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Conservation Force, et al v. Kenneth Lee Salazar

November 16, 2012


Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-00496)

The opinion of the court was delivered by: Rogers, Circuit Judge:

Argued September 20, 2012

Before: ROGERS and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

This appeal is from the denial of a motion for attorneys fees and costs under the citizen-suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g)(4). Conservation Force and others ("appellants") sued the Secretary of Interior and the Fish and Wildlife Service (together "FWS"), pursuant to 16 U.S.C. § 1540(g). They alleged violations of the ESA by refusing to process applications for permits to import as hunting trophies Canadian wood bison, a listed species, for nearly nine years. The FWS denied the permits more than six months after appellants filed their complaint. The district court dismissed the permit processing claims as moot. See Conservation Force v. Salazar, 715 F. Supp. 2d 99, 100, 105-08 (D.D.C. 2010) ("Conservation Force I"). Appellants then sought attorneys fees and costs under a catalyst theory pursuant to the ESA's provision authorizing the district court to award fees "whenever . . . appropriate." 16 U.S.C. § 1540(g)(4).*fn1 The district court denied the motion, concluding that Bennett v. Spear, 520 U.S. 154 (1997), foreclosed review of appellants' claims under 16 U.S.C. § 1540(g)(1)(C) and thus rendered them ineligible for fees. Conservation Force v. Salazar, 753 F. Supp. 2d 29, 31, 34 (D.D.C. 2010) ("Conservation Force II").*fn2

On appeal, appellants contend that their claims were brought, and are reviewable, under 16 U.S.C. § 1540(g)(1)(A) for alleged "violations" of the ESA or its implementing regulations, and that the district court thus erred in ruling they were ineligible to recover fees. For the following reasons, we affirm.


The ESA generally prohibits the importation of endangered species, including as hunting trophies. See 16 U.S.C. § 1538(a)(1)(A); 50 C.F.R. §17.21(b). The Secretary of Interior may, however, grant permits to applicants to import endangered species under limited circumstances, such as "for scientific purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A). Individuals seeking to import hunting trophies of endangered species must apply to the FWS for a permit. See 50 C.F.R. § 17.22. Upon receiving a completed import permit application, the FWS must publish the application in the Federal Register and allow thirty days for public comment. Then, after considering a number of factors, the FWS "will decide whether or not a permit should be issued," id. § 17.22(a)(2). The regulations provide that "[t]he [FWS] will process all applications as quickly as possible" but "cannot guarantee final action" within a requested time period. Id. § 13.11(c).

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of [the ESA] or regulation issued under the authority thereof; or (C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.

16 U.S.C. § 1540(g)(1)(A), (C) (emphasis added).

The Supreme Court clarified the respective scopes of subsections (A) and (C) of section 1540(g)(1) in Bennett v. Spear, 520 U.S. at 171-74. Subsection (A) "is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties -- both private entities and Government agencies -- but is not an alternative avenue for judicial review of the Secretary's implementation of the statute." Id. at 173. Subsection (C), on the other hand, "expressly authorizes suit against the Secretary, but only to compel him to perform a non-discretionary duty under § 1533." Id. The Court noted that subsection (A)'s "reference to any 'violation' of the ESA cannot be interpreted to include the Secretary's mal-administration of the [Act]," and that such mal-administration "claims are not subject to judicial review" under subsection (A). Id. at 174. It interpreted subsection (A) to be so limited because to have done otherwise would have rendered subsection (C) "superfluous." Id. at 173. Without this limitation, suits authorized under subsection (C) would become nothing more than a subset of suits that litigants could bring under subsection

(A). The Court also interpreted subsection (A) to be so limited in view of the Administrative Procedure Act ("APA"); otherwise subsection (A) "would [have] effect[ed] a wholesale abrogation of the APA's 'final agency action' requirement." Id. at 174. Without the limitation, "[a]ny procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit." Id. The Court was "loathe to produce such an extraordinary regime without the clearest of statutory direction," which it concluded was not present in the ESA. Id.

The district court ruled that appellants' permit processing claims were not properly brought under the ESA's citizen-suit provision. "[T]o sue under the ESA's citizen-suit provision, plaintiffs must identify a non-discretionary, statutory duty under [16 U.S.C. §] 1533 to process their applications by a specific date." Conservation Force II, 753 F. Supp. 2d at 35. Because appellants could identify no such duty, their claims were not subject to judicial review under § 1540(g)(1)(C). Consequently, ...

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