Friends of Animals v. David Bernhardt

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2020 Decided June 16, 2020

No. 19-5147

FRIENDS OF ANIMALS,

APPELLANT

v.

DAVID LONGLY BERNHARDT, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-02530)

Stephen R. Hernick argued the cause for appellant

Friends of Animals. With him on the briefs were Michael R.

Harris and Jennifer E. Best.

Sommer H. Engels, Attorney, U.S. Department of Justice,

argued the cause for federal appellees. With her on the brief

were Eric A. Grant, Deputy Assistant Attorney General, and

Andrew C. Mergen and Avi M. Kupfer, Attorneys.

Jeremy E. Clare and Michael T. Jean were on the brief

for intervenor-appellees Safari Club International and the

National Rifle Association of America. Christopher A.

Conte entered an appearance.

2

No. 19-5152

CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,

APPELLANTS

v.

DAVID LONGLY BERNHARDT, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF THE U.S. DEPARTMENT OF THE INTERIOR, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-02504)

Tanya M. Sanerib argued the cause for appellants Center

for Biological Diversity, et al. With her on the briefs were

Anna E. Frostic and Sarah Uhlemann.

Sommer H. Engels, Attorney, U.S. Department of Justice,

argued the cause for federal appellees. With her on the brief

were Jeffrey Bossert Clark, Assistant Attorney General, Eric

A. Grant, Deputy Assistant Attorney General, and Andrew C.

Mergen and Avi M. Kupfer, Attorneys.

Jeremy E. Clare and Michael T. Jean were on the brief

for intervenor-appellees Safari Club International and

National Rifle Association of America.

Before: GRIFFITH and PILLARD, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

3

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: These cases raise

some interesting administrative law questions. Appellants,

conservation organizations and a safari guide, challenge a

series of actions of the U.S. Fish and Wildlife Service

governing imports of sport-hunted animal trophies from

Africa. Appellants initially challenged certain “findings” the

Service made that would allow such trophies to be imported.

We subsequently reviewed a similar set of findings in another

case and concluded that they were legislative rules illegally

issued without notice and comment. The Service then

withdrew all its findings that suffered from the same

deficiency, including those challenged by appellants in the

two cases before us, and announced that in the future it would

proceed by informal adjudication. Nevertheless, appellants

wish to contest the withdrawn findings, claiming that they are

relied on in the Service’s informal adjudications. Appellants

assert, moreover, that it was illegal for the Service to abandon

its prior findings without engaging in APA informal

rulemaking, and that it also was illegal for the Service to

announce its intent to make the necessary findings through

informal adjudications in the future. We affirm the district

court’s thoughtful rejection of these claims in this

consolidated opinion.

I.

The disputes in these cases arise from the Service’s

regulation of imports of certain sport-hunted animal trophies

from Africa. The Service is tasked with determining under

what conditions it will grant hunters permits to import

“sport-hunted trophies,” which it has termed “a whole dead

4

animal or a readily recognizable part or derivative of an

animal.” 50 C.F.R. § 23.74(b). We have previously

described at length the governing regulatory regime under the

Convention on International Trade of Endangered Species of

Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, and the

Endangered Species Act, 16 U.S.C. §§ 1531–1544. See

Safari Club Int’l v. Zinke (Safari Club II), 878 F.3d 316,

321–23 (D.C. Cir. 2017).

We deal here with the requirements governing permits to

import trophies of species that are classified as “threatened.”

The Service, by legislative rule, has instituted a general ban

on importing such trophies, subject to species-specific

exceptions. Those exceptions, in turn, generally impose at

least two requirements before a permit may be granted:

First, the Service must determine that the killing of the trophy

animal will enhance the survival of the species (the

“enhancement” finding). See, e.g., 50 C.F.R.

§ 17.40(e)(6)(i)(B) (African elephants); id. § 17.40(r) (lions)

(referencing § 17.32). Second, the Service must determine

that the proposed import will not be detrimental to the

survival of the species (the “non-detriment” finding). See id.

§ 23.61(a); see also id. § 17.40(e)(6)(i)(D) (referencing § 23);

id. § 17.40(r)(3) (same).

For many years, the Service periodically made blanket

enhancement and non-detriment “findings” to govern all

applications to import particular species taken in particular

countries over a given time period. In 2014, for example,

the Service issued a negative enhancement finding for African

elephants taken as sport-hunted trophies in Zimbabwe. It

concluded that in the absence of current data it was unable

to determine that sport-hunting of elephants in Zimbabwe

would enhance the survival of the species. The Service

came to the same conclusion in 2015, extending the

5

suspension of imports through the 2015 hunting season and

future hunting seasons. As it had done for years, the Service

issued the 2014 and 2015 Zimbabwe elephant findings

without proceeding under § 553 of the Administrative

Procedure Act, which of course requires notice and comment.

That led Safari Club International and the National Rifle

Association to seek judicial review of the 2014 and 2015

Zimbabwe elephant findings in our district court. They

argued, inter alia, that the “findings” were rules subject to the

notice-and-comment requirements of the APA. Before that

case came to our court, the Service issued two new positive

enhancement findings in late 2017. The Service determined

that the sport-hunting of elephants in Zimbabwe would

enhance the survival of the species during 2018, 2017, and

much of 2016. It came to the same conclusion with respect

to Zimbabwe’s lions.

Appellants in the present cases, with interests opposite

from Safari Club and the NRA, then sued. One group, made

up of the Center for Biological Diversity, three other

conservation organizations, and a local safari guide

(collectively “the Center”), challenged the 2017 Zimbabwe

elephant and lion findings as arbitrary and capricious,

contrary to law, and—as Safari Club and the NRA had argued

about the 2014 and 2015 findings—in violation of the APA’s

rulemaking procedures. The second group, made up of

Friends of Animals and the Zimbabwe Conservation Task

Force (collectively “Friends of Animals”), challenged just the

2017 Zimbabwe elephant finding on largely the same

grounds.

Before the district court decided the cases brought by the

conservation organizations, we agreed with Safari Club and

the NRA that the 2014 and 2015 Zimbabwe elephant findings

6

were not really the products of adjudications, but were

actually rules subject to the APA’s notice and comment

procedures. Safari Club II, 878 F.3d at 331–34. We

explained that the so-called “findings” did not adjudicate any

dispute between specific parties, resulted in no immediate

legal consequences for any specific parties, and were not

made “in the course of denying an application for an import

permit.” Id. at 334; see id. at 333–34. We instructed the

district court “to remand the case to the Service so that it may

initiate rule making to address enhancement findings for the

time periods at issue in this case.” Id. at 336. In other

words, we anticipated (but did not require) that the Service

would issue its enhancement determinations through

rulemaking.

However, in March 2018, the Service issued a

memorandum withdrawing the disputed 2014 and 2015

findings “[i]n response to the D.C. Circuit Court’s opinion in

[Safari Club II].” 1 The “March Memo” also withdrew a

number of other enhancement and non-detriment findings,

including the 2017 Zimbabwe elephant and lion findings

challenged by the Center and Friends of Animals, as equally

illegal. The Memo acknowledged, however, that although

the withdrawn findings were no longer effective, the Service

intended to use the information relied upon in the defective

findings as appropriate when evaluating individual permit

applications. It also set forth the Service’s plan to make

future enhancement and non-detriment findings when

considering permit applications on a case-by-case basis—in

other words, by informal adjudication. The Center and

Friends of Animals then amended their respective complaints

1

Memorandum, Withdrawal of Certain Findings for

ESA-listed Species Taken as Sport-hunted Trophies (Mar. 1, 2018),

reproduced at No. 19-5152 J.A. at 49.

7

to add challenges to the March Memo on grounds we discuss

below. Safari Club and the NRA intervened as defendants

in each case.

The district court dismissed the conservation

organizations’ challenges for lack of subject matter

jurisdiction and failure to state a claim, for largely identical

reasons. See Ctr. for Biological Diversity v. Zinke, 369 F.

Supp. 3d 164, 183 (D.D.C. 2019); Friends of Animals v.

Zinke, 373 F. Supp. 3d 70, 91–92 (D.D.C. 2019).

Appellants’ claims before us fall roughly into three

categories: (1) challenges to the 2017 Zimbabwe findings;

(2) challenges to the March Memo’s withdrawal of prior

findings; and (3) challenges to the March Memo’s

announcement that the Service now intends to make findings

on a case-by-case basis when considering individual permit

applications. We take the issues related to each category of

claims in turn.

II.

A.

The district court first dismissed appellants’ respective

challenges to the 2017 Zimbabwe findings as moot, reasoning

that the March Memo had already eliminated their legal

effects. See Ctr. for Biological Diversity, 369 F. Supp. 3d at

173; Friends of Animals, 373 F. Supp. 3d at 83. The Center

contends that the Service actually has continued to rely on the

substance and conclusions of the 2017 findings in its

“case-by-case” permitting decisions (informal adjudications),

so a court order declaring those conclusions invalid would

still provide the Center with meaningful relief. And even if

its challenges to the 2017 findings are moot, the Center

argues, the “voluntary cessation” doctrine should apply.

8

Friends of Animals agrees that the March Memo amounts to

voluntary cessation and also presses the other exception to

mootness, contending the flaws in the 2017 Zimbabwe

elephant finding are capable of repetition yet would evade

review. The government responds that while its

case-by-case permitting decisions may rely on information

cited in the withdrawn findings, the findings themselves

unquestionably no longer have any legal effect, and it is

inconceivable that the Service will attempt to reinstate

across-the-board findings without notice and comment in

light of our opinion in Safari Club II.

We think the government is correct. We of course lack

power under Article III to decide an issue “when the question

sought to be adjudicated has been mooted by subsequent

developments.” Nat. Res. Def. Council, Inc. v. U.S. Nuclear

Regulatory Comm’n, 680 F.2d 810, 813–14 (D.C. Cir. 1982)

(internal quotation omitted). And we have recognized that

the government’s abandonment of a challenged regulation is

just the sort of development that can moot an issue. Gulf Oil

Corp. v. Brock, 778 F.2d 834, 840 (D.C. Cir. 1985). In both

cases before us, appellants challenged one or more of the

2017 findings as unlawful under the APA for various reasons

and requested that the court declare as much and set them

aside. But after our opinion declared “findings” with

identical procedural characteristics to be unlawful rules, and

the government, through its March Memo, withdrew the 2017

findings, they no longer cause appellants any injury. Since

we can do nothing to affect appellants’ rights relative to those

now-withdrawn findings, appellants’ challenges to them are

9

“classically moot.” Akiachak Native Cmty. v. U.S. Dep’t of

the Interior, 827 F.3d 100, 106 (D.C. Cir. 2016).2

That the Service subsequently has issued import permits

containing language that often matches that of the 2017

findings does not alter our conclusion. The March Memo

acknowledges that the Service intends to use “the information

cited in [the withdrawn] findings and contained in its files as

appropriate,” and that is “in addition to the information it

receives and has available when it receives each [permit]

application.” No. 19-5152 J.A. at 49–50 (emphasis added).

That is standard agency practice. But that practice does not

mean that the actual 2017 findings themselves are still in

effect.

Nor are the alleged errors in the 2017 Zimbabwe findings

capable of repetition in a way that evades review. As noted

earlier, appellants challenged those findings both as in

violation of the APA’s rulemaking requirements and as

deficient in reasoning. We decided the rulemaking question

with respect to these sorts of findings in Safari Club II, but

then had no occasion to address the reasonableness of the

Service’s substantive conclusions. See 878 F.3d at 331.

There can be no “reasonable expectation” that the same

procedural error will recur in the face of our decision

forbidding the government from employing countrywide

findings as it did in Safari Club II without notice and

comment. People for the Ethical Treatment of Animals v.

Gittens, 396 F.3d 416, 423 (D.C. Cir. 2005) (internal

quotation omitted).

2

Appellants obviously contend that the withdrawal of the

2017 findings was itself unlawful, but as we will explain, they have

not shown that they have standing to bring those particular claims.

See infra Part II.B.1.

10

As to the Service’s substantive conclusions, appellants

have not shown that “if a controversy of this sort occurred

again it would evade judicial review.” Id. at 424. Rather,

prior litigation in this area suggests such disputes—even over

permits—could be timely adjudicated. See generally Safari

Club II, 878 F.3d at 320–21 (reviewing 2014 and 2015

Zimbabwe countrywide elephant findings); Safari Club Int’l

v. Jewell (Safari Club I), 842 F.3d 1280, 1288 (D.C. Cir.

2016) (holding dispute over findings of limited duration to be

capable of repetition and therefore justiciable). Even if we

were to conclude that plaintiffs like those in Friends of

Animals v. Ashe, 174 F. Supp. 3d 20 (D.D.C. 2016), lack

standing to challenge an import permit after the subject

animal has been killed, see id. at 31–32, 34, that logic would

not defeat standing to challenge a permit regarding an animal

not yet hunted. And, if plaintiffs were to contend that

findings issued in the course of individual permitting

decisions were in fact rules that must go through notice and

comment, that claim, too, at least would present a live

controversy.

The voluntary cessation exception does not apply either.

Appellants argue that the Service withdrew the 2017 findings

on its own initiative and that the identical language in its

subsequent permit decisions shows that the Service in fact has

“return[ed] to its old ways.” True the Vote, Inc. v. IRS, 831

F.3d 551, 561 (D.C. Cir. 2016) (internal quotation and

brackets omitted). The short answer is that the Service’s

withdrawals of the 2017 findings were not “voluntary.” The

2017 findings suffered from the same defects as the 2014 and

2015 findings we considered in Safari Club II. And that

case now makes clear that the Service cannot promulgate

freestanding countrywide enhancement findings without

going through notice and comment.

11

B.

1.

Appellants’ second set of challenges is directed to the

March Memo’s withdrawal of more than twenty prior

enhancement and non-detriment findings. In both cases, the

district court concluded that appellants lack standing to

challenge the withdrawal of any positive findings, since those

findings allegedly are what harm appellants’ interests by

paving the way for import permits. See Ctr. for Biological

Diversity, 369 F. Supp. 3d at 175–177; Friends of Animals,

373 F. Supp. 3d at 84–87. In the Center’s case, the court

also reasoned that the withdrawal of negative findings that

govern time periods in the past did not plausibly cause an

injury to people who hope to see animals in the future: the

number of animals killed in the past is fixed, no matter how

many permits the Service now grants for animals killed

during that period. See Ctr. for Biological Diversity, 369 F.

Supp. 3d at 178–79. Nonetheless, the court concluded that

appellants in both cases have standing to challenge at least

some of the withdrawals of negative findings. Ctr. for

Biological Diversity, 369 F. Supp. 3d at 179; Friends of

Animals, 373 F. Supp. 3d at 87.

Appellants before us contest only the district court’s

approach of evaluating the effect of each withdrawal in the

March Memo individually instead of considering the Memo

as a whole. But the court’s approach was proper under the

circumstances. “[S]tanding is not dispensed in gross,” Lewis

v. Casey, 518 U.S. 343, 358 n.6 (1996), and the March Memo

withdrew a host of similar but discrete regulatory actions

with—importantly—discrete effects. And the elimination of

many of those discrete actions caused no injury to appellants.

Appellants offer no other argument against the district court’s

12

conclusions that standing is lacking to challenge most of the

other withdrawals, so we will not disturb those conclusions on

appeal. See Huron v. Cobert, 809 F.3d 1274, 1280 (D.C.

Cir. 2016).

This dispute turns out to be largely academic since all

agree (as do we) that appellants in each case have standing to

challenge at least one of the withdrawals in the March Memo,

which raises the key legal issues. Both sets of appellants

undeniably have standing to challenge the withdrawal of the

2015 Zimbabwe elephant finding, a determination that was

both negative and of indefinite duration. See Notice of

Continued Suspension of Imports of Zimbabwe Elephant

Trophies Taken On or After April 4, 2014, 80 Fed. Reg.

42,524, 42,527 (July 17, 2015). 3 And the Center has

standing also to challenge the withdrawal of the Service’s

2015 Tanzania elephant finding.4 Appellants meet the other

requirements for associational standing because the interests

the organizations seek to protect are germane to their

purposes, and neither the claims asserted nor the relief

requested requires their members to participate in the lawsuit.

See Am. Trucking Ass’ns v. Fed. Motor Carrier Safety Admin.,

724 F.3d 243, 247 (D.C. Cir. 2013).

2.

3

See No. 19-5152 J.A. at 29 (alleging finding was negative

and indefinite); id. at 8, 82 (describing plans to see elephants in

Zimbabwe); No. 19-5147 J.A. at 26 (alleging finding was negative

and indefinite); id. at 41, 46–47, 49 (describing plans to see

elephants in Zimbabwe); id. at 53 (describing plans to see elephants

in Africa).

4

See No. 19-5152 J.A. at 29 (alleging finding was negative

and indefinite); id. at 8, 82 (describing plans to see elephants in

Tanzania).

13

The core of appellants’ cases is their contention that the

Service was obligated to use § 553 of the APA—to employ

notice and comment rulemaking—to withdraw its prior

findings. It is, of course, black-letter administrative law that

ordinarily an agency that promulgates a rule under § 553’s

auspices must use the same procedure to revoke that rule.

See, e.g., Clean Air Council v. Pruitt, 862 F.3d 1, 9 (D.C. Cir.

2017). Section 551(5) of the APA defines “rule making” to

include “agency process for formulating, amending, or

repealing a rule.” 5 U.S.C. § 551(5) (emphasis added).

The Supreme Court has explained that § 551 “mandate[s] that

agencies use the same procedures when they amend or repeal

a rule as they used to issue the rule in the first instance.”

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 101 (2015); see

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515

(2009) (noting that the APA “makes no distinction . . .

between initial agency action and subsequent agency action

undoing or revising that action”). Moreover, a legislative

rule issued under § 553 “modifies or adds to a legal norm

based on the agency’s own authority,” Ass’n of Flight

Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710, 716

(D.C. Cir. 2015) (emphasis deleted) (internal quotation

omitted), so a repeal of such a rule necessarily also modifies

the law, which is why it must go through notice and

comment. But we do not see how a government action that

illegally never went through notice and comment gains the

same status as a properly promulgated rule such that notice

and comment is required to withdraw it.

Indeed, even if an agency issues a legislative rule under

§ 553, we have said that it should not apply the rule in an

adjudication if a court of appeals had concluded the rule is

illegal. See Am. Tel. & Tel. Co. v. FCC, 978 F.2d 727, 733

14

(D.C. Cir. 1992).5 To be sure, in American Telephone &

Telegraph Co., we considered but did not decide whether an

agency faced with a definitive judicial opinion that a

legislative rule violated the Constitution or an agency’s

substantive statute needed to go through notice and comment

to repeal the rule. And although there is never much to be

gained from comment—as opposed to a simple notice “for

good cause,” 5 U.S.C. § 553(b)(B)—where a rule has been

declared substantively illegal, it is not necessary to decide that

issue now. That is so because, as we noted, we are faced

only with the repeal of a “rule” that illegally never went

through notice and comment—in other words, a “non-rule

rule.” We think the logic of American Telephone &

Telegraph Co. a fortiori leads to the conclusion that notice

and comment was not required in this situation.

Friends of Animals argues, however, that our decision in

Safari Club II was not really a rejection of the Service’s prior

findings because we did not “vacate” them. See 878 F.3d at

335–36. But relying on our prior decision in Sugar Cane

Growers Cooperative of Florida v. Veneman, 289 F.3d 89

(D.C. Cir. 2002), we made clear that the Service’s failure to

engage in notice and comment rulemaking for what were de

facto legislative rules was a serious violation of the APA,

which meant the findings had no legal effect. Safari Club II,

878 F.3d at 334–35. And since we rejected all of Safari

Club and the NRA’s substantive challenges to the findings in

question, there was no reason to style our disposition as a

vacatur. As noted earlier, our disposition anticipated that the

5

In that case, we had previously suggested that the rule was

illegal unless it was an exercise of enforcement discretion by the

FCC, a characterization the FCC subsequently disavowed. See

Am. Tel. & Tel. Co., 978 F.2d at 735–36; MCI Telecomms. Corp. v.

FCC, 765 F.2d 1186, 1190 n.4 (D.C. Cir. 1985).

15

Service on remand would use the procedures of § 553 to

make its “findings,” but we clearly did not make that

approach a requirement. So the Service was back at square

one and free to determine which APA procedure it would use

to implement its statute and regulations. And it is well

known that under the APA an agency has virtually unlimited

discretion as to the procedures it uses to implement its

legal/policy choices (assuming its substantive statutes don’t

restrict those procedures). See NLRB v. Bell Aerospace Co.,

416 U.S. 267, 291–94 (1974).

We caution, however, that as we recently have reiterated,

if only part of a rule that has gone through notice and

comment is held illegal and an agency wishes to abandon the

whole rule, it is obliged to use notice and comment. See

Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 83–84 (D.C.

Cir. 2020). Similarly, it seems to us if a court only

remanded a rule for an adequate explanation, a repeal without

notice and comment would be unjustified. It is only when

an agency action is struck down because the agency failed to

promulgate the rule through proper procedures—as was true

of the findings in Safari Club II—or perhaps when a court

determines a legislative rule violates a statute, that § 553’s

full procedures would be unnecessary.

Friends of Animals raises one additional challenge to the

withdrawal portions of the March Memo. In 1997, the

Service issued a rule as a part of the regime governing trophy

permits for African elephants that contains the following

language:

The Service will make [enhancement] findings

on a periodic basis upon receipt of new

information on the species’ population or

management. The enhancement findings for

16

importation of sport-hunted elephant trophies

from Botswana, Namibia, and Zimbabwe are

on file in the Office of Management Authority

and remain in effect until the Service finds,

based on new information, that the conditions

of the special rule are no longer met and has

published a notice of any change in the Federal

Register.

Changes in List of Species in Appendices to the Convention

on International Trade in Endangered Species of Wild Fauna

and Flora, 62 Fed. Reg. 44,627-01, 44,633 (Aug. 22, 1997).

Friends of Animals reads these sentences to mean that the

Service must publish notice in the Federal Register (though

not necessarily in the form of a rule) any time it makes a

change to any enhancement finding for elephants in the three

countries listed. But the rule refers only to findings that

were on file when the rule was issued in 1997; subsequent

findings, such as the 2015 Zimbabwe elephant finding, are

not included. And as we have noted, Friends of Animals has

not shown that it has standing to challenge the withdrawal of

the 1997 Zimbabwe elephant finding. Friends of Animals’

arguments for a more expansive reading of the statute are

unpersuasive.6

C.

We are left with appellants’ last argument, that it was

unlawful for the Service to announce it would proceed in the

6

Friends of Animals appears also to challenge the Service’s

move to future case-by-case determinations (which are not

published in the federal register) as a violation of the publication

language in the 1997 rule. See Friends of Animals, 373 F. Supp.

3d at 88. But again, the rule requires publication of changes only

to those findings that were on file at the time.

17

future to implement the Endangered Species Act through

informal adjudication. The government responds that the

March Memo is not even final agency action. It never gives

the March Memo an APA label, but it seems to us the Memo

might best be described as in part an interpretive rule

construing our decision in Safari Club II, see Wheeler, 955

F.3d at 83, and in part a policy statement setting forth the

agency’s plans for the procedural method it would use to

implement its responsibilities under the governing statute and

regulations. But in any event, because finality under the

APA is no longer considered jurisdictional, Marcum v.

Salazar, 694 F.3d 123, 128 (D.C. Cir. 2012), it is unnecessary

for us to decide whether the March Memo is final agency

action in light of our resolution of the merits below.

It is necessary, however, to determine whether appellants

have standing to challenge the Service’s decision to make

findings on a case-by-case basis, which is rather tricky. The

Center contends that the move to making findings on a

case-by-case basis injures its members’ concrete interests

because doing so removes the possibility of flat bans on

trophy import permits, thus increasing the likelihood that

African wildlife will be hunted. The trouble with this theory

is that it assumes the Service will make substantively

different decisions depending on which procedure is used.

But the same statutory obligation to make enhancement

findings adheres in both contexts, and there is no reason to

expect that the Service’s procedural change will result in

more animals being killed.

The Center also advances a theory of organizational

standing to challenge the move to case-by-case

determinations. Organizations can have standing in their

own right, but to determine whether an organization’s alleged

injury is “concrete and demonstrable” we are obliged to

18

consider whether the agency action injured the organization’s

interest and whether the organization used its resources to

counteract the harm. People for the Ethical Treatment of

Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1094 (D.C.

Cir. 2015) (internal quotation omitted). However, harms to

an organization’s interests in litigation, lobbying, or pure

issue advocacy do not qualify. Id. at 1093–94.

In the Center’s case, unfortunately, all of the harms that it

alleged flow from the Service’s switch to case-by-case

determinations implicate the Center’s interests in advocacy,

participating in administrative proceedings, and lobbying.

As the Center and its members put it, the move to

case-by-case determinations will require them to expend more

time and resources tracking permit decisions in hopes of

commenting on and influencing them. No. 19-5152 J.A. at

12, 57–58, 73. And getting information to the Service to

foster reasoned decisionmaking will be more difficult. Id. at

58. The Center argues on appeal that it also has interests in

educating its members and the public, which will be impaired

by the Service’s choice not to use notice-and-comment

rulemaking. But this is too little too late; the harms the

Center actually articulated in its pleadings to support these

challenges are not concrete under our precedent.

Friends of Animals, on the other hand, alleged from the

outset that its organizational interest in educating the public

would be impaired by the Service’s move to case-by-case

determinations. The organization’s president stated that it

“reports on the negative impacts of trophy hunting as well as

[its] progress in addressing this issue through its magazine

ActionLine, its website, education presentations to

professional associations, and outreach to other media

outlets.” No. 19-5147 J.A. at 51. Friends of Animals then

explained how the Service’s use of case-by-case

19

decisionmaking would harm those interests, as “it is critical”

to the organization’s educational work “to have up-to-date

information” on the Service’s policies. Id. at 57. The

organization accordingly has expended additional resources to

access the necessary information. Id. At the pleading

stage, those allegations suffice to establish Friends of

Animals’ standing to challenge the Service’s decision to make

findings on a case-by-case basis. See People for the Ethical

Treatment of Animals, 797 F.3d at 1094–95.7

As to the merits, Friends of Animals understandably has

not challenged the March Memo on the basis that the Service

was obligated by the APA to implement its statutory

directives through rulemaking rather than through informal

adjudication. That argument would of course face an uphill

climb, since, as we noted, an agency has broad discretion to

choose whether to use rulemaking or adjudication—assuming

both options are authorized by the agency’s organic statutes.

Instead, Friends of Animals contends that a provision of the

Endangered Species Act allows the Service to make

enhancement findings only through rulemaking:

Whenever any species is listed as a threatened

species pursuant to subsection (c) of this

section, the Secretary shall issue such

regulations as he deems necessary and

advisable to provide for the conservation of

such species. The Secretary may by

regulation prohibit with respect to any

threatened species any act prohibited under

7

The Service resists this conclusion on the ground that no

statute grants Friends of Animals a concrete interest in the

information it seeks. But for better or worse, that ship has sailed.

See People for the Ethical Treatment of Animals, 797 F.3d at 1104

(Millett, J., dubitante).

20

section 1538(a)(1) of this title, in the case of

fish or wildlife . . . .

16 U.S.C. § 1533(d) (emphases added). Friends of Animals

reads the text above to require rulemaking at every regulatory

step of whatever regime the Secretary creates to protect

threatened species. But the Act gives the Secretary broad

authority to issue such regulations “as he deems necessary

and advisable,” id., and nothing in the provision at issue

prevents him from creating rules that in turn make use of

subsidiary adjudications.8

***

The judgments of the district court are affirmed.

So ordered.

8

Friends of Animals also contends that the Service’s move to

making findings on a case-by-case basis was itself a legislative rule

that required notice-and-comment rulemaking. But as Safari Club

and the NRA point out, Friends of Animals did not raise that

challenge in its complaint, which likely is why the district court did

not address it. We will not do so in the first instance.