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12 ELR 20210 | Environmental Law Reporter | copyright © 1982 | All rights reserved Defenders of Wildlife, Inc. v. WattNo. 81-1048 (D.D.C. May 28, 1981)The court holds that a decision of the U.S. Fish and Wildlife Service (FWS) to lift a ban on the commercial importation of three threatened kangaroo species does not violate the Endangered Species Act (ESA). Section 2(c) of the ESA requires federal agencies to seek to conserve endangered and threatened species. The court holds that the lifting of the import ban is consistent with this duty since it is part of a program to encourage Australian states, who alone have the power directly to protect the kangaroos and their habitat, to implement programs for the species' conservation. In addition, FWS has maintained the threatened listing to allow for immediate action if the species is once again threatened. [The pleadings in this case are summarized at ELR PEND. LIT. 65692 and 65720 — Ed.] Counsel for Plaintiff Paul Zevnik Counsel for Defendants ROBINSON, J.: Before the Court are Cross-Motions for Summary Judgment in the above captioned action. Plaintiff is a nonprofit, public interest organization dedicated to the protection and conservation of wildlife. Defendants are the Secretary of the Interior, the Acting Director of the U.S. Fish and Wildlife Service, the Department of the Interior, and the Fish and Wildlife Service. This litigation involves three species of kangaroos, all listed as "threatened" by Defendants pursuant to the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq. This Court's jurisdiction is undisputed, and is predicated upon 16 U.S.C. § 1540(c), (g)(1)(A). The facts may be summarized as follows: On December 16, 1974 the U.S. Fish and Wildlife Service designated the three species in question as "threatened," pursuant to 16 U.S.C. § 1533. The rationale for the listing was explained in 39 Fed. Reg. 44990-44992 (Dec. 30, 1974). The Service stated, inter alia: A thorough review of all information obtained relative to the status of the three kangaroo species in question (Red, Eastern Gray, and Western Gray), and to the threats on their continued existence, indicates that none can be considered in danger of extinction. Hence, none qualifies for the classification as "Endangered" within the meaning of the [ESA]. Section 4(a) of that act includes the following statement: The Secretary shall by regulation determine whether any species is an endangered or threatened species because of any of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) Overutilization for commercial, sporting, scientific, or educational purposes; (4) The inadequacy of existing regulatory mechanisms; or (5) Other natural or manmade factors affecting its continued existence. Evidence on hand at the time of the proposed rulemaking (April 1, 1974) suggested that Factors (1), (2), (4), and (5) were pertinent. . . . In light of the more detailed knowledge now available, a further discussion is desirable. . . . FACTOR (1) PRESENT OR THREATENED DESTRUCTION, MODIFICATION, OR CURTAILMENT OF HABITAT OR RANGE The three problems identified in the proposed rulemaking are indeed present and cause for concern. However, the losses . . . are small relative to the total kangaroo habitat and range. . . . The various State governments [in Australia] are well aware of the habitat destruction and change that is taking place in parts of Australia and are taking steps to control the degradation occurring. FACTOR (2) OVERUTILIZATION FOR COMMERCIAL, SPORTING, SCIENTIFIC, OR EDUCATIONAL PURPOSES Once again, the statements made in the proposed rulemaking are valid ones. . . . The trend throughout Australia is for better regulation of kangaroo harvests. Nevertheless, species such as kangaroo, which have high commercial value and which have been and are being exploited heavily, must be regarded as specials [sic] that are apt to become endangered unless adequate controls exist. . . . FACTOR (4) INADEQUACY OF EXISTING REGULATORY MECHANISMS . . . All of the States have the necessary regulatory power to adequately control the harvest of kangaroo . . . and [12 ELR 20211] none wishes to see the kangaroo exterminated. Regulations and management policy concerning kangaroo are not uniform between the States . . . [and] [n]ationwide coordination is necessary. The current lack of coordination will not result in the extinction of the species within the foreseeable future, but does pose a threat that could lead to endangerment if not corrected. FACTOR (5) OTHER NATURAL OR MANMADE FACTORS AFFECTING ITS CONTINUED EXISTENCE All five problems mentioned in the proposed rulemaking exist, yet not to the extent of causing the three kangaroo to become extinct within the foreseeable future. There are valid indications that the kangaroo-hide industry will expand, in future years, given the opportunity. Such commercial exploitation need not be detrimental, provided adequate controls exist; there is reason to believe that Australia is developing such controls . . . . It is hereby determined that the three kangaroo in question are not "Endangered" within the meaning of the [ESA]. Because of the heavy commercial exploitation and harvest of these kangaroo, however, in conjunction with potentially inadequate export controls, difficult enforcement problems, and the expressed concern of the Australian government, there is ample justification for classifying the three animals as "Threatened." Accordingly, it is hereby determined that the [three] . . . kangaroo are "Threatened" species. The following regulations are deemed necessary and advisable for the protection of these species . . . . § 17.32 Threatened Wildlife List [The regulation lists the species and prohibits, with certain exceptions, the importation for commercial purposes of the three kangaroo.] (D) Upon receiving a certificate from the Australian Government a certificate that (1) a particular Australian State has developed and effective sustained-yield program for such wildlife, and (2) the taking of such wildlife will not be detrimental to the survival of the species . . . the Director may, consistent with the purposes of the act, permit by publication in the Federal Register the commercial importation of any such wildlife originating from that State . . .: Provided, That if the Director determines from all the evidence that a previously certified Australian State no longer maintains an effective sustained-yield program for such wildlife, he may be regulation prohibit and further commercial importation of such wildlife from that State. As the foregoing indicate, the problems surrounding the three species of kangaroo are unique to the ESA. First, the kangaroo are in abundance; the Service estimates that over 32 million such kangaroo inhabit Australia. Second, no area in this country serves as a natural habitat for the kangaroo. Thus, application of the ESA to the kangaroo is necessarily collateral in nature, and the wellbeing of the species can only be ensured by the government of Australia. Finally, while Defendants have some resources at their disposal (e.g. import restrictions) to effectuate the ESA, the effectiveness of these resources depends on Defendants' ability to encourage Australia to protect the kangaroo. When the regulations were implemented, Australia had imposed a ban on exportation of kangaroo parts and skins. Subsequently in 1975, perceiving no further need for the ban, Australia decided to permit exportation for commercial purposes. Factors satisfactory to Australia proved unsatisfactory to the Fish and Wildlife Service, however, and the import ban remained in effect. In conjunction with the State Department, the Fish and Wildlife Service attempted to encourage Australia to impose more rigorous restrictions on the taking of the kangaroo. The potential revocation of the import ban was an important aspect of the negotiations, and was utilized by the United States as the possible reward for the imposition of more rigorous restrictions by the Australians. In April of 1980, the Fish and Wildlife Service determined that the Australian States had interposed significant restrictions on the taking of the kangaroo. On June 16, 1980 Defendants announced that, while the kangaroo were still "Threatened," "the Australian States have met the conditions for resuming commercial trade with the United States in these kangaroos as specified in 50 CFR 17.40(a)(1)(i)(B)." 45 Fed. Reg. 40959 (June 16, 1980). Defendants' announcement provided for a comment period, and an informal public hearing was held on September 16, 1980. On April 29, 1981 Defendants published notice of final agency action authorizing the importation of unlimited quantities of hides and parts, commencing on May 29, 1981. The April 29, 1981 Federal Register states, inter alia: The Service feels that the Australian States have now met the conditions for resuming commercial trade with the United States and is therefore permitting the commercial importation of kangaroos from these states. The action is based on the best scientific and commercial data available and will remain in effect for at least a two year period from the effective date of this rule. [The Federal Register next summarizes the data.] Threatened Status for the Kangaroos Given the fact that Kangaroo populations appear to be abundant at present in Australia, the question arises as to whether they can legitimately be regarded as threatened pursuant to the Act . . . . Briefly, the Service reasons as follows: Kangaroos are commercial commodities that are, and will continue to be, utilized in world trade. In the past, all three species under consideration have been overexploited and, in the opinion of some, this condition could occur again . . . . The Service feels that the Threatened classification thus is warranted because of the susceptibility of these animals to overexploitation and because of the difficulty in predicting the severity and damage that might be caused by natural or manmade factors affecting them. More information on these factors can be provided by the regulatory systems set up by the States for management of the kangaroo populations and the kangaroos' status will be monitored by the Service. 46 Fed. Reg. 23929-23933 (April 29, 1981). Following this notice of final agency action, Plaintiff commenced this litigation, contending that Defendants' authorization of the importation of kangaroo parts and hides violates the Endangered Species Act. Not part of the Administrative Record before the Court, but part of the record in the instant litigation, are two affidavits presented by State Department officials with accompanying memoranda. Those affidavits and memoranda indicate beyond question that (1) the Fish and Wildlife Service, with the State Department, negotiated with the Australian Government concerning the well-being of the three species of kangaroo; (2) the United States sought to ensure, through the negotiations, that the kangaroo would not be threatened with extinction; (3) the leverage used by the United States was the potential lifting of the ban on imports; and (4) Australia completely complied with the requirements imposed in the negotiations and memorialized in the CFR. Also part of the record in this litigation is Defendants' response to a request for information tendered by Plaintiff pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Plaintiff requested "any and all documents which 'suggest(s) that commercial harvest will encourage Australia to expand and strengthen its protective programs for the kangaroos.'" (Emphasis in original.) Defendants responded by stating, inter alia: There are no specific documents from Australia in our files to support this contention. The Service, however, has historical reasons to believe that increased commercial value of the kangaroos will lead to improved conservation efforts on the part of the Australian States . . . . The Endangered Species Act was enacted "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and [12 ELR 20212] threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. 16 U.S.C. § 1531(b). Congress further declared that "all Federal departments and agencies shall seek to conserve endangered species and threatened species . . . ." 16 U.S.C. § 1531(c). The ESA defines "conservation" as us[ing] all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Chapter are no longer necessary. Such methods include, but are not limited to all activities associated with scientific resources management . . . and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include a regulated taking. 16 U.S.C. § 1532(2). The ESA authorizes the Secretary of Interior to determine by regulation whether a species is threatened or endangered, on the basis of certain factors. See 16 U.S.C. § 1533(a). A "Threatened Species" is any species "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(15). The Secretary of Interior "shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d). The purposes, policy, and application methods all hinge on the ESA's definition of "conservation." Since Defendants have listed the kangaroo as "threatened," and since that listing is not disputed in this action, one discreet issue presents itself here, viz., is the lifting of the import ban a conservation measure within the meaning of the Act? Plaintiff contends that (1)lifting the import ban is the equivalent of an unregulated taking because an increasing number of kangaroo will be killed if the ban is lifted, (2) increasing the number of kangaroo killed cannot be a conservation measure because there is no evidence of population pressures, (3) because the kangaroo are listed as "threatened," Defendants must implement conservation measures, (4) Defendants' action is regressive, and (5) is therefore in violation of the ESA. Plaintiff's analysis, while appropriate in the context of domestic ESA litigation, lacks vitality in the instant case. The three species of kangaroo in question were listed as threatened for the four reasons stated in the December 30, 1974 Federal Register. Underlying all of these reasons was a common proposition — once the Australian States implemented an effective and coordinated sustained-yield program, the species would no longer be threatened. The States have implemented such a program. Rather than de-list the species, however, Defendants took a narrower approach. They decided that lifting the ban might necessitate a listing of "threatened," since unfettered commercial exploitation might make the kangaroo "likely to become endangered . . . within the foreseeable future." 16 U.S.C. § 1352(15). Rather than de-list, lift the ban, and then re-list, Defendants maintained the listing so they could act immediately if subsequent information indicated that the species were once again threatened. This approach is certainly consistent with the ESA. Moreover, Defendants have no control over the species or its natural habitat. Their ability to protect the kangaroo is limited to encouraging the Australian States to implement programs designed to ensure the species' well-being. The only leverage Defendants could utilize involved imposing the import ban, with the understanding that the ban would be lifted once the programs were implemented. Lifting the ban must be analyzed in context, because it was the product of a quid pro quo and not performed in vacuo. Because lifting the import ban was essential in order to encourage the Australian States to implement measures deemed necessary by Defendants, and because those measures were in fact adopted by the States, those measures in conjunction with the lifting of the ban must be viewed together.As such, the lifting of the ban fulfilled the conservation objectives of the ESA. An appropriate Order follows this Memorandum Opinion. Upon consideration of Cross-Motions for Summary Judgment, the hearing held on May 21, 1981, the Memorandum Opinion issued this date and the entire record herein, it is by the Court this 28th day of May, 1981, ORDERED, that Defendants' Motion for Summary Judgment be and hereby is GRANTED; and it is FURTHER ORDERED, that Plaintiff's Motion for Summary Judgment be and hereby is DENIED. [Exhibit setting out relevant sections of the Endangered Species Act omitted — Ed.] 12 ELR 20210 | Environmental Law Reporter | copyright © 1982 | All rights reserved |