UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(d) RULE LITIGATION Misc. Action No. 08-764 (EGS) MDL Docket No. 1993

This Document Relates To: Safari Club International, et al. v. Salazar, et al, No. 08- 881 (EGS)

MEMORANDUM OPINION

Plaintiffs Safari Club International (“SCI”) and Safari Club

International Foundation (“SCIF”) bring this action pursuant to

the Administrative Procedure Act,

et seq.

(“APA”), against defendants Ken Salazar, Secretary of the

Interior, H. Dale Hall, Director of the United States Fish and

Wildlife Service, and the United States Fish and Wildlife Service

(collectively “FWS”), challenging the FWS’s legal determination

that the listing of the Polar Bear as threatened under the

Endangered Species Act creates a ban on the import of sport-

hunted polar bear trophies otherwise legal under the Marine

Mammal Protection Act. Pending before the Court is defendants’

Motion for Judgment on the Pleadings on the grounds that (1)

plaintiffs fail to state a claim upon which relief can be

granted, because plaintiffs fail to challenge a final agency

action as required for judicial review under the APA; or, in the alternative, (2) plaintiffs lack standing to bring this action.1

Upon consideration of the defendants’ motion, the plaintiffs’

opposition, the defendants’ reply, the relevant law, and for the

reasons stated herein, the defendants’ motion is DENIED.

I. BACKGROUND

A. Statutory Background2

The Endangered Species Act, 16 U.S.C. § § 1531 et seq., was

enacted in 1973 “to provide a means whereby the ecosystems upon

which endangered species and threatened species depend may be

conserved, [and] to provide a program for the conservation of

such endangered species and threatened species . . . .”

(b). Once a species is listed as endangered or

threatened, statutory prohibitions help ensure the survival and

recovery of the species. An endangered species is “in danger of

extinction throughout all or a significant portion of its range,”

1 Defendants originally filed a Motion to Dismiss. Plaintiffs note that because defendants filed an Answer in response to plaintiffs’ Complaint prior to filing their motion, defendants motion should be a motion for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). Opposition of Plaintiffs Safari Club International and Safari Club International Foundation to Motion to Dismiss (“Pl. Opp’n.”) at 6. Defendants do not dispute this and ask the Court to treat their Motion to Dismiss as a motion for judgment on the pleadings. Federal Defendants’ Reply Memorandum in Support of Motion to Dismiss Plaintiffs’ Complaint (“Def. Reply”). 2 The Statutory Background section is taken largely, and at times verbatim, from the discussion in defendants’ Memorandum in Support of Motion to Dismiss Plaintiffs’ Complaint (“Def. Mem.”) at 2-5.

-2- while a threatened species is “likely to become an endangered

species within the foreseeable future throughout all or a

significant portion of its range.”

(6), (20).

The ESA delegates authority to determine whether to list a

species as endangered or threatened to the Secretaries of

Commerce and Interior. The Secretary of the Interior has

jurisdiction over the polar bear.

(15).

The Marine Mammal Protection Act (“MMPA”),

et seq., was enacted in 1972 in response to a decline in marine

mammal populations. Administration of the MMPA, like the ESA, is

divided between the Department of the Interior and the Department

of Commerce, and, as with the ESA, the MMPA gives the Secretary

of the Interior jurisdiction over the polar bear.

(12)(A).

The MMPA prohibits the taking or importation of marine

mammals or marine mammal parts, unless a specified exception

applies.

(a). The term “take” means “to harass,

hunt, capture, or kill, or attempt to harass, hunt, capture, or

kill any marine mammal.”

(13). One exception to

the general prohibition allows the Secretary of the Interior to

issue permits authorizing the take of marine mammals for

importation of polar bear parts taken in sport hunts in Canada,

provided that specific requirements are met.

(c)(5). However, where the marine mammal at issue is

-3- “depleted,” the MMPA further restricts the purposes for which

such permits may be issued.

(a)(3)(B). Species

that are listed as endangered or threatened under the ESA, such

as the polar bear, are considered “depleted” for purposes of the

MMPA.

(1)(C). Where a species is depleted, the

Secretary may not allow importation “[e]xcept for scientific

research purposes, photography for educational purposes, or

enhancing the survival or recovery of [the] species or stock . .

. .”

(a)(3)(B). In addition, section 1372(b) of

the MMPA contains additional restrictions on importations of a

marine mammal from a species or stock that has been designated as

depleted. That section reads in relevant part:

Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock . . ., it is unlawful to import into the United States any marine mammal if such mammal was -

. . .

(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock; . . .

Accordingly, where a marine mammal is from a species or stock

with a depleted status, Section 1372(b) allows importation only

for purposes of scientific research or enhancement of the

survival or recovery of the species or stock.

-4- B. Factual Background

1. The Final Rule

On May 15, 2008, the FWS issued a final rule listing the

polar bear as a threatened species throughout its range. See

(May 15, 2008) (“Final Rule”). In responding to

comments the FWS had received regarding the proposed designation

of the polar bear as a threatened species, the FWS noted in the

Final Rule that

[U]nder the MMPA, the polar bear will be considered a ‘depleted’ species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.

73 Fed. Reg. at 28236. Moreover, in response to a comment that

the FWS had not considered “the negative impacts of listing [the

polar bear as threatened] on the long-term management of polar

bears developed in Canada that intergrates susbistence harvest

allocations with a token sport harvest[,]” the FWS stated

We acknowledge the important contribution to conservation from scientifically-based sustainable use programs. Significant benefits to polar bear management in Canada have accrued as a result of the 1994 amendments to the MMPA that allow U.S. citizens who legally sport-harvest a polar bear from an MMPA- approved population in Canada to bring their trophies back into the United States.

. . .

While we recognize these benefits, the Service must list a species when the best scientific and commercial

-5- information available shows that the species meets the definition of endangered or threatened. The effect of the listing, in this case an end to the import provision under Section 104(c)(5) of the MMPA, is not one of the listing factors. Furthermore, the benefits accrued to the species through the import program do not offset or reduce the overall threat to polar bears from loss of sea ice habitat.

Id. at 28242.

2. Plaintiff’s Complaint

Plaintiffs bring this suit under the Administrative

Procedure Act,

et seq. (“APA”), to challenge “the

FWS’s legal determination that the listing of the polar bear as

threatened under the ESA creates a ban on the import of sport-

hunted polar bear trophies otherwise legal under the MMPA.”

Compl. ¶ 2. According to the Complaint, SCI’s mission’s are “the

conservation of wildlife, protection of the hunter, and education

of the public concerning hunting and its use as a conservation

tool.” Compl. ¶ 15. SCI has approximately 53,000 members from

the United States and around the world, many of whom have hunted

polar bears and/or intend to hunt polar bears, and most of whom

desire to import into the United States the trophy of any polar

bear they have harvested or will harvest.

SCI has a “sister

organization,” SCIF, created for the purpose of carrying out its

conservation mission.

.

SCI, SCIF, and SCI’s members complain that they are

adversely affected and aggrieved by the FWS’s determination that

imports of sport-hunted trophies from approved populations in

-6- Canada will no longer be allowed, and the agency’s refusal to

further process or accept applications for those import permits.

. Plaintiffs also allege that SCI and SCIF’s

interests in polar bear conservation and management efforts,

which they maintain are supported by U.S. sport hunters in

Canada, are harmed by the FWS’s determination because those sport

hunters may abandon sport hunting of polar bears if the imports

are not allowed.

Plaintiffs ask this Court to (a) declare the FWS’s

determination erroneous; (b) set aside the portion of the Final

Rule establishing the import ban; and (c) order the FWS to

continue accepting and processing polar bear import permit

applications under the MMPA and other applicable law.

.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(c), a party may

move for judgment on the pleadings after the pleadings are

closed, but early enough not to delay trial. “The standard for

reviewing a motion for judgment on the pleadings is the same as

that applied to a motion to dismiss for failure to state a claim

upon which relief can be granted under Rule 12(b)(6).” Rafeedie

v. INS,

(D.D.C. 1992). To survive a motion

to dismiss, a complaint must contain only “a short and plain

statement of the claim showing that the pleader is entitled to

-7- relief,” and give the defendant “fair notice of the claims

against him.” Aktieselskabet AF 21 November 2001 v. Fame Jeans

Inc.,

(D.C. Cir. 2008) (quoting Ciralsky v. CIA,

(D.C. Cir. 2004) (quoting Fed. R. Civ. P.

8(a))). “A court deciding a motion to dismiss must not make any

judgment about the probability of the plaintiff's success, for a

complaint may proceed even if it appears that a recovery is very

remote and unlikely, and a complaint may not be dismissed based

on a district court's assessment that the plaintiff will fail to

find evidentiary support for his allegations.”

(internal

quotations and citations omitted). Furthermore, “the court must

assume all the allegations in the complaint are true (even if

doubtful in fact), and the court must give the plaintiff the

benefit of all reasonable inferences derived from the facts

alleged.”

(internal quotations and citations omitted).

III. DISCUSSION

Defendants argue that they are entitled to judgment on the

pleadings because (1) plaintiffs have failed to state a claim

upon which relief can be granted because the action they

challenge is not final agency action for purposes of the APA; and

(2) because plaintiffs lack standing to challenge the statements

in the Final Rule related to the importation of polar bear

trophies. For the following reasons, the Court rejects both

arguments.

-8- A. Failure to State a Claim

The APA requires that the agency action in question must be

final before a party may seek judicial review.

.

As both parties point out, the Supreme Court has established a

two-part test to determine when an agency action is considered

“final” for purposes of judicial review. See Def. Mem. at 9 and

Pl. Opp’n. at 8 (citing in Bennett v. Spear,

(1997)). In Bennett, the Supreme Court held

As a general matter, two conditions must be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process, . . . -it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow[.]’

(internal citations omitted).

Defendants maintain that plaintiffs are only challenging

“isolated statements in the preamble to the final regulation

discussing the separate issue of how the listing of the polar

bear under the ESA may affect the Service’s future enforcement of

the MMPA.” Def. Mem. at 9-10. Defendants argue that rather than

the consummation of the agency’s decisionmaking process on any

particular application for an import permit, these statements

simply discuss the applicability of the MMPA, “which the agency

will implement in future decisions if necessary.” Id. at 10.

Defendants also contend that plaintiffs’ challenge fails the

second part of the Bennett test because the Final Rule did not

-9- itself deny any pending import applications and therefore does

not determine plaintiffs’ rights or obligations. Id. In other

words, according to the defendants, the Final Rule “merely

summarizes the legal provisions the Service will apply moving

forward,” id., and does not have “any legal effect on Plaintiffs

or their individual members[.]” Id. at 11.

Plaintiffs, on the other hand, insist that they are

challenging a final agency action, i.e., the defendants’ legal

determination that by listing the polar bear as a threatened

species, the FWS can no longer issue import permits under the

MMPA. Plaintiffs argue that although technically there may

remain the additional step of the agency denying SCI members’

permit applications, the FWS’s determination in the Final Rule

that import permits for polar bear trophies will no longer be

granted is final for purposes of judicial review. This Court

agrees.

In Bennett v. Spear, the FWS determined that a reclamation

project undertaken by the Bureau of Reclamation (“Bureau”),

another agency under the Secretary of the Interior’s

jurisdiction, would impact two species of endangered fish. The

FWS issued a Biological Opinion identifying “reasonable and

prudent alternatives” that the FWS believed would avoid harm to

the fish, including maintenance of minimum water levels.

. The Bureau informed the FWS that it intended to

-10- operate the reclamation project in compliance with the terms of

the Biological Opinion.

. Plaintiff ranch operators

and irrigation districts sued the FWS and the Secretary of the

Interior, but not the Bureau or its officials, challenging the

Biological Opinion.

. Plaintiffs claimed that the

“restrictions on water delivery ‘recommended’ by the Biological

Opinion ‘adversely affect plaintiffs by substantially reducing

the quantity of available irrigation water[.]’”

(internal citations omitted). The defendants moved to dismiss on

the grounds that plaintiffs lacked standing and that the

Biological Opinion was not final agency action for purposes of

judicial review under the APA.

.

The defendants argued in Bennett that the Biological Opinion

was not final agency action because it did not “conclusively

determine how the reclamation project’s water would be

allocated.”

. The Supreme Court rejected this

argument, finding that it was “uncontested” that the Biological

Opinion was the “consummation” of the agency’s decisionmaking

process - the first part of the two-part test for final agency

action - and that the second part of the test was also met

because “the Biological Opinion and accompanying Incidental Take

Statement alter the legal regime to which the action agency is

subject, authorizing it to take the endangered species if (but

only if) it complies with the prescribed conditions.”

at

-11- 178. In other words, although there was another step between the

Biological Opinion and the plaintiffs’ alleged harm, i.e., the

Bureau’s compliance with the Biological Opinion, the Supreme

Court determined that the Biological Opinion was final agency

action for purposes of judicial review.

Similarly, in Appalachian Power Co., et al. v. Environmental

Protection Agency,

(D.C. Cir. 2000), the plaintiffs

challenged a Periodic Monitoring Guidance issued by the

Environmental Protection Agency that allegedly required states to

take certain action in connection with operating the states’

permit programs under the Clean Air Act. The defendant

Environmental Protection Agency argued that the Guidance was not

final agency action for purposes of judicial review. The Court

of Appeals for the District of Columbia Circuit rejected that

argument.

The short of the matter is that the Guidance, insofar as relevant here, is final agency action, reflecting a settled agency position which has legal consequences both for State agencies administering their permit programs and for companies like those represented by petitioners who must obtain Title V permits in order to continue operating.

.

As plaintiffs SCI and SCIF correctly point out in their

opposition to defendants’ motion, “here, if anything, the legal

determination SCI and SCIF are challenging is even more final, as

it definitively establishes that any applications for a Section

-12- 104(c)(5) permit will not be granted[,]” whereas in Bennett the

Bureau could at least theoretically have chosen not to follow the

Biological Opinion’s restrictions. Pl. Opp’n. at 10. Moreover,

like the Guidance at issue in Appalachian Power, the FWS’s

determination regarding the import ban reflects “a settled agency

position which has legal consequences both for” the agency

administering the MMPA and for plaintiffs’ members “who must

obtain [import] permits in order to continue” importing polar

bear trophies.

. In fact, the defendants

themselves attached to their motion a letter dated July 29, 2008,

from the FWS to an individual who had submitted an application

for an import permit, which demonstrates this point.3 The letter

refers to the Final Rule and then states,

We are writing to inform you that as of the effective date of the listing, May 15, 2008, importation of a polar bear from Canada as a sport-hunted trophy that was taken after February 18, 1997, is no longer an activity that can be authorized under the Marine Mammal Protection Act (MMPA). Therefore, we are unable to continue processing the application that you submitted to the U.S. Fish and Wildlife Service.

. . .

Since there is no permit authorization available to conduct

3 To be clear, the Court need not, and does not, rely on this letter to reach its conclusion that the challenged action in this case is final agency action. However, because defendants have included the letter “for the Court’s information,” see Def. Mem. at 11, n.2, the Court will reference the letter to illustrate the FWS’s position that the Final Rule precludes the granting of any permit to import a sport-hunted polar bear trophy into the United States.

-13- your requested activity, we are administratively closing your application file and returning the $100.00 permit application processing fee you submitted with your application.

. . .

In the future, should the MMPA be amended in a manner that would allow for the importation of polar bear sport-hunted trophies, we encourage you to submit a new permit application to our office.

Def. Mem. Ex. 1 (July 29, 2008 Letter from Timothy J. Van

Norman, Chief, Branch of Permits, Fish and Wildlife Service to

import applicant (recipient’s name and address redacted)).

The letter expressly states the FWS’s position that in view

of the Final Rule, sport-hunted polar bear trophy importation “is

no longer an activity that can be authorized under the Marine

Mammal Protection Act,” and, as a result, the application file is

being administratively closed. The language in the Final Rule is

not of a “merely tentative or interlocutory nature[,]” but rather

represents the “‘consummation’ of the agency’s decisionmaking

process” and, as that language and the July 29, 2008 letter

clearly indicate, the Final Rule is “one by which ‘rights or

obligations have been determined,’” specifically, the right to

obtain an import permit. See Bennett,

(internal citations omitted).4

4 On March 24, 2009, defendants filed a Notice of Supplemental Authority, citing Natural Resources Defense Council v. EPA,

(D.C. Cir. 2009) (“NRDC”), as support for their position that the statements in the Final Rule regarding the import ban are not final agency action. In NRDC, however,

-14- Accordingly, this Court finds that the action challenged by

SCI and SCIF is final agency action for purposes of judicial

review pursuant to the APA.

B. STANDING

Defendants argue in the alternative that plaintiffs’ suit

must be dismissed for lack of standing because plaintiffs have

not alleged facts to establish that they have suffered an injury-

in-fact that is fairly traceable to the challenged action. To

satisfy Article III of the Constitution’s “case” or “controversy”

requirement, a plaintiff ordinarily must establish that (1) he or

she has “suffered an ‘injury-in-fact’”; (2) there is a “causal

connection between the injury and the conduct complained of”; and

(3) the injury will likely be ‘redressed by a favorable

decision[.]’” See Lujan v. Defenders of Wildlife,

(1992). Defendants maintain that plaintiffs have not met

any of these three requirements and, in addition, that as an

the Court of Appeals for the D.C. Circuit found that in the preamble that plaintiff challenged, the agency “spoke in the conditional, suggesting that events in the various categories ‘may be exceptional events’ or ‘may qualify for exclusion under this rule provided that all other requirements are met.’”

(citing

-65)(May 15, 2008). The court also found that “[o]ther statements were equivocal, such as the declaration, repeated several times in different forms, that certain events are to be evaluated ‘on a case-to-case basis.’”

In contrast, the language the FWS used in the Final Rule and in the letter quoted herein is not in the least “conditional” or “equivocal,” and there is no indication that permit applications to import sport-hunted polar bear trophies will be evaluated on a “case-to-case basis.”

-15- associational plaintiff SCI lacks standing because it cannot

establish that “at least one of its members would have standing

to sue in his own right[.]” See Sierra Club v. EPA,

(D.C. Cir. 2002).

At the outset, the Court notes that because the case is

“[a]t the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a

motion to dismiss[, similar to a motion for judgment on the

pleadings,] we ‘presum[e] that general allegations embrace those

specific facts that are necessary to support the claim.’” See

Bennett,

(citing Lujan v. Defenders of Wildlife,

(1992) (quoting Lujan v. National Wildlife

Federation,

(1990)). Here, SCI and SCIF have

plead general factual allegations of injury resulting from the

Final Rule sufficient to overcome the defendants’ motion for

judgment on the pleadings.

1. Plaintiffs’ Allegations of an Injury-In-Fact

Defendants argue that plaintiffs have not alleged that the

Final Rule itself operated as a denial of any permit application

by an SCI member or that plaintiffs have suffered actual or

imminent injury. Def. Mem. at 12-13. Instead, defendants

contend that the plaintiffs’ injury “stems from the possibility

that the Service will act in accordance with the statements in

the Final Rule regarding the MMPA’s restrictions, thereby denying

-16- import applications from Plaintiff’s members.” In addition,

defendants argue that plaintiffs cannot rely on a “procedural

injury” - based on plaintiffs’ allegation that the FWS violated

the APA by failing to give the public adequate notice and

opportunity to comment on the isuse of whether the polar bear is

depleted under the MMPA - because plaintiffs have not established

that the “procedures in question are designed to protect some

threatened concrete interest of [plaintiffs] that is the ultimate

basis of [their] standing.” Def. Mem. at 14 (quoting Lujan,

, n.8 and citing Florida Audubon Soc’y v. Bentsen,

(D.C. Cir. 1996)).

Plaintiffs’ Complaint alleges that since 1994, over 900

permits to import sport hunted-trophies have been issued by the

FWS, resulting in over $900,000 for polar bear research and

management programs. Compl. ¶ 30. Plaintiffs claim that in

March, April, and May of 2008, SCI members have successfully

sport-hunted polar bears from several of the Canadian polar bear

populations approved for imports under the MMPA, and that many of

these members submitted applications to import polar bear

trophies into the United States. Id. at ¶ 4. According to

plaintiffs, other members of SCI who had successfully hunted

polar bears during this time period have not yet submitted their

applications to FWS, and that “on information and belief,” the

FWS has informed SCI members that it will not be processing any

-17- permit applications to allow the import of polar bear trophies

now that the species is listed as “threatened” under the ESA.

Id.

As for particularized interests with respect to their

procedural claim, plaintiffs also complain that the FWS’s actions

harm SCI and SCIF’s interests in polar bear conservation and

management efforts, because U.S. hunters may abandon sport-

hunting of polar bears if imports are not allowed. Compl. ¶¶ 12,

17. Plaintiffs allege a direct injury to their conservation and

management interest because U.S. hunters pay $40,000 to $50,000

per polar bear hunt, and much of those funds go the local native

communities, providing “another incentive for these people to

accept the Western-based science and management that facilitates

polar bear conservation and that is required before the Service

will approve a population for import.” Id. at ¶ 42. Plaintiffs

note that the FWS has itself recognized the benefits of sport

hunting of polar bears and that the plaintiffs commented on the

proposed listing at every available opportunity for public

comments during the rulemaking process. Id. at ¶¶ 18, 42. Some

SCI members have scheduled and even paid for polar bear hunts in

2009 and 2010, and still others may decide not to plan hunts

because they will no longer be permitted to import any trophy

they may obtain if the hunt is successful. Id. at ¶ 39.

In Bennett, the Supreme Court found that the plaintiff ranch

-18- operators and irrigation districts had established an injury-in-

fact when the Biological Opinion was issued, despite the

existence of an additional step between the agency’s action and

the plaintiffs’ injury - that is the Bureau complying with the

Biological Opinion - and the possibility (which does not exist in

this case) that the Bureau might not follow the Biological

Opinion. As with the Bennett plaintiffs, SCI and SCIF have

sufficiently plead an injury-in-fact, and they are not required

to wait for the inevitable formal denial of their permit

applications. Moreover, plaintiffs have sufficiently plead that

the “procedures in question” threaten a “concrete interest,”

i.e., an interest in conservation that is impacted by the import

ban.

2. The Causal Connection Between the Alleged Injury and the Defendants’ Conduct

Defendants next argue that plaintiffs cannot establish a

causal connection between their alleged injury and the

defendants’ conduct because “plaintiffs’ allegations of harm

hinge on speculation regarding the Service’s future actions[.]”

Def. Mem. at 16 (citing United Transp. Union v. ICC,

(D.C. Cir. 1989) (court may “reject as speculative

allegations of future injuries”). This argument is belied by the

very language in the Final Rule:

We note that, under the MMPA, the polar bear will be considered a “depleted” species on the effective date of this listing. As a depleted species, imports could

-19- only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.

73 Fed. Reg. at 28236. Plaintiffs’ allegations that SCI members

can no longer obtain import permits are not “speculative”; the

Final Rule makes clear that the only possible response an

individual applying for a permit to import a sport-hunted polar

bear trophy can reasonably expect to receive is a denial of his

or her application. In other words, the Final Rule is

determinative. Therefore, plaintiffs have satisfied the causal

connection requirement. See, e.g., Bennett,

(finding that plaintiffs had met their “relatively modest” burden

at the pleading stage to establish a causal connection between

their alleged injury and the agency’s action, in view of the

“powerful coercive” and “virtually determinative” effect that the

FWS’s Biological Opinion would inevitably have on the manner in

which the Bureau would operate the project at issue).

3. Whether the Alleged Injury Would Be Redressed By A Favorable Decision

Finally, defendants argue that the “broad relief” sought by

plaintiffs, i.e., setting aside the portions of the preamble to

the Final Rule and enjoining the FWS from refusing to process

import applications, would be “inappropriate.” According to the

defendants, if the FWS denies specific applications, the

plaintiffs must seek judicial review of the denials pursuant to

-20- the MMPA’s statutory scheme.

Plaintiffs respond that the review procedures for a denial

of an individual permit application under the MMPA are not an

adequate substitute for an APA challenge to a rule that impacts

numerous people. Nor would those procedures address the injuries

of SCI members who have hunted polar bears but have not applied

for a permit because such an application would be futile, or who

must decide whether to book or cancel a hunt without the ability

to import any resulting trophy. The Court agrees. In Bennett,

the Supreme Court found that setting aside the Biological Opinion

would likely redress the plaintiff’s injury because if the

Biological Opinion was set aside, the Bureau would not impose the

water level restrictions advised by that opinion.

. Similarly, this Court finds that if plaintiffs were to

prevail on their claims and the Court were to enjoin the FWS from

denying the import applications based on the Final Rule,

plaintiffs’ injuries would be redressed.

IV. CONCLUSION

For the reasons stated herein, the defendants’ Motion for

Judgment on the Pleadings is DENIED. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed by: Emmet G. Sullivan United States District Judge June 22, 2009

-21-