UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CONSERVATION FORCE, et al.,

Plaintiffs, v. Civil Action No. 09-496 (JDB) KENNETH SALAZAR, in his official capacity as Secretary of the United States Department of the Interior, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs -- organizations and individuals that support sustainable hunting of the

Canadian wood bison -- have brought suit alleging that the Secretary of the Department of the

Interior has violated several provisions of the Endangered Species Act of 1973 ("ESA" or "the

Act"),

et seq., in his treatment of that species. The Canadian wood bison is

currently listed as "endangered" under the Act. In 2007, the Canadian National Wood Bison

Recovery Team petitioned to "downlist" the wood bison to "threatened," but the Secretary has

not yet made a final determination on the petition. Plaintiffs contend that the Secretary's failure

to act on the petition violates the ESA. Several individual plaintiffs also challenge as unlawful

the Secretary's failure to process their applications to import wood bison hunting trophies. For

the reasons explained below, the Court will grant defendants' motion to dismiss, and will deny

plaintiffs' motion for summary judgment.

-1- BACKGROUND

I. Statutory and Regulatory Background

The ESA is "the most comprehensive legislation for the preservation of endangered

species ever enacted by any nation." Tenn. Valley Auth. v. Hill,

(1978). It is

intended 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). To this end, the Act

directs the Secretary to classify species whose survival is in danger as "endangered" or

"threatened." See

Individuals may petition the Secretary to list, downlist, or delist species. See

§

1533(b)(3). After receiving any such petition, the Secretary must, "[t]o the maximum extent

practicable," make a finding within 90 days "as to whether the petition presents substantial

scientific or commercial information indicating that the petitioned action may be warranted"

("90-day finding").

(b)(3)(A). And "[w]ithin 12 months after receiving a

petition that is found . . . to present substantial information indicating that the petitioned action

may be warranted," the Secretary must determine whether the petitioned action is warranted, is

not warranted, or is warranted but is precluded by pending proposals concerning other species

("12-month finding").

§ 1533(b)(3)(B).

The ESA also generally prohibits the importation of endangered and threatened species,

1 A species is "endangered" if it "is in danger of extinction throughout all or a significant portion of its range."

(6). A species is "threatened" if it "is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."

§ 1532(20).

-2- including hunting trophies. See id. § 1538(a)(1)(A), (c)(2);

(b), 17.32.

Certain species may be imported under limited circumstances, however -- such as "for scientific

purposes or to enhance the propagation or survival of the affected species."

(a)(1)(A). Individuals seeking to import a listed species must apply for a permit and satisfy

a number of application requirements. See

§ 1539(a);

, 17.31(a).

II. Factual Background

The Canadian wood bison, found in portions of northwestern Canada, was by the late

1800s hunted nearly to extinction. See

, 5909 (Feb. 3, 2009). It was first

classified as an "endangered" species in 1970 under the statutory predecessor to the ESA, and has

remained so listed under the ESA.

Between 2000 and 2004, the four individual plaintiffs to this action purchased wood

bison hunts in Canada, which permits limited hunting of the wood bison, and each then

successfully hunted a wood bison. Am. Compl. ¶¶ 15-18. With Conservation Force's assistance,

they each applied to import their wood bison trophies into the United States. Am. Compl. ¶¶ 15-

18. The Secretary had not processed these import permit applications by the time this action was

filed.

In November 2007, the Canadian National Wood Bison Recovery Team ("the Team")

petitioned the Secretary to downlist the wood bison from endangered to threatened.2 The Team's

petition stated that the wood bison's "populations are healthy," its "habitat remains plentiful," and

conservation "recovery and management plans are being implemented."

. In

2 Plaintiffs have no affiliation with the Team, and they do not appear to have been involved in the downlisting petition.

-3- February 2009, the Secretary, acting through the United States Fish and Wildlife Service ("the

Service"), issued a 90-day finding. This finding concluded that the Team's downlisting petition

"presents substantial scientific evidence and commercial information indicating that reclassifying

the wood bison from endangered to threatened may be warranted."

. The Secretary

has not yet issued his 12-month finding on the petition.

Plaintiffs brought this action in March 2009, a month after the Secretary issued his 90-day

finding. They contend that the Secretary's failure to issue a 12-month finding on the Team's

downlisting petition violates the ESA. Am. Compl. at pp. 19-20, 25-28. The individual

plaintiffs also claim that the Secretary's then-failure to process their applications to import wood

bison hunting trophies violates both the ESA and their Due Process rights. Am. Compl. at pp.

21-24.

Plaintiffs moved for summary judgment before defendants responded to their amended

complaint. Three days after plaintiffs filed their motion, the Service denied the individual

plaintiffs' applications for import permits. See Defs.' Mot. to Dismiss ("Defs.' Mot.") [Docket

Entry 11], Ex. 1 (permit denials). As to each application, the Service concluded that "there is

insufficient evidence to support the concept that this import of a sport-hunted trophy would

provide a 'conservation' benefit to the wood bison."

. Defendants subsequently filed a

motion to dismiss on jurisdictional grounds, as well as a cross-motion for summary judgment

raising the same issues.

STANDARD OF REVIEW

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --

plaintiffs here -- bears the burden of establishing that the court has jurisdiction. See US Ecology,

-4- Inc. v. Dep't of Interior,

(D.C. Cir. 2000); see also Grand Lodge of Fraternal

Order of Police v. Ashcroft,

(D.D.C. 2001) (a court has an "affirmative

obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney

Bowes, Inc. v. United States Postal Serv.,

(D.D.C. 1998). "'[P]laintiff's

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion'

than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge,

-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the

complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the

factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food and Drug

Admin,

(D.C. Cir. 2005).

DISCUSSION

I. The 12-Month Finding

Plaintiffs' primary contention is that the Secretary has failed to comply with the ESA's 12-

month finding requirement. See

(b)(3)(B); Pls.' Mot. for Summ. J. ("Pls.'

Mot.") [Docket Entry 9], at 12-15. As they point out, although the Team submitted its

downlisting petition in November 2007, and the Secretary issued a 90-day finding in February

2009, the Secretary still has not issued a 12-month finding.

The Secretary contends that plaintiffs cannot challenge his failure to issue a 12-month

finding, however, because they did not comply with the ESA's notice requirement. Under the

Act, a prospective plaintiff must provide written notice to the Secretary at least sixty days before

suing for an alleged ESA violation. See

(g)(2). This requirement is "mandatory

-5- and jurisdictional." Research Air, Inc. v. Norton,

, at *10 (D.D.C. 2006) (citing

Common Sense Salmon Recovery v. Evans,

(D.D.C. 2004)); accord Sw.

Ctr. for Biological Diversity v. U.S. Bureau of Reclamation,

, 520 (9th Cir. 1998).3

Plaintiffs submitted an intent to sue letter on January 13, 2009, more than sixty days

before they filed suit. See Defs.' Mot., Ex. 2 (Intent to Sue Letter), 1. But plaintiffs' intent to sue

letter lists only two complaints related to the wood bison: the Secretary's then-failure to issue a

90-day finding on the downlisting petition, and the Secretary's then-failure to process plaintiffs'

applications to import wood bison trophies. See id. at 1-2.

Plaintiffs do not dispute that their intent to sue letter does not explicitly challenge the

Secretary's failure to issue a 12-month finding. Plaintiffs insist, however, that their letter "made

blatantly clear that Conservation Force intended to object to any further violation of ESA

procedural requirements." Pls.' Opp'n to Defs.' Mots. ("Pls.' Opp'n") [Docket Entry 20], at 19-21

(citing Water Keeper Alliance v. Dep't of Def.,

(1st Cir. 2001) (notice sufficient

where it made "clear that [plaintiff] intended to challenge an ongoing delinquency")). But the

letter did not do so. Its only reference to the Team's downlisting petition is: "This is also notice

for the failure of the [Secretary] to make a timely 90-day determination on the petition to

downlist the [Canadian] wood bison . . . ." Intent to Sue Letter at 2. The letter does not mention

any other delinquency related to the downlisting petition. Nor is it vaguely worded, leaving

ambiguous whether the objection is to the absent 90-day finding, or to delays in addressing the

3 Because the ESA's notice provision is jurisdictional, the Court may address this issue without resolving the Secretary's argument that plaintiffs also lack standing to challenge his failure to issue a 12-month finding. See Sinochem Int'l Co. v. Malay. Int'l Shipping Corp.,

(2007) ("[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits." (internal quotation marks omitted)).

-6- petition more generally. Accordingly, the notice in no way "made blatantly clear" that plaintiffs

intended to sue over any future procedural violations concerning the downlisting petition.4

It is true that, because the Secretary had not yet issued his 90-day finding when plaintiffs

submitted their intent to sue letter, they could not have known whether a 12-month finding was

required as to the Team's petition. See

(b)(3) (12-month finding required only

where 90-day finding concludes that a petition "presents substantial information indicating that

the petitioned action may be warranted"). This does not alter the analysis, however. A notice of

intent to sue for the failure to issue a 90-day finding does not provide proper notice of intent to

sue for the subsequent failure to issue a 12-month finding. See Friends of Animals v. Salazar,

(D.D.C. 2009). In Friends of Animals, the plaintiff had submitted a notice of

intent to sue letter for the Secretary's failure to issue a timely 90-day finding. "Defendants had

not yet missed the deadline for the twelve-month finding" when the plaintiff sent its intent to sue

letter -- indeed, because there was no 90-day finding the plaintiff could not have known whether

a 12-month finding would be required.

. Thus, "admittedly and understandably, Plaintiff

did not notify Defendants of its intent to sue" for the failure to issue a 12-month finding.

Still, the court found that the plaintiff's "failure to provide sixty-days' notice prior to bringing its

claims with respect to the 12-month finding means those claims must be dismissed."

So too

4 Plaintiffs also state, without citation, that they "had a longstanding objection to Defendants' failure to downlist." Pls.' Opp'n at 20. Accordingly, they suggest that the letter provided proper notice because it "incorporate[d] by reference . . . all the prior pleas, requests, comments by Conservation Force and those it represents and diplomatic protest by foreign nations." Intent to Sue Letter at 2; see Pls.' Opp'n at 19. But even assuming that documents incorporated by reference could ever "adequately inform the agency of the exact grievances against it," Water Keeper Alliance,

, plaintiffs have submitted no evidence to this Court concerning their prior pleas or comments.

-7- here, where the need for a 12-month finding remained speculative when the intent to sue letter

was submitted on January 13, 2009.

Moreover, because plaintiffs' intent to sue letter did not notify the Secretary that they

intended to challenge his subsequent failure to issue a 12-month finding, it would be unfair to

permit this claim to proceed. "The purpose of the 60-day notice provision is to put the agencies

on notice of a perceived violation of the statute and an intent to sue." Sw. Ctr. for Biological

Diversity, 143 F.3d at 520 (internal quotation marks omitted). "When given notice, the agencies

have an opportunity to review their actions and take corrective measures if warranted. The

provision therefore provides an opportunity for settlement or other resolution of a dispute

without litigation." Id. (internal quotation marks omitted). This policy is borne out here: several

weeks after plaintiffs sent their intent to sue letter, the Secretary issued the very 90-day finding

that plaintiffs sought. See 74 Fed. Reg. at 5910. But plaintiffs gave the Secretary no such

"opportunity to review [his] actions and take corrective measures" relating to his absent 12-

month finding for the wood bison. The Court therefore will dismiss plaintiffs' claim that the

Secretary's failure to issue a 12-month finding violates

The Court will also dismiss, for the same reasons, plaintiffs' additional claims that the

Secretary's failure to issue a 12-month finding on the wood bison petition violates several other

ESA provisions. See Pls.' Opp'n at 22-23; Am. Compl. at pp. 25-28. As explained above,

plaintiffs' intent to sue letter challenged only the Secretary's failure to issue a 90-day finding and

5 Of course, nothing prevents plaintiffs, after ensuring that they have provided proper statutory notice pursuant to

(g)(2), from filing an additional suit to compel the 12-month finding. The Court notes, however, that the Secretary has represented that he is able to submit a 12-month finding by September 15, 2010 -- less than four months from now. See Defs.' Mot. for Summ. J. ("Defs.' Mot.") [Docket Entry 18], at 35.

-8- to process plaintiffs' applications to import wood bison trophies. See Intent to Sue Letter at 1-2.

It did not suggest that the Secretary's failure to issue a 12-month finding violates any other ESA

provisions.6

II. Plaintiffs' Permit Applications

Plaintiffs also contend that the Service's failure to process their applications to import

wood bison trophies is contrary to the ESA and violates Due Process. While this litigation was

pending, however, the Service denied the four individual plaintiffs' applications for import

permits. Accordingly, defendants contend that these claims are moot: "Plantiffs have already

obtained the specific relief -- the processing of their permit applications -- requested in their

Amended Complaint." Defs.' Mot. at 13.

Plaintiffs offer two arguments in opposition. They first note that their prayer for relief

seeks a declaratory judgment that "the failure to process wood bison trophy import permits

pursuant to existing regulations is a violation of the ESA, APA, and Constitution." Pls.' Opp'n at

11 (citing Am. Compl. at p. 29). According to them, then, they still "have not received all of the

relief they requested with regard to those claims."

6 Plaintiffs suggest that these additional claims concerning the 12-month finding arise not only under the ESA, but also under the APA. See Pls.' Mot. at 21-22. This would, in theory, permit such claims to avoid the ESA's notice provision. But the APA permits courts to review "final agency action for which there is no other adequate remedy in a court."

(emphasis added). Here, the ESA's citizen-suit provision provides an adequate remedy for plaintiffs' claims. See

(g)(1) (citizens may sue to enjoin violations of the ESA and to compel the Secretary to comply with his duties under the Act). Therefore, because "'review of [plaintiffs'] claim is available under the [ESA], it is not subject to review under the APA.'" Coos County Bd. of County Comm'rs v. Kempthorne,

, 810 (9th Cir. 2008) (quoting Hayes v. Whitman,

(10th Cir. 2001)) (emphasis removed) (second alteration in Coos County); see also Bowen v. Massachusetts,

(1988) ("Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.").

-9- This argument is unpersuasive. "In determining whether a request for declaratory relief

has become moot, 'the question . . . is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance of a declaratory judgment.'" Conyers v.

Reagan,

(D.C. Cir. 1985) (quoting Preiser v. Newkirk,

(1975) (emphasis in Preiser)). Now that the Service has processed plaintiffs' permit applications,

the parties are no longer legally adverse to one another, and there no longer exists any immediate,

actual dispute that warrants declaratory relief. Indeed, the relief plaintiffs seek -- a declaration

that a failure to act timely on permit applications is unlawful -- would be an improper advisory

opinion. See Lawyer v. Dep't of Justice,

(1997) ("The real value of the

judicial pronouncement -- what makes it a proper judicial resolution of a case or controversy

rather than an advisory opinion -- is in the settling of some dispute which affects the behavior of

the defendant towards the plaintiff." (internal quotation marks omitted)).

Plaintiffs also contend that the Court may still adjudicate their permit-related claims

because it was the Service's voluntary cessation of the alleged unlawful conduct -- the failure to

timely process permit applications -- that rendered this case moot. "It is well settled that a

defendant's voluntary cessation of a challenged practice does not deprive a federal court of its

power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc.,

(2000) (internal quotation marks omitted). This is so

because, "while the defendant's unilateral cessation of the challenged conduct may grant the

plaintiff relief, the defendant is free to return to [its] old ways -- thereby subjecting the plaintiff to

the same harm but, at the same time, avoiding judicial review." Qassim v. Bush,

,

-10- 1075 (D.C. Cir. 2006) (per curiam) (internal quotation marks omitted) (alteration in original).

Thus, when a defendant has voluntarily ceased the allegedly unlawful conduct, a case is moot

"only if the defendant shows that: (1) 'there is no reasonable expectation . . . that the alleged

violation will recur,' and (2) 'interim relief or events have completely and irrevocably eradicated

the effects of the alleged violation.'" Larsen v. United States Navy,

(D.C. Cir.

2008) (quoting County of L.A. v. Davis,

(1979)). Moreover, to defeat

mootness the alleged violation must be reasonably expected to recur against the plaintiff, and not

simply others who may one day be in his place. See Qassim,

.7

In this case, the Service can only again delay the processing of plaintiffs' import permit

applications if plaintiffs again apply for such permits.8 But there is no indication in the record

that the individual plaintiffs whose permit applications have now been processed will ever hunt

the wood bison (or any other listed species) again, or that they will apply to import their trophies.

And even assuming that the Service needs to show that none of the plaintiffs to this

action -- not just those who have previously applied for import permits -- can reasonably expect

to be subject to the alleged violation, it has done so. The only evidence in the record potentially

relevant to any plaintiffs' future intentions regarding import permits is a declaration by John

Jackson, III, plaintiffs' attorney and the founder and chairman of Conservation Force. See Pls.'

7 The voluntary cessation exception arguably is not available here at all. Rather, given that plaintiffs sought to force the Service to take specific action, its processing of their import permit applications appears "more accurately characterized as the provision of appropriate relief to petitioner than as the 'cessation of illegal conduct.'" Natural Res. Def. Council, Inc. v. Nuclear Reg. Comm'n,

(D.C. Cir. 1982). Nonetheless, defendants have not raised this argument, and hence the Court will assume that the exception applies. 8 Plaintiffs do not dispute that the processing of their permit applications has "completely and irrevocably eradicated the effects of the alleged violation." See Larsen,

.

-11- Opp'n, Decl. of John Jackson, III ("Jackson Decl."). Jackson's declaration states that

Conservation Force "prepared and filed all the Wood Bison trophy import permits that are at

issue" in this case. Jackson Decl. at ¶ 4. But while this shows Conservation Force's past efforts

to obtain import permits, it offers no evidence that the organization intends to do so again.9

In fact, the only portions of Jackson's declaration that even arguably suggest that any

plaintiffs intend to apply for import permits in the future are statements concerning the Wild

Sheep Foundation and Grand Slam Club/Ovis, two organizational plaintiffs. Jackson states that

the Wild Sheep Foundation's "members want to hunt the bison if, but generally only if, they can

import their trophies." Jackson Decl. ¶ 9. Similarly, he offers that Grand Slam Club/Ovis "has

many members who would like to hunt wood bison if, and generally only if, they are able to

bring their trophy back to the United States." Id. ¶ 10.

Even making the charitable assumption that these statements alone could supply a

reasonable expectation that members of the two organizations will apply for import permits in

the future, however, the Court cannot consider them. Federal Rule of Civil Procedure 56(e)

states that "[a] supporting or opposing affidavit [on summary judgment] must be made on

personal knowledge [and] set out facts that would be admissible in evidence." And "[a]lthough

the rule's directive with respect to admissibility of an affidavit's contents on summary judgment

9 In their opposition to the government's motions, plaintiffs offer, without citation, that "[m]embers of Conservation Force will hunt Wood Bison in the future, and Conservation Force will again file permits on their behalf." Pls.' Opp'n at 12. But "[t]he mere arguments of counsel" -- even counsel who may have personal knowledge -- "are not evidence." Barnette v. Ridge,

, at *6 n.6 (D.D.C. 2004); see also Orson, Inc. v. Miramax Film Corp.,

(3d Cir. 1996) ("[L]egal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." (internal quotation marks omitted)).

-12- has been liberally construed, its requirement of personal knowledge by the affiant is unequivocal,

and cannot be circumvented. An affidavit based merely on information and belief is

unacceptable." Londrigan v. Fed. Bureau of Investigation,

(D.C. Cir. 1981).

Here, Jackson's declaration offers no indication that his representations as to these two

organizations' members are made from personal knowledge. Jackson does not state that he

belongs to, or holds an administrative role in, either organization. Nor does he offer the source

of his statements, or even how he is familiar with these groups. In short, his representations as to

these two organizations' members and their intentions appear on this record to be made upon

belief, not knowledge. This is inadequate. See Harris v. Gonzales,

(D.C. Cir.

2007) (the D.C. Circuit has "expressly held that affidavits based upon belief are inadequate to

support a motion for summary judgment" (citing Londrigan,

)). Thus, the Court

will not rely on paragraphs nine and ten of Jackson's declaration.10

Without those two paragraphs, there is nothing in the record indicating that any plaintiffs

in this action intend to apply for import permits in the future.11 And without such evidence,

plaintiffs' argument in support of the voluntary cessation exception is merely that if plaintiffs

apply for import permits, it is reasonably likely that the Service will not timely process those

applications. But "'the mere power to reenact a challenged [policy] is not a sufficient basis on

which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must

10 The Court need not address other portions of Jackson's declaration, as they do not affect the Court's mootness analysis. 11 Given that there is no evidence that plaintiffs intend to apply for import permits, the Court need not determine whether there is a reasonable expectation that the government would delay the processing of any such applications.

-13- be evidence indicating that the challenged [policy] likely will be reenacted.'" Larsen,

(quoting Nat'l Black Police Ass'n v. District of Columbia,

(D.C. Cir. 1997))

(alterations in Larsen). Absent any indication that plaintiffs will again apply for import permits,

there can be no evidence that the Service will delay processing plaintiffs' applications.

Accordingly, the Court will deny as moot plaintiffs' claims that the Service's failure to process

their import permit applications is unlawful.12

CONCLUSION

For the reasons detailed above, the Court will grant the Secretary's motion to dismiss, and

will deny plaintiffs' motion for summary judgment. The Court will also deny the Secretary's

cross-motion for summary judgment as moot. A separate Order accompanies this Memorandum

Opinion.

/s/ JOHN D. BATES United States District Judge

Dated: June 7, 2010

12 Plaintiffs do not argue that this case falls into the exception to the mootness doctrine for cases "capable of repetition yet evading review." See Del Monte Fresh Produce Co. v. United States,

(D.C. Cir. 2009). Indeed, to fall within this exception, a plaintiff must show that "there [i]s a reasonable expectation that the same complaining party w[ill] be subjected to the same action again." Weinstein v. Bradford,

(1975). As explained above, there is no such reasonable expectation here.

-14-