Polar Bear Endangered Species Act Listing & Section 4(D) Rule Litigation-MDL No. 1993 v. Jewell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2013 Decided June 18, 2013

No. 11-5353

IN RE: POLAR BEAR ENDANGERED SPECIES ACT LISTING AND

SECTION 4(D) RULE LITIGATION–MDL NO. 1993,

SAFARI CLUB INTERNATIONAL, ET AL.,

APPELLANTS

v.

SALLY JEWELL, SECRETARY OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-mc-00764)

Douglas S. Burdin argued the cause for appellants. With

him on the briefs were Anna M. Seidman and Paul Minnich.

Sean E. Summers entered an appearance.

Katherine W. Hazard argued the cause for appellees. On

the brief were Maggie B. Smith and David Shilton.

Howard M. Crystal, Eric R. Glitzenstein, Brendan R.

Cummings, Kassia R. Siegel, and Rebecca J. Riley were on

the brief for intervenors Humane Society of the United States,

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et al. in support of appellee. Benjamin H. Longstreth and

Jason C. Rylander entered appearances.

Before: ROGERS and TATEL, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: After listing the polar bear as a

threatened species under the Endangered Species Act, the

U.S. Fish and Wildlife Service, acting pursuant to a related

statute—the Marine Mammal Protection Act—barred the

importation of polar bear trophies. Hunters and hunting

organizations challenge this determination, raising both

statutory and procedural arguments. Finding them all without

merit, the district court granted summary judgment to the

Service. We affirm.

I.

“[T]he largest of the living bear species,” polar bears are

characterized by their “large body size, a stocky form, and fur

color that varies from white to yellow.” Determination of

Threatened Status for the Polar Bear (Ursus maritimus)

Throughout Its Range (“Listing Rule”), 73 Fed. Reg. 28,212,

28,212 (May 15, 2008). Evolutionarily adapted to sea-ice

habitats, polar bears live in “ice-covered seas” in Russia,

northern Europe, the Canadian Arctic, and parts of Alaska. Id.

at 28,212–13. A 2006 study estimated the “total number of

polar bears worldwide” to be 20,000–25,000, comprised of

“19 relatively discrete populations” in different geographic

regions. See id. at 28,215.

This case is not about living polar bears. Instead, it

concerns polar bear trophies—“mount[s], rug[s] or other

display item[s] composed of the hide, hair, skull, teeth,

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baculum, bones, and claws of the specimen which [were]

taken . . . during a sport hunt for personal, noncommercial

use.” 50 C.F.R. § 18.30(b)(1). Plaintiffs, Safari Club

International and Safari Club International Foundation, along

with individual hunters Ronald Kreider and Donald Hershey,

seek to import polar bear trophies from sport hunts in the

Canadian Arctic.

Two federal statutes, the Marine Mammal Protection Act

(“MMPA”), 16 U.S.C. §§ 1361 et seq., and the Endangered

Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., govern the

importation of polar bear trophies. Congress enacted the first

of these statutes, the MMPA, because “certain species and

population stocks of marine mammals are, or may be, in

danger of extinction or depletion as a result of” human

activities. Id. § 1361(1). The MMPA restricts the importation

and “taking”—i.e., harassing, hunting, capturing, or killing,

see id. § 1362(13)—of polar bears, as well as other marine

mammals such as seals, dolphins, walruses, and sea lions.

The MMPA establishes a “stepwise approach” to the

conservation of marine mammals. Appellees’ Br. 5. At step

one, the statute imposes a general “moratorium on the taking

and importation” of all marine mammals, regardless of the

species’ scarcity or abundance. See 16 U.S.C. § 1371(a). This

moratorium has several enumerated exceptions, including one

for importation of sport-hunted polar bear trophies. Id.

§ 1371(a)(1) (providing an exception to the general

moratorium for “importation of polar bear parts . . . taken in

sport hunts in Canada”). Specifically, section 104(c)(5)

authorizes the Service to “issue a permit for the importation of

polar bear parts (other than internal organs) taken in sport

hunts in Canada” and provides that the Service “shall” do so

when certain criteria are satisfied. Id. § 1374(c)(5)(A).

Pursuant to this provision, the Service approved the issuance

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of permits for importation of trophies from certain Canadian

polar bear populations. See 50 C.F.R. § 18.30(i)(1).

Going beyond the general moratorium, step two of the

MMPA’s conservation scheme imposes additional protections

for species the Secretary designates as “depleted.” See 16

U.S.C. §§ 1371(a)(3)(B), 1372(b)(3). The MMPA defines the

term “depleted” as “any case in which” (1) the Secretary

“determines that a species or population stock is below its

optimum sustainable population”; (2) an authorized State

makes the same determination; or (3) “a species or population

stock is listed as an endangered species or a threatened

species under the Endangered Species Act of 1973.” Id.

§ 1362(1). Two provisions of the MMPA prohibit importation

of species that have been designated as depleted. Section

101(a)(3)(B) provides that:

Except for scientific research purposes, photography

for educational or commercial purposes, or

enhancing the survival or recovery of a species or

stock as provided for in paragraph (1) of this

subsection, or as provided for under paragraph (5) of

this subsection, during the moratorium no permit

may be issued for the taking of any marine mammal

which has been designated by the Secretary as

depleted, and no importation may be made of any

such mammal.

Id. § 1371(a)(3)(B). And section 102(b)(3) reads:

Except pursuant to a permit for scientific research, or

for enhancing the survival or recovery of a species or

stock, issued under section 1374(c) of this title, it is

unlawful to import into the United States any marine

mammal if such mammal was . . . taken from a

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species or population stock which the Secretary has,

by regulation published in the Federal Register,

designated as a depleted species or stock . . . .

Id. § 1372(b)(3).

On May 15, 2008, the Service published a rule listing the

polar bear as a threatened species under the ESA. See

Determination of Threatened Status for the Polar Bear (Ursus

maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May

15, 2008). In the same rule, the Service also determined that

the listing had the effect of designating the polar bear as

“depleted” under the MMPA and that MMPA sections

101(a)(3)(B) and 102(b)(3) thus barred continued importation

of sport-hunted polar bear trophies under that statute. Id. at

28,236, 28,242, 28,301–02. As a consequence, the Service

administratively closed Kreider’s and Hershey’s permit

applications, which sought to import polar bears killed prior

to the bear’s threatened listing. In identical letters sent to

Kreider and Hershey, the Service explained that, due to the

polar bear’s depleted status, the MMPA provision “allow[ing]

for the import of sport-hunted polar bear trophies from

Canada is no longer available, even if your bear was hunted

prior to the effective date of the ESA listing.”

A number of industry groups, environmental

organizations, hunters, and states challenged the Listing Rule

in several district courts. These challenges, including those by

Kreider, Hershey, and the Safari Club, were consolidated as a

Multidistrict Litigation case in the United States District

Court for the District of Columbia. With respect to the actions

challenging the Service’s decision to list the polar bear as a

threatened species under the ESA, the district court granted

summary judgment to the Service, and we sustained that

ruling earlier this year. In re Polar Bear Endangered Species

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Act Listing & Section 4(d) Rule Litigation, 709 F.3d 1 (D.C.

Cir. 2013). In a separate ruling, the district court also granted

summary judgment to the Service on the issue now before

us—whether the MMPA authorizes importation of sport-

hunted polar bear trophies following the Listing Rule.

According to the district court, the Service “properly

concluded that the polar bear is a depleted species within the

meaning of the MMPA as of the publication of the Listing

Rule,” meaning that “the MMPA mandates the Service’s

conclusion that sport-hunted polar bear trophies are no longer

eligible for import as a result of the species’ depleted status.”

In re Polar Bear Endangered Species Act Listing & Section

4(d) Rule Litigation, 818 F. Supp. 2d 240, 245 (D.D.C. 2011).

The Safari Club now appeals the district court’s grant of

summary judgment on the importation issue, raising both

statutory and procedural challenges. Several conservation

groups, including the Humane Society of the United States,

have intervened on behalf of the Service. “In a case like the

instant one, in which the District Court reviewed an agency

action under the APA, we review the administrative action

directly, according no particular deference to the judgment of

the District Court.” Holland v. National Mining Association,

309 F.3d 808, 814 (D.C. Cir. 2002). In reviewing the

Service’s interpretation of the MMPA, a statute the agency

has sole authority to administer with respect to polar bears

and certain other marine mammals, we apply the familiar two-

step analysis set forth in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

Because we conclude that Congress has “directly spoken to

the precise question[s] at issue” here, we have no need to

resolve the parties’ debate about whether the Service’s

interpretation of the MMPA qualifies for Chevron step two

deference. Id. at 842–43; see also Pharmaceutical Research

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& Manufacturers of America v. Thompson, 251 F.3d 219, 224

(D.C. Cir. 2001).

II.

We begin with the Service’s argument that the Safari

Club’s claims are unripe for review. See Wyoming Outdoor

Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C. Cir.

1999) (“[A]n Article III court cannot entertain the claims of a

litigant unless they are ‘constitutionally and prudentially

ripe.’ ” (quoting Louisiana Environmental Action Network v.

Browner, 87 F.3d 1379, 1381 (D.C. Cir. 1996))). Although

conceding that Hershey’s and Kreider’s challenges to the

disposition of their permit applications are ripe, the Service

contends that the Safari Club’s challenge to the Listing Rule’s

import determination was “not fit for judicial review” “[a]t

the time the Final Rule was published” because the Service

had yet to “appl[y] the legal reasoning [in the Rule] to any

particular case.” Appellees’ Br. 21. But because “ripeness is

peculiarly a question of timing, it is the situation now . . . that

must govern,” Regional Rail Reorganization Act Cases, 419

U.S. 102, 140 (1974), not the situation at the time the Listing

Rule was published. Viewed through this lens, the Safari

Club’s challenge to the Listing Rule is indisputably fit for

judicial resolution. Not only does the Safari Club raise

“purely legal” issues of statutory interpretation, but the

Service has now applied the Listing Rule to dispose of

individual permit applications, including those filed by

Hershey and Kreider, thus demonstrating the finality of the

agency’s action and rendering further factual development

unnecessary. See Clean Air Act Implementation Project v.

EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998) (ripeness

doctrine’s first requirement is concerned with “whether the

issue ‘is purely legal, whether consideration of the issue

would benefit from a more concrete setting, and whether the

agency’s action is sufficiently final’ ” (quoting NRDC v. EPA,

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22 F.3d 1125, 1133 (D.C. Cir. 1994))). Moreover, the Service

nowhere disputes that the Safari Club will suffer hardship

associated with the inability to import polar bear trophies if

court consideration is withheld. See Abbott Laboratories v.

Gardner, 387 U.S. 136, 149 (1967) (ripeness doctrine’s

second requirement requires us to consider “the hardship to

the parties of withholding court consideration”), overruled on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

We thus turn to the merits.

The Service’s challenged determination rests on three

premises: (1) that the polar bear’s ESA listing had the effect

of “designating” the species as depleted within the meaning of

MMPA sections 101(a)(3)(B) and 102(b)(3); (2) that once

these import prohibitions were triggered, polar bears could no

longer be imported under section 104(c)(5)’s trophy import

authorization; and (3) that these import prohibitions apply

even to bears taken before the species was designated as

depleted. The Safari Club disputes all three propositions and

adds two procedural challenges. We consider each claim in

turn.

A.

The Safari Club argues that sections 101(a)(3)(B) and

102(b)(3) pose no bar to trophy importation because the polar

bear was never “designated” as a depleted species within the

meaning of those provisions. Recall that the MMPA specifies

three methods by which a species can become “depleted”:

(1) the Secretary “determines that a species or population

stock is below its optimum sustainable population”; (2) an

authorized State makes the same determination; or (3) “a

species or population stock is listed as an endangered species

or a threatened species under the [ESA].” 16 U.S.C.

§ 1362(1). According to the Safari Club, a species is

“designated” as depleted only when an affirmative

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determination is made, through the procedures set forth in

MMPA section 115(a), that the species has fallen below its

optimum sustainable population. When a species is instead

listed as threatened under the ESA, the Safari Club contends

that the species becomes depleted automatically and thus is

not “designated” as depleted within the meaning of MMPA

sections 101(a)(3)(B) and 102(b)(3).

The Safari Club places far too much emphasis on the

term “designate.” As the district court explained, because “the

MMPA expressly identifies three methods by which a species

earns ‘depleted’ status” and “[n]one of these methods is

particularly defined or otherwise referred to as a

‘designation,’ ” the “most natural reading of the statute” is

“that a species may be designated as depleted through any one

of these three methods.” In re Polar Bear Endangered Species

Act Listing, 818 F. Supp. 2d at 254. Indeed, other MMPA

provisions refer to a species as being “designated” as depleted

“because of” or “on the basis of” its listing as an endangered

or threatened species under the ESA, thus demonstrating that

Congress believed an ESA listing could amount to a

“designation.” See 16 U.S.C. §§ 1371(a)(5)(E)(i); 1387(a)(2).

Under the Safari Club’s interpretation, moreover,

whether a particular species is protected by the import

prohibitions would turn on the procedural mechanism by

which that species became depleted. Nothing in the legislative

record, however, suggests that Congress intended such an odd

result. The Safari Club insists that threatened species should

be treated differently because, unlike species found to be

presently below their optimum sustainable population,

threatened species may “currently enjoy historically high

population numbers” but be ESA-listed “because of

predictions about [future] conditions.” Appellants’ Br. 41. But

Congress thought otherwise: “species that are listed under the

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Endangered Species Act are, a fortiori, not at their optimum

sustainable population and, therefore, should be considered

depleted.” H.R. Rep. No. 97-228, at 16 (1981), reprinted in

1981 U.S.C.C.A.N. 1458, 1466. In any event, even were a

species in fact at its optimum sustainable population and

listed as threatened based solely on predicted future

conditions, the Safari Club fails to explain why, given the

MMPA’s overarching goal of protecting species “in danger of

extinction or depletion,” 16 U.S.C. § 1361(1), Congress

would have wanted that species to drop below its optimum

sustainable population before the MMPA’s import

prohibitions for depleted species could apply. We thus think it

quite clear that Congress intended to extend the protections of

sections 101(a)(3)(B) and 102(b)(3) to all depleted species,

regardless of how they achieve their depleted status.

B.

The Safari Club next argues that MMPA section

104(c)(5) requires the Service to authorize importation of

sport-hunted polar bear trophies even where the polar bear is

designated as depleted under the MMPA. The district court

rejected this argument, finding “the intent of Congress . . .

clear” that section 104(c)(5) “must give way to restrictions on

importing depleted species.” In re Polar Bear Endangered

Species Act Listing, 818 F. Supp. 2d at 253. We agree.

Sections 101(a)(3)(B) and 102(b)(3) prohibit importation of

depleted species, unless the importation falls into one of the

narrow exceptions for specific purposes such as scientific

research and enhancing survival of the species. See 16 U.S.C.

§§ 1371(a)(3)(B), 1372(b). Importation of sport-hunted

trophies is not among these enumerated exceptions. See

Andrus v. Glover Construction Co., 446 U.S. 608, 616–17

(1980) (“Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional exceptions are

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not to be implied, in the absence of evidence of a contrary

legislative intent.”).

Conceding the obvious—that neither section 101(a)(3)(B)

nor section 102(b) exempts trophy importation—the Safari

Club nonetheless insists that these provisions must give way

to section 104(c)(5)’s “express and mandatory Congressional

authorization of imports of legally harvested polar bears.”

Appellants’ Br. 27. As the Safari Club sees it, these

provisions are in irreconcilable conflict: section 104(c)(5)

requires the Service to authorize importation of sport-hunted

polar bear trophies (and contains no exception for depleted

polar bears), whereas sections 101(a)(3)(B) and 102(b)(3)

prohibit any such importation. Invoking a bevy of statutory

construction canons, the Safari Club argues that section

104(c)(5) should govern because the provision (1) is “narrow,

precise and specific” to importation of polar bear trophies;

(2) was enacted later in time; and (3) would otherwise be

rendered superfluous. Appellants’ Br. 29–31 (internal

quotation marks omitted).

These arguments rest on a mistaken premise. Read in

context, the provisions in question do not conflict but instead

operate in different spheres of the MMPA’s stepwise scheme.

Although section 104(c)(5) does authorize trophy importation,

that provision—like the statute’s other permit

authorizations—remains subject to the MMPA’s more

stringent protections for depleted species. When Congress

wanted permit authorizations, such as those for scientific

research and enhancement, to apply even to depleted species,

it made this clear by including exceptions for those purposes

in sections 101(a)(3)(B) and 102(b). But Congress included

no such exception for trophy importation, thus demonstrating,

as the district court explained, that although “importation of

sport-hunted polar bear trophies from Canada is a permissible

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exception to the general moratorium on importing marine

mammals and marine mammal products, it is not an

authorized exception where depleted marine mammals are

concerned.” In re Polar Bear Endangered Species Act Listing,

818 F. Supp. 2d at 253.

C.

In support of its argument that the import prohibitions

apply only to polar bears taken after the species became

depleted, the Safari Club first points to section 102(b)(3),

which prohibits importation of any marine mammal “taken

from a species or population stock which the Secretary has,

by regulation published in the Federal Register, designated as

a depleted species or stock.” 16 U.S.C. § 1372(b)(3).

According to the Safari Club, this provision applies only to

mammals taken from species that had already been

designated as depleted at the time they were taken. The

district court disagreed, as do we. See In re Polar Bear

Endangered Species Act Listing, 818 F. Supp. 2d at 256 &

n.11. The provision refers not to mammals taken from species

the Secretary had designated as depleted but instead mammals

taken from species the Secretary has so designated. If

Congress intended section 102(b)(3) to apply only to

mammals taken after the species became depleted, it would

have replaced the verb “has” with “had.”

Reinforcing this conclusion, other provisions of section

102(b) are expressly limited by the phrase “at the time of

taking.” Specifically, sections 102(b)(1) and 102(b)(2),

respectively, prohibit importation of mammals “pregnant at

the time of taking” and “nursing at the time of taking.” 16

U.S.C. § 1372(b)(1)–(b)(2). By contrast, section 102(b)(3)

contains no language limiting its operation to species

designated as depleted “at the time of taking.” See Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen

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‘Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.’ ” (quoting

Russello v. United States, 464 U.S. 16, 23 (1983))).

Alternatively, the Safari Club relies on section

101(a)(3)(B), but that provision cannot permit what section

102(b)(3) expressly prohibits without rendering the latter

superfluous. See Davis County Solid Waste Management v.

EPA, 101 F.3d 1395, 1404 (D.C. Cir. 1996) (“[I]t is of course

a well-established maxim of statutory construction that courts

should avoid interpretations that render a statutory provision

superfluous.”). Indeed, counsel for the Safari Club conceded

as much at oral argument, stating that if the trophies in

question cannot be imported under section 102(b)(3), “it

doesn’t help that they might be able to [be imported] under

the other provision.” Oral Arg. Rec. 15:13–15:19.

D.

This brings us finally to the Safari Club’s procedural

challenges.

The Safari Club first argues that the Service failed to

comply with MMPA section 115(a) when it promulgated the

Listing Rule. That provision requires the Service, in taking

“any action . . . to determine if a species or stock should be

designated as depleted,” to follow certain procedural

requirements, such as publishing in the Federal Register a call

for assistance in obtaining scientific information and utilizing

informal working groups to the extent feasible. 16 U.S.C.

§ 1383b(a). Acknowledging that it did not follow section

115(a)’s requirements, the Service contends that it had no

obligation to do so. We agree. Section 115(a) applies only to

actions “to determine if a species or stock should be

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designated as depleted.” Id. (emphasis added). This clearly

refers to the first mechanism for designating a species as

depleted—where “the Secretary . . . determines that a species

or population stock is below its optimum sustainable

population.” Id. § 1362(1)(A). By contrast, where a species is

listed under the ESA, it automatically becomes designated as

depleted under the MMPA. See id. § 1362(1)(C).

Accordingly, because an ESA listing results in a depleted

designation under the MMPA but entails no “determination”

to that effect, section 115(a) is inapplicable.

Next, the Safari Club argues that the proposed Listing

Rule failed to provide adequate notice that the Service “was

designating the polar bear as a depleted marine mammal

under the MMPA.” Appellants’ Br. 47. Had it been given

notice, the Safari Club claims it “would have argued . . . that

simply listing a species as threatened was not a ‘designation’

of a marine mammal as depleted.” Appellants’ Br. 49. The

district court rejected this argument, finding that the proposed

rule in fact “provided sufficient notice of the potential effects

of the Listing Rule and of the polar bear’s depleted status.” In

re Polar Bear Endangered Species Act Listing, 818 F. Supp.

2d at 255. Again, we agree.

The notice of proposed rulemaking clearly advised

stakeholders that the ESA listing could have the effect of

designating the polar bear as a depleted species within the

meaning of the MMPA’s import prohibitions. The proposed

rule explained that:

Regarding ongoing importation of polar bear

trophies taken from approved populations in Canada

into the United States, we anticipate conducting an

evaluation of the merits of continuing the presently

authorized imports. Under the MMPA Section 102—

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Prohibitions [Importation of pregnant or nursing

animals; depleted species which includes those listed

as threatened or endangered under the ESA] it is

unlawful to import into the United States any marine

mammal if the mammal was taken from a species or

population stock that the Secretary has, by regulation

published in the Federal Register, designated as a

depleted species or stock.

Proposed Rule to List the Polar Bear (Ursus maritimus) as

Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1098

(Jan. 9, 2007) (bracketed text in original). In other words, the

proposed rule not only explained the Service’s view that

“depleted species . . . include[] those listed as threatened or

endangered under the ESA,” but also alerted interested parties

that the MMPA could therefore bar continued trophy

importation. Id. Indeed, the Safari Club seems to have

understood this: it submitted comments to the Service

warning that “[l]isting under the ESA would make it

impossible for U.S. citizens to import sport-hunted polar bear

trophies into the United States, at least without the adoption

of special rules and permits to allow such imports.” Thus, the

Safari Club “should have anticipated”—and did in fact

anticipate—“the agency’s final course in light of the initial

notice,” rendering the final rule a “logical outgrowth of its

notice.” Covad Communications Co. v. FCC, 450 F.3d 528,

548 (D.C. Cir. 2006) (internal quotation marks omitted).

III.

For the foregoing reasons, we affirm.

So ordered.