ADMINISTRATIVE LAW--ELEPHANT TROPHY IMPORTATION BAN CORRECTLY SURVIVES CHALLENGE FROM AN INTERNATIONAL HUNTING CLUB.

• Author: Perrino, Nicholas
• Position: Case note

ADMINISTRATIVE LAW--Elephant Trophy Importation Ban Correctly Survives Challenge from an International Hunting Club--Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48 (D.C. Cir. 2016).

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty that provides a framework for member nations to establish their own legislation to protect "endangered plants and animals" by regulating their international trade. (1) For American game hunters abroad, who hunted an animal for sport and wish to bring their hunted trophy back to the United States, they must comply with regulations set forth in the Endangered Species Act (Act). (2) In Safari Club Int'l v. Jewell, (3) the United States District Court of the District of Columbia was tasked with determining whether the suspension of the importation of sport-hunted elephant trophies was supported by evidence in the administrative record of the U.S. Department of Fish and Wildlife Service (Service). (4) The Court held that the Service's decision, based on a lack of complete information regarding Zimbabwe's elephant management plan and population status reports, to suspend the importation of sport-hunted elephant trophies was not arbitrary or capricious. (5)

On April 4, 2014, the Service imposed a temporary suspension of the importation of sport-hunted elephant trophies from Zimbabwe. (6) In and enhancement finding, the Service reasoned that the ban was imposed primarily because of the government of Zimbabwe's failure to provide the Service with enough information to help determine whether importing sport-hunted elephant trophies would enhance the survival of the species. (7) Acknowledging the lack of data, the Service requested more information from the government of Zimbabwe in order finalize a decision. (8) On July 22, 2014, upon receiving documents from the government of Zimbabwe that outlined their current elephant hunting management plan, the Service issued another enhancement finding and again denied to make a positive finding that would lift the ban. (9) Finally, on March 26, 2015, after receiving even more information regarding the country's management plan from the government of Zimbabwe and several NGOs, the Service extended the ban indefinitely and issued a final enhancement finding, again expressing a lack of information to make a decision. (10)

The plaintiffs in this case, the Safari Club International and the National Rifle Association (NRA), filed suit in the United States District Court for the District of Columbia to challenge the Service's suspension of imports of sport-hunted elephant trophies. (11) Plaintiffs asserted, among other claims, that the Service failed to gather enough information regarding elephants in Zimbabwe and that (1) the Service misinterpreted the data available to them when the enhancement findings were released and (2) that the trophy importation ban was irrational because of the invalid enhancement findings. (12) Safari Club International and the NRA believed the Service "ignored, rejected or discounted" information given them and asked the Court to review the Service's decision and declare the ban invalid. (13) After reviewing the parties' briefs for summary judgment, the Court ruled for the Service on all but one issue, holding the Service's decision to impose the importation ban was not "irrational, arbitrary, or capricious" because the findings were based on a rational determination of the data made available to them. (14)

The Convention was signed in March 1973 with the purpose of protecting the survival of animals, such as African elephants, involved in international trade. (15) The United States upholds the objectives of CITES through the Act and is enforced by the U.S. Department of Fish and Wildlife, and offers considerable protection to African elephants compared to protection offered in CITES. (16) As a result, the Service established the Special Rule Governing African Elephants (Special Rule), which imposed stringent regulations regarding elephant trophy trade and gave the Service power to determine when trophies may be imported to the United States. (17) Consequently, agencies like the Service have long been subject to review by the courts to determine if the agency complied with administrative rulemaking requirements that mandate public notice and comment. (18)

However, a court must first determine whether the agency action was rulemaking, not adjudicating, when examining if an agency complied with the necessary rulemaking requirements. (19)

Historically, courts have distinguished rules as agency action that enforces policies or standards and adjudications as agency action that weighs and considers disputed facts on a case-by-case basis. (20) Regardless of whether an agency action is considered a rule or an adjudication, courts often must review whether the agency can explain its action and establish a nexus between "the facts found and the choice made." (21) Often times, judicial review also becomes a matter of statutory interpretation to determine if an agency acted reasonably within the power granted by the agency's statutes to make a decision in the first place. (22)

The Supreme Court of the United States developed a two-part analysis in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. (23) (Chevron analysis) and courts now apply the test when determining whether an agency acted within their statutory authority. (24) First, courts look to whether Congress intended for an agency to act in accordance with a statute. (25) If the statute is "silent or ambiguous on the question," the court defers to the agency's interpretation of the statute so long as it is reasonable. (26) Courts consider an agency's expertise when determining the reasonable nature of the agency's analysis. (27) As a result, considerable deference is given to an agency's interpretation of a statute. (28)

In Safari Club Int'l, the Court analyzed a number of issues and concluded that the enhancement findings were not rules, but adjudications, which are not subject to notice and comment requirements; the Service reasonably interpreted the Special Rule Governing African Elephants to rebut presumptions in the Act; and the Service's enhancement findings were not "arbitrary or capricious." (29) The Court reasoned that the enhancement findings were not rules because the enhancement findings do not promulgate legislative-type policy, a distinctive characteristic of agency rulemaking. (30) The Court further distinguished the enhancement findings as adjudications because here, the findings settle disputed facts in particular situations. (31) Additionally, in its discussion of the Special Rule Governing African Elephants, the Court applied the two-part Chevron analysis. (32) For the first part of the analysis, the Court reasoned that the Act was silent on whether the Special Rule can rebut statutory presumptions because of conflicting language. (33) However, for the second part of the analysis, the Court explained that the Service was reasonable to presume that the Special Rule rebutted statutory presumptions in the, Act because of the Service's broad authority to fulfill the goal of protecting threatened species. (34)

Finally, the Court discussed the enhancement findings and reasoned that the Service rationally determined that hunting elephants and bringing the sport-hunted trophies back to the United States was not helping elephants, because the information available to the Service was not enough to establish a causal connection between trophy import and enhancing elephant survival. (35) Here, the Court applied the "arbitrary or capricious" standard of review and found that the Service adequately explained their decision to implement the importation ban and the Service based their enhancement finding decision on relevant data relating to all factors, such as Zimbabwe's elephant management plant and the population status of elephants. (36) The Court held in favor of the Service and struck down the plaintiffs' argument that the Service did not weigh and consider data properly because such interpretation of complex and technical data is delegated to the agency, who are considered experts. (37)

The Court's decision in Safari Club Int'l properly applied its analysis to all three administrative law issues. (38) First, the Court was correct in characterizing the enhancement findings as adjudications and not as rules. (39) Although distinctions between rules and adjudications can be subtle, the enhancement findings here, do not promote legislative-type rules or policies, rather the findings are an agency decision made by evaluating disputed facts, a telltale sign of adjudication, to determine the status of African elephants. (40) Next, the Court properly explored both steps in the Chevron analysis to conclude that the Service reasonably interpreted its statutory authority. (41) Regarding the first step, the Court was correct in finding Congress' intent ambiguous because language in the Act established the statutory presumption for certain species in the CITES, but at the same time Congress also gave the Service considerable power to make rules to protect threatened species; the Court then applied part two of the Chevron analysis and determined the Service reasonably interpreted the Act to make the Special Rule that rebutted the statutory presumption. (42) As a result, the Court upheld the notion that agencies are delegated broad power to reasonably use their discretion and knowledge to make decisions. (43)

Finally, the Court was correct in holding the enhancement findings were not "arbitrary or capricious." (44) Throughout the opinion the Court remarks often and emphasizes greatly, that in areas of scientific and technical subject matter, agencies are the experts and their decisions should be presumed to be valid so long as they are reasonable. (45) The Court properly remained steadfast in...