Thus, NEPA’s requirements have been fully satisfied, and no need to prepare an EA or EIS for the permit exists. Accordingly, this Court should reject Plaintiffs’ NEPA claim. FWS properly relied upon a CE to fully satisfy its NEPA obligation, and determined no extraordinary circumstances exist. As this Court has observed, “an agency’s decision to classify a proposed action as falling within a particular categorical exclusion will be set aside only if a court determines that the decision was arbitrary and capricious.” Back Country Horsemen of Am. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 50 of 57 40 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. v. Johanns, 424 F. Supp. 2d 89, 99 (D.D.C. 2006). A review of the decision documents in this case demonstrates that FWS was anything but arbitrary and capricious. FWS has long had in place an individual bureau CE for the issuance of permits with no or negligible effects for regulated activities involving wildlife. It provides that FWS need not prepare an EA or EIS for “issuance, denial, suspension, and revocation of permits for activities involving fish, wildlife, or plants regulated under 50 CFR Chapter 1, Sub[chapter] B, when such permits cause no or negligible environmental disturbance.” 516 DM 8.5(C)(1). And it explicitly applies to permits that “involve endangered and threatened species, species listed under the CITES, marine mammals, exotic birds, migratory birds, eagles, and injurious wildlife.” Id. The issuance of the permit clearly falls under the regulated activities contemplated in the CE. See 50 C.F.R., Chapter 1, Subchapter B (pertaining to the taking, possession, transportation, sale, purchase, barter, exportation, and importation of wildlife and plants.). Chimpanzees, including captive-bred chimpanzees, are specifically listed as endangered under 50 C.F.R., Chapter 1, Subchapter B, Part 17, Subpart B. 50 C.F.R. § 17.11 (Endangered and threatened wildlife). And, while it is generally unlawful to export endangered wildlife, see 16 U.S.C. § 1538(a)(1)(A); 50 C.F.R. § 17.21(b), FWS may issue permits authorizing an otherwise prohibited activity, including export of endangered wildlife, to enhance the propagation or survival of endangered wildlife. 16 U.S.C. § 1539(a)(1)(A); 50 C.F.R. § 17.22. The permit application was sought pursuant to the applicable regulations pursuant to 50 C.F.R. §17.22(a)(1), and FWS properly decided that the permit met the issuance criteria under 50 C.F.R. §17.22(a)(2). AR 19–22. Chimpanzees are also listed in CITES Appendix I. See 50 C.F.R. § 23.91. Under FWS’s CITES regulations, it is unlawful to export any specimen of a species listed in the CITES Appendices, unless they meet the requirements of 50 C.F.R. Part 23. See 50 C.F.R. § 23.13(a). For captive Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 51 of 57 41 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. bred chimpanzees, such as those involved here, export requires issuance by the FWS of a bred- in-captivity certificate. See 50 C.F.R. § 23.18. FWS properly decided to issue a bred-in-captivity certificate in accordance with the requirements of 50 C.F.R. § 23.41. Moreover, FWS determined that the request from Yerkes “meets all criteria under ESA and CITES, including that the activity enhances the specie’s survival and propagation in the wild.” AR 19–20. FWS also determined that “the proposed activity will have no or negligible environmental disturbance because the chimpanzees will be transferred from one well maintained captive environment to another.” AR 20. Accordingly, FWS properly applied the CE found at 516 DM 8.5(C)(1) to issuance of the permit to export these chimpanzees, which unquestionably relates to activities regulated under 50 C.F.R., Chapter 1, Subchapter B, and reasonably concluded that the permit would cause no or negligible environmental disturbance. FWS’s use of the CE in no way circumvents NEPA compliance because CEs are an integral part of ensuring NEPA compliance. As the CEQ explained when implementing its regulations, the use of CEs avoids unnecessary documentation of minor environmental effects in EAs, and allows agencies to focus their environmental review efforts on the major actions that will have a significant effect on the environment, which is the primary focus of NEPA. See 48 Fed. Reg. 34,262, 34,263–66 (July 28, 1983). By definition, an action for which a CE applies is a “type of action that, based upon agency experience,” normally does not have “significant environmental impacts.” Id. FWS is not required to prepare an EA or EIS for actions subject to a CE. 40 C.F.R. §§ 1508.4, 1507.3(b)(2); 43 C.F.R. § 46.205(a). Despite Plaintiffs’ argument, Pls.’ Br. 31–35, no “extraordinary circumstances” preclude reliance on the CE here, as FWS explained in the NEPA Statement. AR 19–22 (discussing inapplicability of the exceptions). Under 43 C.F.R. § 46.215, certain types of “extraordinary Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 52 of 57 42 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. circumstances” may prevent reliance on a CE. Plaintiffs insist that use of a CE in this case is foreclosed by the exceptions for actions that (1) “[h]ave highly controversial environmental effects,” id. § 46.215(c); (2) “[h]ave highly uncertain and potentially significant environmental effects,” id. § 46.215(d); (3) “[e]stablish a precedent for future action,” id. § 46.215(e); and (4) “[h]ave significant impacts on endangered species,” id. § 46.215(g). See Pls’ Br. 31–33. FWS reasonably found that none of those exceptions are applicable here. The mere presence of one of these factors does not demonstrate “significance” under NEPA and does not preclude use of a CE. In Native Ecosystems Council v. U.S. Forest Service, the court held that “[t]he presence of negative effects regarding the impact of the . . . Project . . . or even information favorable to [the Plaintiff’s] position” does not mean that the project may have a “significant” effect. 428 F.3d 1233, 1240 (9th Cir. 2005); see also Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir. 2006) (explaining that the § 1508.27(b)(9) (endangered species) “‘intensity’ factor focuses on the ‘degree to which an action may adversely affect’ a threatened species or critical habitat”—not merely the presence of a threatened species) (emphasis added)). Similarly, “controversy” does not arise merely because opinions about an agency action differ. The test is whether “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4); (“A project is highly controversial if there is a substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.”) Native Ecosystems Council, 428 F.3d at 1240 (internal quotations marks and citations omitted); see also Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1162 (9th Cir. 1998) (the existence of opposition does not automatically render a project controversial). Here, there is no substantial dispute about the size, nature, or effect of the issuance of the Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 53 of 57 43 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. permit. Plaintiffs’ claim that the permit will result in “highly controversial” potential impacts relies largely upon Plaintiffs’ own comments on the proposed permit. See Pls’ Br. 32. FWS considered those comments but determined that zoos and other institutions have maintained and transported captive chimpanzees for many years with no indication of controversial environmental effects. AR 20. Mere opposition does not make an action “highly controversial.” Native Ecosystems Council, 428 F.3d at 1240; Presidio Golf Club, 155 F.3d at 1162. Similarly, Plaintiffs’ insistence that the permit will have “highly uncertain” effects rests on their disagreement with the permit decision. Pls’ Br. 32–33. “Uncertainty” (like “controversy”) requires evaluation of “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(5) (emphasis added); see Envtl. Prot. Info. Ctr., 451 F.3d at 1013 (the regulation does not anticipate the need for an EIS anytime there is some uncertainty, only if effects are “highly” uncertain). FWS relied on the information in the permit application and past experience with export of chimpanzees to conclude that the permit would not result in “highly” uncertain environmental impact. AR 20. To the extent that Plaintiffs argue that FWS failed to consider the effects on chimpanzees outside the United States (Pls.’ Br. 32), those arguments are without merit. The Supreme Court has held that U.S. statutes cannot be interpreted to apply outside U.S. territory unless the statute contains a clear statement of extraterritorial application. Smith v. United States, 507 U.S. 197, 204 (1993). NEPA does not contain the requisite clear statement.25 NEPA requires federal agencies to assess the potential domestic impacts of their actions. Whatever potential effects may occur in Africa or Europe are beyond the scope of NEPA. See Born Free v. Norton, 278 F. Supp. 25 If there is any obligation to assess the potential extraterritorial impacts of the challenged action, it is governed by Executive Order 12114 (Jan. 4, 1979), 44 Fed. Reg. 1,957 (Jan. 9, 1979). That Order confers no cause of action and is not judicially enforceable. See EO 12114 § 1-1. Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 54 of 57 44 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. 2d 5, 19–20 (D.D.C. 2003) (FWS not required to analyze impacts in Swaziland that might result from allowing U.S. zoos to import elephants.); NEPA Coal. of Japan v. Aspin, 837 F. Supp. 466, 467–68 (D.D.C. 1993) (NEPA did not apply to activities at U.S. military base in Japan). Plaintiffs further claim that the permit will “establish a precedent for future actions.” Pls’ Br. 34-35. But this claim is based on the erroneous assumption that the permit is unprecedented. FWS explained that permits have been issued for the export of other live Appendix I and Endangered species in the past, including the export of chimpanzees from the United States. AR 21. More fundamentally, however, because FWS considers each application on a case-by-case basis, this permit does not establish any precedent for future action. Id. Plaintiffs next argue that the permit will have potentially significant impacts on endangered species. Pls’ Br. 35. But, as discussed above, there mere fact that endangered species are at issue here does not prohibit FWS from invoking a CE. To the contrary, courts have repeatedly affirmed agencies’ use of CEs, even when listed species are present in the project area. See, e.g., Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (affirming agency’s use of CE despite FWS determination that proposed project “may affect” endangered species); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410, 1420 (9th Cir. 1990) (affirming agency’s use of CE despite presence of endangered fish); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 742 (10th Cir. 2006) (CE appropriate despite presence of listed species); W. Watersheds Project v. U.S. Forest Serv., 2012 WL 6589349, at *11 (D. Ariz. Dec. 17, 2012) (same). In this case, FWS considered the potential for impacts to endangered species and reasonably determined that, “[b]ecause these chimpanzees would be housed in a captive environment in a zoo in the UK and would not share these spaces with any other species listed or proposed to be listed . . . the exportation and subsequent holding of these chimpanzees would Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 55 of 57 45 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. have no impact on such species.” AR 21. In sum, FWS satisfied the requirement that an agency invoking a CE consider whether extraordinary circumstances exist, and reasonably concluded that none of the criteria supported a finding of extraordinary circumstances. Id. Under “familiar and well-established principles,” an agency decision is not arbitrary and capricious as long as the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Milk Indus. Found. v. Glickman, 132 F.3d 1467, 1476 (D.C. Cir. 1998) (citations omitted). Plaintiff fails to demonstrate that FWS fell short of this standard. Therefore, Plaintiff’s NEPA claim must fail. Finally, since FWS properly relied on a CE, Plaintiffs’ argument that the agency must consider a reasonable range of alternatives is not properly before this court. Pls.’ Br 35–37. A reasonable range of alternatives is only required when preparing an EA or an EIS. Wong v. Bush, 542 F.3d 732, 737 (9th Cir. 2008) (“Consideration of a ‘no-action’ alternative is a requirement in the preparation of an [EIS]. However, where agency action falls under a categorical exclusion, it need not comply with the requirements for preparation of an EIS.”). FWS appropriately relied on a CE and, therefore, was not required to examine any alternatives to the proposed action. CONCLUSION Plaintiffs lack standing to bring their first through fourth claims. Alternatively, in issuing the permit, FWS complied with the ESA, CITES, NEPA, and the APA. For these reasons and those stated above, the Court should grant summary judgment for Defendants and deny Plaintiffs’ motion. DATED this 3rd day of August 2016. // Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 56 of 57 46 Case No. 16-cv-00149-KBJ Defs.’ Mem. in support of Cross-Mot. Summ. J. and Opp’n Pls.’ Mot. Summ. J. Respectfully submitted, JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/ Trent S.W. Crable Trent S.W. Crable, Trial Attorney Wildlife & Marine Resources Section /s/ Ruth Ann Storey Ruth Ann Storey, Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 7611 Ben Franklin Station Washington, DC 20044-7611 Telephone: (202) 305-0339 (Crable) Telephone: (202) 305-0493 (Storey) Fax: (202) 305-0275 Email: trent.crable@usdoj.gov Email: ruth.ann.storey@usdoj.gov Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on August 3, 2016, I electronically filed the foregoing document and with the Clerk of the Court using the CM/ECF system, which will send notification of the filing to all parties. /s/ Trent S.W. Crable Case 1:16-cv-00149-KBJ Document 44-1 Filed 08/04/16 Page 57 of 57 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. U.S. FISH & WILDLIFE SERVICE, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 1:16-cv-00149 (KBJ) [PROPOSED] ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT After considering Federal Defendants’ motion for partial summary judgment (Doc. __) and the papers in support and opposition, the Court hereby GRANTS the motion and ORDERS that judgment be entered for federal defendants on the first through fourth claims in Plaintiffs’ amended complaint (Doc. 6). DATED this ________ day of _______________, 2016. BY THE COURT: ______________________________________ Honorable Judge Ketanji Brown Jackson United States District Court Case 1:16-cv-00149-KBJ Document 44-2 Filed 08/04/16 Page 1 of 1
