In the Supreme Court of the United States

NO. 16-_____

FRIENDS OF ANIMALS, Petitioner, –v–

SALLY JEWELL, in Her Official Capacity as the Secretary of the Interior, and the U.S FISH AND WILDLIFE SERVICE, an Agency of the United States, Respondents, and

SAFARI CLUB INTERNATIONAL, Intervenor-Respondent.

On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL RAY HARRIS COUNSEL FOR PETITIONER FRIENDS OF ANIMALS 7500 E. ARAPAHOE RD., SUITE 385 CENTENNIAL, CO 80112 (720) 949-7791 [email protected]

SEPTEMBER 1, 2016 SUPREME COURT PRESS ♦ (888) 958-5705 ♦ BOSTON, MASSACHUSETTS i

QUESTION PRESENTED Last term the Court considered the extent to which Congress is constitutionally permitted to involve itself in pending litigation before an Article III court. Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016). Under the Constitution’s separation of powers doctrine, Congress cannot direct judgment for one party in a pending case. It is, however, the view of a majority of the Court that Congress may change the law applicable to a particular case, even where the change weighs heavily for one side. In Bank Markazi, the Court examined only one aspect of this constitutional issue: Congress’ authority to alter the outcome of pending litigation by enacting new legislation or amending an existing statute. This Court has never considered Congress’ authority to involve itself in litigation by directing other branches of government to disregard a longstanding statutory provision. This situation can arise where Congress— through a legislative rider—directs an executive agency to reissue a rule previously vacated by a court on the grounds that the rule was outside the agency’s statutory delegation of rulemaking authority. Thus, the question before the Court is: Whether Title I, Section 127 of the Consolidated Appropriations Act, 2014, that directs the Secretary of the Interior to reissue a final rule vacated by a U.S. district court, violates the United States Consti- tution where its immediate effect is to moot a pending case before an Article III court without altering the statutory legal standards applicable to the case?

RULE 29.6 STATEMENT Petitioner, Friends of Animals, is a 501(c)(3) not- for-profit animal advocacy organization incorporated in the state of New York since 1957. Friends of Animals has no parent, subsidiary or affiliate. Friends of Animals has never issued shares or debt securities to the public, and no public company owns more than ten percent of Friends of Animals.

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TABLE OF CONTENTS Page

QUESTION PRESENTED ...... i RULE 29.6 STATEMENT ...... ii TABLE OF AUTHORITIES ...... v OPINIONS BELOW ...... 1 JURISDICTION ...... 1 CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED ...... 2 STATEMENT ...... 3 A. Factual Background ...... 4 1. The ESA Places a High Priority on Non-Native Species ...... 4 2. The Purpose of Section 10 Permits Under the ESA ...... 6 3. The Three Antelope Species ...... 7 4. Regulation of the Three Antelope Species in the United States ...... 8 5. The Special Interest Antelope Rider ...... 13 6. FWS’ Republishing of The 2005 Captive Bred Rule ...... 14 B. Proceedings Below ...... 14 REASONS FOR GRANTING THE PETITION ...... 16

I. THE DECISION BELOW IS IN CONFLICT WITH MORE THAN A CENTURY OF SUPREME COURT JURISPRUDENCE REGARDING THE SEPARATION OF POWERS DOCTRINE ...... 16

TABLE OF CONTENTS – Continued Page

a. Relevant Supreme Court Precedent ...... 16 b. Section 127 Conflicts with Court Precedent in Three Specific Ways ...... 20

II. THE DECISION BELOW INVOLVES AN IMPORTANT APPLICATION OF THE SEPARATION OF POWERS DOCTRINE THAT SHOULD BE SETTLED BY THIS COURT ...... 23 CONCLUSION ...... 28

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Appeals for the District of Columbia Circuit (June 3, 2016) ...... 1a Concurring Opinion of Justice Sentelle (June 3, 2016) ...... 25a Memorandum Opinion of the District Court (March 4, 2015) ...... 26a Supplemental Authority Letter (May 24, 2016) ...... 54a Complaint for Injunctive and Declaratory Relief, 1:13-cv-01580 (D.D.C.) (October 16, 2013) ...... 57a Docket Details, 1:13-cv-01580 (D.D.C.) (October 16, 2013) ...... 99a

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES Page CASES Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012) ...... 26, 27 Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016) ...... i, 20, 22, 23 Cayman Turtle Farm, Ltd. v. Andrus, 478 F.Supp. 125 (D.D.C. 1979) ...... 6 Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157 (9th Cir. 2007) ...... 24, 25 Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) ...... 25 Estate of Charlot v. Bushmaster Firearms, Inc., 628 F.Supp.2d 174 (D.D.C. 2009) ...... 20 Exotic Wildlife Association, et al. v. United States Department of the Interior, et al., Case No. 12-cv-00340 (D.D.C.) ...... 8, 9, 12 Friends of Animals v. Ashe, 1:13-cv-01580 (D.D.C. 2013) ...... passim Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D.D.C. 2009) ...... passim Grey v. First Winthrop Corp., 989 F.2d 1564 (9th Cir. 1993) ...... 20 Miller v. French, 530 U.S. 327 (2000) ...... 20 Mistretta v. United States, 488 U.S. 361 (1989) ...... 27

TABLE OF AUTHORITIES—Continued Page Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996) ...... 24, 25 Plaut v. Spendthrift Farms, 514 U.S. 211 (1994) ...... 18 Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) ...... 18, 19, 20, 27 Safari Club Int’l v. Jewell, 960 F.Supp.2d 17 (D.D.C. 2013) ...... 8, 12 Safari Club Int’l v. Jewell, No. 13-5300, Dkt. #1553996 (D.C. May 26, 2015) ...... 9, 12 Safari Club International v. Salazar, 11-cv-01564 (D.D.C. 2011) ...... 4, 8, 9, 12 Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995) ...... 25 State of Pennsylvania v. The Wheeling and Belmont Bridge Company, 59 U.S. 421 (1855) ...... 16, 17, 18 Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) ...... 24, 25 TVA v. Hill, 437 U.S. 153 (1978) ...... 26 United States v. Klein, 80 U.S. 128 (1871) ...... 17, 18, 19, 27

CONSTITUTIONAL PROVISIONS U.S. Const. art. III ...... i, 15, 16, 28

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TABLE OF AUTHORITIES—Continued Page U.S. Const. art. III, § 1 ...... 2 U.S. Const. art. III, § 2, cl. 1 ...... 1, 2

STATUTES 16 U.S.C. § 703 ...... 19 16 U.S.C. § 1531 ...... 4 16 U.S.C. § 1532(19) ...... 6 16 U.S.C. § 1538 ...... 6 16 U.S.C. § 1539 ...... 6, 7 26 U.S.C. § 501(c)(3) ...... ii 28 U.S.C. § 1254(1) ...... 1 28 U.S.C. § 1291 ...... 1 28 U.S.C. § 1331 ...... 1 Consolidated Appropriations Act, 2014, 128 Stat. 5, § 127 (2014) ...... passim Department of Transportation Act § 4(f) ...... 24 Endangered Species Act § 10 ...... passim Endangered Species Act § 2 ...... 6, 7 Endangered Species Act § 4 ...... 21 Endangered Species Act § 9 ...... 6, 21 Endangered Species Conservation Act [P.L. 91-135] ...... 5 Endangered Species Preservation Act [P.L. 89-669] ...... 5

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TABLE OF AUTHORITIES—Continued Page JUDICIAL RULES Fed. R. Civ. P. 24(a) ...... 15 Sup. Ct. R. 29.6 ...... ii

REGULATIONS 50 C.F.R. § 10.12 ...... 6 50 C.F.R. § 13.21(b) ...... 7 50 C.F.R. § 17.21 ...... 3, 9, 14 70 Fed. Reg. 52310 et seq...... 2, 7, 9, 14 70 Fed. Reg. 52319 ...... 7, 8 70 Fed. Reg. 71554 ...... 7 78 Fed. Reg. 33790 ...... 8, 11 78 Fed. Reg. 33791 ...... 8 78 Fed. Reg. 33793 ...... 6 78 Fed. Reg. 35201 ...... 6, 11 79 Fed. Reg. 15250 ...... 3, 14

OTHER AUTHORITIES “Status of Appropriations Legislation for Fiscal Year 2014,” Library of Congress, available at http://thomas.loc.gov/home/ approp/app14.html (last visited Aug. 29, 2016) ...... 13

TABLE OF AUTHORITIES—Continued Page Congressman John Carter, Carter Fights to Block Potential Mass Killing of Endangered African Antelope (2012), available at http://carter.house. gov/press-releases/carter-fights-to-block- potential-mass-killing-of-endangered- african-antelope/ (last visited August 29, 2016) ...... 22 FWS, Foreign Species Fact Sheet (April 2011), available at http://www.fws.gov/ endangered/esa-library/pdf/foreign_ species.pdf (last visited August 29, 2016) ...... 5 H.R. Rep. No. 93-412 (1973) ...... 6 United States Department of the Interior, FWS, Application Guidelines for Conducting Interstate Commerce and Culling for the Three Antelope, available at http://www.fws.gov/ international/pdf/factsheet-application- guidelines-for-interstate-commerce-and- culling-for-three-antelope.pdf (last visited August 29, 2016) ...... 11 Wasson, Erik, “$1T Omnibus Spending Bill Unveiled,” The Hill (Jan. 13, 2014), available at http://thehill.com/policy/ finance/195318-lawmakers-unveil-1t- omnibus-spending-bill (last visited Aug. 29, 2016) ...... 13

OPINIONS BELOW The opinion of the U.S. Court of Appeals for the District of Columbia Circuit, Friends of Animals v. Jewell et al., is reported at 824 F.3d 1033 and included below at Appendix 1a. The opinion of the U.S. District Court for the District of Columbia, Friends of Animals v. Jewell et al., is published at 82 F.Supp.3d 265 and included below in Appendix 26a.

JURISDICTION The District Court for the District of Columbia had jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and article III, section 2 of the United States Constitution. The United States Court of Appeals for the District of Columbia Circuit had jurisdiction over this action under 28 U.S.C. § 1291 because Friends of Animals timely appealed the final order and judgment of the district court. The United States Court of Appeals for the Dis- trict of Columbia Circuit issued an opinion deciding the appeal on June 3, 2016. Judgment was filed by the Court of Appeals on the same day. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED  U.S. Const. art. III, § 1 Section 1 of article III of the Constitution provides in pertinent part: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferi- or courts as the Congress may from time to time ordain and establish.  U.S. Const. art. III, § 2, cl. 1 Section 2 of article III of the Constitution provides in pertinent part: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;— to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party . . . .  Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5, § 127 (2014), which reads: Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of

statute or regulation that applies to issuance of such rule.  50 C.F.R. § 17.21 Codifying the “Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions” as published as a final rule at 79 Fed. Reg. 15250 (March 19, 2014).

STATEMENT This case involves Section 127 of the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5, § 127 (2014) (“Section 127” or “Rider”), which directs the Secretary of the Interior (through the U.S. Fish and Wildlife Service (FWS)) to reissue a 2005 regulation that exempts the U.S. captive-bred populations of endangered scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama) (collectively, the “Three Antelope Species”) from regulation under the Endangered Species Act (ESA). Section 127 was offered as an amendment in the U.S. House of Representatives in response to a series of district court cases dating back to 2006 pertaining to the legal status of the Three Antelope Species. The first of these cases, Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D.D.C. 2009), was resolved in 2009 by former Judge Henry H. Kennedy, who struck down the 2005 regulation as contrary to the permitting process set forth by Congress in Section 10 of the ESA.

In that case, the district court interpreted Section 10 to require private, for-profit hunting ranches that breed and raise the Three Antelope Species in captivity for the purpose of trophy hunting to apply for and obtain individual permits from FWS. Judge Henry Ken- nedy’s interpretation of Section 10 in Friends of Animals v. Salazar is at the center of two other ongoing civil cases concerning the legal status of the captive populations of these species. In Safari Club International v. Salazar, 11-cv-01564 (D.D.C. 2011), which is now on appeal in the United States Court of Appeals for the District of Columbia Circuit, the sport-hunting industry seeks to end-run Judge Henry Kennedy’s interpretation of the ESA by challenging FWS’ 2005 decision to include U.S. captive bred populations of the Three Antelope Species on the endangered species list. In Friends of Animals v. Ashe, 1:13-cv-01580 (D.D.C. 2013), which is currently pending in the United States District Court for the District of Columbia, Friends of Animals challenges several Section 10 permits that FWS issued to hunting ranches that arguably fail to meet the ESA’s conservation requirements. The Rider seeks to reverse Judge Henry Kennedy’s legal interpretation and, thus, dictate to the courts an outcome (mootness) in both pending cases.

A. Factual Background

1. The ESA Places a High Priority on Non- Native Species In passing the ESA, Congress created a national priority to protect species and the ecosystems in which they reside. See generally 16 U.S.C. § 1531. This

5 priority extends to both native and non-native species. According to FWS: Interest in conserving species in danger of extinction got national attention in 1966 when Congress passed the Endangered Species Preservation Act [P.L. 89-669]. Globally, the issue generated action in 1969, when Con- gress passed the Endangered Species Conser- vation Act [P.L. 91-135], which recognized that fish and wildlife and plants know no jurisdictional boundaries and that conservation is a global issue. In an international approach, the Act called for a meeting of countries to plan a strategy to prevent extinctions—an event that took place in 1973, when 80 nations gathered in Washington, D.C., demonstrating the scope of the concern. Months later, on December 28, 1973, President Nixon signed into law the Endangered Species Act of 1973. FWS, Foreign Species Fact Sheet (April 2011), available at http://www.fws.gov/endangered/esa-library/pdf/ foreign _species.pdf (last visited August 29, 2016). Today, approximately one-third of all species listed under the ESA are non-native to the United States. See id. As with the Three Antelope Species at issue here, FWS has found that it is necessary to protect both captive and wild populations of endangered animals to fully protect non-native species from extinction in their home ranges. Specifically, FWS has found that the ESA does not allow for captive animals to be assigned separate legal status from their wild counterparts. 78 Fed. Reg. 35201 (June 12,

2013); see also 78 Fed. Reg. 33793 (June 5, 2013) (Separate legal status is inconsistent with Section 2(b) of the ESA and could “increase trade in ‘laundered’ wild caught specimens to feed U.S. or foreign market demand . . . .”).

2. The Purpose of Section 10 Permits Under the ESA The fundamental method by which the ESA protects endangered species is its aggressive “take” prohibition. 16 U.S.C. § 1538. Defined broadly, the term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Section 9 also makes it illegal for any person to “import,” “export,” or “possess, sell, deliver, carry, transport or ship in interstate or foreign commerce . . . in the course of a commercial activity” an endangered species. Id. § 1538(a)(1). Section 9 protections apply equally to captive and wild endangered animals. 50 C.F.R. § 10.12; H.R. Rep. No. 93- 412, at 10 (1973); Cayman Turtle Farm, Ltd. v. Andrus, 478 F. Supp. 125, 129-30 (D.D.C. 1979). Section 10 of the ESA provides FWS with some flexibility to grant limited exceptions to Section 9’s prohibitions. 16 U.S.C. § 1539. Congress recognized that it might be necessary to take actions that would otherwise violate Section 9 in order to aid in the recovery of species. Accordingly, Section 10(a)(1)(A) allows FWS to permit “any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species.” Id. § 1539(a)(1)(A). FWS uses Section 10(a)(1)(A) to authorize captive breeding and reintroduction pro-

7 grams. For example, FWS has a permit allowing it to handle endangered Mexican wolves as part of an effort to reintroduce the species in the southwestern United States. 70 Fed. Reg. 71554 (Nov. 29, 2005). Similarly, the National Marine Fisheries Service, FWS’ coun- terpart for marine species, issues permits for hatch- ery operations involving endangered salmon. 68 Fed. Reg. 1826 (Jan. 14, 2003). Under 50 C.F.R. § 13.21(b) (2011), an agency need not issue a permit if “[t]he applicant has failed to demonstrate a valid justification for the permit” or if “[t]he authorization requested potentially threatens a wildlife or plant population.” FWS is required to publish in the Federal Register notice of each application for a permit and invite interested parties to submit comments. 16 U.S.C. § 1539(c). FWS may grant a permit under Section 10 of the ESA only if the agency makes a finding that: (1) the permit was applied for in good faith; (2) if granted and exercised the permit will not operate to the disadvantage of such endangered species; and (3) that issuance of the permit will be consistent with the purposes and policy set forth in Section 2 of the ESA. Id. at § 1539(d).

3. The Three Antelope Species The scimitar-horned oryx, dama gazelle, and addax are all native to the Sahelo-Saharan regions of northern Africa. 70 Fed. Reg. 52310, 52319 (Sept. 2, 2015). All three antelope species are in danger of extinction throughout their ranges. Id. Although previously widespread in northern Africa, wild numbers of the Three Antelope Species have declined drastically over the past fifty years as a result of habitat loss, poaching, civil wars, and the inadequacy of existing regulatory

8 mechanisms. Id. at 52321-22. Estimated numbers of individuals in the wild are extremely low. Id. The scimitar-horned oryx, which once had an extensive range in North Africa, is believed to be extirpated in the wild. 78 Fed. Reg. 33791. The addax once existed throughout the deserts and sub-deserts of northern Africa, from the Atlantic Ocean to the Nile River. 70 Fed. Reg. at 52319. Remnant populations of the addax may still exist in remote desert areas, but probably fewer than 300 occur in the wild. 78 Fed. Reg. 33790, 33791 (June 5, 2013). The number of dama gazelle in the wild is expected to be less than 500. Id.

4. Regulation of the Three Antelope Species in the United States The history of FWS’ regulation of both U.S.- captive and overseas native scimitar-horned oryx, addax, and dama gazelle is set forth in Safari Club Int’l v. Jewell, 960 F.Supp.2d 17 (D.D.C. 2013). By Friends of Animals’ count, this is the fifth civil action brought against FWS challenging the regulation (or failure to regulate) some aspect of these endangered species: Friends of Animals v. Salazar, 626 F.Supp.2d 102 (D.D.C. 2009) (Antelope I ); Exotic Wildlife Associa- tion, et al. v. United States Department of the Interior, et al., Case No. 12-cv-00340 (D.D.C.) (Antelope II );1 Safari Club International v. Salazar, et al., Case No. 11-cv-01564 (D.D.C.) (Antelope III ); Friends of Animals v. Ashe et al., 1:13-cv-1580 (D.D.C.) (Antelope IV ); and the case at bar (Antelope V ). Two

1 Antelope II and Antelope III were consolidated in the District Court. See Memorandum Opinion and Order, 11-cv-01564 (ECF 30, March 16, 2012).

9 of these actions—Antelope I and II were resolved by the district court. Antelope III is currently on appeal in the United States Court of Appeals for the District of Columbia Circuit and is being held in abeyance pending the outcome of this action. Order Continuing Abeyance, Safari Club Int’l v. Jewell, No. 13-5300, Dkt. #1553996 (D.C. May 26, 2015). Antelope IV is currently pending before the district court and is also stayed pending resolution of this action. Order Continuing Stay, Friends of Animals v. Ashe, No. 13-CV-01580 (D.D.C. July 7, 2016). The root of all of these cases was the listing of the Three Antelope Species under the ESA on September 2, 2005, and the issuance of a “Captive Bred” rule that very same day. 70 Fed. Reg. 52310. Under the Captive Bred rule, any person can: Take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce live wildlife . . . and sport- hunted trophies of scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama). 50 C.F.R § 17.21(h). To qualify under the Captive Bred rule, the activity must have been associated with “the management or transfer of live wildlife . . . or sport hunting in a manner that contributes to increasing or sustaining captive numbers or to potential reintroduction to range countries.” Id. The regulation required that a person claiming the benefit of the exception must maintain accurate written records of activities, including births, deaths, and transfers of specimens,

10 and make those records accessible to FWS officials for inspection. Id. The Captive Bred rule was challenged by Friends of Animals in Antelope I, and on June 22, 2009, former District Court Judge Henry H. Kennedy found the rule violated Section 10(c) of the ESA. Judge Kennedy held: By assertedly complying with subsection 10(c) through publishing a proposed rule, accepting comment on that proposed rule, and providing information received in that process as opposed to through responding to an individual application, FWS abstracts the question of whether the exception will enhance the propagation or survival of the species from the specific to the general. In this way, FWS avoids providing the information that would necessarily accompany an [individual] application, such as “a complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained,” and “[a] full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit.” This hinders the ability of individuals and groups to participate in the meaningful way contemplated by the ESA because, without this information, it is impossible to evaluate whether each permitted act will enhance the propagation or survival of the species.

Friends of Animals v. Salazar, 626 F.Supp.2d 102, 118 (D.D.C. 2009) (emphasis added). Although it took nearly three years, in January 2012, FWS rescinded the Captive Bred rule. 77 Fed. Reg. 431 (Jan. 5, 2012). In its place, FWS adopted a “fast track” approach to processing Section 10 applications from hunting ranches through the issuance of special guidelines applicable to these specific ranchers. See United States Department of the Interior, FWS, Application Guidelines for Conducting Interstate Commerce and Culling for the Three Antelope, available at http://www.fws.gov/international/pdf/factsheet- application-guidelines-for-interstate-commerce-and- culling-for-three-antelope.pdf (last visited August 29, 2016). Under this new approach, FWS has issued well over one hundred Section 10(a)(1) permits to hunting ranches in the United States that offer up one or more of the Three Antelope Species as sport hunting trophies to hunters willing to pay thousands of dollars for them. Shortly after rescinding the Captive Bred rule, pro-hunting organizations petitioned FWS to remove U.S. captive populations of the Three Antelope Species from the federal list of endangered and threatened wildlife under the ESA. 78 Fed. Reg. 35201. FWS found that the petitions did not warrant delisting the captive- bred populations because treating captive populations differently would be inconsistent with the purpose of the ESA and could cause an increase in take and trade in laundered wild-caught animals. 78 Fed. Reg. 33790 (June 5, 2013). Pro-hunting organizations also filed suits—Antelope II and Antelope III—against FWS attempting to prevent regulation of the Three Antelope

Species on ranches in the United States. The Safari Club International (“SCI”), a group that promotes sport hunting, specifically states in its Antelope III complaint: This suit challenges the Federal Defendants’ violations of the Endangered Species Act and the Administrative Procedures [sic] Act in their: (1) decision to include U.S. captive populations of the scimitar-horned oryx, dama gazelle and addex [sic] in the endangered species listing of the three antelope species on September 2, 2005; and (2) failure to correct that endangered species listing by removing the U.S. captive herds of the three species from endangered species status after the 2009 ruling by Judge Ken- nedy of the U.S. District Court for the Dis- trict of Columbia, which found illegal federal regulations exempting those captive populations from ESA protections. Complaint, 11-cv-01564 (ECF 1, D.D.C. Aug. 31, 2011) at ¶ 1 (emphasis added); see also id. at ¶ 9. On August 9, 2013, however, the district court upheld FWS’ decision to include protections for captive and wild populations. Safari Club Int’l v. Jewell, 960 F.Supp.2d 17 (D.D.C. 2013). But SCI persists, and the lower court’s decision is now on appeal to the United States Court of Appeals for the District of Columbia Circuit. Order Continuing Abeyance, Safari Club Int’l v. Jewell, No. 13-5300, Dkt. #1553996 (D.C. Cir. May 26, 2015). Finally, on October 13, 2013, Friends of Animals brought suit challenging FWS’ continued failure to

13 comply with Section 10 when it comes to regulating captive members of the Three Antelope Species. Complaint, Friends of Animals v. Ashe, No. 13-cv-01580 (ECF 1, D.D.C. Oct. 16, 2013). (See App.57a) In Ante- lope IV, Friends of Animals argues that FWS has failed to comply with Judge Henry Kennedy’s interpretation of the ESA by issuing permits that do not qualify for issuance under Section 10, and as a result, continues to deny the public a meaningful opportunity to participate in the permitting process. Id. at ¶¶ 4, 106, 187.

5. The Special Interest Antelope Rider Congress hastily drafted and enacted the 2014 omnibus spending bill in January 2014 as a temporary funding measure to keep the federal government operating for six months after Congress failed to pass any of the twelve regular budget proposals before the start of the 2014 fiscal year. See “Status of Appropri- ations Legislation for Fiscal Year 2014,” Library of Congress, available at http://thomas.loc.gov/home/ approp/app14.html (last visited Aug. 29, 2016). The bill was 1,500 pages long and covered the entire federal government. Wasson, Erik, “$1T Omnibus Spending Bill Unveiled,” The Hill (Jan. 13, 2014), available at http://thehill.com/policy/finance/195318-lawmakers- unveil-1t-omnibus-spending-bill (last visited Aug. 29, 2016). Among many of its provisions was a single sentence, Section 127, inserted into the bill by Representa- tive John Carter (R-TX) that directs the Secretary of the Interior to republish the 2005 Captive Bred rule within sixty days of enactment. Section 127 is titled the “Antelope Rule” and reads: “Before the end of the

60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule.” Section 127 does not alter any statutory provision in the ESA. Indeed, Section 127 does not contain any substantive criteria for FWS to apply in issuing a Section 10 exemption for the take of the Three Antelope Species. President Obama signed the omnibus budget into law on January 18, 2014, the day after Congress passed it.

6. FWS’ Republishing of The 2005 Captive Bred Rule On March 19, 2014, FWS issued the final rule: Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions. 79 Fed. Reg. 15250; 50 C.F.R. § 17.21. In reissuing the rule, FWS did not comply with any of the statutory, executive, or internal agency requirements applicable to administrative rulemaking. In reissuing the rule, FWS also failed to provide new substantive findings and justifications for the rule.

B. Proceedings Below Friends of Animals filed this suit in the U.S. District Court for the District of Columbia on March 5, 2014, against the Secretary of the Interior to challenge her compliance with Section 127 on the grounds that Congress violated the Constitution’s separation of powers doctrine. Friends of Animals also sought judicial review of FWS’ republication of the

Captive Bred rule, seeking to have the rule set aside by the district court as a violation of Section 10 of the ESA. SCI, a proponent of Section 127, intervened in the district court proceedings under Federal Rule of Civil Procedure 24(a). The case below was heard on cross-motions for summary judgment. The district court, on March 3, 2015, issued a memorandum opinion granting the Federal Defendants’ Motion for Summary Judgment and denying Friends of Animals’ Motion for Summary Judgment. The district court ruled that Friends of Animals had Article III standing to seek judicial review of the federal defendants’ republished Captive Bred rule, but found the rule to be neither arbitrary nor capricious. The district court also found that Friends of Animals did not have Article III standing to challenge the constitutionality of Section 127. However, the court did rule that even if Friends of Animals had standing, Section 127 was not unconstitutional. Friends of Animals timely sought review of the district court’s decision in the United States Court of Appeals for the District of Columbia Circuit. On June 3, 2016, the court of appeals below issued an opinion reversing the district court’s decision that Friends of Animals lacked standing to challenge the constitutionality of Section 127. The court of appeals, however, upheld Section 127 finding that the provision was a valid exercise of Congress’ authority to prescribe new substantive rules of decision in pending cases before Article III courts.

REASONS FOR GRANTING THE PETITION Friends of Animals seeks review of the court of appeals on a writ of certiorari for the following reasons: (1) the decision below is in serious conflict with the relevant decisions of this Court and (2) the decision below has decided an important question of constitutional law that has not been, but should be, settled by this Court.

I. THE DECISION BELOW IS IN CONFLICT WITH MORE THAN A CENTURY OF SUPREME COURT JURISPRU- DENCE REGARDING THE SEPARATION OF POWERS DOCTRINE

a. Relevant Supreme Court Precedent Two early decisions of the Court first addressed the limits Article III imposes on Congress’ ability to direct a court’s interpretation and application of the law to the facts in particular pending cases. In State of Pennsylvania v. The Wheeling and Belmont Bridge Company, 59 U.S. 421 (1855), the Supreme Court had previously ruled that two bridges over the Ohio River were an obstruction to navigation under existing law that regulated navigation. Id. at 429. Subsequently, Congress enacted a new law designating the bridges “post-roads for the passage of the mails of the United States” and authorized the Wheeling and Belmont Bridge Company “to have and maintain their said bridges at their present site and elevation.” Id. The Court held that the new law making the bridges post roads changed the substantive law governing interstate

17 commerce and the bridges. Id. at 30. Under the new law, the Court’s prior ruling regarding the bridges no longer applied: So far, therefore, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of congress, they are to be regarded as modified by this subsequent legislation; and although [the bridge] still may be an obstruction in fact, [it] is not so in the contemplation of the law. Id. A few years later, in United States v. Klein, 80 U.S. 128 (1871), Congress, unhappy with the Supreme Court’s decision that the proof of loyalty to the Union necessary to entitle a confederate soldier to the return of his property could be shown by receipt of a Presidential pardon, added this little amendment, “with perhaps consideration in either House of Congress,” Klein, 80 U.S. at 143, to an appropriations act: The substance of this enactment is that an acceptance of a pardon, without disclaimer, shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of the rights conferred by it, both in the Court of Claims and in this court on appeal. Id. at 144. The Court found this new law unconstitutional because in it “Congress . . . inadvertently passed the limit which separates the legislative from the judicial

18 power.” Id. at 147. In reaching this conclusion, the Court carefully distinguished Wheeling Bridge: No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In the case before us no new circumstances have been created by legislation. But the court is for- bidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect pre- cisely contrary. Klein, 80 U.S. at 146-47 (emphasis added). Klein and Wheeling Bridge stand for the proposition that Congress cannot direct the outcome of a particular pending case by instructing a court how to interpret and apply existing law to the pending claims; Congress can, however, amend a relevant statute that bears on the outcome of a pending case. See also Plaut v. Spendthrift Farms, 514 U.S. 211, 218 (1994) (“Whatever the precise scope of Klein . . . later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’”). The Court returned to its analysis of Klein over a century later in Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992). Robertson arose when, in response to successful litigation brought by conservation groups halting proposed logging in certain National Forests, Congress enacted the “Northwest Timber Compromise” as Section 318 of the Department of the Interior and Related Agencies Appropriations

Act of 1990, 103 Stat. 745. Robertson, 503 U.S. at 433. Subsection 318(b)(6)(A) of this Act provided: [T]he Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Manage- ment lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned [identifying the conservations groups’ litigation by case name and docket number]. See Robertson, 503 U.S. at 434-35. In upholding this legislation, the Court found that “subsection (b)(6)(A) compelled changes in law, not findings or results under old law” because “under subsection(b)(6)(A), the agencies could satisfy their MBTA [Migratory Bird Treaty Act] obligations in either of two [new] ways: by managing their lands so as neither to ‘kill’ nor ‘take’ any northern spotted owl within the meaning of § 2 [of the MBTA, 16 U.S.C. § 703], or by managing their lands so as not to violate the prohibitions of subsections (b)(3) and (b)(5) [of Section 318 of the Appropriations Act].” Id. at 438. The Court based this determination, not on any contrary interpretation of Klein, but on the grounds that the challenged appropriations act had actually amended the applicable underlying statute and, thus, passed constitutional scrutiny. Indeed, the Court has subsequently noted that the key in determining the constitutionality of a congressional act under Klein is

20 whether the new law violates the Constitution by “prescribe[ing] a rule of decision” or instead creates “a new legal standard.” Miller v. French, 530 U.S. 327, 349 (2000); see also Estate of Charlot v. Bushmaster Firearms, Inc., 628 F.Supp.2d 174, 183 (D.D.C. 2009) (same); Grey v. First Winthrop Corp., 989 F.2d 1564, 1569-70 (9th Cir. 1993) (Robertson indicates a high degree of judicial tolerance for an act of Congress that is intended to affect litigation so long as it changes the underlying substantive law in any detectable way.”) (emphasis added). Finally, at issue in Bank Markazi v. Peterson were the post-judgment claims of more than 1,000 Americans who had won lawsuits over injuries sustained as a result of Iran sponsored terrorist attacks throughout the Middle East. 136 S.Ct 1310, 1320-22 (2016). After President Obama froze all of the Iranian government’s assets in the United States in 2012, Congress passed a law that made some of those assets available to, at least partly, satisfy the judgments against the Iranian government. See id. A majority of the Court found that Congress had not unconstitutionally sought to direct judgment in a pending case. Instead, the new law supplied a “new legal standard effectuating the lawmakers’ reasonable policy judgment” and ensured that the trial court was given discretion to make some decisions before ordering the turnover of the assets. Id. at 1326.

b. Section 127 Conflicts with Court Precedent in Three Specific Ways (1) Section 127 does not enact or amend statutory law. In all previous cases in which this Court upheld a congressional act aimed at pending litigation, there

21 was some change in the statutory law identified by the Court. Here, Section 127 makes no change, not even the most minor addition or subtraction, to the ESA. The requirements in Section 4 for listing species, the take prohibitions of Section 9, and the requirements in Section 10 that must be met to obtain a limited exemption from the take prohibition remain exactly as they were before Section 127 was enacted. On its face, Section 127 is a vague congressional mandate to the Secretary of the Interior. Without independent understanding of the lengthy administrative and judicial history surrounding the Captive Bred rule, the average reader could not know the intent, or intended effect, of the rider. Of course, this is not to say that Congress could not have lawfully amended Section 10 of the ESA in order to provide the Secretary of the Interior authority to reissue the rule. Arguably, that would be the rational, and deliberative, approach if Congress believed that Judge Henry Kennedy’s interpretation of the statute was problematic. But Congress did not take such an approach. Instead, Congress abdicated its legislative powers, demanding that the executive and judicial branches ignore the plain statutory language. Our government cannot function with legitimacy if we allow for the enforcement of regulatory rules that are without authority in the published statutes. In the hierarchy of our system, it must be the higher form of law—here the statute—that is changed in order to give legitimacy to lesser forms of law (regulatory action). (2) Section 127 cannot be seen to “effectuate the lawmakers’ reasonable policy judgement.” Bank

Markazi, 136 S.Ct at 1326. In passing the Consoli- dated Appropriations Act of 2014, neither house of Congress specifically addressed Section 127 during floor debate. The only mention of Section 127 in the Congressional record is a single statement by Representative Rogers of Kentucky: “Section 127 directs the Secretary of the Interior to reissue a rule pertaining to wildlife.” 160 Cong. Rec. H475-01 at H977 (2014) (statement of Rep. Rogers). Outside of Mr. Rogers’ explanatory statement, there is no legislative history regarding Section 127’s purpose and intent. However, as Representative Carter states in a January 2012 press release: [I am] introducing legislation to restore the original USFWS ruling that allows hunting preserves to stock, breed, hunt, and preserve the species, under which the antelope were saved from extinction over past decades. Lawsuits by extremist animal rights groups led to the agency’s revocation of those rules. As a result, game ranchers will be economically forced to cull their herds of African antelope by April [2012] unless the rules are changed. See Congressman John Carter, Carter Fights to Block Potential Mass Killing of Endangered African Antelope (2012), available at http://carter.house.gov/press- releases/carter-fights-to-block-potential-mass-killing- of-endangered-african-antelope/ (last visited August 29, 2016). (3) Section 127 strips all discretion from the district court by rendering Friends of Animals’ claims in Friends of Animals v. Ashe et al., 1:13-cv-1580

23 moot. In upholding Section 8772 as constitutional, the Court in Bank Markazi repeatedly emphasized that the new law did not direct the outcome of pending litigation, but instead left the lower court “plenty . . . to adjudicate.” 136 S.Ct at 1325 and n.20. In that case, Congress provided the lower court a new legal standard to apply to a particular set of facts. Id. at 1326. The same is not true with regards to Section 127. Friends of Animals’ claims in Antelope IV are dependent on application of Section 10 of the ESA, which as Judge Henry Kennedy explained in Ante- lope I establishes the rights and obligations of parties to a permit adjudication before the Secretary of the Interior. By ordering that those rights and obligations be ignored with respect to the Three Antelope Species, Section 127 leaves nothing for the district court to adjudicate.

II. THE DECISION BELOW INVOLVES AN IMPORTANT APPLICATION OF THE SEPARATION OF POWERS DOCTRINE THAT SHOULD BE SETTLED BY THIS COURT Admittedly, Section 127 invokes to some extent the awkward, sometimes uncomfortable, balance of powers in the administrative state ushered in by the New Deal. As the government and intervenor pointed to in the lower courts, there are a number of cases, primarily from the Ninth Circuit, in which Congress was found to have constitutionally entangled itself with ongoing litigation by enacting statutory provisions intended to require federal agencies to imple- ment certain federal projects that were being challenged in court under environmental laws, like the National Environmental Policy Act (NEPA). See

Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157 (9th Cir. 2007) (canal lining project); Mount Graham Coalition v. Thomas, 89 F.3d 554 (9th Cir. 1996) (construction of telescopes); and Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) (construction of highway). In each of these cases, Congress exempted a specific project by declaring that the government should move forward with implementation “without regard to any other provision of statute or regulation that applies . . . .” or some similar language as used in Section 127. In each of those cases, however, Congress was not telling the Executive Branch or the courts to ignore applicable statutory language. Instead, those cases involved Congress revising project-specific delegations to an agency. Each of these cases had very similar facts: (1) congressional approval of a project being either directly implemented by the government (such as the highway project in Stop H-3 or a canal project in Consejo) or being built on public land (such as the telescopes in Mount Graham); (2) congressional delegation to the federal agencies giving them the discretion to choose design alterna- tives for a project; and (3) a legal challenge as to whether in carrying out their discretionary authority, the agency officials had adequately complied with procedural requirements in federal statutes like NEPA or Section 4(f) of the Department of Transportation Act. In each case, Congress subsequently passed legislation intended to get these projects—tied up in court in some cases for decades—moving again. In doing so, a careful review of the legislation shows that, like in Wheeling, Congress made actual changes to the legal circumstances surrounding the projects. Namely,

Congress removed the original discretionary delegation and replaced it with a more specific one—to build a specific project alternative “without delay.” See Consejo, 482 F.3d at 1167 (Congress directed the relevant agency to “without delay, carry out the All American Canal Lining Project identified—(1) as the preferred alternative in the record of decision . . . and (2) in the allocation agreement . . . .”);2 Stop H-3, 871 F.2d at 1424-25 (directing the Secretary to construct “Interstate Highway H-3 between Halawa interchange to, and including the Halekous Interchange (a distance of 10.7 miles) . . . .”); Mount Graham, 89 F.3d at 556 (“The United States Forest Service’s approval of alternative site 2 (ALT 2) . . . is hereby authorized and approved . . . .”). Certainly, those project approvals were specific and it was within the authority of Congress to revise the delegations that it had previously made to the implementing agencies.3

2 In Consejo, Congress made another prospective change in the law by making a treaty between Mexico and the United States the “exclusive authority for identifying, considering, analyzing, or addressing” certain extraterritorial impacts of the project. 482 F.3d at 1167.

3 Notably, once Congress took away the agency’s discretion and mandated implementation of a specific project, NEPA no longer legally applied and could no longer be used as a basis for the plaintiffs’ litigation in these cases. See Department of Transpor- tation v. Public Citizen, 541 U.S. 752, 769-70 (2004) (finding that agency did not have to assess environmental effects under NEPA where it had no statutory authority to prevent such effects); see also Sierra Club v. Babbitt, 65 F.3d 1502, 1512 (9th Cir. 1995) (citing cases demonstrating that nondiscretionary agency action is excused from the operation of NEPA).

Section 127, however, does not remove or revise a delegation to FWS. Section 10(c) continues to impose a mandatory duty on the Secretary of the Interior. As Judge Henry Kennedy found, the “text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application.” Friends of Animals, 626 F.Supp.2d at 115-116. Section 127 simply tells the agency to ignore the law as pronounced by Congress in Section 10(c) and interpreted in Antelope I. It is one thing to accept broad statutory language to find that Con- gress intended to limit application of an agency’s discretion, but Congress needs to be much more specific if its intent is to change its own legal procla- mations. Indeed, “[r]epeal of legislation by implica- tion is disfavored.” TVA v. Hill, 437 U.S. 153 at 190 (1978). “This rule ‘applies with even greater force when the claimed repeal rests solely in an Appropria- tions Act.’”4 Id.

4 Section 127 is similar to one other Ninth Circuit case— Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012). Notably, the district court in that case was extremely troubled by Congress’ directive that the Secretary of the Interior reinstate a rule that was plainly contrary to the applicable statute: The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an un- dermining, and a disrespect for the fundamental idea of the rule of law.

The Court should grant a writ of certiorari to address this tension between administrative and constitutional law, which it has not yet considered. Certainly, Congress may delegate rulemaking functions to federal agencies like FWS. It is well established, however, that such delegations must be accompanied by intelligible legal standards and principles for the agency (and courts) to apply. See Mistretta v. United States, 488 U.S. 361, 372 (1989). In cases where Congress becomes unhappy with the constraints it has placed on agency rulemaking authority, this

[ . . . ] If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 173 is unconstitutional because it violates the separation of powers doctrine articulated by the Supreme Court in U.S. v. Klein, 80 U.S. 128 (1871). However, our Cir- cuit has interpreted Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), to hold that so long as Congress uses words “without regard to any other provision of statute or regulation that applies,” or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation provided the statute can be fairly interpreted to render it constitutional. Alliance for the Wild Rockies v. Salazar, 800 F.Supp.2d 1123, 1125-27 (D. Mont. 2011). Unfortunately, the Ninth Circuit ruled as the district court predicted, finding that the mere use of those magical words ensured the rider was constitutional. Alliance for the Wild Rockies, 672 F.3d at 1171. To the extent, however, Friends of Animals must distinguish this case, the Ninth Circuit also found that Congress’ “preclusion of judicial review indicates Congressional intent to change the law applicable to the project.” Id. at 1175. Here, however, in enacting Section 127 Congress did not preclude judicial review.

Court should ensure that Congress properly revises those statutory standards through a deliberative legislative process. Failing to do so, Congress should not be allowed to tell the Executive Branch and/or an Article III court to simply ignore statutory law clearly applicable to a certain set of facts.

CONCLUSION For the reasons set forth above, the petition for a writ of certiorari should be granted.

Respectfully submitted,

MICHAEL RAY HARRIS COUNSEL FOR PETITIONER FRIENDS OF ANIMALS 7500 E. ARAPAHOE RD., SUITE 385 CENTENNIAL, CO 80112 (720) 949-7791 [email protected]

SEPTEMBER 1, 2016

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Appeals for the District of Columbia Circuit (June 3, 2016) ...... 1a Concurring Opinion of Justice Sentelle (June 3, 2016) ...... 25a

Memorandum Opinion of the District Court (March 4, 2015) ...... 26a

Supplemental Authority Letter (May 24, 2016) ...... 54a

Complaint for Injunctive and Declaratory Relief, 1:13-cv-01580 (D.D.C.) (October 16, 2013) ...... 57a

Docket Details, 1:13-cv-01580 (D.D.C.) (October 16, 2013) ...... 99a

App.1a

OPINION OF THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT (JUNE 3, 2016)

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______

FRIENDS OF ANIMALS,

Appellant, v.

SALLY JEWELL, In Her Official Capacity as Secretary of Interior, Et Al.,

Appellees. ______No. 15-5070 Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00357) Before: KAVANAUGH, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.

EDWARDS, Senior Circuit Judge: Section 9 of the Endangered Species Act of 1973 (“Act” or “ESA”), 16 U.S.C. § 1531 et seq., makes it unlawful “for any person subject to the jurisdiction of the United States to,” inter alia, “take” any endangered species within the United States or “possess, sell, deliver, carry, transport, or ship, by any means App.2a whatsoever” any endangered species “taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D). Under the Act, “take” means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). Section 10 of the Act authorizes the Secretary of the Interior, who has delegated his authority to the Fish and Wildlife Service (“FWS” or “Service”), to, inter alia, “permit . . . any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species.” Id. § 1539(a)(1)(A). Section 10 also requires the Secretary to publish notices in the Federal Register of all permit applications and make available to the public information received as part of any such applications. Id. § 1539(c). In 2005, the Fish and Wildlife Service listed three antelope species—the scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama)—as endangered. See Final Rule to List the Scimitar-Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70 Fed. Reg. 52,319, 52,319 (Sept. 2, 2005). On the same day that the Service designated the antelope species as endangered, it issued a blanket exemption for qualifying domestic entities and individuals—including some sport hunting programs—that breed the antelope species in captivity. See Exclusion of U.S. Captive- Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Captive-Bred Exemption”), 70 Fed. Reg. 52,310, 52,311, 52,317 (Sept. 2, 2005). Under the Captive-Bred Exemption, the FWS allowed qualified owners of domestic, captive-bred antelope to engage in activities otherwise prohibited by Section 9 App.3a of the ESA without applying for individual permits on a case-by-case basis. Id. at 52,317. In 2009, the District Court, in an action preceding this case, determined that the Captive-Bred Exemption violated Section 10(c) of the Act. Friends of Animals v. Salazar (Antelope I), 626 F. Supp. 2d 102, 115 (D.D.C. 2009). The court found “that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application,” not pursuant to blanket exemp- tions. Id. Following this decision, FWS revoked the Captive-Bred Exemption. See Removal of the Regula- tion That Excludes U.S. Captive-Bred Scimitar- Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Removal Rule”), 77 Fed. Reg. 431, 431 (Jan. 5, 2012). On January 17, 2014, President Obama signed into law the Consolidated Appropriations Act, 2014 (“Appro- priations Act”). Division G, Title I, Section 127 of the Appropriations Act (“Section 127”) provides: Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315-16 (2014). On March 19, 2014, the Service complied with Section 127 and reinstated the Captive-Bred App.4a

Exemption. See Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg. 15,250, 15,250 (Mar. 19, 2014) (codified at 50 C.F.R. § 17.21(h)). On March 5, 2014, Friends of Animals, an animal advocacy organization, brought suit against FWS and the Department of the Interior (“Federal Appellees”), alleging that the Reinstatement Rule violates the Act and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and that Section 127 violates the United States Constitution. See Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 267 (D.D.C. 2015). Safari Club Interna- tional intervened as a defendant in the suit (together with the Federal Appellees, “Appellees”). See id. at 270. On cross-motions for summary judgment, the District Court granted Appellees’ motions for summary judgment and denied Friends of Animals’ motion for summary judgment. Id. at 279. The District Court found that the Reinstatement Rule was not arbitrary or capricious under the APA, id. at 278-79; that Friends of Animals did not have Article III standing to challenge the constitutionality of Section 127, id. at 278; and that even if Friends of Animals had standing, Section 127 is not unconstitutional, id. at 278 n.9. Friends of Animals now appeals. Under FEC v. Akins, 524 U.S. 11 (1998), Friends of Animals has informational standing to pursue its claims, so there is no jurisdictional impediment to this lawsuit. We reject Friends of Animals’ claims on the merits, however. Congress acted within constitutional bounds when it passed Section 127. Therefore, there can be no doubt that the Service was fully authorized to reinstate the Captive-Bred Exemption. App.5a

I. BACKGROUND

A. Statutory Background The stated purpose of the Endangered Species Act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.” 16 U.S.C. § 1531(b). Section 4 of the Act directs the Secretary of the Interior, who has delegated his authority to FWS, to list species that he determines are “threatened” or “endangered” under specified criteria. Id. § 1533. “When a species . . . is listed as either ‘threatened’ or ‘endangered’ under the Act, it is then subject to a host of protective measures designed to conserve the species.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.—MDL No. 1993, 709 F.3d 1, 2 (D.C. Cir. 2013). As noted above, Section 9 of the Act makes it unlawful “for any person subject to the jurisdiction of the United States to,” inter alia, “take” any endangered species within the United States or “possess, sell, deliver, carry, transport, or ship, by any means whatsoever” any endangered species “taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D). The Act defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19). While the Act contains specific guidelines when it comes to determining whether a species should be listed as endangered, FWS has flexibility under the App.6a

Act in assessing how to conserve a species after it has been listed as endangered. Most relevant to this case, Section 10 of the Act authorizes the Service to, inter alia, “permit . . . any act otherwise prohibited by [Section 9] for scientific purposes or to enhance the propagation or survival of the affected species.” Id. § 1539(a)(1)(A). Section 10(c) of the Act specifies that [t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. Each notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application; except that such thirty-day period may be waived by the Sec- retary in an emergency situation where the health or life of an endangered animal is threatened and no reasonable alternative is available to the applicant, but notice of any such waiver shall be published by the Secre- tary in the Federal Register within ten days following the issuance of the exemption or permit. Information received by the Secre- tary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding. Id. § 1539(c). Section 10(d) further provides that the Secretary may only grant a Section 10 permit if he finds and publishes in the Federal Register that the permit was applied for in good faith, will not operate to the disadvantage of the endangered species, and App.7a will be consistent with the purposes and policy of the Act. Id. § 1539(d).

B. Factual and Procedural Background This case concerns three antelope species—the scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama)— whose herds have dwindled, if not disappeared, from their native environments in northern Africa. As of June 2013, “[t]he oryx is believed to be extirpated in the wild, the addax numbers fewer than 300, and the dama gazelle numbers fewer than 500.” 12-Month Findings on Petitions to Delist U.S. Captive Popula- tions of the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. 33,790, 33,791 (June 5, 2013). Despite dwindling wild populations, captive populations of the three antelope species exist in the United States and other parts of the world. As of 2013, the Fish and Wildlife Service estimated that there were “approximately 4,000 to 5,000 scimitar- horned oryx, 1,500 addax, and 750 dama gazelle in captivity worldwide.” Id. FWS has spent more than two decades considering the antelope species with input from both commercial and non-profit groups interested in conserving the species for different ends. A detailed account of this regulatory history is set forth in Safari Club Interna- tional v. Jewell, 960 F. Supp. 2d 17, 33-41 (D.D.C. 2013). Here we provide only a summary of the agency’s regulatory efforts that are relevant to the present dispute. In 2005, the Service listed the scimitar-horned oryx, addax, and dama gazelle as endangered throughout the world. See Listing Rule, 70 Fed. Reg. at 52,319. App.8a

At the same time, the Service issued the Captive- Bred Exemption, which authorized activities with respect to these species that were otherwise prohibited under Section 9 without individual permits. 70 Fed. Reg. at 52,310, 52,317. In other words, with respect to U.S. captive-bred herds of the three antelope species, the Captive-Bred Exemption provided a blanket exemption from these proscriptions of Section 9. The rule required persons claiming the benefit of the exemption to maintain accurate written records of activities, including births, deaths, and transfer of specimens, and to make those records accessible to the Fish and Wildlife Service for inspection. Captive- Bred Exemption, 70 Fed. Reg. at 52,317. In 2009, shortly after the Captive-Bred Exemp- tion was promulgated, two sets of plaintiffs, including Friends of Animals, filed lawsuits against FWS challenging the rule in the United States District Court for the Northern District of California and in the United States District Court for the District of Columbia. The lawsuits were then consolidated to be heard in United States District Court for the District of Columbia. See Antelope I, 626 F. Supp. 2d 102. After reviewing the parties’ competing motions for summary judgment, the District Court granted partial summary judgment in favor of the plaintiffs. Id. at 120. In finding that the Captive-Bred Exemption violated Section 10(c) of the Act, the court pointed to the words of the statute that say that “[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section.” Id. at 115 (alteration in original) (quoting 16 U.S.C. § 1539(c)). The court then concluded that, “[a]fter examining the text, context, purpose App.9a and legislative history of section 10,” it was clear that “subsection 10(c) requires case-by-case consideration before the FWS may permit otherwise prohibited acts to enhance the propagation or survival of endangered species.” Id. at 116. On July 7, 2011, following the court’s decision in Antelope I, the Service published a proposed rule to withdraw in full the Captive-Bred Exemption. On January 5, 2012, FWS issued a final rule removing the Captive-Bred Exemption. The rule explained: This change to the regulations is in response to a court order that found that the rule for these three species violated section 10(c) of the Act. These three antelope species remain listed as endangered under the Act, and a person will need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to conduct any prohibited activities. Removal Rule, 77 Fed. Reg. at 431. After FWS issued the proposed rule, but before issuance of the final Removal Rule, Safari Club International filed a suit in District Court alleging that the Service had violated the Act and the APA by including U.S. captive-bred herds of the three antelope species in its 2005 Listing Rule. See Safari Club Int’l v. Jewell (Antelope II), 960 F. Supp. 2d 17, 23 (D.D.C. 2013). Thereafter, the Exotic Wildlife Association filed suit to invalidate and set aside the Removal Rule. See id. at 23-24. Following consolidation of these actions, the District Court upheld the Listing Rule and upheld the Removal Rule as a “rational response” to the court’s 2009 decision in Antelope I. Id. at 61, App.10a

84. The plaintiffs’ appeal to this court in Antelope II is being held in abeyance pending resolution of the present dispute. On October 16, 2013, Friends of Animals filed an action in the District Court challenging the Service’s administration of Section 10(a)(1)(A) permitting for the antelope species, and also seeking to invalidate four Section 10 permits allowing takes of those species. See Complaint at 30-31, Friends of Animals v. Ashe (Antelope III), No. 13-CV-01580 (D.D.C. Oct. 16, 2013). This case has also been held in abeyance pending resolution of the present dispute. On January 16, 2014, Congress passed—and on January 17, 2014, President Obama signed into law —Section 127, which provides: Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315- 16 (2014). On March 19, 2014, the Service complied with Section 127 and reinstated the Captive-Bred Exemption. See Reinstatement Rule, 50 C.F.R. § 17. 21(h). Friends of Animals filed this action on March 5, 2014, alleging that Section 127 was an unconstitutional violation of the separation of powers between the legislative and judicial branches. See Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015). After the Service issued the Reinstatement App.11a

Rule, Friends of Animals amended its complaint to add a claim that the Reinstatement Rule was invalid under the APA because it violated Section 10(c) of the Act. See id. at 267 & n.1. The District Court resolved the case on cross- motions for summary judgment, denying Friends of Animals’ motion and granting judgment for Appellees. Id. at 279. The court followed the holding of Antelope I that Section 10(c) of the Act grants Friends of Animals a right to information the deprivation of which confers Article III standing for its APA claim. Id. at 271-73. However, the court ruled that Friends of Animals lacked standing to challenge the constitutionality of Section 127 because its “informational rights are not implicated by its constitutional challenge.” Id. at 273. On the merits, the District Court found no merit in Friends of Animals’ APA claim that the Service’s Reinstatement Rule violated Section 10(c) of the Act. Id. at 278-79. The court held that, as a consequence of Section 127, “Section 10(c) does not apply to the Reinstatement Rule and the FWS’s actions in promulgating the rule were compelled by the statute [and] consistent with congressional intent.” Id. at 279. The District Court further noted that, even if Friends of Animals had standing to challenge the constitutionality of Section 127, that claim would fail because Section 127 had amended existing law prospectively and had not retroactively changed the result in any particular case. Id. at 278 n.9 (“Section 127 does not establish what the law was at a prior time or require its application to a case already adjudicated. Rather, Section 127 directs the FWS to App.12a issue the Reinstatement Rule, thus establishing what the law will be prospectively.”). This appeal followed.

II. ANALYSIS We review the District Court’s decision on standing de novo. In re Endangered Species Act Section 4 Deadline Litig.—MDL No. 2165, 704 F.3d 972, 976 (D.C. Cir. 2013). Likewise, we review the District Court’s grant of Appellees’ motions for summary judgment and denial of Friends of Animals’ motion for summary judgment de novo. Defs. of Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).

A. Standing Friends of Animals is “a membership organization that seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free living and domestic animals.” Appel- lant’s Br. at 1. Friends of Animals “engages in a variety of advocacy programs in support of these goals,” and informs its members of its advocacy work through its magazine, website, and other published reports. Id. In addition, Friends of Animals regularly participates in the Act’s Section 10 permitting process in order to protect threatened and endangered species under the Act, including the three antelope species. Id. On the record before us, and under controlling precedent, it is clear that Friends of Animals has standing to pursue both its statutory and constitutional claims. “[T]he requirement that a claimant have ‘standing is an essential and unchanging part of the case- or-controversy requirement of Article III.’” Davis v. FEC, 554 U.S. 724, 733 (2008) (quoting Lujan v. Defs. App.13a of Wildlife, 504 U.S. 555, 560 (1992)). The “irreducible constitutional minimum of standing contains three elements.” Lujan, 504 U.S. at 560. First, the claimant must have suffered an “injury in fact”—that is, an invasion of a legally protected interest which is “concrete and particularized” and “actual or imminent.” Id. (citations omitted). Second, there must be a causal connection between the claimant’s injury and the subject of his complaint such that the injury is “fairly traceable to the challenged action of the defendant.” Id. (alterations and citation omitted). Third, it must be “likely” that the injury will be “redressed by a favorable decision.” Id. at 561 (citation omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. The Supreme Court explained in FEC v. Akins that a plaintiff “suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998); see also Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989) (holding that failure to obtain information subject to disclosure under Federal Advisory Committee Act “constitutes a sufficiently distinct injury to provide standing to sue”). Following Akins, this circuit has recognized that “a denial of access to information can work an ‘injury in fact’ for standing purposes, at least where a statute (on the claimants’ reading) requires that the information ‘be publicly disclosed’ and there ‘is no reason to doubt their claim that the information would help them.’” Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (quoting Akins, 524 U.S. at 21); see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) App.14a

(explaining that “a plaintiff must espouse a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain”). Friends of Animals contends that Section 10(c) of the Act requires the Secretary of the Interior to disclose information about permitted takes of captive members of the three antelope species. According to Friends of Animals, Section 127 and the Reinstate- ment Rule deny Friends of Animals this information, which Friends of Animals otherwise has a statutory right to obtain. Friends of Animals thus maintains that it has informational standing to pursue both its constitutional and statutory claims. We agree. In pertinent part, Section 10(c) of the Act provides: The Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section. Each notice shall invite the submission from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application . . . . Information received by the Secretary as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding. 16 U.S.C. § 1539(c) (emphases added). Under the language of Section 10(c), the Secretary of the Interior must disclose information it receives in connection with any Section 10 permit. See id.; see also Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir. 2002) (finding that the Fish and Wildlife Service violated Section App.15a

10(c) of the Act by failing to make public information it had received as part of a permit application). Thus, Section 10(c) clearly creates a right to information upon which a claim of informational standing may be predicated. In enacting Section 127, Congress compelled FWS to issue the Reinstatement Rule, which eliminates the applicability of individual Section 10 permitting requirements that would otherwise have been necessary to engage in prohibited activities that enhance the propagation or survival of the three antelope species. As a result, Friends of Animals is denied information relating to permitted takes of U.S. captive-bred herds of the three antelope species. Friends of Animals regularly participates in and requests such information as part of the Section 10 permitting process, and was in the process of doing so when Section 127 was enacted. Friends of Animals claims that the information provided by Section 10(c) helps it meaningfully participate in the Act’s permitting process, as well as engage in related advocacy efforts to protect the three antelope species. Given Friends of Animals’ goals and organi- zational activities, there is no reason to doubt Friends of Animals’ standing here. Citing this court’s decision in Feld Entertainment, Appellees argue that Section 10(c) cannot provide Friends of Animals with a basis for informational standing. In Feld Entertainment, we rejected the plaintiff’s attempt to claim informational standing to bring suit under the Act’s citizen suit provision against Feld Entertainment, Inc., which operates the Ringling Brothers and Barnum & Bailey Circus, for allegedly “taking” circus elephants in violation of Section 9 of the Act. 659 F.3d at 17, 22-24. Importantly, App.16a we noted that even if the plaintiff’s underlying claim was correct—i.e., that the defendant’s conduct consti- tuted a prohibited “taking” under Section 9 of the Act—“nothing in section 9, even under [the plaintiff’s] view, would entitle plaintiffs to any information.” Id. at 23. We acknowledged that if the defendant sought to pursue the disputed conduct, “it would have to seek a section 10 permit from the Fish and Wildlife Service, and section 10(c) would then entitle [the plaintiffs] to obtain the information received by the Service as part of [the defendant’s] permit application.” Id. But because Section 9, the statutory basis for the plaintiff’s suit, provided the plaintiff with no right to information, we found informational standing lacking. Id. at 22-24. The present case is clearly distinguishable from Feld Entertainment. Friends of Animals’ statutory and constitutional claims directly implicate Section 10’s disclosure requirement, which as explained, provides Friends of Animals with a right to information. Having been denied such information, Friends of Animals has suffered a concrete and particularized “injury in fact” under Akins. Because Friends of Animals’ injury is “fairly traceable to the challenged action” of the Federal Appellees, and the alleged injury will be “redressed by a favorable decision” by this court, Lujan, 504 U.S. at 560-61 (alterations and citations omitted), Friends of Animals has standing to pursue its claims.

B. Friends of Animals’ Constitutional Claim The United States Constitution “enumerates and separates the powers of the three branches of Government in Articles I, II, and III, and it is this ‘very App.17a structure’ of the Constitution that exemplifies the concept of separation of powers.” Miller v. French, 530 U.S. 327, 341 (2000) (quoting INS v. Chadha, 462 U.S. 919, 946 (1983)). “Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the ‘province and duty . . . to say what the law is’ in particular cases and controversies.” Bank Markazi v. Peterson, 136 S. Ct. 1310, 1322 (2016) (ellipsis in original) (quoting Marbury v. Madi- son, 5 U.S. (1 Cranch) 137, 177 (1803). “While the boundaries between the three branches are not ‘“hermetically” sealed,’ the Constitution prohibits one branch from encroaching on the central prerogatives of another.” Miller, 530 U.S. at 341-42 (citations omitted). Friends of Animals argues that Section 127 is unconstitutional because it infringes upon the judicial power of Article III courts in violation of the separation of powers doctrine. In support of its claim, Friends of Animals relies on two decisions of the Supreme Court: Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), and United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). In Plaut, several shareholders filed a securities fraud action seeking damages for alleged violations that occurred in 1983 and 1984. Plaut, 514 U.S. at 213. While the lawsuit was pending, however, the Supreme Court held in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), that such action had to be commenced within one year after the discovery of the facts constituting the violation and within three years after the violation. Lampf, 501 U.S. at 364. Applying the statute of limitations announced in Lampf, the district court in Plaut dismissed the shareholders’ complaint with prejudice App.18a as untimely filed, and the court’s judgment became final 30 days later. Plaut, 514 U.S. at 214. Responding to Lampf, and after the dismissal order in Plaut became final, Congress enacted a statute purporting to reinstate lawsuits dismissed under the statute of limitations announced in Lampf that would have been timely under the prior limitations period. See id. at 214-15. The Supreme Court in Plaut held that Congress’ revival of the dismissed actions was an unconstitutional intrusion into matters within the authority of the judicial branch. Id. at 225. The Court explained that the legislation at issue was “retroactive legislation, that is, legislation that prescribes what the law was at an earlier time, when the act whose effect is controlled by the legislation occurred . . . . When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.’ Our decisions . . . have uniformly provided fair warning that such an act exceeds the powers of Congress.” Id. (citations omitted). Because a “judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, . . . Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.” Id. at 227. Friends of Animals contends that Section 127 “simply reverses [the court’s] final judgment in Antelope I and must be found unconstitutional” under Plaut. Appellant’s Br. at 33. We disagree. Section 127 is not retroactive legislation because it does not establish what the law was at an earlier time. Likewise, Section 127 does not apply to a case App.19a already decided and does not overturn the court’s determination in Antelope I—it simply alters the prospective effect of Section 10 of the Act by exempting U.S. captive-bred herds of the three antelope species from the Act’s Section 9 prohibitions going forward. Congress undoubtedly may change the prece- dential value of a decision by passing prospective legislation, which is what Congress chose to do when it enacted Section 127. Cf. Bellsouth Corp. v. FCC, 162 F.3d 678, 692 (D.C. Cir. 1998) (explaining that in Plaut, the Supreme Court drew a distinction between “final judgments without prospective effects, which could not be constitutionally revised through legislation, and final judgments with prospective effects, whose effects could constitutionally be so revised” (citation omitted)). Indeed, Friends of Animals concedes that, if Congress was “unhappy with the result in Antelope I, Congress could . . . cho[o]se to amend Section 10 to allow for the promulgation of a new rule that might allow for a broad take exemption.” Appellant’s Br. at 35. By directing FWS to reissue the Captive-Bred Exemption “without regard to any other provision of statute or regulation,” Appropriations Act, div. G, tit. I, § 127, that is what Congress did here. In Klein, the plaintiff sued the Government for the proceeds of property sold during the Civil War. The suit was filed under a statute granting such a cause of action to noncombatant confederate land- owners who could show proof of loyalty to the federal government. 80 U.S. (13 Wall.) at 136, 139. The Supreme Court, in an earlier case, had decided that receipt of a Presidential pardon was sufficient proof App.20a of “loyalty” under this law. United States v. Padel- ford, 76 U.S. (9 Wall.) 531, 543 (1869). The Court of Claims in Klein followed that decision and awarded recovery to the plaintiff. Klein, 80 U.S. (13 Wall.) at 143. While the Government’s appeal was pending, Congress passed a statute providing that no pardon could be admitted as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty. Id. at 142-44. The statute at issue in Klein thus directed the Court of Claims and Supreme Court to find that a claimant who had accepted a presidential pardon was in fact disloyal and, therefore, not entitled to land sale proceeds. Id. The newly enacted statute further directed that on proof of such a pardon or its acceptance, the Court of Claims and Supreme Court should dismiss the suit for want of jurisdiction. Id. On review, the Supreme Court in Klein struck down the statute, explaining that Congress had no authority to “impair[] the effect of a pardon,” for the Constitution entrusted the pardon power “[t]o the executive alone.” Id. at 147. Lacking authority to impair the pardon power of the Executive, Congress could not “direct[] the court to be instrumental to that end.” Id. at 148. In other words, the statute in Klein infringed on the judicial power because it attempted to direct the result without altering the legal standards governing the effect of a pardon— standards Congress was powerless to prescribe. See id. at 146-48. In striking down the statute in Klein, the Supreme Court also expressed doubt about Congress’ authority to “prescribe rules of decisions to the Judicial Depart- App.21a ment of the government in cases pending before it.” Id. at 146. The Court noted: It is evident . . . that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction. It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. Id. Friends of Animals argues that under Klein, “Section 127 . . . unconstitutionally interferes in two pending cases before Article III courts, seeking to direct the outcomes in those cases by ensuring that they are deemed moot.” Appellant’s Br. at 35 (refer- ring to Antelope II and Antelope III). According to Friends of Animals, Klein “stand[s] for the proposition that Congress cannot direct the outcome of a particular pending case by instructing the courts how to interpret and apply the existing law to the specific pending claims.” Id. at 37. This court has noted that “Klein’s exact meaning is far from clear.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001). Simi- larly, the Supreme Court has observed that “Klein has been called ‘a deeply puzzling decision.’” Bank App.22a

Markazi, 136 S. Ct. at 1323 (citation omitted). The Supreme Court has explained, however, that “[w]hatever the precise scope of Klein, . . . later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’” Plaut, 514 U.S. at 218 (second alteration in original) (quoting Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 441 (1992)). Friends of Animals acknowledges, as it must, this limitation on the reach of Klein. See Appellant’s Br. at 37. Indeed, in Bank Markazi v. Peterson, the Supreme Court, just this term, reaffirmed that Klein is so limited. See Bank Markazi, 136 S. Ct. at 1323 (“More recent decisions, however, have made it clear that Klein does not inhibit Congress from ‘amend[ing] applicable law.’” (alteration in original) (quoting Robertson, 503 U.S. at 441)). On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption “without regard to any other provision of statute or regulation that applies to issuance of such rule.” Appropriations Act, div. G, tit. I, § 127. By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by Section 9 of the Act. Although the three antelope species remain endangered and subject to certain requirements under the Act, Congress acted within its constitutional authority in amending the scope of Section 10. See Nat’l Coal. to Save Our Mall, 269 F.3d at 1094, 1097 (statute at App.23a issue, which applied “[n]otwithstanding any other provision of law,” did not violate Klein because it “amend[ed] the applicable substantive law”); see also All. for the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir. 2012) (dismissing the appellants’ challenge under Klein where Congress had amended the law by “direct[ing] the agency to issue the rule ‘without regard to any other provision of statute or regulation that applies to issuance of such rule’”). Seeking to avoid this conclusion, Friends of An- imals argues that “Section 127 makes no change, not even the most minor addition or subtraction, to the ESA or to the legal status of the Three Antelope Species under the ESA.” Appellant’s Br. at 39. Friends of Animals maintains that “the take prohibitions of Section 9, and the requirements in Section 10 that must be met to obtain a limited exemption from the take prohibition remain exactly as they were before Section 127 was enacted.” Id. (emphasis omitted). These contentions are meritless, for Section 127 obviously changes the reach of Sections 9 and 10 of the Act. Following the passage of Section 127 and issuance of the Reinstatement Rule, the requirements in Section 10 that otherwise must be met to obtain an exemption from Section 9’s take prohibitions no longer apply to U.S. Captive-Bred herds of the three antelope species, even though they apply to other endangered species. The Congressional enactment easily passes muster under established law.

C. Friends of Animals’ Statutory Claims Finally, Friends of Animals contends that the Reinstatement Rule should be set aside under the APA because it violates Section 10(c) of the Act for the App.24a reasons articulated by the United States District Court for the District of Columbia in Antelope I. Appellant’s Br. at 49. This argument is nothing more than a variation on Friends of Animals’ claim that Section 127 did not amend the applicable law. As we have already discussed, Section 127 did amend the applicable law by directing the Secretary of the Interior to reissue the Captive-Bred Exemption “without regard to any other provision of statute or regulation that applies to issuance of such rule.” Appropriations Act, div. G, tit. I, § 127. The Secretary fulfilled Congress’ directive by issuing the Reinstatement Rule, which is in compliance with the Act and does not violate the APA.

III. CONCLUSION For the foregoing reasons, the judgment of the District Court is affirmed. So ordered.

App.25a

CONCURRING OPINION OF JUSTICE SENTELLE (JUNE 3, 2016)

I write separately not because I have any deep disagreement with the majority—indeed, I wholly embrace the majority’s conclusion and nearly all of its language—but only to express a single misgiving. As the majority makes plain, “the requirement that a claimant have ‘standing is an essential and unchanging part of the case-or-controversy requirement of Article III.’” Maj. Op. at 12 (quoting Davis v. FEC, 554 U.S. 724, 733 (2008) (other citations and internal quotation marks omitted). I am not convinced that appellant has carried that burden with respect to its constitutional, separation-of-powers claim. Rather, as the district court reasoned, the breach of right for which the Friends of Animals seek redress is informational. See Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015). The alleged constitutional violation does not cause that breach. I therefore would prefer that we affirmed the district court as to the constitutional claim on the basis relied upon by that court. That is, that plaintiffs have not established standing. Plaintiffs have not alleged that the unconstitutional act caused them harm or that its redress can be had in this lawsuit. That said, nonetheless I join entirely the disposition of the majority. I agree that the majority’s analysis of the constitutional claim is legally correct. I concur entirely with everything else in the majority’s opinion.

App.26a

MEMORANDUM OPINION OF THE DISTRICT COURT (MARCH 4, 2015)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______

FRIENDS OF ANIMALS,

Plaintiff, v.

SALLY JEWELL, In Her Official Capacity as Secretary of Interior, ET AL.

Defendants, v.

SAFARI CLUB INTERNATIONAL,

Defendant-Intervenor. ______Civil Action No. 14-cv-0357 (BAH) Before: Beryl A. HOWELL, United States District Judge

Friends of Animals, an animal advocacy organization, brings suit against the National Fish and Wildlife Services (“FWS”) and United States Depart- ment of Interior (collectively “the Federal Defendants”), for a judgment declaring Title I, Section 127 of the Consolidated Appropriations Act, 2014 (“Section 127”) App.27a unconstitutional or, alternatively, declaring that the Reinstatement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg. 15,250 (March 19, 2014), violates the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.1 See First Amended Compl. for Injunctive and Declaratory Relief (“Am. Compl.”), ECF No. 10. Now pending before the Court is the plaintiff’s Motion for Summary Judgment, ECF No. 16, the Federal Defendants’ Cross Motion for Sum- mary Judgment, ECF No. 17, and the Defendant- Intervenor Safari Club International’s Cross-Motion for Summary Judgment, ECF No. 20. For the reasons stated below, summary judgment is granted in favor of the Federal Defendants and the Defendant- Intervenor.

I. Background The factual background of this dispute has been explained in great detail by this Court in Safari Club International v. Jewell, 960 F. Supp. 2d 17, 22–46 (D.D.C. 2013), a related case in which all the present parties participated. Accordingly, the Court will summarize below only those issues most relevant to the present dispute. This case involves issues surrounding the most effective method to conserve three antelope species—

1 Although plaintiff’s Amended Complaint claims that the Reinstatement Rule violates both Section 10(c) and Section 10(d) of the ESA, the plaintiff has expressly waived its claim regarding Section 10(d). See Pl’s Mot. for Summ. J. at 1 n.1, ECF No. 16. App.28a the scimitar-horned oryx, dama gazelle, and addax— whose herds have dwindled, if not disappeared, from their native environments in North Africa.2 As of June 2013, “[t]he oryx is believed to be extirpated in the wild, the addax numbers fewer than 300, and the dama gazelle numbers fewer than 500.” 12-Month Findings on Petitions to Delist U.S. Captive Populations of the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. 33,790 (June 5, 2013). Despite dwindling wild populations, captive populations of the three antelope species exist in the United States and other parts of the world. As of 2013, the FWS cited estimates from the Sahelo-Saharan Interest Group that there were “about 4,000–5,000 scimitar- horned oryx, 1,500 addax, and 750 dama gazelle in captivity worldwide.” Id. at 33,791; see also Final Rule to List the Scimitar-Horned Oryx, Addax, and Dama Gazelle as Endangered (“Listing Rule”), 70 Fed. Reg. 52,319, 52,322 (Sept. 2, 2005).

2 The scimitar-horned oryx, which once had an extensive range in North Africa, stands about 47 inches tall and weighs about 450 pounds with a generally pale coat and dark, reddish-brown neck and chest. See Listing Rule, 70 Fed. Reg. at 52,319. Adult oryx possess a pair of horns curving back in an arc up to 50 inches. See id. The addax, which once existed throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River, stands about 42 inches tall and weighs around 220 pounds with a grayish-white coat and spiral horns which twist up to 43 inches long. See id. The dama gazelle, the largest of the gazelles and the smallest of the three antelope species at issue in this suit, was once common and widespread in arid and semi-arid regions of the Sahara. This animal is about 39 inches tall at the shoulder and weighs about 160 pounds with a mostly reddish-brown body, but a white head, rump, and underparts. See id. The dama gazelle’s horns extend back and up, reaching a length of about 17 inches long. See id. App.29a

The FWS, which is vested with the authority to designate the three antelope species as endangered under the ESA, has spent two decades considering the three antelope species with input from both commercial and non-profit groups interested in conserving the species for different ends. These efforts culminated with the issuance, in 2005, of two rules, one of which listed the three antelope species as endangered (the “Listing Rule”) and the other of which provided a blanket exemption for U.S. captive-bred herds of the same species (the “Captive-bred Exemption”). See Listing Rule, 70 Fed. Reg. 52,319; Exclusion of U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Captive-bred Exemption”), 70 Fed. Reg. 52,310 (September 2, 2005). The Captive-bred Exemption permitted “otherwise prohibited activities that enhance the propagation or survival of the species[,]” including “take; export or re-import; delivery, receipt, carrying, transport or shipment in interstate or foreign commerce, in the course of commercial activity; or sale or offering for sale in interstate or foreign commerce.” See Captive- bred Exemption, 70 Fed. Reg. at 52,311, 52,317. The Captive-bred Exemption was almost imme- diately challenged in court. Two sets of plaintiffs— including the plaintiff in the present dispute, Friends of Animals—filed lawsuits in the United States District Court for the Northern District of California and the United States District Court for the District of Colum- bia. The lawsuits were consolidated in this jurisdiction.3

3 Prior to consolidation, the court in the Northern District of California ruled on a motion to dismiss for lack of subject matter jurisdiction, which challenged those plaintiffs’ standing to bring suit. The court held that the “Defenders of Wildlife App.30a

See Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 105–06 (D.D.C. 2009). In the consolidated lawsuit, the plaintiffs alleged that the FWS unlawfully promulgated the Captive-bred Exemption in violation of several sections of the ESA and the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. See id. at 106. In ruling on the parties competing motions for summary judgment, the court first determined that the plaintiffs had standing only “to pursue their claim that the FWS violated subsection 10(c) of the [ESA] when it promulgated the [Captive- bred Exemption.]” Id. at 114–15. The court then granted summary judgment in favor of the plaintiffs because the Captive-bred Exemption violated Section 10(c) of the ESA, which provides that “[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section.” 16 U.S.C. § 1539(c). Specifically, the court determined “that the text, context, purpose and legislative history of [Section 10] make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application” rather than in the form of a blanket exemption. Friends of Animals, 626 F. Supp. 2d at 115. The court “remanded” the consolidated cases to the FWS “for further proceedings consistent with the memorandum opinion[,]” leaving the decision of how best to

[had] standing to pursue its claim that the [FWS] violated § 10 of the ESA by issuing a regulation which permits the taking of the three antelope species on a categorical rather than case-by- case basis.” See Cary v. Hall, No. 05-4363, 2006 WL 6198320, * 13 (N.D. Cal. Sept. 30, 2006). App.31a proceed to the agency’s discretion. See Order, No. 04- cv-01660, ECF No. 85-1, at 1; Order, No. 06-cv-02120, ECF No. 44-1, at 1. In response to the court’s decision declaring the Captive-bred Exemption invalid, various organizations sought to delist the three antelope species, while the FWS took steps to revoke the Captive-bred Exemp- tion. On July 7, 2011, the FWS published a proposed rule to withdraw in full the Captive-bred Exemption. See Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions, 76 Fed. Reg. 39,804 (July 7, 2011) (“Proposed Removal Rule”). On January 5, 2012, the FWS issued its final rule removing the Captive-bred Exemption, effective April 4, 2012. See Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions (“Removal Rule”), 77 Fed. Reg. 431 (January 5, 2012). The agency issued the Removal Rule as a necessary step to comply with the 2009 decision in Friends of Animals. The Removal Rule explained that: This change to the regulations is in response to a court order that found that the rule for these three species violated section 10(c) of the [ESA]. These three antelope species remain listed as endangered under the [ESA], and a person will need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to conduct any prohibited activities. Removal Rule, 77 Fed. Reg. at 431. App.32a

Shortly after the FWS issued the Proposed Re- moval Rule, but before issuance of the final Removal Rule, Safari Club International (“SCI”) filed suit in this jurisdiction alleging that the Federal Defendants violated the ESA and the APA by including U.S. captive-bred herds of the three antelope species in the 2005 listing determination in the first instance, failing to remove U.S. captive-bred herds from endangered species status after the 2009 decision in Friends of Animals, and failing to respond in a timely manner to SCI’s 2010 petition for delisting. See Safari Club Int’l, 960 F. Supp. 2d at 40. Thereafter, the Exotic Wildlife Association filed suit in this Court on March 2, 2012, to invalidate and set aside the Removal Rule. See id. at 41. Following consolidation of these two actions, this Court granted Friends of Animals’ motion to intervene as a defendant, as well as the motion of one other animal conservation organization. See Safari Club Int’l v. Salazar, 281 F.R.D. 32 (D.D.C. 2012).4 Following extensive briefing, this Court upheld the Removal Rule as a “rational response” to the court’s 2009 ruling in Friends of Animals holding the Captive-bred Exemption invalid. See Safari Club Int’l v. Jewell, 960 F. Supp. 2d at 84.5

4 As part of its ruling permitting intervention, this Court determined that Friends of Animals possessed standing to proceed as a party in the suit. See Safari Club Int’l, 281 F.R.D. at 41 (concluding that Friends of Animals “would suffer an informational injury if the plaintiffs’ succeed in setting aside the Final Rule”). 5 This Court’s decision is currently on appeal to the D.C. Circuit. The D.C. Circuit has held the case in abeyance pending resolution of the present motions. See Order, Case No. 13-5300, App.33a

This Court’s ruling did not conclude the litigation, however. On January 17, 2014, President Obama signed into law the Consolidated Appropriations Act, 2014. Title I, Section 127 of the Act provides: Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Pub. L. No. 113-76, 128 Stat. 5, § 127. In other words, Congress mandated that the Secretary of the Interior re-issue the Captive-bred Exemption. On March 19, 2014, FWS complied with Section 127 and reinstated the Captive-bred Exemption. See Rein- statement of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions (“Reinstate- ment Rule”), 79 Fed. Reg. 15,250 (March 19, 2014). All of this leads to the present dispute. After issuance of the Reinstatement Rule, Friends of Ani- mals brought this suit against the Federal Defend- ants alleging that the Reinstatement Rule violated the ESA and the APA, see Am. Compl. at ¶¶ 90–97,

Doc. No. 1494915-2 (D.C. Cir. June 17, 2014). A related case pending before this Court, Friends of Animals v. Ashe, No. 13- cv-1580, is currently stayed pending resolution of the motions for summary judgment in the present case, which may moot the plaintiff’s challenge in that case. Accordingly, concurrently with the issuance of this Opinion, the Court will direct the parties in Friends of Animals v. Ashe—the same parties to this suit—to file a joint status report indicating whether the stay should be lifted and a proposed schedule for future proceedings App.34a and that Section 127 violated the Constitution, see id. at ¶¶ 86–89. Subsequently, Safari Club Interna- tional intervened as a defendant in the suit. See Minute Order (April 2, 2014). Now pending before the Court is the plaintiff’s Motion for Summary Judgment, ECF No. 16, which is opposed by both the Federal Defendants and the defendant-intervenor Safari Club International, which parties have filed cross-motions for summary judgment, see ECF Nos. 17 and 20, respectively.

II. Legal Standard Pursuant to Federal Rule of Civil Procedure 56, summary judgment may be granted when the court finds, based upon the pleadings, depositions, and affidavits and other factual materials in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c); see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A genuine issue of material fact exists if the evidence, ‘viewed in a light most favorable to the nonmoving party,’ could support a reasonable jury’s verdict for the non-moving party.” Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 215 (D.C. Cir. 2013) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)). In APA cases involving cross-motions for summary judgment, “the district judge sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases). Accordingly, this Court need not and ought not engage in lengthy App.35a fact finding, since “[g]enerally speaking, district courts reviewing agency action under the APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996). Judicial review is limited to the administrative record, since it “is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing court should have before it neither more nor less information that did the agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal citations and quotation marks omitted; alteration in original); see 5 U.S.C. § 706(2)(F) (“[T]he Court shall review the whole record or those parts of it cited by a party . . . .”); Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (in applying the arbitrary and capricious standard under the APA, “[t]he focal point for judicial review should be the administrative record already in existence . . . .” (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)).

III. Discussion Before turning to the merits of the plaintiff’s claims, both the Federal Defendants and the defendant- intervenor challenge the plaintiff’s standing, which is a threshold issue requiring resolution. The Court will therefore first examine the plaintiff’s standing to bring each claim in this suit, concluding that the plaintiff maintains standing only to challenge whether the Reinstatement Rule violates Section 10(c) of the ESA. The Court next addresses whether the Rein- statement Rule violates Section 10(c) of the ESA, concluding that it does not. App.36a

A. The Plaintiff’s Standing Article III of the Constitution restricts the power of federal courts to hear only “Cases” and “Contro- versies.” “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, (1992)). The Supreme Court has explained that “the irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560. A claimant must show: (1) he or she has suffered an “injury in fact” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical;” (2) there must be “a causal connection between the injury and the conduct complained of” such that the injury is “fairly traceable to the challenged action of the defendant;” and (3) it must be “likely,” as opposed to merely speculative, that the injury will be “redressed by a favorable judicial decision.” Id. (internal quotations omitted). In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). Importantly, “a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734, (2008) (internal quotations App.37a omitted). As explained below, the plaintiff has standing to challenge whether the Reinstatement Rule violates Section 10(c) of the ESA, but lacks standing to pursue its constitutional challenge to Section 127.

1. The Plaintiff Has Informational Standing to Challenge Whether the Reinstatement Rule Violates Section 10(c) of the ESA The Court does not write on a blank slate in determining whether this plaintiff has standing to challenge the Reinstatement Rule as violative of Section 10(c) of the ESA. Rather, the plaintiff’s standing to challenge the Captive-bred Exemption (the precursor to the Reinstatement Rule) has been dealt with in great detail in several prior decisions. On one prior occasion, a court in this District analyzed whether Friends of Animals had standing to challenge whether the Captive-bred Exemption violated Section 10(c) of the ESA. See Friends of Animals v. Salazar, 626 F. Supp. 2d at 108. Similarly, in a precursor suit, a court from a different District analyzed whether a different conservation organization had standing to challenge whether the Captive-bred Exemption violated Section 10(c) of the ESA. See Cary v. Hall, No. 05-cv- 4363, 2006 WL 6198320 (N.D. Cal. Sept. 30, 2006). In addition, this Court previously examined whether Friends of Animals had standing to defend the FWS’s removal of the Captive-bred Exemption. See Safari Club Int’l v. Salazar, 281 F.R.D. at 40. All three cases found the environmental organization to have “informational standing” under Section 10(c). This action is no different. The D.C. Circuit recognizes that “a denial of access to information can work an ‘injury in fact’ for standing App.38a purposes, at least where a statute (on the claimants’ reading) requires that the information ‘be publicly disclosed’ and there ‘is no reason to doubt their claim that the information would help them.’” ASPCA v. Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (quoting Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002) (quoting Fed. Election Comm’n v. Akins, 524 U.S. 11, 21, (1998))). In Feld, the D.C. Circuit found that a plaintiff did not have informational standing to sue a private defendant for its treatment of elephants under Section 9 of the ESA, because “nothing in section 9 gives [the plaintiff] a right to any information.” Feld, 659 F.3d at 23. While the plaintiff brought “suit under the ‘take’ provision of ESA section 9, its claim to informational standing rests on section 10(c), which requires public disclosure of information contained in permit applications.” Id. at 22. In other words, for a party to maintain informational standing, the challenged action must violate the source of the informational right. In Feld, the plaintiff alleged that the defendant’s treatment of animals violated the take provision of Section 9, not the information provision of Section 10(c). Accordingly, the plaintiff in Feld lacked informational standing to pursue its claim. Notably, during its analysis, the Court cited Friends of Animals v. Salazar, 626 F. Supp. 2d at 111, approvingly for “finding informational standing where plaintiffs alleged that the Fish and Wildlife Service violated section 10(c) by promulgating a rule that eliminated permit requirements for takings of certain antelope.” Feld, 659 F.3d at 24. Here, just as in Friends of Animals v. Salazar, the plaintiff claims that the promulgated rule (in this case, the Reinstatement Rule) violates Section 10(c) App.39a of the ESA. Consistent with Feld, 659 F.3d at 24, Safari Club International v. Salazar, 281 F.R.D. at 40, Friends of Animals v. Salazar, 626 F. Supp. 2d at 108, and Cary v. Hall, 2006 WL 6198320, the Court holds that the plaintiff has informational standing to pursue its challenge under Section 10(c).

2. The Plaintiff Lacks Standing to Challenge the Constitutionality of Section 127 Although the plaintiff has informational standing to assert a challenge to the Reinstatement Rule under Section 10(c), the plaintiff does not have standing to challenge the constitutionality of Section 127. The plaintiff contends that it has both informational standing and representational standing to challenge the constitutionality of Section 127. As discussed below, the plaintiff is mistaken.

a) The Plaintiff Lacks Informational Standing While the plaintiff maintains informational standing to challenge whether the Reinstatement Rule violates Section 10(c) of the ESA, the plaintiff does not have informational standing to challenge whether Section 127 violates the Constitution. As discussed, for informational standing to lie, the plaintiff must allege that the challenged action violates the source of the plaintiff’s informational right. See Feld, 659 F.3d at 23-24. Unlike in the plaintiff’s Section 10(c) claim, however, the plaintiff does not assert that the challenged action violates the source of any informational right. Rather, the plaintiff contends that Section 127 violates the separation of powers doctrine embodied in the Constitution. See Pl.’s Mem. App.40a

Supp. Mot. Summ. J (“Pl.’s Mem.”), at 11, ECF No. 16-1. The plaintiff’s informational rights are not implicated by its constitutional challenge and the plaintiff therefore lacks informational standing to pursue its constitutional claim.

b) The Plaintiff Lacks Representational Standing The plaintiff also claims representational standing to pursue its constitutional claim. Organizations may “claim representational standing on behalf of their members,” so long as “[1] [their] members would otherwise have standing to sue in their own right, [2] the interests [they] seek[ ] to protect are germane to the organization’s purpose, and [3] neither the claim asserted nor the relief requested requires the partici- pation of individual members.” Natural Res. Def. Council v. EPA, 755 F.3d 1010, 1016 (D.C. Cir. 2014) (citation omitted). Thus, a representational standing analysis involves two distinct determinations: first, whether the organizations have put forward members who “would otherwise have standing to sue in their own right” and, second, whether the organizations themselves fulfill the remaining requirements for representational standing. Id. In the present case, the plaintiff has not put forth a member who would otherwise have standing to bring this constitutional challenge. Consequently, the plaintiff does not have representational standing to bring their constitutional challenge. The plaintiff asserts two potential injuries in the present case. First, the plaintiff argues that its President, Priscilla Feral, has an “aesthetic interest in wild antelope,” and that Section 127 and the Rein- App.41a statement Rule harms this interest because of a resultant increase in poaching and laundering of wild antelope.6 See Pl.’s Mem. at 28–34; Decl. of Priscilla Feral in Supp. of Pl.’s Mot. Summ. J. (“Feral Decl.”) at ¶ 42, ECF No. 16-2; Decl. of Priscilla Feral in Opp. to Defs’ and Intervenor’s Mots. Summ. J. (“Second Feral Decl.), ECF No. 21-1. Second, the plaintiff asserts that Ms. Feral “has suffered aesthetic injury as a result of viewing tame animals in captivity on canned hunting ranches.” Pl.’s Mem. at 34-35. Although the Federal Defendants assert that the plaintiff has abandoned its theory of standing premised upon Ms. Feral’s interest in domestic antelope, see Fed. Defs.’ Reply Supp. Cross-Mot. Summ. J. at 2, ECF No. 24, the plaintiff has made no such waiver. Accordingly, the Court will address both of the plaintiff’s remaining theories of standing.

i. Ms. Feral’s Aesthetic Interest in Wild Antelope There are two overarching principles that apply to the plaintiff’s theory that Section 127 and the Reinstatement Rule harm her interest in wild antelope in Africa. First, this case involves the purported “standing to challenge a [regulation and statute] where the direct cause of injury is the independent action of a third party.” Renal Physi- cians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1269 (D.C. Cir. 2007). As will be

6 As used by the plaintiff, “[a]nimal laundering is the act of illegally trading, trafficking, or smuggling both live animals and animal parts” whereby the wild animal “goes through a process to ‘cleanse’ its origin to make the [animal] look like it was legally obtained.” See Ex. A, Feral Decl. App.42a discussed below, however, “courts [only] occasionally find the elements of standing to be satisfied in cases challenging government action on the basis of third- party conduct.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004). Second, and relatedly, “when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)); Renal Physicians, 489 F.3d at 1273 (noting “the heightened showing required of a plaintiff alleging injury from the government’s regulation of a third party”). The D.C. Circuit has identified “two categories of cases where standing exists to challenge government action though the direct cause of injury is the action of a third party.” Renal Physicians, 489 F.3d at 1275. “First, a federal court may find that a party has standing to challenge government action that permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” Nat’l Wrestling Coaches, 366 F.3d at 940. Importantly, in this category of cases, the challenged government conduct must authorize the specific third-party conduct that causes the injury to the plaintiff. See Animal Legal Def. Fund, Inc. v. Glick- man, 154 F.3d 426, 440 (D.C. Cir. 1998) (“Supreme Court precedent establishes that the causation requirement for constitutional standing is met when a plaintiff demonstrates that the challenged agency action authorizes the conduct that allegedly caused the plaintiff’s injuries . . . .”). In the present case, the challenged action—the reinstatement of the Captive- App.43a bred Exemption—does not authorize the poaching of wild antelope in Africa. Second, standing has been found “where the record present[s] substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress.” Nat’l Wrestling Coaches, 366 F.3d at 941 (emphasis added). The plaintiff must allege facts that are “sufficient to demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought.” Renal Physicians, 489 F.3d at 1275 (emphasis added). The Reinstatement Rule removes regulations regarding captive antelope, not wild antelope. As a result, the plaintiffs face a “substantially more difficult” task in showing causation and redressability based on an injury to their aesthetic interest in wild antelope. Spectrum Five LLC v. Federal Communications Comm’n, 758 F.3d 254, 261 (D.C. Cir. 2014). Like the plaintiff’s informational standing argument, prior courts have previously applied these principles to the plaintiff’s standing argument. While those decisions are not binding on this Court, they are nonetheless instructive with respect to the causation and redressability issues present in this case. In Cary v. Hall, the Northern District of California addressed whether a group of environmental organizations had standing to challenge the Captive-bred Exemption based on an injury resulting from their work with, and observation of, wild antelope.7 No. 05-cv-

7 As noted above, Cary v. Hall was transferred to this District and consolidated with Friends of Animals v. Salazar, 626 F. Supp. 2d at 105. App.44a

4363, 2006 WL 6198320 (N.D. Cal. Sept. 30, 2006). The court held that the plaintiffs could not demonstrate the requisite causation to establish standing based on an injury to their interest in wild antelope.8 Id. at * 6–* 7. The court noted that the Captive-bred Exemption “neither authorizes sport hunting in North Africa nor authorizes the importation of trophies taken in the wild.” Id. As a result, the “causal link between the challenged regulation and [the plaintiff’s] injury depends upon the unfettered choices of third parties.” Id. In addition, the court noted that it would be unable to redress the plaintiff’s injuries because “the legality of hunting the three antelope species in their native habitat is a matter far beyond the court’s power.” Id.

8 Cary v. Hall described the causal theory as follows: First, the challenged exemption will ‘send[ ] the signal’ that hunting the three antelope species in the United States is acceptable . . . . It is not clear whether this signal can be picked up by hunters around the world, only in the United States or no- where beyond Texas, where most trophy hunting of the three antelope species takes place . . . . In any event, a signal is being broadcast and sport hunters somewhere, maybe everywhere, are tuning in. And for purposes of causation, these hunters must be tuning in for the first time because there is no dispute that, as a matter of federal law, it has long been legal to hunt captive-bred members of the three antelope species in the United States. Next, at least some hunters who receive the signal will journey to North Africa to search for one of the small number of scimitar-horned oryx, addax and dama gazelle that live in the wild—all because these hunters picked up the signal. This is just so much speculation. 2006 WL 6198320, at * 6. App.45a

Similarly, in Friends of Animals v. Salazar, the court followed the reasoning set out in Cary v. Hall and determined that the plaintiff lacked standing relating to its interest in wild antelope. The court held that any injury to the plaintiff’s aesthetic interest in wild antelope “was not caused by the [Captive-bred] Rule because the [Captive-bred] Rule does not authorize the take of wild antelopes or the importation of wild antelope parts or trophies.” 626 F. Supp. 2d at 109 (emphasis in original). In a carefully reasoned decision, the court examined the legislative history of the ESA and the D.C. Circuit’s decision in Animal Welfare Institute v. Kreps, 561 F.2d 1002 (D.C. Cir. 1977), which held that a plaintiff had standing to challenge the Government’s alleged failure to enforce the Marine Mammal Protection Act based on an injury to the plaintiff’s aesthetic interest in South African seals. Friends of Animals distinguished Animal Welfare Institute because unlike in Animal Welfare Institute, “there is no statutory language or legislative history [in the ESA] to support the idea that Congress decided, or even considered, whether permitting trade in species bred in captivity in the United States would create financial incentives for increased poaching abroad.” 626 F. Supp. 2d at 109- 110. Since there was not “any evidence that the [Captive-bred Rule] actually does increase the financial incentives for taking the antelope species in the wild,” the court ruled that the plaintiff lacked standing on that basis. Id. at 110. Finally, this Court addressed whether this plaintiff, Friends of Animals, had standing such that it could intervene in a case challenging the Removal Rule. Although this Court did not opine on whether App.46a

Friends of Animals’ interest in wild antelope could sustain standing—holding, consistent with the above analysis, that Friends of Animals had informational standing—this Court cited with approval the analysis contained in Cary v. Hall and Friends of Animals v. Salazar. See Safari Club Int’l v. Salazar, 281 F.R.D. at 41 (describing the “thorough analysis” of the prior opinions). Despite the plaintiff’s substantial burden to show causation and redressability, and the prior findings by multiple courts, the plaintiff nonetheless claims that it has standing to sue based on the harm to Ms. Feral’s aesthetic interest in wild antelope. To overcome the causation and redressability concerns outlined by previous courts, the plaintiff claims that the requisite causal connection was recognized by FWS when it considered whether to delist the antelope. See Pl.’s Mem. at 30 (“FWS specifically found that captive African antelope in the United States can help drive ‘increased take and trade in ‘laundered’ wild caught specimens.’” (citing 78 Fed. Reg. 33,790, 33,793)). Specifically, in 2013, the FWS considered whether captive antelope and wild antelope should be afforded separate legal status under the ESA. The FWS noted that should they be afforded separate status “the threat of overutilization would likely increase.” 78 Fed. Reg. at 33,793. In such a situation, “the taxonomic species would potentially be subject to increased take and trade in ‘laundered’ wild-caught specimens to feed U.S. or foreign market demand because protected wild specimens would be generally indistinguisha- ble from unprotected captive-held specimens.” Id. As a result, the FWS concluded that the similarity-of- appearance provision in Section 2(e) of the ESA App.47a would necessitate that the FWS “complete separate similarity-of-appearance listings for captive-held animals,” which would “make captive specimens subject to the same restrictions as listed wild specimens.” Id. Accordingly, the FWS did not afford the captive antelope and the wild antelope separate legal status. Although the statements by FWS in determining whether to list separately captive and wild antelope shed light on the nature of the causal relationship between the two sets of animals, they are not sufficient to establish causation and redressability in the present case. The FWS’s statements that “the threat of overutilization [of wild antelope] would likely increase,” 78 Fed. Reg. at 33,793, and that wild antelope “would potentially be subject to increased take,” id., do not establish that it is substantially likely, as opposed to potentially possible, that the Reinstatement Rule would result in harm to Ms. Feral’s aesthetic interest in wild antelope. See Renal Physicians, 489 F.3d at 1275. While poachers might increase efforts to hunt wild antelope, any such efforts remain the “unfettered choice[]” of these third parties. See Defenders of Wildlife, 504 U.S. at 562. Moreover, although the plaintiff cites to scientific studies to buttress its causal arguments, those studies do not concern wild antelope and have little, if any, probative value here. See Exs. A, B, F, Second Feral Decl. (illegal ivory trade); Ex. C, Second Feral Decl. (species native to Brazil); Exs. D, G, Second Feral Decl. (poaching in the abstract); Ex. E, Second Feral Decl. (green python trade). The chain of causation is simply too speculative and the possibility of redress too remote to afford standing to the plaintiff on this ground. “When App.48a redress depends on the cooperation of a third party, ‘it becomes the burden of the [party asserting standing] to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.’” U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24-25 (D.C. Cir. 2000) (quoting Defenders of Wildlife, 504 U.S. at 562); see also Klamath Water v. Fed. Energy Reg. Comm’n, 534 F.3d 735, 739 (D.C. Cir. 2008) (“In a case like this, in which relief for the petitioner depends on actions by a third party not before the court, the petitioner must demonstrate that a favorable decision would create ‘a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.’” (quoting Utah v. Evans, 536 U.S. 452, 464 (2002))). The plaintiff has been unable to meet this burden.

ii. Ms. Feral’s Aesthetic Interest in Captive Antelope The plaintiff also asserts standing based upon the harm to Ms. Feral’s aesthetic interest in captive antelope caused by “her visits to canned hunting ranches” and the “viewing [of] tame animals that are later hunted in captivity.” See Pl.’s Mem. at 34-35. The plaintiff faces two distinct problems with this formulation of Ms. Feral’s injury. First, regardless of whether the Reinstatement Rule stands in this case, hunting of captive antelope will be permitted under the Section 10 permitting process. Thus for the plaintiff’s injury to be capable of redress, Ms. Feral must have visited and intend to visit ranches that hunt captive antelopes without an otherwise valid permit under Section 10. Second, the plaintiff must App.49a adduce some evidence that Ms. Feral’s alleged injury is imminent. Although the plaintiff argues in its brief that Ms. Feral “intends to continue monitoring canned hunting ranches and visiting the antelope on these ranches,” see Pl.’s Mem. at 34, Ms. Feral’s declaration states only that she will “continue to monitor the Y.O Ranch and other sport-hunting facilities.” See Feral Decl. at ¶ 41. Ms. Feral does not describe how she intends to “monitor” the Y.O. Ranch, whether by subsequent visits or otherwise. According to the record, Ms. Feral’s last visit to a ranch containing captive antelope occurred in 2006. See id. at ¶ 39. In the intervening eight years, the plaintiff has not identified any visit to a ranch containing captive antelope or any plans to visit such a ranch in the future. In contrast, Ms. Feral’s declaration does express a concrete intention to visit wild antelope in Africa. See Feral Decl. at ¶ 23 (“I intend to ensure that a member of the FoA staff or I continue our regular travels to Africa to see . . . African antelopes . . . . In fact, I have plans to go to Senegal every year between November and January to check on the recovery efforts.”). The generalized statements offered by the plaintiff in the instant case are not sufficiently concrete to satisfy the requirement of imminent injury. See, e.g., Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (holding that plaintiff’s “vague desire to return is insufficient to satisfy the requirement of imminent injury”); Defenders of Wildlife, 504 U.S. at 564 (holding that “the affiants’ profession of an ‘inten[t]’ to return to the places they had visited before . . . is simply not enough” because “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed any App.50a specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require” (emphasis in original)); WildEarth Guardians v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013) (finding standing because members of environmental group submitted affidavits attesting to their “specific plans to visit the area regularly for recreational purposes”); Haase v. Sessions, 835 F.2d 902, 911 (D.C. Cir. 1987) (“[I]t will not do for [the plaintiff] to assert generally that he might one day return to Nicaragua. More immediate and concrete plans are necessary.”); cf. Mendoza v. Perez, 754 F.3d 1002, 1014 (D.C. Cir. 2014) (finding that plaintiffs had standing as intended participants in job market where the plaintiffs attested to their “specific experience,” the “particular working conditions that led them to leave the industry; the specific wages and conditions they would require to accept new employment as workers; the manner in which they have kept abreast of conditions in the industry; and . . . a specific possible avenue for obtaining reemployment”). * * * Under any of the theories advanced by the plaintiff, the plaintiff lacks standing to pursue its claim that Section 127 violates the Constitution.9

9 Even if the plaintiff maintained standing to bring suit, Section 127 is valid under the Constitution. The plaintiff argues that under United States v. Klein, 80 U.S. 128 (1871), Congress may not pass a statue dictating the result of pending litigation without amending the substantive law, see Pl.’s Mem. at 12-24, a “proposition on which [the D.C. Circuit] express[es] no view,” see Nat’l Coal. To Save Our Mall v. Norton, 269 F.3d 1092, 1096 (D.C. Cir. 2001). As the D.C. Circuit has recognized, “Klein’s exact meaning is far from clear,” see id. at 1097, and as another App.51a

B. The Reinstatement Rule Does Not Violates Section 10(c) of the ESA The plaintiff devotes but a single sentence to its argument that the Reinstatement Rule violates Section 10(c) of the ESA, directing the Court to the prior decision striking down the Captive-bred Exemption in Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009). See Pl.’s Mem. at 26. Were this Court

judge on this Court has observed “Klein is rarely (if ever) successfully invoked in constitutional challenges to federal statutes,” see Wazir v. Gates, 629 F. Supp. 2d 63, 66 (D.D.C. 2009). As a result, courts have upheld statutes with analogous language against similar constitutional challenges under Klein. See, e.g., Save Our Mall, 269 F.3d at 1094-97 (holding that statute requiring the World War II Memorial be built consistent with the existing permits “[n]ot withstanding any other provision of law” amended “the applicable substantive law” and did not run afoul of Klein); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012) (holding that where “Congress has directed the agency to issue [a] rule ‘without regard to any other provision of statute or regulation that applies to issuance of such rule’ . . . Congress has amended the law” and does not offend the Constitution). Moreover, where there is ambiguity regarding whether a statute amends the substantive law, and therefore whether it is constitutional, “the court [is] obligated to impose [a] saving interpretation as long as it [is] a possible one.” Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 441 (1992). In the present case, Section 127 amends the applicable law and does not run afoul of the Constitution. In addition, Section 127 does not run afoul of Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225 (1995), which holds that Congress may not enact “legislation that prescribes what the law was at an earlier time” and then require the law’s “application in a case already finally adjudicated.” Section 127 does not establish what the law was at a prior time or require its application to a case already adjudicated. Rather, Section 127 directs the FWS to issue the Reinstatement Rule, thus establishing what the law will be prospectively. App.52a considering the Reinstatement Rule solely by its own terms, the Court might likewise agree with the prior decision. Unfortunately for the plaintiff, however, Section 127 guides the Court’s analysis regarding the legality of the Reinstatement Rule. Section 127 directs the FWS to reissue the rule “without regard to any other provision of statute or regulation that applies to issuance of such rule.” Pub. L. No. 113-76, 128 Stat. 5, § 127. Accordingly, Section 10(c) does not apply to the Reinstatement Rule and the FWS’s actions in promulgating the rule were compelled by the statute, consistent with congressional intent, and therefore not arbitrary or capricious under the APA. See Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 707 (D.C. Cir. 2014) (“‘Normally, an agency rule would be arbitrary or capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” (quoting Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

IV. CONCLUSION For the foregoing reasons, the Court concludes that the Federal Defendants and the defendant-intervenor are entitled to summary judgment. Accordingly, the motions for summary judgment of the Federal Defendants and the defendant-intervenor are granted and the plaintiff’s motion for summary judgment is denied. An appropriate Order accompanies this Memorandum Opinion. App.53a

/s/ Beryl A. Howell United States District Judge

Date: March 4, 2015

App.54a

SUPPLEMENTAL AUTHORITY LETTER (MAY 24, 2016)

Mark Langer Clerk of Court United States Court of Appeals for the District of Columbia Circuit 333 Constitution Ave. NW Washington, DC 20001 Re: Friends of Animals v. S. M. R. Jewell (D.C. Cir. No. 15-5070) Panel: Kavanaugh, Edwards and Sentelle; Oral Argument held February 22, 2016 Response to Appellee’s May 20, 2016 Submittal of Supplemental Authority: Bank Markazi v. Pe- terson, 136 S. Ct. 1310 (2016) (Doc. 1614318) Dear Mr. Langer: Pursuant to Federal Rule of Appellate Procedure 28(j), Appellant Friends of Animals submits the following response to Appellees’ May 20, 2016 Submittal of Supplemental Authority: Contrary to Appellees’ assertion, Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016), fully supports Friends of Animals’ argument that Section 127 of the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5, § 127 (2014) violates the U.S. Constitution’s separation of powers doctrine by directing the outcome in pending cases without changing the underlying law or providing a new legal standard for the Court to apply. In Markazi, the Supreme Court upheld a provision of the Iran Threat Reduction and Syria Human Rights Act because it “changed the law by establishing new substantive standards, entrusting to the App.55a

District Court application of those standards to the facts (contested or uncontested) found by the court.” Markazi, 136 S. Ct. at 1326. In contrast, Section 127 alters pending judgments arising under the Endan- gered Species Act without changing the Endangered Species Act or creating any new legal standard whatsoever. In Markazi, Justice Roberts explained in his dissenting opinion that Congress cannot pass a law that resolves parties’ specific legal disputes to guarantee one party’s victory in federal court. Id. at 1330 (Roberts, C.J. dissenting). Justice Ginsberg, writing for the majority, acknowledged that Congress cannot compel results under old laws and that any case which did so would violate the constitution if it “fails to supply any new legal standard effectuating the lawmakers’ reasonable policy judgment.” Id. at 1326. Section 127 is such an unconstitutional law because it fails to supply a new legal standard and it does not reflect any reasoned policy judgment. See Friends of Animals’ Opening Br. at 35-39; Friends of Animals’ Reply at 10-11 Finally, Markazi does not impact Friends of An- imals’ arguments that Section 127 impermissibly alters previously fully adjudicated rights. See Friends of Animals Opening Br. at 32-35; Markazi 136 S. Ct. at 1323 (explaining that Congress cannot retroactively command federal courts to reopen final judgments) (citing Plaut v. Spendthrift Farm, 514 U.S. 211 (1995)).

App.56a

Respectfully Submitted,

/s/ Michael Harris Michael Ray Harris Wildlife Law Program Friends of Animals 7500 E. Arapahoe Road, Suite 385 Centennial, Colorado 80112 [email protected] michaelhar- [email protected] 720-949-7791

Attorneys for Appellant

App.57a

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, 1:13-CV-01580 (D.D.C.) (OCTOBER 16, 2013)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______

FRIENDS OF ANIMALS

Plaintiff, v.

DAN ASHE, in His Official Capacity as Director of U.S. Fish & Wildlife Service

and

SALLY JEWELL, in Her Official Capacity as Secretary of Interior

Defendants. ______Case 1:13-cv-01580-BAH

INTRODUCTION 1. This is the second time Friends of Animals (“FoA”) has been forced bring an action against the Director of the U.S. Fish and Wildlife Service (“FWS”) and the Secretary of the Interior (collectively, “Federal Defendants”) to seek a remedy from the government’s failure to follow the clear dictates of Section 10 of the Endangered Species Act (“ESA”) App.58a when processing and issuing permits to allow the killing of endangered African antelope on U.S. sport‐ hunting ranches. 2. In the first action, filed in 2006, former Judge Henry H. Kennedy set aside a blanket permit that purported to authorize the take of endangered scimitar- horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama) (collectively, the “three African antelope”) that were being held in captivity in the United States for the purpose of trophy hunting. Judge Kennedy found: By assertedly complying with subsection 10(c) through publishing a proposed rule, accepting comment on that proposed rule, and providing information received in that process as opposed to through responding to an individual application, FWS abstracts the question of whether the exception will enhance the propagation or survival of the species from the specific to the general. In this way, FWS avoids providing the information that would necessarily accompany an [individual] application, such as “a complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be used, displayed, or maintained,” and “[a] full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized by the permit.” This hinders the ability of individuals and groups to participate in the meaningful way contemplated by the ESA because, without this information, it is App.59a

impossible to evaluate whether each permitted act will enhance the propagation or survival of the species. Friends of Animals v. Salazar, 626 F. Supp. 2d 102, 118 (D.D.C. 2009). 3. Although it took nearly three (3) years, in Ju- ly 2011, FWS finally posted its’ proposal to rescinded the sport-hunting rule. In its place, FWS adopted a fast track approach to processing Section 10 applications from hunting ranches through the issuance of special guidelines, or as the agency called them—a “cheat sheet”—that catered to these ranchers (hereinafter, “Three Antelope Guidelines”). 4. Two years of experience under the Three Ante- lope Guidelines has shown that once again FWS has not complied with Section 10 when it comes to regulating captive members of the three African antelope. While FWS technically requires individual permit applications from ranchers, these applications are so general and stripped down—often using nothing but language from the Three Antelope Guidelines— that the applications universally lack information that would allow one to conclude that the “applicant is justified in obtaining a permit.” Once again, FWS has assured that individuals and groups are hin- dered from participating in the permitting process “in the meaningful way contemplated by the ESA.” More importantly, in issuing hundreds of Section 10 permits under these guidelines, FWS is failing in its statutory obligation to ensure that endangered African antelope—both those in the wild and held in captivity in the United States—are not placed in jeopardy. App.60a

5. Through this action, FoA asks this Court to find unlawful and set aside the permits issued to the Thirsty River, Comanche Spring, Corley, and Las Colinas ranches (collectively the “4 Hunting Ranch- es”) that were issued in non-compliance with the ESA. Further, because the Federal Defendants have demonstrated a pattern and practice of non-compliance with the ESA when it comes to processing permits for hunting ranches, FoA asks this Court to also enjoin further permit processing by FWS under the Three Antelope Guidelines.

JURISDICTION AND VENUE 6. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), and 16 U.S.C. §§ 1540(c), (g) (citizen suit provision of the ESA). This Court may grant the relief requested under 28 U.S.C. §§ 2201-2202 (declaratory and injunctive relief) and 5 U.S.C. §§ 701-706 (Administra- tive Procedure Act). 7. FoA sent the Federal Defendants written notice of its intent to sue more than 60 days ago. 16 U.S.C. § 1540(g)(2). Federal Defendants have not remedied their violations of the ESA. Therefore, an actual controversy exists between the parties. 8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e), as Federal Defendants officially reside in Washington, D.C. and issued the permits form their offices in Washington D.C.

PARTIES 9. Plaintiff, FRIENDS OF ANIMALS (“FoA”), sues on behalf of itself and its adversely affected App.61a members. FoA is a nonprofit, international animal advocacy organization incorporated in the state of New York since 1957. FoA seeks to free animals from cruelty and exploitation around the world, and to promote a respectful view of non-human, free-living and domestic animals. FoA engages in a variety of advocacy programs in support of these goals. FoA informs its members about animal advocacy issues as well as the organization’s progress in addressing these issues through its magazine called Act’ionLine, its website, and other reports. FoA has published articles and information advocating for the protection of endangered species so that they can live unfettered in their natural habitat. FoA in particular has a longstanding commitment to protecting animals imperiled due to poaching, sport-hunting, and other animal- exploitation markets. 10. FoA’ members have a long-standing personal, informational, philosophical, and scientific interest in the three African antelope species. FoA’ members and staff actively sought protection for the three African antelope under the ESA. As a result of FoA’ efforts, the Federal Defendants finally listed all three species as endangered on September 2, 2005. To save these species from extinction, FoA funds and participates in recovery efforts for the antelope in their native habitat. FoA facilitated the reintroduction of the antelope within Ferlo National Park in northwest Senegal. FoA also collaborated with European and Middle Eastern specialists in captive breeding of arid ecosystem gazelle species to restore these animals to the wild. Through member support, FoA funds habitat restoration efforts at Ferlo National Park. For example, in fiscal year 2013, FoA contributed $66,000 to App.62a expanding the Oryx Fence Project which benefited 120 oryx and 20 dama gazelles, along with other animals. 11. As part of its recovery efforts, FoA’ members and staff visit the current and historic habitat of the scimitar-horned oryx, addax, and dama gazelle to try to observe these species. FoA’s president, for example, travels regularly to Senegal where she observes scimitar-horned oryx and dama gazelle. FoA currently has staff in place to monitor and promote recovery efforts of the antelope in Africa. 12. FoA has also invested considerable resources in its efforts to end trophy-hunting of endangered species. FoA regularly publicizes the plight of the three African antelope species, the negative impacts of captive breeding and canned hunting, and the organization’s progress in recovery efforts to its members and the public through its quarterly journal ActionLine and its website. FoA actively opposes canned hunting of the three African antelope species as well as other endangered species. FoA monitors the Federal Register and other sources for the government’s actions that may impact the three African antelope species, as well as actions affecting endangered species generally. 13. FoA submitted comments to FWS on multiple occasions objecting to FWS’ decisions to issue permits under the ESA allowing sport-hunting or import of sport-hunted trophies of endangered species, including the scimitar-horned oryx, addax, and dama gazelle. Specifically, FoA commented on permit applications for the 4 Hunting Ranch permits that are the subject of this action, as well as applications from Lucky 7 Exotics Ranch, Preserve II POA, Wilco Ranch, Los App.63a

Senderos Ranch, NNNN Operations, Hacienda Yturria, Fallow Creek Ranch, Bruce Fairchild, DFR Ranch, James Keller, JCH Ranch, Joel Owens, John Klauss, Moody Ranch, Ox Ranch, Pinto Ranch, and Tularosa Ranch. FoA will continue to review permit applications from hunting ranches and comment where appropriate. 14. Defendant DAN ASHE is the Director of the U.S. Fish and Wildlife Service. In this official position, he is responsible for ensuring that all FWS’s actions comply with the requirements of NEPA. 15. Defendant SALLY JEWELL, in her official capacity as the Secretary of the Department of the Interior (“Secretary”), has the ultimate responsibility for ensuring that agencies within the Department of Interior, including FWS, comply with the requirements of the ESA.

GENERAL BACKGROUND OF THE THREE AFRICAN ANTELOPE SPECIES 16. The scimitar-horned oryx, dama gazelle, and addax are all native to the Sahelo-Saharan regions of northern Africa. 17. The scimitar-horned oryx stands about 47 inches tall and weighs about 450 pounds with a generally pale coat and dark reddish brown neck and chest. Adult scimitar-horned oryx possess a pair of horns curving back in an arc up to 50 inches. {image} Scimitar-horned oryx (Wikimedia Commons Photo by Albinfo) App.64a

18. The addax stands about 42 inches tall and weighs around 220 pounds with a grayish white coat and spiral horns that twist up to 43 inches long. {image} Addax (Wikimedia Commons Photo by Zachi Evenor) 19. The dama gazelle, the largest of the gazelles, but the smallest of the three antelope species at issue in this suit, was once common and widespread in arid and semi-arid regions of the Sahara. {image} Dama Gazelle (Wikimedia Commons Photo by Mark Thorpe) 20. The dama gazelle is about 39 inches tall at the shoulder and weighs about 160 pounds with a mostly reddish brown body, but a white head, rump, and underparts. The dama gazelle’s horns extend back and up, reaching a length of about 17 inches long. 21. All three antelope species are in danger of extinction throughout their ranges. 22. Although previously widespread in northern Africa, wild numbers of the three antelopes have declined drastically over the past 50 years as a result of habitat loss, poaching, civil wars, and the inadequacy of existing regulatory mechanisms. 23. The scimitar-horned oryx, which once had an extensive range in North Africa, is believed to be extirpated in the wild. 24. The addax once existed throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River. Remnant populations of the App.65a addax may still exist in remote desert areas, but probably fewer than 300 occur in the wild. 25. The number of the dama gazelle in the wild is not expected to be less than 500. 26. All three species are listed in Appendix I of the Convention on International Trade in Endan- gered Species of Wild Fauna and Flora (CITES). 27. The International Union for Conservation of Nature (IUCN) Red List categorizes the oryx as “extinct in the wild,” and the dama gazelle and addax as “critically endangered.” 28. Captive-bred scimitar-horned oryx and addax have been reintroduced to fenced areas in their native range in Morocco and Tunisia. Captive-bred scimitar-horned oryx and dama gazelles have also been reintroduced to a fenced area in Senegal. 29. FoA participated in and provided funding for the recovery efforts in Senegal for the scimitar- horned oryx and dama gazelles. 30. The American Zoo and Aquarium Associa- tion (“AZA”) works on research and reintroduction efforts involving the three antelope species through Species Survival Plans (“SSPs”). The scimitar-horned oryx, addax, and dama gazelle (subspecies mhorr gazelle) each have SSPs.

A. Captive African Antelope and Sport-Hunting 31. While these species struggle for survival in the wild, private hunting ranches in the United States, mainly in the state of Texas, breed scimitar- horned oryx, addax, and dama gazelle, along with many other exotic species, for the purpose of sport-hunting. App.66a

32. These ranches allow people to hunt these endangered species within enclosed areas, a practice known as “canned hunting” as the animal has no real means of escape. 33. For a hefty price, ranging from $1,800 to $5,000, these sport-hunting operations guarantee success and a mounted trophy. 34. For example, Comanche Spring Ranch, one of the 4 Hunting Ranches at issue in this case, offers hunts for a scimitar horned oryx at $4,000, not including the packing or shipping of meat, skins, or horns. 35. Private hunting ranches are not covered by the federal Animal Welfare Act that regulates the treatment of the antelope by exhibitors (such as zoos) and dealers. 36. Private hunting ranches cannot participate in SSPs. 37. AZA policies prohibit members from supply- ing animals to ranches that allow sport-hunting. 38. Private hunting ranches in the United States fail to maintain adequate genetic information on their breeding stock of the three African antelope. 39. Private hunting ranches in the United States do not provide individual African antelope to assist in recovery actions in the Africa.

B. Protection Under the Endangered Species Act for African Antelope 40. The road to protection of these beautiful and rare species of North African antelope has been a long one. App.67a

41. FWS recognized the imperiled status of the three African antelope species as far back as November 5, 1991, when it published in the Federal Register a proposed rule to list the three species as “endangered” under the ESA. 42. FWS never finalized the November 5, 1991 proposed rule until 2005, following at least one lawsuit for not meeting the statutory timeline for doing so. 43. On September 2, 2005, FWS published the Final Listing Rule, listing the three African antelope species as endangered throughout their ranges. 44. FWS found the three African antelope species to be endangered due to habitat loss through deserti- fication, permanent human settlement, competition with domestic livestock, and by regional military activity and uncontrolled killing. 45. Concurrently with the final listing rule, on September 2, 2005, FWS also issued a regulation that exempted U.S. captive populations of the three African antelope species from the ESA’s prohibition on taking, exporting, reimporting, or selling endangered species, and thereby permitting continued hunting of these endangered species for sport (the “Sport-Hunting Rule”). 46. Under the Sport-Hunting Rule, any person could: Take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce live wildlife . . . and sport- hunted trophies of scimitar-horned oryx (Oryx App.68a

dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama). 47. In 2006, FoA filed suit against FWS for promulgating the Sport-Hunting Rule. 48. On June 22, 2009, Judge Kennedy found that the Sport-Hunting Rule violated Section 10(c) of the ESA and remanded to FWS. 49. As a result of the Judge Keenedy’s decision, on July 7, 2011, FWS rescinded the Sport-Hunting Rule. 50. Shortly after rescinding the Sport-Hunting Rule, two pro-hunting organizations filed suit against FWS trying to prevent regulation of the three African antelope on U.S. hunting ranches. 51. The Safari Club International (SCI), a group that promotes unrestricted hunting of animals for sport, filed a lawsuit to remove these all captive members of these three species of African antelope from the list of endangered animals. 52. The Exotic Wildlife Association (EWA), a group that promotes the interests of canned-hunting ranches in Texas and other states, filed a lawsuit to prevent FWS from removing the 2005 Sport-Hunting Exemption. 53. These two cases were consolidated in the United States District Court for the District of Columbia. 54. FoA intervened in the consolidated cases to defend FWS’ decisions to list the three antelope species as endangered under the ESA and its decision to remove the 2005 Sport-Hunting Rule. App.69a

55. On August 9, 2013, the U.S. District for the District of Columbia upheld FWS’ decisions that treat captive and wild populations of the three African antelope the same under the ESA, and to remove the Sport-Hunting Rule. 56. The decision of the District Court has been appealed by SCI to the D.C. Circuit Court of Appeals.

FWS’ PERMITTING OF TAKES AT U.S. SPORT-HUNTING RANCHES

A. ESA Legal Requirements

1. General Legal Background of the ESA 57. The purpose of the ESA is to conserve threatened and endangered species and the ecosystems upon which the species depend. 16 U.S.C. § 1531(b). The Supreme Court recognized that by enacting the ESA, Congress “intended endangered species to be afforded the highest priorities.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 174 (1978). 58. In enacting the ESA, Congress expressly provided authority for listing non-native species that are deemed endangered in their home ranges in other countries. 59. Congress decision to include authority for listing of non-native species was based upon a desire to make the United States a leader in protecting species and ecosystem both domestically and worldwide. 60. Congress found that steps to close U.S. market to trade in endangered and threatened species may not be sufficient, in and of themselves, to remove the pressure and thus to allow these species to recover. App.70a

Thus, Congress decided to extend protection to all endangered species, including those in captivity in the United States. 61. The fundamental method by which the ESA protects endangered species is its prohibition on taking any endangered species within the United States. 16 U.S.C. § 1538. 62. Defined broadly, the term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). 63. The prohibition on taking endangered animals applies equally to wild animals and those held in captivity for commercial activity.

2. Section 10 Permitting Requirements 64. Congress provided for a narrow exception to the ESA’s prohibition on taking endangered species. 65. Section 10(a)(1)(A) of the ESA allows FWS to issue permits authorizing the taking of an endangered species “for scientific purposes or to enhance the propagation or survival of the affected species . . . .” (hereinafter, “Enhancement and Survival Permit”). 66. FWS is generally required to publish in the Federal Register notice of each application for an Enhancement and Survival Permit and invite the submission of comments on the application from interested parties. 67. FWS may only grant a permit under Section 10 of the ESA if the agency makes a finding that: (1) the permit was applied for in good faith; (2) if granted and exercised the permit will not operate to the disad- App.71a vantage of such endangered species; and (3) that issuance of the permit will be consistent with the purposes and policy set forth in Section 2 of the ESA. 68. Among other things, Section 2 states that it is the purpose of the ESA to provide a program for the conservation of endangered species. 69. Among other things, Section 2 states that it is the policy of Congress that all federal agencies seek to conserve endangered species. 70. In the ESA, the terms conserve, conserving and conservation are defined to mean “to use and the use of all methods and procedures which are necessary to bring endangered species and threatened species to the point at which measures provided [in the ESA] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisi- tion and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.”

3. FWS’ Regulatory Requirements for Section 10 Permits 71. By regulation, FWS requires that each applicant for an Enhancement and Survival Permit provide the agency with the following information: (i) the common and scientific names of the species covered by the permit, as well as the number, age, and sex of such species, and the activities sought to be authorized; (ii) A App.72a

statement as to whether, at the time of application, the wildlife sought to be covered by the permit (A) is still in the wild, (B) has already been removed from the wild, or (C) was born in captivity; (iii) A resume of the applicant’s attempts to obtain the wildlife sought to be covered by the permit in a manner which would not cause the death or removal of the species; (iv) If the wildlife sought to be covered by the permit has already been removed from the wild, the country and place where such removal occurred; (v) A complete description and address of the institution or other facility where the wildlife sought to be covered by the permit will be maintained; (vi) If the applicant seeks to have live wildlife covered by the permit, a complete description, including photographs or diagrams, of the facilities to house and/or care for the wildlife and a resume of the experience of those person who will be caring for the wildlife; (vii) A full statement of the reasons why the applicant is justified in obtaining a permit including the details of the activities sought to be authorized; (viii) If the application is for the purpose of enhancement of propagation, a statement of the applicant’s willingness to participate in a cooperative breeding program and to maintain or contribute data to a studbook. 50 C.F.R. § 17.22(a)(1) 72. By regulation, FWS has further defined its obligation under Section 10 of the ESA by requiring App.73a that in deciding whether to issues a permit, the agency must consider: (i) whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit; (ii) the probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit; (iii) whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed; (iv) whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit; (v) the opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and (vi) whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application. 50 C.F.R. § 17.22(a)(2) 73. By regulation, FWS is prohibited from issuing a permit if the applicant has failed to disclose material information required for the agency to make these considerations. App.74a

74. By regulation, FWS is prohibited from issuing a permit if the applicant has failed to demonstrate a valid justification for the permit and a showing of responsibility. 75. By regulation, FWS is prohibited from issuing a permit if it would threaten a wildlife population.

4. FWS’ Three Antelope Guidelines and Special Treatment of Section 10 Permit Applications for Hunting Ranches Process 76. After removing the Sport-Hunting Rule, FWS issued a document entitled “Application Guidelines for Conducting Interstate Commerce and Culling for the Three Antelope.” 77. FWS officials have stated that the agency intends to expedite processing of Section 10 permits for the taking of the three African antelope on hunting ranches. 78. FWS has stated that the Three Antelope Guidelines are intended to be a “cheat sheet” for ranchers seeking permits to take African antelope. 79. The Three Antelope Guidelines provides canned answers for canned hunting operations. 80. For example, the Three Antelope Guidelines provides the following answer for Question 5 of the application for a Captive-Bred Wildlife Registration: The question directed to how your operation will benefit or enhance the species you hold. For most CBW holders, this enhancement consists of maintaining a genetically diverse herd of animals and carrying out breeding operations that could make animals available App.75a

for further conservation breeding efforts or reintroduction purposes. If this is the reason for your request, state this. (emphasis added). 81. With regard to question 7, the Three Ante- lope Guidelines states: In addition, you need to provide a justification for allowing culling on the ranch. You need to identify the anticipated level of off take, how your herd is being managed so that culling is necessary, and how you are supporting in-situ conservation efforts. For other permit applications like this, applicants have committed 10 percent or more of the hunting revenue to an in-situ conservation project being managed by a non-governmental organization, such as Conservation Force or Exotic Wildlife Association. 82. FWS did not undergo notice and comment rulemaking when it issued the Three Antelope Guide- lines 83. FWS did not consult under Section 7 before issuing the Three Antelope Guidelines. 84. FWS did not prepare any document under the National Environmental Policy Act (“NEPA”) before issuing the Three Antelope Guidelines. App.76a

B. Factual Allegations Pertaining to Hunting Ranch Permit Applications Since July 2011

1. General Allegations Pertaining to All Permits Received and Processed 85. Since the issuance of the Three Antelope Guidelines, FWS has continually approved En- hancement and Survival Permits to private hunting ranches that allow the killing of members of the three African antelope species for profit. 86. FWS has issued more than fifty (50) En- hancement and Survival Permits since issuing the Three Antelope Guidelines. 87. FoA is not aware of a single application that FWS has rejected from a hunting ranch seeking an Enhancement and Survival Permit to take an African antelope since issuing the Three Antelope Guidelines. 88. FoA staff has reviewed many of the permit applications that hunting ranches submitted to FWS since July 2011 and have provided FWS written comments on many of the applications. 89. FoA has found it difficult to obtain the actual permit applications from FWS in a timely manner, which is important given that FWS only gives the public 30-days to comment. FWS does not place the applications on its website, and does not publish them along with the notice of receipt of an application in the Federal Register. Instead, FoA and other would-be- commenters must request by e-mail to obtain an application. In several cases it has taken up to 10 days to even obtain an application after the request was made by FoA. App.77a

90. All of applications reviewed by FoA failed to provided sufficient information to allow FoA and the public to understand how the applicants meet the statutory requirements to obtain an Enhancement and Survival Permit. 91. First, the applications do not indicate that the applicants applied for the permit in good faith as a means to enhance the propagation or survival of endangered African antelope. Instead, the applications merely provide that the animals are being held as inventory, the surplus of which is offered for sale for those wishing to kill one for sport. 92. Second, the applications do not indicate that issuance of permit would not operate to the disadvantage of an endangered species. Issuance of a permit would operate to the disadvantage of the captive populations on the permitted ranches despite the fact that these animals should have equal protection under the ESA. Beyond that, the applications fail to address whether the permits might also operate to the disadvantage of populations of the three African antelope in their native ranges. 93. With regards to the three African antelope, FWS previously concluded that management of domestic captive-bred African Antelope, if not done correctly, can disadvantage wild populations of the species. Specifically, FWS stated that ESA protections need to apply to captive population because otherwise the “species would potentially be subject to increased take and trade in ‘laundered’ wild-caught specimens to feed U.S. or foreign market demand.” 78 Fed. Reg. 33790, 33793. Additionally, “[p]oachers and smugglers would have increased incentive to remove animals from the wild and smuggle them into App.78a captive- holding facilities in the United States for captive propagation or subsequent commercial use of either live or dead specimens, because once in captivity there would be no [Endangered Species] Act restrictions on use of the captive-held specimens or their offspring.” Id. at 33794. 94. Third, the applications do not contain information regarding how issuance of the permits would be consistent with the purposes and policies of the ESA. 95. The applications do not show that the ranchers are fulfilling any of the purposes spelled out in Section 2(b): that they are conserving the ecosystems on which these listed animals depend; are providing a program for their conservation; and are helping to achieve the purposes of treaties and conventions spelled out in ESA Section 2(a). 96. At most the applications simply provide that they are giving 10 percent of the proceeds from killing endangered African antelope to pro-sport hunting organizations that work on projects in Africa. 97. The ESA does not provide for making payment for the taking of an endangered species in lieu of demonstrating that a Section 10 permit is necessary to conserve the species. 98. The applications contain no information that, even if lawful, the donation is actually conserving the three African antelope. 99. The applications further contain no information to show that a permit is needed for an extraordinary case in which regulated taking is neces- App.79a sary because no other method is available to conserve the species. 100. All of the applications FoA reviewed failed to provide most of the information required by FWS’ regulations. 101. All of the applications FoA reviewed also failed to provide sufficient information to allow FoA and the public to understand how FWS was able to adequately consider the regulatory requirements the agency promulgated to guide its review of Enhancement and Survival Permits. 102. For example, all of the applications FoA reviewed failed to provided sufficient information to allow FoA and the public to consider: the probable direct and indirect effect that issuing a permit would have on the wild populations of the wildlife sought to be covered by the permit; whether a permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population of the species to be covered by the permit; whether the purpose for which the permit was required would be likely to reduce the threat of extinction facing the species to be covered by the permit; whether the expertise, facilities, or other resources available to the applicant were adequate to successfully accomplish the objectives stated in the application. 103. All of the applications FoA reviewed failed to demonstrate a valid justification for issuance of a permit. 104. FWS continues to accept and process applications from hunting ranches that rely on the Three Antelope Guidelines and contain inadequate App.80a information to understand whether the applicant meets the statutory and regulatory conditions necessary to obtain an Enhancement and Survival Permit. 105. FoA believes that FWS will continue to accept and process applications from hunting ranches that rely on the Three Antelope Guidelines and, thus, contain inadequate information, absent a Court order holding this practice unlawful. 106. FWS’ issuance of the Three Antelope Guidelines, and ongoing practice under it, essentially maintains the blanket hunting exemption that was found unlawful by Judge Kennedy. The processing of permits under the Three Antelope Guidelines deprives FoA and the public of important information regarding the applicant and FWS’s compliance with ESA, and the right to meaningfully participate in the Section 10 permitting process.

2. Specific Allegations Pertaining to the 4 Hunt- ing Ranches

i. Thirsty River Ranch 107. On or about April 23, 2013, Thirsty River Ranch requested an Enhancement and Survival Permit from FWS to authorize interstate and foreign commerce, export, and cull of excess scimitar-horned oryx, addax, and barsingha deer (Cervus duvauceli). 108. FWS published notice of Thirsty River Ranch’s application in the Federal Register on May 22, 2013. 78 Fed. Reg. 30325-26. 109. Thirsty River Ranch’s application indicat- ed that Thirsty River Ranch had scimitar-horned App.81a oryx, addax, and barasingha deer on its ranch since 2009. 110. Thirsty River Ranch did not have a valid captive wildlife registration or Section 10 permits before submitting its application. 111. The Thirsty River Ranch application failed to provided sufficient information to allow FoA staff and the public to understand how the applicant meets the statutory requirements to obtain an Enhancement and Survival Permit. 112. First, the Thirsty River Ranch application did not indicate that the applicant applied for the permit in good faith as a means to enhance the propagation or survival of endangered African antelope. Instead, the application merely provides that the animals are being held as inventory, the surplus of which is offered for sale for those wishing to kill one for sport. 113. Second, the Thirsty River Ranch application did not indicate that issuance of permit would not operate to the disadvantage of an endangered species. Clearly the permit will operate to the disadvantage of the captive populations on the Thirsty River Ranch, despite that these animals have equal protection under the ESA. Beyond that, the application fails to address whether the permit might also operate to the disadvantage of populations of the three African antelope in their native ranges. 114. Third, the Thirsty River Ranch application did not contain information regarding how issuance of the permit would be consistent with the purposes and policies of the ESA. App.82a

115. The Thirsty River Ranch application did not show that the ranch is fulfilling any of the purposes spelled out in Section 2(b): that it is conserving the ecosystems on which these listed animals depend; is providing a program for their conservation; and is helping to achieve the purposes of treaties and conventions spelled out in ESA Section 2(a). 116. At most the Thirsty River Ranch application simply provides that they are giving 10 percent of the proceeds from killing endangered African antelope to pro-sport hunting organizations that work on projects in Africa. 117. The ESA does not provide for making payment for the taking of an endangered species in lieu of demonstrating that a Section 10 permit is necessary to conserve the species. 118. The application contains no information that, even if lawful, the donation is actually conserving the three African antelope. 119. The Thirsty River Ranch application further contains no information to show that the permit is needed for an extraordinary case in which regulated taking is necessary because no other method is available to conserve the species. 120. The Thirsty River Ranch application also failed to provide most of the information required by FWS’ regulations. 121. For example, Thirsty River Ranch’s application did not include the following information: whether the ranch conducts genetic testing, tests for disease, examines herd dynamics, or employs trained biologists to conduct analyses or observations that App.83a would allow a decision on whether a given individual belonging to an endangered species is a “surplus;” whether the proposed activity to be permitted might have an overall negative impact on the species; the age of the animals sought to be killed pursuant to the permit; the sex of the animals it sought to be killed pursuant to the permit; the origin of the animals it sought to be covered by the permit; a complete description of were the animals it sought to be covered by the permit would be maintained; why it was justified in obtaining a permit; the details of the activities it sought to be covered by the permit; a statement of its willingness to participate in a cooperative breeding program; or a statement of its willingness to maintain or contribute data to a studbook. 122. The Thirsty River Ranch application also failed to provide sufficient information to allow FoA and the public to understand how FWS was able to adequately consider the regulatory requirements the agency has promulgated to guide its review of Enhancement and Survival Permits. 123. For example, Thirsty River Ranch’s application failed to provided sufficient information to allow FoA and the public to consider: the probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit; whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population of the species to be covered by the permit; whether the purpose for which the permit was required would be likely to reduce the threat of App.84a extinction facing the species to be covered by the permit; whether the expertise, facilities, or other resources available to the applicant were adequate to successfully accomplish the objectives stated in the application. 124. FoA submitted comments regarding the Thirsty River Ranch application on June 21, 2013, and urged FWS not to approve Thirsty River Ranch’s permit. 125. FWS sent an e-mail to FoA on June 26, 2013, stating that it intended to issue the ESA take permit for Thirsty River Ranch in ten days.

ii. Comanche Spring Ranch 126. On or about April 23, 2013, Comanche Spring Ranch requested an Enhancement and Survival Permit from FWS to authorize interstate and foreign commerce, export, and call of excess scimitar-horned oryx, and barasingha deer. 127. FWS published notice of Comanche Spring Ranch’s application in the Federal Register on May 22, 2013. 78 Fed. Reg. 30325-26. 128. The Comanche Spring Ranch application failed to provided sufficient information to allow FoA and the public to understand how the applicant meets the statutory requirements to obtain a En- hancement and Survival Permit. 129. First, the Comanche Spring Ranch application did not indicate that the applicant applied for the permit in good faith as a means to enhance the propagation or survival of endangered African antelope. Instead, the application merely provides App.85a that the animals are being held as inventory, the surplus of which is offered for sale for those wishing to kill one for sport. 130. Second, the Comanche Spring Ranch application did not indicate that issuance of permit would not operate to the disadvantage of an endangered species. Clearly the permit will operate to the disadvantage of the captive populations on the Comanche Spring Ranch, despite that these animals have equal protection under the ESA. Beyond that, the application fails to address whether the permit might also operate to the disadvantage of populations of the three African antelope in their native ranges. 131. Third, the Comanche Spring Ranch application did not contain information regarding how issuance of the permit would be consistent with the purposes and policies of the ESA. 132. The Comanche Spring Ranch application did not show that the ranch is fulfilling any of the purposes spelled out in Section 2(b): that it is conserving the ecosystems on which these listed animals depend; is providing a program for their conservation; and is helping to achieve the purposes of treaties and conventions spelled out in ESA Section 2(a). 133. At most the Comanche Spring Ranch application simply provides that they are giving 10 percent of the proceeds from killing endangered African antelope to pro-sport hunting organizations that work on projects in Africa. 134. The ESA does not provide for making payment for the taking of an endangered species in lieu of demonstrating that a Section 10 permit is necessary to conserve the species. App.86a

135. The application contains no information that, even if lawful, the donation is actually conserving the three African antelope. 136. The Comanche Spring Ranch application further contains no information to show that the permit is needed for an extraordinary case in which regulated taking is necessary because no other method is available to conserve the species. 137. The Comanche Spring Ranch application also failed to provide most of the information required by FWS’ regulations. 138. For example, Comanche Spring Ranch’s application did not include the following information: whether the ranch conducts genetic testing, tests for disease, examines herd dynamics, or employs trained biologists to conduct analyses or observations that would allow a decision on whether a given individual belonging to an endangered species is a “surplus;” whether the proposed activity to be permitted might have an overall negative impact on the species; the age of the animals sought to be killed pursuant to the permit; the age of the animals sought to be killed pursuant to the permit; the sex of the animals it sought to be killed pursuant to the permit; the origin of the animals it sought to be covered by the permit; a complete description of were the animals it sought to be covered by the permit would be maintained; why it was justified in obtaining a permit; the details of the activities it sought to be covered by the permit; a statement of its willingness to participate in a cooperative breeding program; or a statement of its willingness to maintain or contribute data to a studbook. App.87a

139. The Comanche Spring Ranch application also failed to provide sufficient information to allow FoA and the public to understand how FWS was able to adequately consider the regulatory requirements the agency has promulgated to guide its review of Enhancement and Survival Permits. 140. For example, Comanche Spring Ranch’s application failed to provided sufficient information to allow FoA and the public to consider: the probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit; whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population of the species to be covered by the permit; whether the purpose for which the permit was required would be likely to reduce the threat of extinction facing the species to be covered by the permit; whether the expertise, facilities, or other resources available to the applicant were adequate to successfully accomplish the objectives stated in the application. 141. FoA submitted comments regarding Co- manche Spring Ranch’s application on June 21, 2013, and urged FWS not to approve Comanche Spring Ranch’s permit. 142. FWS sent an e-mail to FoA on June 26, 2013, stating that it intended to issue the ESA take permit for the Comanche Spring Ranch in ten days. App.88a

iii. Corley Ranch 143. On or about April 26, 2013, Corley Ranch requested an Enhancement and Survival Permit from FWS to authorize interstate and foreign commerce, export, and call of excess scimitar-horned oryx. 144. FWS published notice of Corley Ranch’s application in the Federal Register on June 6, 2013. 78 Fed. Reg. 34118-34120. 145. The Corley Ranch application failed to provided sufficient information to allow FoA and the public to understand how the applicant meets the statutory requirements to obtain a Enhancement and Survival Permit. 146. First, the Corley Ranch application did not indicate that the applicant applied for the permit in good faith as a means to enhance the propagation or survival of endangered African antelope. Instead, the application merely provides that the animals are being held as inventory, the surplus of which is offered for sale for those wishing to kill one for sport. 147. Second, the Corley Ranch application did not indicate that issuance of permit would not operate to the disadvantage of an endangered species. Clearly the permit will operate to the disadvantage of the captive populations on the Corley Ranch, despite that these animals have equal protection under the ESA. Beyond that, the application fails to address whether the permit might also operate to the disadvantage of populations of the three African antelope in their native ranges. 148. Third, the Corley Ranch application did not contain information regarding how issuance of App.89a the permit would be consistent with the purposes and policies of the ESA. 149. The Corley Ranch application did not show that the ranch is fulfilling any of the purposes spelled out in Section 2(b): that it is conserving the ecosystems on which these listed animals depend; is providing a program for their conservation; and is helping to achieve the purposes of treaties and conventions spelled out in ESA Section 2(a). 150. At most the Corley Ranch application simply provides that they are giving 10 percent of the proceeds from killing endangered African antelope to pro-sport hunting organizations that work on projects in Africa. 151. The ESA does not provide for making payment for the taking of an endangered species in lieu of demonstrating that a Section 10 permit is necessary to conserve the species. 152. The application contains no information that, even if lawful, the donation is actually conserving the three African antelope. 153. The Corley Ranch application further contains no information to show that the permit is needed for an extraordinary case in which regulated taking is necessary because no other method is available to conserve the species. 154. The Corley Ranch application also failed to provide most of the information required by FWS’ regulations. 155. For example, Corley Ranch’s application did not include the following information: whether the ranch conducts genetic testing, tests for disease, App.90a examines herd dynamics, or employs trained biologists to conduct analyses or observations that would allow a decision on whether a given individual belonging to an endangered species is a “surplus;” whether the proposed activity to be permitted might have an overall negative impact on the species; the number of animals sought to be killed by the permit, the age of the animals sought to be killed pursuant to the permit; the sex of the animals it sought to be killed pursuant to the permit; the origin of the animals it sought to be covered by the permit; a complete description of were the animals it sought to be covered by the permit would be maintained; why it was justified in obtaining a permit; the details of the activities it sought to be covered by the permit; a statement of its willingness to participate in a cooperative breeding program; or a statement of its willingness to maintain or contribute data to a studbook. 156. The Corley Ranch application also failed to provide sufficient information to allow FoA and the public to understand how FWS was able to adequately consider the regulatory requirements the agency has promulgated to guide its review of Enhancement and Survival Permits. 157. For example, Corley Ranch’s application failed to provided sufficient information to allow FoA and the public to consider: the probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit; whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population of the species to be covered by the permit; whether the purpose for which App.91a the permit was required would be likely to reduce the threat of extinction facing the species to be covered by the permit; whether the expertise, facilities, or other resources available to the applicant were adequate to successfully accomplish the objectives stated in the application. 158. FoA submitted comments to FWS on June 21, 2013 regarding Corley Ranch’s application, and urged FWS not to approve Corley Ranch’s permit. 159. The Corley Ranch application was one of the barest of the hunting ranch applications reviewed by FoA. 160. The application—which is a mere 1 page— provides no actual information about the applicant or its ranching operation. 161. Even with the FWS’ Three Antelope Guidelines this applicant couldn’t manage to explain why it believes it is entitled to a Section 10 permit. 162. Even so, on July 9, 2013, FWS sent an e-mail to FoA stating that it intended to issue the ESA take permit for Corley Ranch in ten days.

iv. Las Colinas Ranch 163. On or about June 4, 2013, John Anderson requested an Enhancement and Survival Permit from FWS to authorize interstate and foreign commerce, export, and call of excess scimitar-horned oryx on Las Colinas Ranch. 164. FWS published notice of John Anderson’s request in the Federal Register on July 8, 2013. 78 Fed. Reg. 40762-63. App.92a

165. The Las Colinas Ranch application failed to provided sufficient information to allow FoA and the public to understand how the applicant meets the statutory requirements to obtain a Enhancement and Survival Permit. 166. First, the Las Colinas Ranch application did not indicate that the applicant applied for the permit in good faith as a means to enhance the propagation or survival of endangered African antelope. Instead, the application merely provides that the animals are being held as inventory, the surplus of which is offered for sale for those wishing to kill one for sport. 167. Second, the Las Colinas Ranch application did not indicate that issuance of permit would not operate to the disadvantage of an endangered species. Clearly the permit will operate to the disadvantage of the captive populations on the Las Colinas Ranch, despite that these animals have equal protection under the ESA. Beyond that, the application fails to address whether the permit might also operate to the disadvantage of populations of the three African antelope in their native ranges. 168. Third, the Las Colinas Ranch application did not contain information regarding how issuance of the permit would be consistent with the purposes and policies of the ESA. 169. The Las Colinas Ranch application did not show that the ranch is fulfilling any of the purposes spelled out in Section 2(b): that it is conserving the ecosystems on which these listed animals depend; is providing a program for their conservation; and is App.93a helping to achieve the purposes of treaties and conventions spelled out in ESA Section 2(a). 170. At most the Las Colinas Ranch application simply provides that they are giving 10 percent of the proceeds from killing endangered African antelope to pro-sport hunting organizations that work on projects in Africa. 171. The ESA does not provide for making payment for the taking of an endangered species in lieu of demonstrating that a Section 10 permit is necessary to conserve the species. 172. The application contains no information that, even if lawful, the donation is actually conserving the three African antelope. 173. The Las Colinas Ranch application further contains no information to show that the permit is needed for an extraordinary case in which regulated taking is necessary because no other method is available to conserve the species. 174. The Las Colinas Ranch application also failed to provide most of the information required by FWS’ regulations. 175. For example, Las Colinas Ranch’s application did not include the following information: whether the ranch conducts genetic testing, tests for disease, examines herd dynamics, or employs trained biologists to conduct analyses or observations that would allow a decision on whether a given individual belonging to an endangered species is a “surplus;” whether the proposed activity to be permitted might have an overall negative impact on the species; the age of the animals sought to be killed pursuant to the App.94a permit; the age of the animals sought to be killed pursuant to the permit; the sex of the animals it sought to be killed pursuant to the permit; the origin of the animals it sought to be covered by the permit; a complete description of were the animals it sought to be covered by the permit would be maintained; why it was justified in obtaining a permit; the details of the activities it sought to be covered by the permit; a statement of its willingness to participate in a cooperative breeding program; or a statement of its willingness to maintain or contribute data to a studbook. 176. The Las Colinas Ranch application also failed to provide sufficient information to allow FoA and the public to understand how FWS was able to adequately consider the regulatory requirements the agency has promulgated to guide its review of Enhancement and Survival Permits. 177. For example, Las Colinas Ranch’s application failed to provided sufficient information to allow FoA and the public to consider: the probable direct and indirect effect that issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit; whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population of the species to be covered by the permit; whether the purpose for which the permit was required would be likely to reduce the threat of extinction facing the species to be covered by the permit; whether the expertise, facilities, or other resources available to the applicant were adequate to successfully accomplish the objectives stated in the application. App.95a

178. FoA submitted comments to FWS on Au- gust 6, 2013 regarding John Anderson’s application, and urged FWS not to approve his permit. 179. FWS sent an e-mail to FoA on August 9, 2013, stating that it intended to issue the ESA take permit for John Anderson in ten days.

CAUSES OF ACTION

FIRST CAUSE OF ACTION (Issuance of Permits to the 4 Hunting Ranches) 180. FoA herein incorporates all allegations contained in the preceding paragraphs. 181. By accepting, processing, and approving the applications from the Thirsty Spring, Comanche River, Corley and Las Colinas ranches, and by issuing these applicants permits to take endangered African antelopes, Federal Defendants are violating the ESA, and are acting in manner that is arbitrary, capricious, an abuse of discretion, and contrary to law, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.

SECOND CAUSE OF ACTION (Pattern and Practice of Illegally Issuing Permits) 182. FoA herein incorporates all allegations contained in the preceding paragraphs. 183. By engaging in a pattern and practice of accepting, processing, and approving Enhancement and Survival Permits to hunting ranches that fail to meet the requirements of the ESA, Federal Defend- ants are acting, and will continue to act in, a manner App.96a that is arbitrary, capricious, an abuse of discretion, and contrary to law, in violation of the APA.

THIRD CAUSE OF ACTION (Failure to use Notice and Comment Rulemaking) 184. FoA herein incorporates all allegations contained in the preceding paragraphs. 185. The APA requires that before an agency adopts a “rule,” as defined in 5 U.S.C. § 551(4), it must publish a notice in the Federal Register of the proposed rule and provide interested persons the opportunity to comment. 5 U.S.C. § 553(b). 186. The U.S. Court of Appeals for the District of Columbia has established a two-part test for whether a guidance document qualifies as final agency action that first required notice and comment rulemaking: the guidance must both “mark the consum- mation of the agency’s decision making process” and be an action “by which rights and obligations have been determined, or from which ‘legal consequences will flow.’” Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000). 187. The Three Antelope Guidelines meets both parts of this test. First, it has been made publically available and has been utilized for two years for the processing of Enhancement and Survival Permits for hunting ranches. Second, the Three Antelope Guide- lines provides for specific rights and obligation for the hunting ranch industry not provided for or granted to the public generally for processing Section 10 permits. In fact, the Three Antelope Guidelines provides for a less stringent permitting process then provided for by the agency’s actual Section 10 App.97a regulations, which were the subject of notice and comment rulemaking. In addition, legal consequences flow from the Three Antelope Guidelines in that the applicant is given a means to obtain a permit to perform an otherwise illegal act while others, namely the public, is deprived from the meaningful right to participate in the permitting process they are granted under Section 10(c) of the ESA. 188. Federal Defendants violated the APA when they issued the Three Antelope Guidelines without complying with the notice and comment provisions.

PRAYER FOR RELIEF FoA respectfully request that this Court enter judgment providing the following relief: 1. Declare that Federal Defendants violated the ESA and the APA by issuing Section 10 permits to Thirsty River, Comanche Spring, Corley, and Las Colinas ranches; 2. Vacate the Section 10 permits issued to Thirsty River, Comanche Spring, Corley, and Las Colinas ranches; 3. Declare Federal Defendants have engaged in a pattern and practice of accepting, processing, and approving Section 10 permits to hunting ranches in violation of the ESA. 4. Enjoin Federal Defendants from issuing any Section 10 permits for the three African antelope species, until Federal Defendants take steps to ensure that applications contain sufficient information to comply with the ESA and its implementing regulations; App.98a

5. Declare that Federal Defendants violated the APA when they issued the Three Ante- lope Guidelines without complying with the notice and comment provisions; 6. Vacate and Enjoin enforcement of the Three Antelope Guidelines until such time that the Federal Defendants comply with the APA; 7. Award FoA costs, including reasonable attorney fees pursuant to 16 U.S.C. § 1540(g)(4) and the Equal Access to Justice Act, 28 U.S.C. § 2412; and 8. Grant FoA any other relief that the Court deems just and proper.

Respectfully Submitted,

/s/ Michael Harris (DC Bar # CO0049) Director, Wildlife Law Program Friends of Animals Western Region Office P.O. Box 102041 Denver, CO 80250 (720) 949‐7791 michaelhar- [email protected]

Dated: October 16, 2013

App.99a

DOCKET DETAILS, 1:13-CV-01580 (D.D.C.) (OCTOBER 16, 2013)

U.S. DISTRICT COURT DISTRICT OF COLUMBIA (WASHINGTON, DC) CIVIL DOCKET FOR CASE #: 1:13-cv-01580-BAH ______

FRIENDS OF ANIMALS, v.

ASHE ET AL., ______Cases: 1:11-cv-01564-BAH 1:14-cv-00357-BAH Assigned to: Chief Judge Beryl A. HOWELL

10/16/2013 1 COMPLAINT against FRIENDS OF ANIMALS, SALLY JEWELL, DAN ASHE (Filing fee $400 receipt number 0090- 3502250), CIVIL COVER SHEET by FRIENDS OF ANIMALS, REQUEST FOR SUMMONS TO ISSUE by FRIENDS OF ANIMALS filed by FRIENDS OF ANIMALS. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Notice of Re- lated Case) (Harris, Michael) (Entered: 10/16/2013) App.100a

10/16/2013 Case Assigned to Judge Beryl A. Howell. (kb) (Entered: 10/17/2013) 10/17/2013 2 NOTICE OF RELATED CASE by FRIENDS OF ANIMALS. Case related to Case No. 11-cv-01564. (Harris, Michael) (Entered: 10/17/2013) 10/17/2013 3 NOTICE of filing of revised civil cover sheet by FRIENDS OF ANIMALS (Harris, Mi- chael) (Entered: 10/17/2013) 10/17/2013 4 NOTICE requesting issuance of summons by FRIENDS OF ANIMALS (Harris, Mi- chael) (Entered: 10/17/2013) 10/17/2013 5 ELECTRONIC SUMMONS (4) Issued as to DAN ASHE, SALLY JEWELL, U.S. Attor- ney and U.S. Attorney General (Attach- ments: # 1 Consent Forms) (rdj) (Entered: 10/17/2013) 10/21/2013 6 STANDING ORDER. Signed by Judge Ber- yl A. Howell on 10/21/2013. (lcbah2) (En- tered: 10/21/2013) 10/31/2013 7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DAN App.101a

ASHE served on 10/22/2013 (Harris, Michael) (Entered: 10/31/2013) 10/31/2013 8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. SALLY JEWELL served on 10/21/2013 (Harris, Mi- chael) (Entered: 10/31/2013) 10/31/2013 9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/22/2013. (Harris, Michael) (Entered: 10/31/2013) 10/31/2013 10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Up- on United States Attorney on 10/22/2013. Answer due for ALL FEDERAL DEFENDANTS by 12/21/2013. (Harris, Mi- chael) (Entered: 10/31/2013) 11/29/2013 11 Unopposed MOTION to Intervene and Memorandum in Support by SAFARI CLUB INTERNATIONAL (Attachments: # 1 Exhibit A–Declaration of Rew Goodenow, # 2 Exhibit B-Declaration of Hinckley, # 3 Exhibit C– Declaration of Douglas, # 4 Exhibit D– Declaration of Mitchell, # 5 Exhibit E– Declaration of Loero, # 6 Disclosure Certifi- App.102a

cate, # 7 Text of Proposed Order, # 8 Pro- posed Answer) (Seidman, Anna) (Entered: 11/29/2013) 12/02/2013 12 NOTICE of Appearance by Travis James Annatoyn on behalf of All Defendants (An- natoyn, Travis) (Entered: 12/02/2013) 12/02/2013 13 MOTION to Intervene by CONSERVATION FORCE, DALLAS SAFARI CLUB, HOUSTON SAFARI CLUB, Texas Wildlife Association, Media Luna Ranch, Kothman Ranch Co., KJC Rockin P Ranch, South- western Medical Center Arizona DBA Indi- anhead Ranch, J&R Outfitters, Rancho Ve- dado, Heart of the Lone Star Ranch, Simpson Ranch, 777 Ranch (Attachments: # 1 Decla- ration Sworn Declaration of John J. Jack- son, III, # 2 Declaration Sworn Declaration of Alan Powers, # 3 Declaration Sworn Dec- laration of Ben Carter, # 4 Declaration Sworn Declaration of Greg Simons, # 5 Dec- laration Sworn Declaration of Melanie Pep- per, # 6 Declaration Sworn Declaration of Jeff Rann, # 7 Exhibit Proposed Answer, # 8 Text of Proposed Order Proposed Order) (Jackson, John) (Entered: 12/02/2013) 12/03/2013 NOTICE OF ERROR re 13 Motion to Inter- vene; emailed to [email protected], cc’d 6 associated attorneys—The PDF file you docket- ed contained errors: 1. Counsel is reminded App.103a

that parties should be entered using UPPER CASE ONLY. NO ACTION NEEDED (zrdj,) (Entered: 12/03/2013) 12/03/2013 MINUTE ORDER (paperless) granting the 11 Unopposed Motion to Intervene of Safari Club International, as defendant-intervenor. Signed by Judge Beryl A. Howell on 12/03/2013. (lcbah2) (Entered: 12/03/2013) 12/03/2013 14 ANSWER to Complaint by SAFARI CLUB INTERNATIONAL. (rdj)(Entered: 12/03/2013) 12/04/2013 15 Memorandum in opposition to re 13 MOTION to Intervene filed by FRIENDS OF ANIMALS. (Attachments: # 1 Exhibit Exhibit A) (Harris, Michael) (Entered: 12/04/2013) 12/04/2013 16 Memorandum in opposition to re 13 MOTION to Intervene CORRECTED filed by FRIENDS OF ANIMALS. (Attachments: # 1 Exhibit Exhibit A) (Harris, Michael) (Entered: 12/04/2013) 12/06/2013 17 RESPONSE re 13 MOTION to Intervene and Response of Friends of Animals filed by SAFARI CLUB INTERNATIONAL. (Seid- man, Anna) (Entered: 12/06/2013) App.104a

12/16/2013 18 REPLY to opposition to motion re 13 MOTION to Intervene filed by 777 RANCH, CONSERVATION FORCE, DALLAS SAFARI CLUB, HEART OF THE LONE STAR RANCH, HOUSTON SAFARI CLUB, J&R OUTFITTERS, KJC ROCKIN P RANCH, KOTHMAN RANCH CO., MEDIA LUNA RANCH, RANCHO VEDADO, SIMPSON RANCH, SOUTHWESTERN MEDICAL CENTER ARIZONA, TEXAS WILDLIFE ASSOCIATION. (Attachments: # 1 Declara- tion, # 2 Exhibit) (Jackson, John) (Entered: 12/16/2013) 12/17/2013 19 MOTION for Relief from Local Rule 7(n) by DAN ASHE, SALLY JEWELL (Annatoyn, Travis) (Entered: 12/17/2013) 12/20/2013 20 NOTICE of Appearance by Meredith L. Flax on behalf of DAN ASHE, SALLY JEWELL (Flax, Meredith) (Entered: 12/20/2013) 12/20/2013 21 MOTION to Intervene by EXOTIC WILDLIFE ASSOCIATION (Attachments: # 1 Declaration of Charly Seale, # 2 Declaration of Ban Green, # 3 Proposed Answer, # 4 Rule 7.1 Certificate, # 5 Text of Proposed Order) (Guiffre, Thomas) (Entered: 12/20 /2013) App.105a

12/20/2013 22 MOTION for Leave to Appear Pro Hac Vice: Attorney Name-Kent H. Holsinger,: Firm- HOLSINGER LAW, LLC, :Address–1800 Glenarm Place, Suite 500, Denver, CO 80202. Phone No.–(303) 722-2828. Fax No.–(303) 496-1025 by EXOTIC WILDLIFE ASSOCI- ATION (Attachments: # 1 Declaration of Kent H. Holsinger, # 2 Text of Proposed Or- der) (Guiffre, Thomas) (Entered: 12/20/2013) 12/23/2013 MINUTE ORDER (paperless) granting the defendants’ 19 Motion for Relief from LCvR 7(n). Accordingly, the defendants need not file a certified list of the contents of the administrative record simultaneously with the filing of defendants’ forthcoming motion to dismiss. Signed by Judge Beryl A. Howell on 12/23/2013. (lcbah2)(Entered:12/23/2013) 12/23/2013 MINUTE ORDER (paperless) granting the proposed defendant-intervenor’s 22 Motion for Kent H. Holsinger’s Admission Pro Hac Vice. Mr. Kent H. Holsinger may enter an appearance pro hac vice for the purpose of representing the proposed defendant- intervenor in this action. Signed by Judge Beryl A. Howell on 12/23/2013. (lcbah2) (Entered: 12/23/2013) App.106a

12/23/2013 23 RESPONSE re 21 MOTION to Intervene filed by FRIENDS OF ANIMALS. (Harris, Michael) (Entered: 12/23/2013) 12/23/2013 24 MOTION to Dismiss by DAN ASHE, SALLY JEWELL (Attachments: # 1 Exhibit 1 -PETA v. FWS, # 2 Text of Proposed Or- der) (Flax, Meredith) (Entered: 12/23/2013) 01/06/2014 25 MOTION for Extension of Time to File Re- sponse/Reply as to 24 MOTION to Dismiss by FRIENDS OF ANIMALS (Attachments: # 1 Text of Proposed Order) (Harris, Michael) (Entered: 01/06/2014) 01/06/2014 MINUTE ORDER (paperless) granting the Plaintiff’s 25 Unopposed Motion for Exten- sion of Time. Accordingly, by January 16, 2014, the Plaintiff shall file any response to the Federal Defendants’ 24 Motion to Dismiss. Signed by Judge Beryl A. Howell on 01/06/2014. (lcbah2) (Entered: 01/06/2014) 01/06/2014 26 MOTION to Dismiss or for Judgment on the Pleadings or Memorandum in Support of Federal Defendants’ Motion to Dismiss by SAFARI CLUB INTERNATIONAL (Attach- ments: # 1 Text of Proposed Order) (Seidman, Anna) (Entered: 01/06/2014) App.107a

01/07/2014 Set/Reset Deadlines: Response to Dispositive Motion due by 1/16/2014. (tg,) (Entered: 01/07 /2014) 01/10/2014 27 NOTICE of Change of Address by Michael Ray Harris (Harris, Michael) (Entered: 01/10 /2014) 01/16/2014 28 Memorandum in opposition to re 24 MOTION to Dismiss, 26 MOTION to Dismiss or for Judgment on the Pleadings or Memorandum in Support of Federal Defendants’ Motion to Dismiss filed by FRIENDS OF ANIMALS. (Attachments: # 1 Declaration, # 2 Exhibit Exhibit A to Decl. of Ms. Feral, # 3 Exhibit Exhibit B to Decl. of Ms. Feral, # 4 Exhibit Exhibit C to Decl. of Ms. Feral, # 5 Exhibit Exhibit D to Decl. of Ms. Feral, # 6 Exhibit Exhibit E to Decl. of Ms. Feral, # 7 Exhibit Exhibit F to Decl. of Ms. Feral, # 8 Exhibit Exhibit G to Decl. of Ms. Feral) (Harris, Mi- chael) (Entered: 01/16/2014) 01/24/2014 29 Joint MOTION to Stay Proceedings by DAN ASHE, SALLY JEWELL (Attachments: # 1 Text of Proposed Order) (Annatoyn, Travis) (Entered: 01/24/2014) 01/24/2014 30 Unopposed MOTION to Expedite Defend- ants’ and Defendant-Intervenor’s Joint Mo- App.108a

tion to Stay Proceedings by DAN ASHE, SALLY JEWELL (Attachments: # 1 Text of Proposed Order) (Annatoyn, Travis) (Entered: 01/24/2014) 01/24/2014 MINUTE ORDER (paperless) GRANTING the defendants and defendant-intervenor’s 30 Unopposed Motion to Expedite and ISSUING the following scheduling order to control briefing on the defendants and defendant-intervenor’s 29 Motion for Stay. The plaintiff shall, by January 31, 2014, file any opposition to the defendants and defendant-intervenor’s 29 Motion for Stay. The defendants and defendant-intervenor shall, by February 7, 2014, file any reply in a single submission to the Court. Should the Court deny the 29 Motion for Stay, the defendants and defendant-intervenor shall file any reply to the plaintiff’s 28 opposition to the defendants’ 24 Motion to Dismiss and the defendant-intervenor’s 26 Motion to Dismiss or for Judgment on the Pleadings within seven days of such denial. Signed by Judge Beryl A. Howell on January 24, 2014. (lcbah1) (Entered: 01/24/2014) 01/24/2014 Set/Reset Deadlines: Opposition to 29 Motion to Stay due by 1/31/2014; Reply due by 2/7/2014. (tg,) (Entered: 01/27/2014) App.109a

01/27/2014 MINUTE ORDER (paperless) GRANTING 13 and 21 Motions to Intervene, by Conser- vation Force et al. and the Exotic Wildlife Association, respectively, upon consideration of the memoranda supporting and in opposition thereto, the accompanying decla- rations, and the entire record herein. If a suit continues without the intervenor, and a decision is made that “could establish unfavorable precedent that would make it more difficult for [the intervenor] to succeed on similar claims if [it] brought them in a separate lawsuit of [its] own, [that] is sufficient under” D.C. Circuit case law to require the Court to grant a timely motion to intervene. Roane v. Leonhart, No. 12-5020, 2014 WL 259659, at *3 (D.C. Cir. Jan. 24, 2014). In the instant matter, a decision “could establish unfavorable precedent that would make it more difficult” for the defendant-intervenors to succeed in subsequent lawsuits. Conse- quently, the Motions to Intervene are granted. Nevertheless, the Court agrees with the plaintiff that precautions must be taken to avoid duplicative briefing. See 16 Pl.’s Corr. Resp. to Conservation Force Et Al.’s Mot. Intervene at 34. Therefore, the defendant-intervenors shall coordinate with each other and the defendants to ensure that their filings do not merely duplicate arguments put forward by the defendants and defendant-intervenor Safari Club Inter- national. The defendant-intervenors shall ad- App.110a

here to the schedule set forth in this Court’s Minute Order of January 24, 2014 and file any opposition to the defendants and defendant-intervenor Safari Club Interna- tional’s 29 Motion to Stay by January 31, 2014 or, in the alternative, file any reply to the plaintiff’s opposition by February 7, 2014. Signed by Judge Beryl A. Howell on January 27, 2014. (lcbah1) (Entered: 01/27/2014) 01/27/2014 Set/Reset Deadlines: Defendant-Intervenors Conservation Force et al. and the Exotic Wildlife Association’s Oppositions to 29 Mo- tion due by 1/31/2014; Replies due by 2/7/2014. (tg,) (Entered: 01/27/2014) 01/27/2014 31 ANSWER to Complaint by CONSERVATION FORCE, DALLAS SAFARI CLUB, HOUSTON SAFARI CLUB. (rdj) (Entered: 01/28/2014) 01/27/2014 32 ANSWER to Complaint by EXOTIC WILDLIFE ASSOCIATION. (rdj) (Entered: 01/28/2014) 01/27/2014 33 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by EXOTIC WILDLIFE ASSOCIATION (rdj) (Entered: 01/28/2014) App.111a

01/31/2014 34 RESPONSE re 29 Joint MOTION to Stay Proceedings filed by FRIENDS OF ANIMALS. (Harris, Michael) (Entered:01/31 /2014) 02/07/2014 35 REPLY to opposition to motion re 29 Joint MOTION to Stay Proceedings filed by DAN ASHE, SALLY JEWELL. (Annatoyn, Travis) (Entered: 02/07/2014) 02/10/2014 MINUTE ORDER (paperless) GRANTING the federal defendants’ and defendant- intervenors’ 29 Joint Motion to Stay Pro- ceedings and the federal defendants’ and defendant-intervenors’ 30 Unopposed Motion to Expedite Defendants’ and Defendant- Intervenors’ Joint Motion to Stay Proceed- ings. “[T]he District Court has a broad discretion in granting or denying stays so as to ‘coordinate the business of the court efficiently and sensibly.’” McSurely v. McClel- lan, 426 F.2d 664, 671 (D.C. Cir. 1970) (citing Landis v. North American Co., 299 U.S. 248, 255 (1936)). “Indeed, ‘a trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.’” Hisler v. Gal- laudet Univ., 344 F. Supp. 2d 29, 35 (D.D.C. 2004) (quoting Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 86364 (9th App.112a

Cir. 1979)). On January 17, 2014, Congress enacted the Consolidated Appropriations Act, 2014, H.R. 3547, 113th Cong. § 167 (“CAA”), which directs the Secretary of the Interior to reissue 70 Fed. Reg. 52310-01 (Sept. 2, 2005) et seq., commonly known as the “Captive-Bred” rule, within sixty (60) days. The promulgation of a new rule may render some or all of the plaintiff’s claims moot and may tangibly affect the arguments set out in defendants’ 24 Motion to Dismiss and defendant-intervenor Safari Club’s 26 Motion to Dismiss or for Judgment On the Pleadings Or Memorandum In Support of Federal Defendants’ Motion to Dismiss. Af- ter weighing “the court’s interest in judicial economy and any possible hardship to the parties,” Belize Soc. Dev. Ltd. v. Gov’t of Be- lize, 668 F.3d 724, 733 (D.C. Cir. 2012) cert. denied, 133 S. Ct. 274 (2012) (citation omitted), the Court STAYS this action until March 25, 2014, on which date the parties shall provide a joint status report regarding the impact, if any, of the CAA on this matter, and a proposed schedule to control future proceedings in this matter. Signed by Judge Beryl A. Howell on February 10, 2014. (lcbah2) (Entered: 02/10/2014) 02/10/2014 Set/Reset Deadline: The parties shall provide a joint status report on or before 3/25/2014, regarding the impact, if any, of the CAA on this matter, and a proposed App.113a

schedule to control future proceedings in this matter. (ad) (Entered: 02/10/2014) 03/25/2014 36 STATUS REPORT by DAN ASHE, SALLY JEWELL. (Annatoyn, Travis) (Entered: 03/25/2014) 03/27/2014 MINUTE ORDER (paperless) STAYING this action pending resolution of related case Civ. No. 14-cv-00357. “[T]he District Court has a broad discretion in granting or denying stays so as to ‘coordinate the business of the court efficiently and sensibly.’” McSurely v. McClellan, 426 F.2d 664, 671 (D.C. Cir. 1970) (citing Landis v. North American Co., 299 U.S. 248, 255 (1936)). “Indeed, ‘a trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.’” Hisler v. Gallaudet Univ., 344 F. Supp. 2d 29, 35 (D.D.C. 2004) (quoting Ley- va v. Certified Grocers of California, Ltd., 593 F.2d 857, 86364 (9th Cir. 1979)). On January 17, 2014, Congress enacted the Consolidated Appropriations Act, 2014, H.R. 3547, 113th Cong. § 167, which directed the Secretary of the Interior to reissue 70 Fed. Reg. 52310-01 (Sept. 2, 2005) et seq., commonly known as the “Captive-Bred” rule, within sixty (60) days. Prior to reissuance, the plaintiff separately filed suit in this App.114a

Court alleging that reissuance of the Cap- tive-Bred rule would violate the separation of powers doctrine, and seeking declaratory and injunctive relief. See Civ. No. 14-cv-00357, ECF No. 1. The Captive-Bred rule was reissued on March 19, 2014. 79 Fed. Reg. at 15250. The resolution of case Civ. No. 14-cv-00357 may render some or all of the plaintiff’s claims moot and may tangibly affect the arguments set out in defendants’ 24 Motion to Dismiss and defendant-intervenor Safari Club’s 26 Motion to Dismiss or for Judgment On the Pleadings Or Memorandum In Support of Federal De- fendants’ Motion to Dismiss. After weighing “the court’s interest in judicial economy and any possible hardship to the parties,” Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 733 (D.C. Cir. 2012) cert. denied, 133 S. Ct. 274 (2012) (citation omitted), the Court STAYS this action until 30 days following resolution of Civ. No. 14-cv-00357, on which date the parties shall provide a joint status report regarding the impact, if any, of the Court’s ruling on this matter, and a proposed schedule to control future proceedings in this matter. Signed by Judge Beryl A. Howell on March 27, 2014. (lcbah2) (En- tered: 03/27/2014) 03/27/2014 Case Stayed (tg,) (Entered: 03/27/2014) App.115a

03/04/2015 MINUTE ORDER (paperless) DIRECTING the parties to file a Joint Status Report by April 3, 2015 indicating whether, following resolution of Friends of Animals v. Jewell, No. 14-357, the stay in this case should be lifted and a proposed schedule to control future proceedings in this matter. Signed by Judge Beryl A. Howell on March 4, 2015. (lcbah2) (Entered: 03/04/2015) 03/04/2015 Set/Reset Deadlines: Joint Status Report due by 4/3/2015. (tg,) (Entered: 03/04/2015) 04/06/2015 37 STATUS REPORT (JOINT) by FRIENDS OF ANIMALS. (Harris, Michael) (Entered: 04/06/2015) 04/06/2015 MINUTE ORDER (paperless) CONTINUING the STAY of this action, in light of the parties’ 37 Joint Status Report. Further DIRECTING the parties to file another Joint Status Re- port indicating whether the stay in this case should be lifted and proposing a schedule to control future proceedings in this matter within 30 days of a final disposition of Friends of Animals v. Jewell, No. 14-357, which is currently pending on appeal. Signed by Judge Beryl A. Howell on April 6, 2015. (lcbah3) (Entered: 04/06/2015) App.116a

07/05/2016 38 Joint STATUS REPORT by DANIEL M. ASHE, SALLY JEWELL. (Annatoyn, Travis) (Entered: 07/05/2016) 07/07/2016 MINUTE ORDER (paperless) CONTINUING the STAY of this action, in light of the parties’ 38 Joint Status Report (“JSR”), which indicates that the plaintiff intends to petition the Supreme Court for writ of certiorari regarding the D.C. Circuit’s decision in Friends of Animals v. Jewell, No. 15-5070, 2016 WL 3125204 (D.C. Cir. June 3, 2016). Despite the defendants’ conclusory statement that continuing the stay “would subject De- fendants to unnecessary and prolonged litigation, and would drain administrative and judicial resources,” the defendants concede that “future proceedings . . . might in theory affect Defendants’ . . . jurisdictional argument.” JSR at 67. The Court prefers to address all of the parties’ arguments regarding jurisdiction at one time, and most of the defendant- intervenors have taken no position. JSR at 7. Accordingly, the parties are DIRECTED to file another Joint Status Report indicating whether the stay in this case should be lifted and proposing a schedule to control future proceedings in this matter within 30 days of a Supreme Court disposition of Friends of An- imals v. Jewell, D.D.C. No. 14-357, D.C. Cir. No. 15-5070, or, if no petition for writ of certiorari is filed, then by September 6, 2016. App.117a

Signed by Chief Judge Beryl A. Howell on July 7, 2016. (lcbah3) (Entered: 07/07/2016) 07/07/2016 Set/Reset Deadlines: Joint Status Report due by 9/6/2016 if no petition for writ of certiorari is filed. (tg) (Entered: 07/07/2016)