[00:00:00] Speaker 00: case number 16-5358 at L, Safari Club International at L Appellants versus Ryan Zinke and his official capacity as Secretary of the U.S. [00:00:09] Speaker 00: Department of the Interior at L. Mr. Burden for the Appellants, Mr. Kumpker for the Appellees. [00:00:22] Speaker 02: Mr. Burden. [00:00:23] Speaker 05: I'm very honored, Doug Burton, for Appellants Far-Club International, National Rifle Association of America. [00:00:29] Speaker 05: With me at council table is Jeremy Clareff's Far-Club, Michael Gene of the NRA. [00:00:35] Speaker 05: We reserve two minutes for rebuttals. [00:00:38] Speaker 05: I'd like to address two issues that relate to how the service made these determinations and the standards that they applied, that being the Section 9C2 presumption and the question of ensuring survival versus enhancing survival. [00:00:53] Speaker 05: Regarding 9C2, I want to be perfectly clear about what we are arguing here, because there seemed to be some confusion in the district court and by the federal government. [00:01:05] Speaker 05: We are arguing that the Section 9C2 presumption applies such that the service must determine that the harvest of elephants for importation enhances the survival of the species. [00:01:18] Speaker 05: We are – that's because the statute says that this presumption, the statutory presumption, applies to regulation under the ESA also, such as the Elephant Special Rule. [00:01:30] Speaker 05: We are not arguing that Section 9C2 prevents the service from enacting a special rule under Section 4D. [00:01:39] Speaker 05: We are not arguing that 9C2 overrides any such special rule. [00:01:44] Speaker 05: We are not arguing that Section 9C2 conflicts with Section 4D of the ESA. [00:01:52] Speaker 05: And we are not arguing, as Safari Club did in 1993, that Section 9C2 exempts or preempts Section 4 or creates a conclusive presumption of an importability. [00:02:08] Speaker 05: What we are arguing is that Section 9C2 applies after the service has enacted a special rule and sets out conditions for importation. [00:02:19] Speaker 05: We are arguing that the service must overcome that presumption as applied to those conditions in the special rule. [00:02:27] Speaker 05: And we are arguing that the service has never overcome this presumption. [00:02:32] Speaker 05: It did not do so in 1997 when it enacted the special rule. [00:02:39] Speaker 05: It did not do it in 2014 or 2015 in these enhancement findings when the service said only that it was unable to find that the hunting of these species enhanced the survival of the species. [00:02:56] Speaker 05: They never affirmatively found that hunting did not enhance the survival of these species. [00:03:04] Speaker 05: And the record is full of references to being unable to find [00:03:08] Speaker 05: make these findings based on a lack of information. [00:03:13] Speaker 05: The service's own statements admit that they could not rebut the presumption from the May 2014 Federal Register notice. [00:03:22] Speaker 05: They said, however, we recognize that our inability to make a finding is based primarily on a lack of information, not on specific information that shows that Zimbabwe's management is not enhancing the survival of the species. [00:03:38] Speaker 05: In their opposition brief here in this court, in asserting that they actually asserted that they overcame this presumption, even in that brief they say the 2014 and 2015 enhancement decisions explained, based on substantial evidence, why the service could not find that importing trophies of elephants killed in Zimbabwe enhanced species survival. [00:04:02] Speaker 05: What they've never been able to say and what the presumption requires them to find is that the service found that hunting does not enhance survival. [00:04:13] Speaker 05: This fundamental error undermines all or requires the vacating of all three findings and remanding for a proper decision. [00:04:23] Speaker 05: turning to the question of ensuring survival versus enhancing survival. [00:04:28] Speaker 05: Sometime between the earlier findings that they made for Zimbabwe and Tanzania, which they made for over 15 years, in the current findings, the service started requiring that the harvest of these animals, something like ensure the survival of the species. [00:04:45] Speaker 03: Where did they do that in this case? [00:04:48] Speaker 05: uh... in the month of july two thousand fourteen in march two thousand fifteen findings uh... after noting bright spots of conservation they said there are not enough of these bright spots to overcome the problems currently facing zimbabwe's elephant populations that's at JA530 where do they adopt this heightened standard that you're accusing them of doing that is not just [00:05:15] Speaker 03: but ensure survival. [00:05:18] Speaker 03: Where do they do that? [00:05:20] Speaker 05: Well, they're talking about something like overcoming all the problems facing the species. [00:05:27] Speaker 05: That, to me, is something more like needing to ensure that all the problems are... Why couldn't that just as easily be enhanced? [00:05:36] Speaker 05: Well, I think enhanced is more. [00:05:39] Speaker 03: But I take it with your answer, there isn't any place where they say that they're seeking evidence that this will ensure the survival. [00:05:50] Speaker 03: That language is not in there, is it? [00:05:52] Speaker 05: No, no. [00:05:53] Speaker 05: I'm looking at all the references in the findings of what they required. [00:05:58] Speaker 05: What they had said earlier, they acknowledged that there were this regarding Tanzania, but I think it applies equally. [00:06:06] Speaker 05: they said this they've acknowledged problems they didn't make a negative finding just because there was problems they want there to be no problems zimbabwe is never going to not have problems with elephants the question is whether the hunting and the benefits it creates that we've outlined in our brief creates a benefit and that's more what they said [00:06:31] Speaker 05: they had done before with Tanzania. [00:06:33] Speaker 05: They said despite reports of poaching and other wildlife management issues, [00:06:39] Speaker 05: available information had indicated that legal sport hunting within declared quotas was not causing a problem, and because of revenues generated by sport hunting, had the potential to provide conservation benefit to the species. [00:06:54] Speaker 05: That's at JA 479. [00:06:56] Speaker 05: That's more like enhancing. [00:06:58] Speaker 05: It's never going to solve all the problems, but does the hunting create benefits that enhances survival? [00:07:08] Speaker 05: Turning to the findings themselves, in April 2014, the service admitted that its finding was based on a lack of information. [00:07:18] Speaker 05: One of the key pieces of information that they did rely on was its conclusion. [00:07:23] Speaker 05: This was their language, quote, the elephant population in Zimbabwe in 2007 was 84,416 elephants. [00:07:31] Speaker 05: But as of 2013, that population had been reduced to 47,366. [00:07:38] Speaker 05: This conclusion was wrong because the report they relied on simply said that the survey results, or the relative reliability of the survey results, had dropped to 40,000 elephants, not that the actual population had dropped. [00:07:58] Speaker 05: So in contrast to the 66,000 elephant figure from the positive 1997 finding, the actual population figure suggested by the International Union Report was something over 85,000 elephants. [00:08:15] Speaker 05: Another key mistake was the reliance on report. [00:08:19] Speaker 02: I'm sorry, the 85,000 figure includes the speculative figure? [00:08:24] Speaker ?: Yes. [00:08:24] Speaker 02: So how can you say that if they're categorizing these as speculative, 45,000 of them are speculative, how can we say that there are more than 80,000 elephants if half of the number is characterized as speculative? [00:08:39] Speaker 05: Those survey results, the way that the International Union classifies them, it's based on the method and how the age of the surveys. [00:08:53] Speaker 05: But it's not an indication that they believe that the elephants were not there. [00:09:00] Speaker 05: It's just that the information is lacking somewhat to be more certain that they're there. [00:09:06] Speaker 02: Well, when somebody says something is speculative, that suggests they don't know whether they're there or not. [00:09:12] Speaker 02: Isn't that a fair description of speculative? [00:09:14] Speaker 02: Because they have another column called possible, and speculative is lower than possible, and they have another column called probable, and both possible and speculative are lower, and they have another column called definite. [00:09:28] Speaker 02: So is it unfair to figure that the speculative means they don't really have any idea whether they're there or not? [00:09:33] Speaker 05: I think it means that the results are less certain than other results. [00:09:41] Speaker 02: Less than possible, less than probable, and less than definite. [00:09:44] Speaker 02: All those things. [00:09:45] Speaker 02: Right. [00:09:46] Speaker 05: But what we know is that, in fact, those elephants were still there. [00:09:51] Speaker 05: Because in 2015, the service got results of the elephant aerial survey, very solid, reputable survey, comprehensive. [00:10:04] Speaker 05: It showed that $85,000 elephant figure was accurate. [00:10:12] Speaker 05: And so yeah, it's just how the International Union chooses to convey the information about survey results. [00:10:19] Speaker 05: But it was unreasonable to conclude that that figure had dropped to 40, actual elephants on the ground had dropped to 47,000. [00:10:28] Speaker 02: They acknowledge this point in a subsequent finding, right? [00:10:32] Speaker 02: That this was a question of how many definite elephants there were. [00:10:36] Speaker 05: In the July finding, they talked about the reliability of the surveys and they did not say that the figure, the actual elephants, had dropped to 47,000. [00:10:52] Speaker 05: The second error in the April finding related to the incident of elephants being poisoned in Wangi National Park, where the service, despite having months to try to verify the information between when it was reported and when they made a decision, simply accepted that 300 elephants had been poisoned. [00:11:13] Speaker 05: when the actual figure, it turned out, was around 100, certainly still a tragic occurrence. [00:11:20] Speaker 05: But to put that error in perspective, 200 elephants is 40% of the total hunting quota for the year, and likely a much higher percentage of the actual hunting offtake. [00:11:32] Speaker 02: Again, that was the best evidence they had at the time, and they acknowledged that in the subsequent finding, that it was only 100, right? [00:11:39] Speaker 05: Well, I think there was, if they had looked, I think there was, they relied on media accounts and did not try to find out, as far as we know, whether that was an accurate figure. [00:11:52] Speaker 05: And they had months to do so. [00:11:54] Speaker 05: This occurred in December 2013. [00:11:56] Speaker 05: They made their decision in 2014. [00:12:00] Speaker 05: So they just relied on it. [00:12:02] Speaker 05: It seemed like they wanted to bolster that April finding, because it really wasn't that much different from the 97 finding. [00:12:09] Speaker 05: You compare the two, a lot of similarities. [00:12:12] Speaker 05: They just said, we have a problem with the population. [00:12:15] Speaker 05: We have this horrible poaching incident, 300 elephants. [00:12:20] Speaker 05: And that was the main difference between a positive and a negative finding. [00:12:23] Speaker 05: Neither one was justified. [00:12:25] Speaker 04: Are you saying that the regulation with the elephant rule is unlawful under the statute? [00:12:32] Speaker 05: No. [00:12:33] Speaker 05: The 4D rule? [00:12:35] Speaker 04: Doesn't it overcome the presumption? [00:12:37] Speaker 04: They have to make a determination. [00:12:38] Speaker 04: If they don't make it, it's not made for whatever reason. [00:12:42] Speaker 05: No. [00:12:44] Speaker 05: The 4D rule sets out the conditions. [00:12:48] Speaker 05: And it is a regulation under the ESA. [00:12:50] Speaker 05: It sets out conditions for importability, including that there be an enhancement finding. [00:12:56] Speaker 05: And the statutory presumption in 9C2 applies to that regulation. [00:13:04] Speaker 04: That's the language of 9C2. [00:13:18] Speaker 05: right yes the presumption applies to that so that the service should have presumed that enhancement was that that the harvest of the elephants enhances by the species they could have overcome that presumption by making a factual finding that the hunting of those elephants did not six pieces may be important [00:13:51] Speaker 04: You're talking about the... Right. [00:13:55] Speaker 04: They didn't make the determination. [00:13:57] Speaker 04: I know. [00:13:59] Speaker 04: They should have presumed... Why? [00:14:06] Speaker 04: That's what I'm saying. [00:14:07] Speaker 04: If I read that regulation... [00:14:11] Speaker 04: to indicate how we deal with what you call the statutory presumption. [00:14:15] Speaker 04: The presumption is nothing more than a statute, and the regulations seem to suggest, you know, it exists, but on these terms, determination has to be made. [00:14:23] Speaker 04: There was no determination made, and they explained why they weren't making a determination. [00:14:27] Speaker 04: They didn't have the evidence to do it, so they didn't make it. [00:14:31] Speaker 04: So you've overcome the statutory presumption. [00:14:33] Speaker 04: The presumption doesn't, isn't locked in. [00:14:35] Speaker 04: It's nothing more than a presumption. [00:14:37] Speaker 04: That's why, Morton, do you think the regulation is unlawful? [00:14:40] Speaker 04: I don't know how else to read it. [00:14:44] Speaker 04: It essentially says the presumption doesn't mean anything more than this. [00:14:48] Speaker 04: There has to be a determination that the killing of trophy animal will enhance the survival. [00:14:52] Speaker 04: They didn't make that determination. [00:14:54] Speaker 04: And for good reason. [00:14:56] Speaker 05: The presumption applies so that they have to, as a starting point in their analysis, presume that the harvest of those elephants enhances the survival of the species. [00:15:09] Speaker 05: So you're saying the regulation is unlawful? [00:15:11] Speaker 05: Well, as applied here, yes. [00:15:13] Speaker 05: Not in all circumstances. [00:15:15] Speaker 05: It still applies to Appendix I elephants, and it's valid as to them. [00:15:19] Speaker 04: So you're saying the only time the regulation is lawful is when they make the determination? [00:15:24] Speaker 05: if they make a determination that overcomes the presumption. [00:15:27] Speaker 05: I don't know what that means. [00:15:31] Speaker 04: It says you can't import unless they make a determination that the killing of a trophy animal will enhance the survival. [00:15:38] Speaker 04: And they haven't made that determination. [00:15:39] Speaker 04: And I can understand an argument that, well, that determination was bogus. [00:15:44] Speaker 04: They didn't have any justification for it. [00:15:46] Speaker 04: But they did have a justification for it. [00:15:48] Speaker 04: They said they could not make that determination. [00:15:51] Speaker 05: And Congress, in Section 9C2, said, whatever the conditions are, whether they're in the ESA, whether they're in a regulation, you shall presume that that import is valid. [00:16:04] Speaker 04: I understand your order. [00:16:06] Speaker 02: I take it that when they adopted the special rules, [00:16:14] Speaker 02: And when they adopted the regulation that says the presumption is overturned when there is a special rule, they say it's based on the rulemaking record and on our administrative finding. [00:16:25] Speaker 02: So why wasn't the administrative finding with respect to this special rule sufficient? [00:16:34] Speaker 02: After all, a presumption is only a burden of going forward. [00:16:37] Speaker 02: It's not a burden of proof. [00:16:39] Speaker 02: And all you have to do is have a reason that explains why the presumption doesn't apply. [00:16:44] Speaker 02: Their reason is there isn't enough evidence to establish this in these circumstances. [00:16:51] Speaker 02: Why isn't that enough to overcome the presumption? [00:16:54] Speaker 05: Well, we are arguing that that regulation, as applied in this situation, must give way to the statute. [00:17:00] Speaker 05: But when they adopted the special rule with the enhancement finding in 97, [00:17:05] Speaker 05: A couple weeks before they made that finding – I mean, they made that regulatory change, they had found that the – they had made a positive enhancement finding for Zimbabwe elephants. [00:17:17] Speaker 05: They had found as a matter of fact that the harvest of these elephants for importation [00:17:24] Speaker 05: enhance the survival of the species. [00:17:26] Speaker 05: So I don't see how you can make a factual finding that it does enhance the survival of the species and then five weeks later, by adopting a special rule to which the presumption applies, say that actually harvesting these elephants does not enhance the survival of the species. [00:17:46] Speaker 05: We have a factual finding that it did and the presumption applies to that rule. [00:17:54] Speaker 05: But I think the service is just wrong in that regulation that says that the mere adoption of a special rule. [00:18:02] Speaker 02: The mere adoption with the record of the special rule. [00:18:06] Speaker 05: Yeah, the record was mainly about being consistent with the CITES requirements. [00:18:13] Speaker 05: Earlier, the CITES requirement was that there had been an enhancement finding made by the importing country. [00:18:20] Speaker 05: That was mainly what they were doing in that rulemaking. [00:18:22] Speaker 05: That rulemaking said nothing about Zimbabwe elephants, much less any other elephants, the actual on-the-ground conditions, and about whether hunting enhanced the survival of the species. [00:18:35] Speaker 05: that finding had been made five weeks earlier as a matter of fact [00:19:05] Speaker 01: May it please the Court, Avi Kupfer for the Federal Appellees. [00:19:08] Speaker 01: With me at Council's table is Russell Hewson with the Solicitors Office of the Department of the Interior, and Courtney McVean, who is representing the interveners and is prepared to answer any questions that the panel has specifically for the interveners. [00:19:23] Speaker 01: To pick up where a Council left off, [00:19:28] Speaker 01: The word presumed in Section 9C2, there's nothing in Section 9C2 that supports the view that the only way that the Fish and Wildlife Service can overcome that presumption is with an affirmative finding to the contrary. [00:19:45] Speaker 01: As you mentioned, Chief Judge Garland, that would shift the burden to the Fish and Wildlife Service [00:19:55] Speaker 01: and essentially enforce a dramatically different view of the Endangered Species Act that puts the onus on the Fish and Wildlife Service when it wants to protect threatened species by promulgating conditions regarding their import. [00:20:14] Speaker 01: Presumed implies the ability to rebut, and there's nothing in the language of Section 9C2 that cabins the means by which the service can rebut that presumption. [00:20:25] Speaker 01: Here the service did so in 1992 when it promulgated a special rule with an additional set of conditions in addition to the predicates in Section 9C2 itself that a would-be importer has to meet before bringing a sport-hunted elephant trophy into the United States. [00:20:45] Speaker 01: That reading is further supported by the context in which it occurs. [00:20:54] Speaker 02: What is it in the 1992 special rule that rebutted the presumption, other than the fact that the rule was issued? [00:21:03] Speaker 01: Other than the fact that the rule is issued with an additional set of conditions, the service said in the preamble to that rule that it only wanted to support sport hunting when it was done in a carefully regulated manner that aided in conservation. [00:21:20] Speaker 01: And it's repeated that same logic throughout the history of the special rule, when it's made various administrative findings. [00:21:28] Speaker 01: In 97, when [00:21:32] Speaker 01: uh... the zimbabwe african elephant population was transferred from appendix one to appendix two reiterated that [00:21:41] Speaker 01: Despite the move from one to two under CITES, the requirements of the regulation continued to hold because the service continued to believe it was important that sport hunting only be supported when it was conducted in a carefully regulated manner and it was connected to aiding in conservation. [00:22:05] Speaker 01: in some manner. [00:22:06] Speaker 01: And I think it's important to note here that the context in which 9C2 was promulgated is under this minor provision of the ESA that relates to, quote, violations of convention. [00:22:20] Speaker 01: That's the heading of the subsection. [00:22:22] Speaker 01: And the fact that the concern was violations of studies is further corroborated by the legislative history. [00:22:29] Speaker 01: The House committee report states that [00:22:32] Speaker 01: The concern that Congress had was the presumed validity of CITES export permits. [00:22:38] Speaker 01: What Congress was telling the Fish and Wildlife Service to do was how to prioritize its time, not to spend too much time looking under the hood at presumably valid export permits from these countries. [00:22:51] Speaker 02: There's nothing in the language. [00:22:54] Speaker 02: I see the heading. [00:22:57] Speaker 02: And I see part one, which is about the convention, but part two just says any provision of this chapter or any regulation, it doesn't seem to be limited to export, and it doesn't seem to be limited to the convention. [00:23:12] Speaker 01: That's correct, Your Honor. [00:23:15] Speaker 01: Just simply adding context to the language. [00:23:19] Speaker 01: But I think the key point here is there's nothing in the language that cabins the means by which the service can rebut that presumption. [00:23:28] Speaker 01: And they had a rulemaking with a record that supported that rulemaking in 92. [00:23:32] Speaker 01: In 97 in 2000, when various [00:23:36] Speaker 01: African elephant populations were transferred from Appendix 1 to Appendix 2, it continued to find that the enhancement requirement was necessary to support the survival of those species. [00:23:50] Speaker 01: And in this particular case, [00:23:52] Speaker 01: There are 2014 and 2015 findings where the service offered extensive evidence for why it couldn't make that finding. [00:24:05] Speaker 04: When did you have the rulemaking required by the APA? [00:24:08] Speaker 04: That was not an adjudication. [00:24:09] Speaker 04: It was a rulemaking. [00:24:11] Speaker 01: When did you satisfy the requirements? [00:24:14] Speaker 01: in 1992? [00:24:15] Speaker 01: No, no. [00:24:15] Speaker 04: No, no, this time. [00:24:17] Speaker 04: In this case. [00:24:19] Speaker 04: That's the problem with your case. [00:24:20] Speaker 04: Where's the rulemaking that's required by the APA? [00:24:24] Speaker 04: It's not an adjudication, in my view. [00:24:27] Speaker 04: So I understand what the law court said, that respectfully, I don't think that flies, at least on this side of the bench. [00:24:37] Speaker 04: So where's the rulemaking? [00:24:39] Speaker 04: Let's assume I'm right. [00:24:40] Speaker 04: You had to engage in notice and comment rulemaking of some sort. [00:24:43] Speaker 04: When did you do that? [00:24:44] Speaker 01: Assuming you're correct, Your Honor, there was no rulemaking. [00:24:52] Speaker 01: The 14 and 15 [00:24:56] Speaker 01: findings were informal adjudications. [00:24:59] Speaker 01: They were not... So you're just going to rest on that. [00:25:02] Speaker 04: You're conceding the point that if we say it's a rulemaking, you lose. [00:25:05] Speaker 04: It has to go back. [00:25:06] Speaker 01: No, Your Honor. [00:25:07] Speaker 01: If this Court were to find that the 14 and 15 findings were rulemakings, it would have to take note of the rule of prejudicial error. [00:25:17] Speaker 01: And in this case, even if they were somehow rulemakings in disguise, [00:25:22] Speaker 01: The Safari Club and the NRA haven't demonstrated prejudice at all. [00:25:29] Speaker 04: Did everybody get notice that everybody had an opportunity to comment? [00:25:33] Speaker 01: Yes, Your Honor. [00:25:34] Speaker 04: That federal register notice was to everyone? [00:25:37] Speaker 01: the Federal Register notice informed the public. [00:25:42] Speaker 03: But it only asked for comments from Zimbabwe. [00:25:44] Speaker 01: That's actually not correct, Your Honor. [00:25:47] Speaker 01: It's not? [00:25:48] Speaker 01: No, the quoted language in Safari Club's brief, they quote one part of the 2014 notice of the interim finding. [00:26:00] Speaker 01: But in another section of that notice, they asked for comment from the government of Zimbabwe and others. [00:26:07] Speaker 03: Where is that in the record? [00:26:13] Speaker 03: Could you show us? [00:26:15] Speaker 03: I know the July thing said they had asked for comments in the record. [00:26:18] Speaker 03: But where is that in the? [00:26:22] Speaker 01: So that's in the Federal Register at volume 79, page 26987. [00:26:29] Speaker 01: Quote is, therefore, the service is actively pursuing additional information from the government of Zimbabwe, as well as other sources, in an effort to make a final determination. [00:26:39] Speaker 02: So the AF is actively pursuing from other sources? [00:26:43] Speaker 02: You think that's an invitation to comment? [00:26:46] Speaker 01: Yes, Your Honor. [00:26:47] Speaker 01: And in this case, we're dealing with sophisticated actors here. [00:26:50] Speaker 01: Safari Club, Conservation Force, various outfitters commented throughout the process. [00:26:56] Speaker 01: The record is replete. [00:26:57] Speaker 04: Well, that's certainly not your test, right? [00:26:59] Speaker 04: Sophisticated? [00:27:01] Speaker 04: I'm serious. [00:27:03] Speaker 04: That can't be the test. [00:27:03] Speaker 01: notes whether they provided notice. [00:27:06] Speaker 04: So whether they sophisticated or not is not the question. [00:27:09] Speaker 04: The question is whether you provided notice to the public, anyone in the public who might have an interest in comment. [00:27:14] Speaker 01: That's right, and they did that in 2014 with the notice of the interim finding and the final finding, and Safari Club did comment. [00:27:23] Speaker 01: And nowhere has Safari Club demonstrated how it would have responded any differently. [00:27:28] Speaker 03: Did the NRA's party, did the NRA comment? [00:27:32] Speaker 01: And not not to my knowledge around the assert in their brief that they didn't. [00:27:35] Speaker 01: That's correct. [00:27:36] Speaker 03: How do you we have a this we have a case from 2002 I'm actually quite surprised it isn't cited here called called sugar growers versus venom and do you know that case. [00:27:50] Speaker 03: The sugar cane growers case? [00:27:52] Speaker 03: Yeah, sugar cane growers. [00:27:52] Speaker 03: Do you know that case? [00:27:54] Speaker 01: Yes, the district court cited the case. [00:27:59] Speaker 03: We held there that the failure to do notice and comment was not harmless, even though [00:28:11] Speaker 03: there had been at least a dozen contacts between the agency and stakeholders, and even though the agency had made changes in response to those comments, and we held it under those circumstances, it still wasn't harmless, that the failure to do notice and comment was an error that required vacating the rule. [00:28:34] Speaker 01: I think two responses to that, Your Honor. [00:28:38] Speaker 01: First is that not only was Safari Club in communication with the agency. [00:28:45] Speaker 03: That was true in Shurikanger, wasn't it? [00:28:47] Speaker 01: Right. [00:28:47] Speaker 01: They were provided notice at least twice through the Federal Register. [00:28:54] Speaker 01: And the second part of the test, even if that first part was satisfied, the second part of the test is that they demonstrate how they would have responded differently, how it would have swayed the agency. [00:29:04] Speaker 01: and they simply haven't done so here. [00:29:06] Speaker 01: Even if this panel were to find that the 14 and 15 findings were rulemakings, I would like to stress, though, that there's no regulation or statute that required the agency here to proceed via rulemaking. [00:29:25] Speaker 01: That choice lies with the agency in the first instance, nor does this bear... Who was on the other side of your perceived adjudication? [00:29:35] Speaker 04: and your honor there was there wasn't a specific party on the other side and adjudication involves parties with respect to [00:29:55] Speaker 04: legal norms and trying to get a determination with respect to certain rights that are being pursued. [00:30:01] Speaker 04: I don't know who the other side is. [00:30:02] Speaker 04: And agencies can't just say, we're announcing something. [00:30:04] Speaker 04: It's an adjudication. [00:30:06] Speaker 01: Well, respectfully, Your Honor, agencies oftentimes make informal decisions that aren't rule-makings without targets. [00:30:14] Speaker 04: No, I totally understand that. [00:30:15] Speaker 04: That just goes to what the requirements are under the APA. [00:30:18] Speaker 04: But I'm talking about an adjudication. [00:30:21] Speaker 04: Well, in this- An adjudication involves contesting parties. [00:30:24] Speaker 01: Well, here, I mean, this was a highly fact-specific determination, and we're dealing with a very specific case. [00:30:30] Speaker 01: And we're dealing with a specific case, the facts on the ground in Zimbabwe in 2014. [00:30:34] Speaker 03: But how can you have, just to pursue what Judge Edwards was asking about, fact-specific yes, intensely fact-specific yes, but who was the party in the adjudication? [00:30:50] Speaker 02: You don't have a party. [00:30:52] Speaker 01: That's correct. [00:30:54] Speaker 02: You're not arguing that Zimbabwe was the other party. [00:30:57] Speaker 01: No. [00:30:59] Speaker 01: To frame this in a slightly different way, in 2014 to 2015 there was no import permit required for trophies from Zimbabwe. [00:31:10] Speaker 01: And the implication of saying that there had to be another party, had to be a party on the other side, would essentially be this court telling the Fish and Wildlife Service that the only option it had was to proceed via a rulemaking in this case. [00:31:23] Speaker 03: That may be the right answer. [00:31:25] Speaker 03: Yeah, why is that shocking? [00:31:27] Speaker 04: You've got it. [00:31:27] Speaker 04: That's exactly right. [00:31:30] Speaker 04: Unless a party came in, for example, and said we want to permit, [00:31:34] Speaker 04: And now you're in an adjudication if the agency says give us your best shot and the agency listens and you're back and forth and then the decision is rendered. [00:31:42] Speaker 04: There's no adjudication here, Counselor. [00:31:46] Speaker 01: Well, if that's the position that the panel takes, then, again, I'd like to stress that Safari Club, neither Safari Club nor the NRA, has demonstrated that they were prejudiced by the failure of the industry. [00:31:59] Speaker 03: In the Sugarcane Growers case, we rejected that argument. [00:32:03] Speaker 01: I believe the facts of that case were somewhat different. [00:32:06] Speaker 03: Of course, facts in all cases are different. [00:32:09] Speaker 03: But the fact is, in that case, there was extensive comment, communications between the agency, [00:32:15] Speaker 03: and stakeholders, and the agency made changes. [00:32:19] Speaker 03: And we still said that was inadequate, even though we rejected the argument that the petitioner had to show that he would have made an argument that he wasn't able to make. [00:32:29] Speaker 01: Respectfully, Judge, I don't believe there was the same level of notice in that case as the case here. [00:32:34] Speaker 01: And further, the appellants haven't demonstrated how they would have responded differently. [00:32:41] Speaker 01: With my remaining time, I'd like to briefly address the arbitrary and capricious challenges to the 2014 and 2015. [00:32:48] Speaker 02: I'll give you a little more time on that. [00:32:50] Speaker 02: But I do have a question about the argument about whether the April findings are moot. [00:32:56] Speaker ?: Right. [00:32:56] Speaker 02: So I must say I'm a little bit confused about this. [00:33:00] Speaker 02: The district court ruled that you were, you government, not you personally, were bound by an earlier agreement that there would be notice before anything went forward. [00:33:12] Speaker 02: And the court ruled that the April [00:33:15] Speaker 02: Ruling was in violation of that, and the result was, and I'm just quoting, is that imports of trophies from elephants from April 4th to May 11th may proceed. [00:33:26] Speaker 02: And then at the end, the court says the court will order the effective date of the April finding is May 12th. [00:33:35] Speaker 02: But I take it the government is arguing that a later finding, maybe in July, I guess, [00:33:43] Speaker 02: somehow goes retroactively, goes back to April. [00:33:48] Speaker 02: Is that right? [00:33:49] Speaker 02: Goes back, I'm sorry, goes back to April 4th. [00:33:52] Speaker 01: Well, the intent was to go back to April 4th, but with the court imposed May 12th date, it would go back to May 12th. [00:33:58] Speaker 02: Ah, oh, this was a part I didn't understand. [00:34:01] Speaker 02: So the government agrees that any trophies that were taken before May 12th [00:34:09] Speaker 02: can be imported? [00:34:11] Speaker 02: Correct. [00:34:11] Speaker 02: I see. [00:34:12] Speaker 02: Okay, so that's why you're saying it's moved. [00:34:14] Speaker 01: That's right, Your Honor. [00:34:15] Speaker 02: I see. [00:34:15] Speaker 02: So why do we have to discuss the April announcements at all if they are basically without effect? [00:34:24] Speaker 01: Well, the government's position is that we don't need to be discussing them. [00:34:28] Speaker 02: At all. [00:34:28] Speaker 02: I see. [00:34:28] Speaker 02: Okay. [00:34:28] Speaker 02: All right. [00:34:29] Speaker 02: Thank you. [00:34:30] Speaker 02: Now go ahead and talk about the arbitrary purchases. [00:34:32] Speaker 02: I cut you off. [00:34:34] Speaker 01: Okay. [00:34:34] Speaker 02: I'll give you another couple minutes. [00:34:35] Speaker 02: Go ahead. [00:34:36] Speaker 01: Thank you, Your Honor. [00:34:37] Speaker 01: I just briefly wanted to state that all of the examples of areas where some of the information provided in those April findings turned out to be incorrect, like the Hoangay poisoning incident, all of these incidences were corrected in the final 2014 finding, as well as the 2015 finding. [00:35:03] Speaker 01: And so it's hard to see how Safari Club would be able to demonstrate prejudicial error from any of those small errors at the margins. [00:35:18] Speaker 01: But I think the bigger point here with the final 2014 finding and the 2015 finding is that [00:35:26] Speaker 01: It's not enough. [00:35:27] Speaker 01: What the service was telling the government of Zimbabwe was that it wasn't enough that someone came to Zimbabwe and paid for a hunt. [00:35:36] Speaker 01: The government of Zimbabwe had to help it connect the dots to find that killing that animal actually supported species survival. [00:35:45] Speaker 01: And it wasn't able to connect those dots when there was no management plan in place that had been updated since the year 2000 with any sort of measurable objectives. [00:35:55] Speaker 01: And it appeared to the service that the 100,000 elephant figure that Zimbabwe relied on year in and year out was outdated based on information coming in from the IUCN report, as well as at CITES conference meetings in 2012 and 2013, which were indicating that there was a poaching crisis in Zimbabwe. [00:36:19] Speaker 01: and the country was relying on outdated population data. [00:36:24] Speaker 01: So the driving force of those 2014 and 2015 decisions weren't one poisoning incident in Hoanga National Park or whether the service could have been slightly more clear in the April finding when it was quoting the 43,000 number, which it corrected. [00:36:44] Speaker 01: in the July finding and the 2015 finding, it was really the lack of any serious management plan. [00:36:52] Speaker 02: Opposing Council raised an aerial survey that was conducted in 2015. [00:36:57] Speaker 02: What's your answer to that? [00:36:58] Speaker 01: Well, so two points to that, Your Honor. [00:37:01] Speaker 01: The first is that when those numbers came out, they came out before the 2015 finding, but the survey announced first that they were provisional figures, that they weren't final numbers. [00:37:15] Speaker 01: And second, the service responded to that in the 2014 and 2015 findings actually anticipating the survey coming out. [00:37:21] Speaker 01: and asking that the government of Zimbabwe incorporate those numbers into how it determined how many sport hunting permits it was going to offer in a given year. [00:37:34] Speaker 01: And in fact, the government of Zimbabwe has been doing that. [00:37:37] Speaker 01: They've been continuing to work with the Fish and Wildlife Service, and there's a new management plan that is responding to that new information that has come out. [00:37:50] Speaker 02: Thank you. [00:37:54] Speaker 02: All right. [00:37:55] Speaker 02: I think Mr. Burton was out of time. [00:37:59] Speaker 02: On the other hand, I ran him over, so I'll run you over. [00:38:02] Speaker 02: Come on up. [00:38:04] Speaker 02: And run over is the wrong phrase. [00:38:07] Speaker 02: I agree. [00:38:07] Speaker 02: I agree. [00:38:08] Speaker 05: Thank you, Your Honor. [00:38:09] Speaker 05: I'll be very brief. [00:38:10] Speaker 05: Just by rulemaking, I don't want to belabor it. [00:38:14] Speaker 05: The April finding was a complete surprise to everyone. [00:38:17] Speaker 05: There was no notice, absolutely no notice. [00:38:19] Speaker 02: What about their point that it's moot because nothing, in light of the district court's order, which they didn't appeal, that nothing starts until May? [00:38:31] Speaker 05: Well, the April 4 finding still applies to elephants harvested from May 12th to July 31st. [00:38:38] Speaker 05: So it is still relevant for elephants harvested then. [00:38:43] Speaker 05: What they're arguing is that the April finding is moot because they said it is. [00:38:49] Speaker 05: Because they said that the July one goes back in time. [00:38:53] Speaker 05: Obviously, if it's a rule, it can't go back in time. [00:38:57] Speaker 02: Well, I have a different question about the mootness. [00:38:59] Speaker 02: It doesn't have any effect, the April finding, because there wasn't any notice. [00:39:04] Speaker 02: So it doesn't start until the May 12th notice. [00:39:07] Speaker 02: Does the May 12th notice correct the problems that are in the April notice? [00:39:12] Speaker 05: It published the finding in the Federal Register, which the district court ruled was necessary before it went into effect. [00:39:22] Speaker 05: So up till May 12th, the 97 positive finding applies, and that's why they're allowing imports. [00:39:29] Speaker 05: But there's nothing in the April finding or the record that ever said, this is a interim finding that we're going to retroactively replace later in time. [00:39:39] Speaker 04: It said it's a later finding. [00:39:41] Speaker 04: Initiate notice and comment. [00:39:45] Speaker 05: The July finding. [00:39:47] Speaker 04: Either the May or July. [00:39:48] Speaker 04: Did any of them? [00:39:49] Speaker 05: Any of them? [00:39:51] Speaker 05: No. [00:39:51] Speaker 05: All they did was say, here's our decision. [00:39:53] Speaker 05: Here's what we looked at. [00:39:55] Speaker 05: We're pursuing other information. [00:39:58] Speaker 05: That's all they did. [00:40:03] Speaker 05: Regarding the, real quick on the survey that came out in 2015, because they said it was provisional data, it does not mean it wasn't reliable or something they should have factored into their analysis. [00:40:18] Speaker 05: And the reason Zimbabwe didn't change their quota in response to it was because that was in the neighborhood of where Zimbabwe always thought their population was. [00:40:28] Speaker 05: And they had based their 500 elephant quota on what they thought figures that turned out to be relatively accurate when the elephant survey came out. [00:40:39] Speaker 04: Let me ask you, if we assume that they can't prevail on harmless error and that rulemaking was required, [00:40:48] Speaker 04: What relief could you get pursuant to a rulemaking if the court were to order it? [00:40:56] Speaker 04: What's left to be given as a redress? [00:40:59] Speaker 05: Well, if you set aside the three findings because of lack of notice of comment rulemaking, the 1997 positive enhancement finding would go back into effect. [00:41:09] Speaker 04: No, no. [00:41:10] Speaker 04: I know where you want to go with that, okay? [00:41:13] Speaker 04: So let's not go there. [00:41:14] Speaker 04: Okay. [00:41:14] Speaker 04: What are we talking about in terms of redress for whatever harms you think you suffered for want of notice and comment rulemaking in this case? [00:41:24] Speaker 05: Well, the service would initiate a new rulemaking if it chose to do so to determine whether. [00:41:30] Speaker 04: And what is it that you could say might get as a consequence? [00:41:35] Speaker 04: Is there anything, are there any imports left to be had? [00:41:38] Speaker 04: Yes. [00:41:39] Speaker 05: OK. [00:41:39] Speaker 05: Yes. [00:41:40] Speaker 05: We want a positive enhancement finding which would apply to imports to the present day. [00:41:47] Speaker 04: What about for 2014? [00:41:49] Speaker 04: I'm talking about 2014. [00:41:50] Speaker 04: Are there imports left? [00:41:52] Speaker 05: Yes. [00:41:54] Speaker 05: I think the declarant that we cited too is cheek. [00:41:59] Speaker 05: It's in the joint appendix. [00:42:04] Speaker 05: There were hunts in those time periods, yes. [00:42:07] Speaker 02: Can I ask you, the finding here, which we're debating about whether it required notice and comment, are there similar findings about other kinds of animals in other parts of the world? [00:42:19] Speaker 05: Yes. [00:42:19] Speaker 05: I mean, I know there are findings on elephants that are still in place. [00:42:25] Speaker 05: I'm less sure about other species. [00:42:29] Speaker 02: So if we were to say that this is not an adjudication as the district court held, we would be putting in question the validity of many other findings, not just this one. [00:42:41] Speaker 02: Is that right? [00:42:42] Speaker 05: I guess findings that could still be challenged. [00:42:46] Speaker 05: In 1997, our Zimbabwe elephant finding was beyond the statute of limitations. [00:42:52] Speaker 05: Presumably, it couldn't be challenged. [00:42:54] Speaker 05: Other enhancement findings, they tend to be long term. [00:43:00] Speaker 05: So theoretically, yes, but I'm not sure of the impact. [00:43:04] Speaker 04: Well, it would depend upon whether or not, because in the last case that we had, one of the last cases that we had, the suggestion was made that individuals or organizations [00:43:12] Speaker 04: could pursue or must exhaust the request before the agency and get a determination. [00:43:18] Speaker 04: That's an adjudication. [00:43:19] Speaker 04: So I don't know that every prior case would be affected by a decision here that this was an attempt at adjudication which was really a rulemaking. [00:43:29] Speaker 04: I'm confused about what the agency means to say in that score because the last time I heard a case like that it seemed to suggest [00:43:36] Speaker 04: individuals and organizations could come in and contest and they would get an adjudication and that would be the disposition. [00:43:47] Speaker 02: Okay, thank you. [00:43:48] Speaker 02: I would like to hear from the government just on this one fact point. [00:43:54] Speaker 02: What would be the, were the court to rule that this is not an adjudication and it required notice and comment, what other kinds of findings are there out there in other [00:44:03] Speaker 02: with respect to other animals and other places. [00:44:06] Speaker 02: There was a reference to the statute of limitations. [00:44:09] Speaker 02: What is the statute of limitations? [00:44:11] Speaker 01: So there are a number of other findings with respect to other animals. [00:44:18] Speaker 01: For example, just in 17.40, the Vicuña has a similar requirement that the agency find that the program in the country is supporting species survival. [00:44:30] Speaker 01: It's not clear that it would have an effect. [00:44:32] Speaker 03: Is a license required in that situation? [00:44:35] Speaker 03: In other words, could that have been an adjudication? [00:44:38] Speaker 01: I'm not sure what the answer is to that question, Your Honor, but here there has been, in mid-2016, the Fish and Wildlife Service promulgated a rule that does require [00:44:54] Speaker 01: import permits for all elephant trophies. [00:44:58] Speaker 01: It wasn't in existence when this litigation began. [00:45:02] Speaker 01: And to your point, Judge Edwards, the prior case you heard that emanated from the same complaint [00:45:09] Speaker 01: It was with the Tanzania elephant population and there was an import permit required for that population because it was on CITES Appendix 1. [00:45:17] Speaker 01: At that time, an import permit wasn't required for the Zimbabwe population because it was on Appendix 2. [00:45:23] Speaker 01: But as of 2016, import permits are now required under the ESA regs for all elephant trophies. [00:45:32] Speaker 01: And in fact, there are declarants – some of the declarants in this case are currently running that administrative process seeking permits for the 2015 elephant trophies that they have presumably outside of the United States, somewhere that they're trying to bring in. [00:45:51] Speaker 02: Okay. [00:45:51] Speaker 02: All right. [00:45:51] Speaker 02: Thank you very much. [00:45:52] Speaker 02: We'll take the matter under submission.