Plaintiffs Safari Club International and Safari Club International Foundation brought this action under the APA challenging the FWS's legal determination that the listing of the Polar Bear as "threatened" under the Endangered Species Act was a final agency action. At issue here is defendants' Motion for Judgment on the Pleadings on the grounds that plaintiffs fail to challenge a final agency action as required for judicial review under the APA. Alternatively, defendants argue that the plaintiffs lack standing to bring this action. This Court found that the action challenged by SCI and SCIF is final agency action for purposes of judicial review pursuant to the APA. On the issue of standing, defendants argue that plaintiffs' suit must be dismissed for lack of standing because plaintiffs have not alleged facts to establish that they have suffered an injury-in-fact. The court disagreed, finding that the plaintiffs have sufficiently pleaded that the “procedures in question” threaten a “concrete interest" - an interest in conservation that is impacted by the import ban. Defendants Motion for Judgment on the Pleadings was denied.
EMMET G. SULLIVAN, District Judge.
*1 Plaintiffs Safari Club International (“SCI”) and Safari Club International Foundation (“SCIF”) bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA”), against defendants Ken Salazar, Secretary of the Interior, H. Dale Hall, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively “FWS”), challenging the FWS's legal determination that the listing of the Polar Bear as threatened under the Endangered Species Act creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the Marine Mammal Protection Act. Pending before the Court is defendants' Motion for Judgment on the Pleadings on the grounds that (1) plaintiffs fail to state a claim upon which relief can be granted, because plaintiffs fail to challenge a final agency action as required for judicial review under the APA; or, in the alternative, (2) plaintiffs lack standing to bring this action. FN1 Upon consideration of the defendants' motion, the plaintiffs' opposition, the defendants' reply, the relevant law, and for the reasons stated herein, the defendants' motion is DENIED.
FN1. Defendants originally filed a Motion to Dismiss. Plaintiffs note that because defendants filed an Answer in response to plaintiffs' Complaint prior to filing their motion, defendants motion should be a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c). Opposition of Plaintiffs Safari Club International and Safari Club International Foundation to Motion to Dismiss (“Pl.Opp'n.”) at 6. Defendants do not dispute this and ask the Court to treat their Motion to Dismiss as a motion for judgment on the pleadings. Federal Defendants' Reply Memorandum in Support of Motion to Dismiss Plaintiffs' Complaint (“Def.Reply”).
A. Statutory Background FN2
FN2. The Statutory Background section is taken largely, and at times verbatim, from the discussion in defendants' Memorandum in Support of Motion to Dismiss Plaintiffs' Complaint (“Def.Mem.”) at 2-5.
*2 Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock ..., it is unlawful to import into the United States any marine mammal if such mammal was-
Accordingly, where a marine mammal is from a species or stock with a depleted status, Section 1372(b) allows importation only for purposes of scientific research or enhancement of the survival or recovery of the species or stock.
B. Factual Background
1. The Final Rule
On May 15, 2008, the FWS issued a final rule listing the polar bear as a threatened species throughout its range. See 73 Fed.Reg. 28,212 (May 15, 2008) (“Final Rule”). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that
[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 will no longer be available under section 104(c)(5) of the MMPA.
73 Fed.Reg. at 28236. Moreover, in response to a comment that the FWS had not considered “the negative impacts of listing [the polar bear as threatened] on the long-term management of polar bears developed in Canada that intergrates susbistence harvest allocations with a token sport harvest[,]” the FWS stated
We acknowledge the important contribution to conservation from scientifically-based sustainable use programs. Significant benefits to polar bear management in Canada have accrued as a result of the 1994 amendments to the MMPA that allow U.S. citizens who legally sport-harvest a polar bear from an MMPA-approved population in Canada to bring their trophies back into the United States.
While we recognize these benefits, the Service must list a species when the best scientific and commercial information available shows that the species meets the definition of endangered or threatened. The effect of the listing, in this case an end to the import provision under Section 104(c)(5) of the MMPA, is not one of the listing factors. Furthermore, the benefits accrued to the species through the import program do not offset or reduce the overall threat to polar bears from loss of sea ice habitat.
Plaintiffs bring this suit under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (“APA”), to challenge “the FWS's legal determination that the listing of the polar bear as threatened under the ESA creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the MMPA.” Compl. ¶ 2. According to the Complaint, SCI's mission's are “the conservation of wildlife, protection of the hunter, and education of the public concerning hunting and its use as a conservation tool.” Compl. ¶ 15. SCI has approximately 53,000 members from the United States and around the world, many of whom have hunted polar bears and/or intend to hunt polar bears, and most of whom desire to import into the United States the trophy of any polar bear they have harvested or will harvest. Id. SCI has a “sister organization,” SCIF, created for the purpose of carrying out its conservation mission. Id. at ¶ 16.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed, but early enough not to delay trial. “The standard for reviewing a motion for judgment on the pleadings is the same as that applied to a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6).” Rafeedie v. INS, 795 F.Supp. 13, 18 (D.D.C.1992). To survive a motion to dismiss, a complaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief,” and give the defendant “fair notice of the claims against him.” Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (quoting Ciralsky v. CIA, 355 F.3d 661, 668-70 (D.C.Cir.2004) (quoting Fed.R.Civ.P. 8(a))). “A court deciding a motion to dismiss must not make any judgment about the probability of the plaintiff's success, for a complaint may proceed even if it appears that a recovery is very remote and unlikely, and a complaint may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations.” Id. (internal quotations and citations omitted). Furthermore, “the court must assume all the allegations in the complaint are true (even if doubtful in fact), and the court must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Id. (internal quotations and citations omitted).
A. Failure to State a Claim
*4 The APA requires that the agency action in question must be final before a party may seek judicial review. 5 U.S.C. § 704. As both parties point out, the Supreme Court has established a two-part test to determine when an agency action is considered “final” for purposes of judicial review. See Def. Mem. at 9 and Pl. Opp'n. at 8 (citing in Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). In Bennett, the Supreme Court held
As a general matter, two conditions must be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency's decisionmaking process, ...-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow[.]’
The short of the matter is that the Guidance, insofar as relevant here, is final agency action, reflecting a settled agency position which has legal consequences both for State agencies administering their permit programs and for companies like those represented by petitioners who must obtain Title V permits in order to continue operating.
FN3. To be clear, the Court need not, and does not, rely on this letter to reach its conclusion that the challenged action in this case is final agency action. However, because defendants have included the letter “for the Court's information,” see Def. Mem. at 11, n. 2, the Court will reference the letter to illustrate the FWS's position that the Final Rule precludes the granting of any permit to import a sport-hunted polar bear trophy into the United States.
*6 We are writing to inform you that as of the effective date of the listing, May 15, 2008, importation of a polar bear from Canada as a sport-hunted trophy that was taken after February 18, 1997, is no longer an activity that can be authorized under the Marine Mammal Protection Act (MMPA). Therefore, we are unable to continue processing the application that you submitted to the U.S. Fish and Wildlife Service.Since there is no permit authorization available to conduct your requested activity, we are administratively closing your application file and returning the $100.00 permit application processing fee you submitted with your application.
Def. Mem. Ex. 1 (July 29, 2008 Letter from Timothy J. Van Norman, Chief, Branch of Permits, Fish and Wildlife Service to import applicant (recipient's name and address redacted)).
FN4. On March 24, 2009, defendants filed a Notice of Supplemental Authority, citing Natural Resources Defense Council v. EPA, 559 F.3d 561 (D.C.Cir.2009) (“ NRDC ”), as support for their position that the statements in the Final Rule regarding the import ban are not final agency action. In NRDC, however, the Court of Appeals for the D.C. Circuit found that in the preamble that plaintiff challenged, the agency “spoke in the conditional, suggesting that events in the various categories ‘may be exceptional events' or ‘may qualify for exclusion under this rule provided that all other requirements are met.’ “ 559 F.3d at 565 (citing 72 Fed.Reg. 13,564-65)(May 15, 2008). The court also found that “[o]ther statements were equivocal, such as the declaration, repeated several times in different forms, that certain events are to be evaluated ‘on a case-to-case basis.’ “ Id. In contrast, the language the FWS used in the Final Rule and in the letter quoted herein is not in the least “conditional” or “equivocal,” and there is no indication that permit applications to import sport-hunted polar bear trophies will be evaluated on a “case-to-case basis.”
Defendants argue in the alternative that plaintiffs' suit must be dismissed for lack of standing because plaintiffs have not alleged facts to establish that they have suffered an injury-in-fact that is fairly traceable to the challenged action. To satisfy Article III of the Constitution's “case” or “controversy” requirement, a plaintiff ordinarily must establish that (1) he or she has “suffered an ‘injury-in-fact’ “; (2) there is a “causal connection between the injury and the conduct complained of”; and (3) the injury will likely be ‘redressed by a favorable decision[.]’ “ See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Defendants maintain that plaintiffs have not met any of these three requirements and, in addition, that as an associational plaintiff SCI lacks standing because it cannot establish that “at least one of its members would have standing to sue in his own right[.]” See Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002).
1. Plaintiffs' Allegations of an Injury-In-Fact
*7 Defendants argue that plaintiffs have not alleged that the Final Rule itself operated as a denial of any permit application by an SCI member or that plaintiffs have suffered actual or imminent injury. Def. Mem. at 12-13. Instead, defendants contend that the plaintiffs' injury “stems from the possibility that the Service will act in accordance with the statements in the Final Rule regarding the MMPA's restrictions, thereby denying import applications from Plaintiff's members.” In addition, defendants argue that plaintiffs cannot rely on a “procedural injury”-based on plaintiffs' allegation that the FWS violated the APA by failing to give the public adequate notice and opportunity to comment on the issue of whether the polar bear is depleted under the MMPA-because plaintiffs have not established that the “procedures in question are designed to protect some threatened concrete interest of [plaintiffs] that is the ultimate basis of [their] standing.” Def. Mem. at 14 (quoting Lujan, 504 U.S. at 573, n. 8 and citing Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996)).
2. The Causal Connection Between the Alleged Injury and the Defendants' Conduct
Defendants next argue that plaintiffs cannot establish a causal connection between their alleged injury and the defendants' conduct because “plaintiffs' allegations of harm hinge on speculation regarding the Service's future actions [.]” Def. Mem. at 16 (citing United Transp. Union v. ICC, 891 F.2d 908, 912 (D.C.Cir.1989) (court may “reject as speculative allegations of future injuries”). This argument is belied by the very language in the Final Rule:
We note that, under 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 will no longer be available under section 104(c)(5) of the MMPA.
73 Fed.Reg. at 28236. Plaintiffs' allegations that SCI members can no longer obtain import permits are not “speculative”; the Final Rule makes clear that the only possible response an individual applying for a permit to import a sport-hunted polar bear trophy can reasonably expect to receive is a denial of his or her application. In other words, the Final Rule is determinative. Therefore, plaintiffs have satisfied the causal connection requirement. See, e.g., Bennett, 520 U.S. at 170-71 (finding that plaintiffs had met their “relatively modest” burden at the pleading stage to establish a causal connection between their alleged injury and the agency's action, in view of the “powerful coercive” and “virtually determinative” effect that the FWS's Biological Opinion would inevitably have on the manner in which the Bureau would operate the project at issue).
3. Whether the Alleged Injury Would Be Redressed By A Favorable Decision