Free Brief - District Court of California - California

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RONALD J. TENPAS Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief LISA LYNNE RUSSELL, Assistant Chief KRISTEN BYRNES FLOOM, Trial Attorney (DC Bar No. 469615) United States Department of Justice Environment & Natural Resources Division Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, DC 20044-7369 Telephone: (202) 305-0340 Facsimile: (202) 305-0275 [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ) Case No. C-08-1339 (CW) ) ) Plaintiffs, ) vs. ) ) DIRK KEMPTHORNE, United States ) Secretary of the Interior, and UNITED ) STATES FISH AND WILDLIFE SERVICE, ) ) Defendants. ---------------------------------- ) DEFENDANTS' SECOND SUPPLEMENTAL BRIEF ON IMPORTATION OF POLAR BEAR TROPHIES At the June 17, 2008 initial case management conference in the captioned case, the Court directed Defendants to file additional briefing on the issue of whether provision may be made for the import of trophies from polar bears sport-hunted in Canada. Specifically, the Court inquired CENTER FOR BIOLOGICAL DIVERSITY, et al.,

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Def. Sec. Supp. Brief on Importa. of Polar Bear Trophies Case No. 08-1339 (CW)

as to whether Defendants have discretion to grant a waiver under the Marine Mammal Protection Act ("MMPA") to permit the import of such trophies and, alternatively, what would be the effect

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of a Court order requiring Defendants to allow importation of the trophies. The Court further inquired as to whether Defendants are aware of any other means by which they could allow the importation of sport-hunted trophies from Canada. I. THE COURT LACKS JURISDICTION TO REACH THE ISSUE OF IMPORTATION OF POLAR BEAR TROPHIES IN THIS CASE. As previously argued, Defendants believe that the Court has no jurisdiction in this suit ­ a challenge under the Endangered Species Act ("ESA") to Defendants' failure to make a final listing determination for the polar bear and to the agency's issuance of a rule under ESA Section 4(d) ­ to order Defendants to issue permits under the MMPA to allow importation of polar bear trophies sport-hunted in Canada. As explained in Defendants' Supplemental Brief on

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (specifying that challenge must be filed in "the United States district court for the district
Def. Sec. Supp. Brief on Importa. of Polar Bear Trophies Case No. 08-1339 (CW)

Importation of Polar Bear Trophies, Dkt. No. 81 (May 27, 2008) ("First Trophy Brief"), the Court lacks jurisdiction to reach the issue of trophy importation in this case. See id. at 2-4. This case is governed by the citizen suit provision of the ESA, which limits the permissible relief to an order requiring the Secretary of the Interior ("Secretary") to perform a nondiscretionary act under the ESA. See id. Trophy Brief at 2-3. See also 16 U.S.C. § 1540(g). The Court's jurisdiction under the ESA does not extend to permits for the importation of polar bear trophies, which are governed by a completely different statute that is not at issue in this case. Further, the MMPA provides the sole remedy for challenging the denial or issuance of a permit for importation of polar bear trophies sport-hunted in Canada. See 16 U.S.C. § 1374(d)(6). Under the MMPA, notice of all permits issued or denied must be published in the Federal Register within 10 days of the issuance or denial. Id. at § 1374(d)(5). Any applicant or any party opposed to the issuance or denial may then seek judicial review of the determination within 60 days of the date on which the permit was issued or denied. Id. at § 1374(d)(6)

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wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia"). Thus, the MMPA provides the sole jurisdictional basis for a court to review a determination by the U.S. Fish and Wildlife Service ("Service") to deny an application under 16 U.S.C. § 1374(c)(5) for import of a sport-hunted polar bear trophy from Canada. If the Service denies the applications submitted by members of Conservation Force ("Intervenor"), Intervenor may seek judicial review of the denial pursuant to the MMPA. II. DEFENDANTS LACK DISCRETION TO GRANT A WAIVER PERMITTING IMPORT OF THE TROPHIES AT ISSUE IN THIS CASE. As Defendants explained in their First Trophy Brief, the MMPA's restrictions on the

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, the only logical reading of this Section is that it prohibits importation of any specimen
Def. Sec. Supp. Brief on Importa. of Polar Bear Trophies Case No. 08-1339 (CW)

importation of depleted species preclude the importation of sport-hunted polar bear trophies from Canada and prohibit the Service from issuing any permit to allow such importation. See Dkt. No. 81 at 4-6. See also Memorandum from Solicitor, U.S. Department of the Interior to Director, U.S. Fish and Wildlife Service (May 23, 2008) (attached hereto as Exhibit 1).1/

In its June 5, 2008 reply brief, Intervenor argues that section 1371(a)(3)(B) of the MMPA does not preclude such importations because the restriction on depleted species "that `no importation may be made of any such mammal' clearly relates back to a mammal that was considered `depleted' when taken. . ." and the polar bear trophies at issue were taken before the species gained depleted status. See Reply of Intervenor Conservation Force In Support Of Its Motion To Extend The Effective Date Of The Polar Bear Listing For The Limited Purpose Of Importing Trophies (Dkt. No. 93) at 3 (emphasis in original). Intervenor's interpretation is incorrect. The restriction under section 1371(a)(3)(B) preventing importation of any depleted mammal is independent of the restriction on issuing permits for the take of depleted species. 16 U.S.C. § 1371(a)(3)(B) ("no permit may be issued for the taking of any marine mammal which has been designated by the Secretary as depleted, and no importation may be made of any such mammal") (emphasis added). Not every importation involves authorization of the taking. If the restriction only qualified the limitation on issuing take permits, the absolute restriction on the importation of depleted marine mammals would not be given full force and effect. If Congress had wanted to limit the scope of the moratorium language to the issuance of permits for the importation of depleted marine mammals, it could have easily replicated the language it used for the taking of such mammals. Instead, it chose explicitly to ban all importation that falls outside the narrow exceptions set out in Section 1371(a)(3)(B).

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Although the MMPA provides a waiver process, the Secretary lacks discretion to grant a waiver to allow the import of sport-hunted trophies from polar bears that were killed and for which an import permit application had already been filed prior to the publication of the final listing rule for the polar bear, for the reasons set forth below.2/ The MMPA includes a provision permitting the Secretary to waive the requirements of 16 U.S.C. § 1371 to allow the importation of any marine mammal product if the Secretary finds that "the taking of such marine mammal is in accord with sound principles of resource protection

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a depleted species, not just specimens that were depleted at the time of taking. If the restriction only qualified the limitation on issuing take permits it would be superfluous because importation, by definition, cannot occur until after the animal has been taken. If the species were depleted at the time of taking, the Service could not grant a permit to take the animal in the first instance and thus clearly could not authorize the importation. In other words, if there is no take in the first place (because the provision prohibits the Service from authorizing it), there will be no importation into the United States to further prohibit. This interpretation is consistent with the strict protective measures for depleted species adopted by Congress in Section 1371(a)(3)(B). Once a species is listed as an endangered or threatened species under the ESA, or the Secretary by separate rule-making has found that the species is below its optimum sustainable population level, authorizations for activities such as take and importation are no longer available except for extremely limited purposes such as scientific research or enhancement of the survival or recovery of the species. See id. at §§ 1371(a)(3)(B), 1372(b)(3). The Court's May 13, 2008 Order, Dkt. No. 69, referred to trophies for which a permit application had been filed as of April 28, 2008, the date of the Court's order granting summary judgment in this case. However, Defendants' view is that the relevant date is May 15, 2008, when the final rule listing the polar bear as threatened was published in the Federal Register with an immediate effective date, pursuant to the Court's order. See 73 Fed. Reg. 28,212 (May 15, 2008). It was on May 15, 2008 that the polar bear became a depleted species under the MMPA, precluding import of sport-hunted trophies. See id. at 28,242 ("[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 would no longer be available under section 104(c)(5) of the MMPA.").
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and conservation" set forth in the MMPA. 16 U.S.C. § 1371(a)(3)(A). Any waiver of the moratorium must be consistent with the policies and purposes of the statute. See 16 U.S.C. § 1371(a)(3)(A) ("The Secretary . . . is authorized . . . to determine when, to what extent, if at all, .

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. . it is compatible with this Act to waive the requirements of this section. . . ."). However, the MMPA expressly limits the Secretary's discretion to grant a waiver where the marine mammal at issue is depleted. 16 U.S.C. § 1371(a)(3)(B). In the case of a depleted species, the Secretary may not allow importation "[e]xcept for scientific research purposes, photography for educational or commercial purposes, or enhancing the survival or recovery of [the] species or stock. . . ." Id. The polar bear became a depleted species as of May 15, 2008, when the final listing rule was issued with an immediate effective date. See 16 U.S.C. § 1362(1) (any species listed as threatened or endangered under the ESA is depleted for purposes of the MMPA). The restrictions for depleted species under Section 1371(a)(3)(B) serve as a specific limitation on the general waiver authority under Section 1371(a)(3)(A), as well as a limitation to the exceptions to the moratorium that can be authorized under Section 1371(a). The Secretary has the authority to waive the moratorium by regulation, but only "in accordance with sections 1372, 1373, 1374, and 1381 of [the MMPA] permitting and governing such taking and importing, in accordance with such determinations." Id. at § 1371(a)(3)(A). Nothing in the waiver provision overrides the restrictions elsewhere in the Act, including the prohibitions under Section 1372 or the restrictions under Section 1371(a)(3)(B). As noted by the original drafters, "[s]hould a decision to make an exception to allow taking or importation pursuant to the Federal Act be made by the Secretary, then the sections of the Act on prohibitions, regulations, and permits will apply." S. Rep. 92-863 at 7 (June 15, 1972). An example of waiver of the moratorium "might be permission for the importation of a marine mammal product not specifically prohibited in section 102." Id. (emphasis added). Thus, the plain language of the MMPA and the legislative history indicate that any waiver must be consistent with the

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prohibitions under section 1372, the restrictions of Section 1371(a)(3)(B), the permitting requirements of section 1374, and the formal rulemaking requirements under section 1373. Under Section 1373, "[r]egulations prescribed to carry out this section with respect to any species or stock of marine mammals must be made on the record after opportunity for an agency hearing on both the Secretary's determination to waive the moratorium pursuant to section 1371(a)(3)(A) of this title and on such regulations. . . ." 16 U.S.C. § 1373(d). For any regulations issued under section 1373 of the MMPA, the Secretary must ensure that the activity "will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 1361 of this title." Id. at § 1373(a). Section 1361 clearly indicates that the fundamental purpose of the MMPA is to maintain species at optimum sustainable population ("OSP")3/ or, if they are currently below OSP ­ such as a species listed as endangered or threatened under the ESA ­ to ensure that management decisions will operate to return the species to OSP. Id. at § 1361(2) (species and stocks "should not be permitted to diminish below their optimum sustainable population" and "[f]urther measures should be immediately taken to replenish any species or population stock which has already diminished below that population"). See also H.R. Rep. No. 97-228, at 16, reprinted in

20 21 22 23 24 25 26 27 28 OSP is defined as "the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." 16 U.S.C. § 1362(9).
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1981 U.S.S.C.A.N. 1458, 1466 ("species that are listed under the [ESA] are, a fortiori, not at their optimum sustainable population and, therefore, should be considered depleted"). Congress further stated that "it should be the goal to obtain an optimum sustainable population

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keeping in mind the carrying capacity of the habitat." Id. at § 1361(6).4/ It is therefore consistent with Congress' purpose for the Act that it would not allow waiver of the moratorium for a depleted species. This limitation on waiver of the moratorium is confirmed by Section 1373(d)(2). Under this provision, the Secretary must publish and make available to the public "a statement of the expected impact of the proposed regulations on the [OSP] of such species or population stock." Id. at § 1373(d)(2). This confirms Congress' intent that waiver of the moratorium is not available for a depleted species.

9 10 11 12 13 14 15 16 17 18 19 U.S. 12, 16 (2002) ("Generally speaking, a court . . . should remand a case to an agency for 20 21 22 23 24 25 26 27 28 This purpose was reiterated by the district court in Committee for Humane Legislation, Inc. v. Richardson, 414 F. Supp. 297 (D.D.C. 1976), aff'd 540 F.2d 1141 (D.C. Cir. 1976), which held that the National Marine Fisheries Service ("NMFS") violated the MMPA when it issued regulations for the taking of porpoises under Section 1373. See id. at 311-312. Construing the phrases "will not be to the disadvantage" of the species and "is otherwise consistent with the purposes and policies of the MMPA" the court found that the statute requires an agency to determine that any activity authorized under Section 1373 is consistent with the statutory goal of achieving OSP for the species. Id. at 309-310.
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III.

THE LEGAL EFFECT OF A COURT ORDER REQUIRING DEFENDANTS TO ALLOW THE IMPORTATION OF SPORT-HUNTED POLAR BEAR TROPHIES. The Court indicated that it may choose to order Defendants to allow the importation of

sport-hunted polar bear trophies. As stated above, Defendants believe that such an order would exceed the Court's jurisdiction in this case. Further, even if the Court had jurisdiction to reach this issue, it would be improper for the Court to order Defendants to issue import permits. Rather, the Court should allow the Service to consider the permit applications submitted to the agency and exercise its discretion to grant or deny the applications. See INS v. Ventura, 537

decision of a matter that statutes place primarily in agency hands."). Any applicant who is

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denied a permit may then properly seek judicial review of the Service's decision under Section 1374(d) of the MMPA. If the Court ordered the agency to waive the moratorium and issue regulations allowing importation under Sections 1371(a)(3)(A) and 1373, those regulations would be subject to the potential legal infirmities explained above. Such regulations could also be exposed to liability under the Administrative Procedure Act ("APA"). Further, the MMPA requires that such regulations be issued in consultation with the Marine Mammal Commission ("MMC"), a separate federal agency not within the Department of the Interior. See 16 U.S.C. § 1373(a). The MMC may contend that the moratorium cannot be waived for a depleted species, and oppose the waiver. If the Court ordered the agency to issue importation permits under Section 1374(c)(5), those permits would be subject to attack because, as explained in Defendants' First Trophy Brief, any importation of a depleted species is limited to scientific research, photography for educational or commercial purposes, or enhancement of the survival or recovery of the species (the provision that allows for incidental take does not apply to this situation, which only involves importation). See First Trophy Brief at 4-6. Section 1374(d)(2) requires the Secretary to publish a notice in the Federal Register of permit applications under Section 1374 and provide an opportunity for public comment. To the extent the Court ordered the Service to issue a permit under Section 1374(c)(5) without such process, the issuance of the permit could be challenged under the procedural requirements of the MMPA (as well as the substantive standards as explained above). When a permit is issued under Section 1374, a notice is published in the Federal Register, see 16 U.S.C. § 1374(d)(5), so issuance of any permit would be public

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knowledge. Thus, Defendants would face potential challenges by third parties. As noted above, the MMPA authorizes suits by "any party opposed to" a permit issued by the Secretary. See id. at § 1373(d)(6). Thus, any interested party could bring a lawsuit challenging the permits on the grounds that they were unlawful for the reasons set forth above. If the Court were to order persons who have submitted applications to import sporthunted polar bears from Canada to apply for a waiver of the moratorium, the agency may have to deny those applications. Under the MMPA implementing regulations, any applicant for a waiver of the moratorium "must demonstrate that any . . . importation of any marine mammal under such proposed regulations and waiver would be consistent with the act." 50 C.F.R. § 18.73. For the reasons set forth above, Defendants lack discretion to grant a waiver for a depleted species, and thus the applicants are likely unable to make such a showing. CONCLUSION For the foregoing reasons, and those stated in Defendants' First Trophy Brief, the Court lacks jurisdiction to order Defendants to issue permits under the MMPA to allow importation of polar bear trophies sport-hunted in Canada. Further, the Secretary lacks discretion to grant a waiver under the MMPA to allow the import of such trophies. If the Court were to order Defendants to issue importation permits under Section 1374 of the MMPA, those permits would be subject to challenge for the reasons explained above.

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Respectfully submitted this 24th day of June, 2008.

RONALD J. TENPAS Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief LISA LYNNE RUSSELL, Assistant Chief /s/ Kristen Byrnes Floom KRISTEN BYRNES FLOOM, Trial Attorney DC Bar No. 469615 United States Department of Justice Environment & Natural Resources Division Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, DC 20044-7369 Telephone: (202) 305-0340 Facsimile: (202) 305-0275 [email protected] Attorneys for Defendants

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that a copy of Defendants' Second Supplemental Brief on Importation of Polar Bear Trophies was submitted to the Court electronically on this 24th day of June, 2008 for filing and service on the following parties: Kassia Siegel [email protected] Brendan Cummings [email protected] Miyoko Sakashita [email protected] Attorneys for Plaintiffs

I further certify that, on this 24th day of June, 2008, a copy of Defendants' Second Supplemental Brief on Importation of Polar Bear Trophies was sent via first-class mail, postage prepaid, to: Andrew E. Wetzler Natural Resources Defense Council 544 White Oak Place Worthington, OH 43085

/s/ Kristen Byrnes Floom Kristen Byrnes Floom

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