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ADMINISTRATIVE LAW--ELEPHANT TROPHY IMPORTATION BAN CORRECTLY SURVIVES CHALLENGE FROM AN INTERNATIONAL HUNTING CLUB.

ADMINISTRATIVE LAW--Elephant Trophy Importation Ban Correctly Survives Challenge from an International Hunting Club--Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48 (D.C. Cir. 2016).

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty that provides a framework for member nations to establish their own legislation to protect "endangered plants and animals" by regulating their international trade. (1) For American game hunters abroad, who hunted an animal for sport and wish to bring their hunted trophy back to the United States, they must comply with regulations set forth in the Endangered Species Act (Act). (2) In Safari Club Int'l v. Jewell, (3) the United States District Court of the District of Columbia was tasked with determining whether the suspension of the importation of sport-hunted elephant trophies was supported by evidence in the administrative record of the U.S. Department of Fish and Wildlife Service (Service). (4) The Court held that the Service's decision, based on a lack of complete information regarding Zimbabwe's elephant management plan and population status reports, to suspend the importation of sport-hunted elephant trophies was not arbitrary or capricious. (5)

On April 4, 2014, the Service imposed a temporary suspension of the importation of sport-hunted elephant trophies from Zimbabwe. (6) In and enhancement finding, the Service reasoned that the ban was imposed primarily because of the government of Zimbabwe's failure to provide the Service with enough information to help determine whether importing sport-hunted elephant trophies would enhance the survival of the species. (7) Acknowledging the lack of data, the Service requested more information from the government of Zimbabwe in order finalize a decision. (8) On July 22, 2014, upon receiving documents from the government of Zimbabwe that outlined their current elephant hunting management plan, the Service issued another enhancement finding and again denied to make a positive finding that would lift the ban. (9) Finally, on March 26, 2015, after receiving even more information regarding the country's management plan from the government of Zimbabwe and several NGOs, the Service extended the ban indefinitely and issued a final enhancement finding, again expressing a lack of information to make a decision. (10)

The plaintiffs in this case, the Safari Club International and the National Rifle Association (NRA), filed suit in the United States District Court for the District of Columbia to challenge the Service's suspension of imports of sport-hunted elephant trophies. (11) Plaintiffs asserted, among other claims, that the Service failed to gather enough information regarding elephants in Zimbabwe and that (1) the Service misinterpreted the data available to them when the enhancement findings were released and (2) that the trophy importation ban was irrational because of the invalid enhancement findings. (12) Safari Club International and the NRA believed the Service "ignored, rejected or discounted" information given them and asked the Court to review the Service's decision and declare the ban invalid. (13) After reviewing the parties' briefs for summary judgment, the Court ruled for the Service on all but one issue, holding the Service's decision to impose the importation ban was not "irrational, arbitrary, or capricious" because the findings were based on a rational determination of the data made available to them. (14)

The Convention was signed in March 1973 with the purpose of protecting the survival of animals, such as African elephants, involved in international trade. (15) The United States upholds the objectives of CITES through the Act and is enforced by the U.S. Department of Fish and Wildlife, and offers considerable protection to African elephants compared to protection offered in CITES. (16) As a result, the Service established the Special Rule Governing African Elephants (Special Rule), which imposed stringent regulations regarding elephant trophy trade and gave the Service power to determine when trophies may be imported to the United States. (17) Consequently, agencies like the Service have long been subject to review by the courts to determine if the agency complied with administrative rulemaking requirements that mandate public notice and comment. (18)

However, a court must first determine whether the agency action was rulemaking, not adjudicating, when examining if an agency complied with the necessary rulemaking requirements. (19)

Historically, courts have distinguished rules as agency action that enforces policies or standards and adjudications as agency action that weighs and considers disputed facts on a case-by-case basis. (20) Regardless of whether an agency action is considered a rule or an adjudication, courts often must review whether the agency can explain its action and establish a nexus between "the facts found and the choice made." (21) Often times, judicial review also becomes a matter of statutory interpretation to determine if an agency acted reasonably within the power granted by the agency's statutes to make a decision in the first place. (22)

The Supreme Court of the United States developed a two-part analysis in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. (23) (Chevron analysis) and courts now apply the test when determining whether an agency acted within their statutory authority. (24) First, courts look to whether Congress intended for an agency to act in accordance with a statute. (25) If the statute is "silent or ambiguous on the question," the court defers to the agency's interpretation of the statute so long as it is reasonable. (26) Courts consider an agency's expertise when determining the reasonable nature of the agency's analysis. (27) As a result, considerable deference is given to an agency's interpretation of a statute. (28)

In Safari Club Int'l, the Court analyzed a number of issues and concluded that the enhancement findings were not rules, but adjudications, which are not subject to notice and comment requirements; the Service reasonably interpreted the Special Rule Governing African Elephants to rebut presumptions in the Act; and the Service's enhancement findings were not "arbitrary or capricious." (29) The Court reasoned that the enhancement findings were not rules because the enhancement findings do not promulgate legislative-type policy, a distinctive characteristic of agency rulemaking. (30) The Court further distinguished the enhancement findings as adjudications because here, the findings settle disputed facts in particular situations. (31) Additionally, in its discussion of the Special Rule Governing African Elephants, the Court applied the two-part Chevron analysis. (32) For the first part of the analysis, the Court reasoned that the Act was silent on whether the Special Rule can rebut statutory presumptions because of conflicting language. (33) However, for the second part of the analysis, the Court explained that the Service was reasonable to presume that the Special Rule rebutted statutory presumptions in the, Act because of the Service's broad authority to fulfill the goal of protecting threatened species. (34)

Finally, the Court discussed the enhancement findings and reasoned that the Service rationally determined that hunting elephants and bringing the sport-hunted trophies back to the United States was not helping elephants, because the information available to the Service was not enough to establish a causal connection between trophy import and enhancing elephant survival. (35) Here, the Court applied the "arbitrary or capricious" standard of review and found that the Service adequately explained their decision to implement the importation ban and the Service based their enhancement finding decision on relevant data relating to all factors, such as Zimbabwe's elephant management plant and the population status of elephants. (36) The Court held in favor of the Service and struck down the plaintiffs' argument that the Service did not weigh and consider data properly because such interpretation of complex and technical data is delegated to the agency, who are considered experts. (37)

The Court's decision in Safari Club Int'l properly applied its analysis to all three administrative law issues. (38) First, the Court was correct in characterizing the enhancement findings as adjudications and not as rules. (39) Although distinctions between rules and adjudications can be subtle, the enhancement findings here, do not promote legislative-type rules or policies, rather the findings are an agency decision made by evaluating disputed facts, a telltale sign of adjudication, to determine the status of African elephants. (40) Next, the Court properly explored both steps in the Chevron analysis to conclude that the Service reasonably interpreted its statutory authority. (41) Regarding the first step, the Court was correct in finding Congress' intent ambiguous because language in the Act established the statutory presumption for certain species in the CITES, but at the same time Congress also gave the Service considerable power to make rules to protect threatened species; the Court then applied part two of the Chevron analysis and determined the Service reasonably interpreted the Act to make the Special Rule that rebutted the statutory presumption. (42) As a result, the Court upheld the notion that agencies are delegated broad power to reasonably use their discretion and knowledge to make decisions. (43)

Finally, the Court was correct in holding the enhancement findings were not "arbitrary or capricious." (44) Throughout the opinion the Court remarks often and emphasizes greatly, that in areas of scientific and technical subject matter, agencies are the experts and their decisions should be presumed to be valid so long as they are reasonable. (45) The Court properly remained steadfast in their judicial role solely as an arbiter to the Services' enhancement findings; the Court was not going to step in and subvert the authority and expertise of the Service. (46) Moreover, the Court correctly denied to consider the plaintiff's interpretation of the data over the Services' interpretation of the data that was used in the enhancement finding. (47) The purpose of the Service is to protect threatened or endangered species; thereby the Service was reasonable in declining to make a positive finding that hunting elephants to import the trophies to the United States was helping the species survive, especially when such a decision needs relevant and concrete information, which was significantly lacking here. (48)

The holding in Safari Club Int'l, solidifies the distinction between rules and adjudication and affirms judicial deference to an agency's reasonable interpretation of their own statutory powers. (49) Importantly, however, the holding acts as another testament in the storied history of the agency acting as the expert. (50) Typically, the average person or politician lacks significant knowledge about how to save endangered animals or how to interpret climate change data, but agencies do possess such knowledge. (51) Agencies deal with complex and technical issues with massive amounts of data and information. (52) Naturally, this is why agencies are delegated broad statutory powers to promulgate their goals; consequently, agencies are held in check by the courts and expert peer review. (53)

In Safari Club Int'l, the United States District Court for the District of Columbia had to determine whether evidence in the Services' administrative record allowed the ban on the importation of African elephant trophies. The Court applied their analysis relating to all three administrative law issues and correctly determined that the enhancement findings supporting the ban were not subject to notice and comment requirements because they were adjudications, the Service acted reasonably within their statutory powers according to the Chevron analysis, and the enhancement finding was rationally supported by relevant data. The Court properly reasoned that the adjudications did not promote legislative-type policies. Next, the Court correctly applied the Chevron analysis to the Services' interpretation of their own statutory powers and reasoned that the Service was reasonable to make the Special Rule because of the broad authority delegated to it by Congress. Lastly, the Court appropriately deferred to the Services' own expert analysis in interpreting the enhancement finding data and held that the agency was not "arbitrary or capricious" in finding that hunting elephants to import the trophies to the United States was not ensuring the survival of the species.

(1.) See Convention on International Trade in Endangered Species of Wild Fauna and Flora, 27 U.S.T. 1087 [hereinafter CITES] (establishing international trade requirements of endangered plants and animals). Under CITES, trade is defined as "export, re-export, import, and introduction from the sea." Id. at art. 1(c). The treaty divides different species into three appendices with species threatened with extinction in Appendix I, species not necessarily threatened in Appendix II, and species who require regulation to avoid exploitation in Appendix III. Id. at art. 2(1-4). Species listed in Appendix I are subject to strict regulation to prevent extinction and further survival. Id. at art. 2(1). Species listed in Appendix II are also subject to strict regulation, but can be traded. Id. at art. 2(ii)(a-b). "The Parties shall not allow trade in specimens of species included in Appendices I, II and III except in accordance with the provisions of the present Convention." Id. at art. 2(4). See also Convention on International Trade in Endangered Species, U.S. Fish And Wildlife Service, available at https://www.fws.gov/international/pdf/factsheet-cites-overview-2012.pdf (providing brief fact-sheet on purpose of CITES). CITES "provides a framework for cooperation and collaboration among nations to prevent decline in wild populations of animals and plants." Id. CITES has proved successful in improving legislation at the national level to help enforce the purpose of the treaty. See Convention on International Trade in Endangered Species, supra; see also Convention on International Trade in Endangered Species of Wild Fauna and Flora, A Proclamation, March 3, 1973, 27 U.S.T. 1087 (describing legislative history of CITES). The United States Senate ratified CITES on August 3, 1973, and the President of the United States, Gerald R. Ford, ratified CITES on September 13,1973. See Convention on International Trade in Endangered Species of Wild Fauna and Flora, supra; see also What is CITES?, Convention on International Trade in Endangered Species of Wild Fauna and Flora, available at https:// www.cites.org/eng/disc/what.php (last visited Dec. 21, 2017) (describing general history of CITES). CITES was adopted in 1973 and began to be enforced in 1975. Id. CITES was made as a result from a meeting in 1963 of the International Union for the Conservation of Nature. See What is CITES?, Convention on International Trade in Endangered Species of Wild Fauna and Flora, supra. "The text of the Convention was finally agreed at a meeting of representatives of 80 countries in Washington, D.C., the United States of America, on 3 March 1973, and on 1 July 1975 CITES entered in force." Id. See also About, ICUN, available at https://www.iucn.org/about (last updated Dec. 21, 2017) (providing background information on International Union for Conservation of Nature). The International Union for the Conservation of Nature began as a network of environmental organizations in 1948. See About, ICUN, supra. Their goal is to promote global conservation through social policy. Id. See also List of Contracting Parties, Convention on International Trade in Endangered Species of Wild Fauna and Flora, available at https://www.cites.org/eng/disc/parties/chronolo.php (providing list of CITES members). The United States of America and Zimbabwe are both members of CITES. See List of Contracting Parties, Convention on International Trade in Endangered Species of Wild Fauna and Flora, supra.

(2.) See Endangered Species Act, 16 U.S.C. [section] 1537(a) (2008) (implementing CITES into American law). The Endangered Species Act (Act) gives the President of the United States the power to also help achieve goals set forth in the Convention. Id. See also 16 U.S.C. [section] 1531(b) (1988) (establishing purpose of Act). The United States makes a promise to the international community to implement the goals of the Convention. See 16 U.S.C. [section] 1531(a)(4)(F) (1988); see also 16 U.S.C. [section] 1533(a)(1) (2003) (granting considerable power to Secretary of Service). The Secretary will have the power to make rules and regulations that are "necessary and advisable to provide for the conservation of such species." See 16 U.S.C. [section] 1533(d) (2003); see also 16 U.S.C. [section]1538(c)(1-2) (1988) (including CITES principles in Act). The statute makes trading endangered species illegal. See 16 U.S.C. [section]1538(c)(1-2) (1988). However, any importation shall be presumed not to be a violation if the animal is not endangered, but found in Appendix II of the Convention, and the importation is consistent with provisions set forth in the Convention. Id. [section] (c)(2)(A-B). See also 50 C.F.R. [section] 17.8 (2005) (expressing special rule can provide other conditions for import of listed species). This provides conditions for imports of threatened species and species listed in the Convention, but the statute also expressly mentions a special rule, if one is made, can provide other conditions. See 50 C.F.R. [section] 17.8(a) (2005); see also 50 C.F.R. $17.31(c) (2005) (explaining special rules apply new conditions to threatened species). "Whenever a special rule in [section][section] 17.40 to 17.48 applies to a threatened species, none of the provisions of paragraphs (a) and (b) of this section will apply. The special rule will contain all the applicable prohibitions and exceptions." 50 C.F.R. [section] 17.31(c) (2005); see also Franks v. Salazar, 816 F. Supp. 2d 49, 53-54 (D.C. Cir. 2011) (noting hunters must comply with rules set forth in Act to import trophies). Hunters must apply for a permit application to import their sport-hunted trophy to the United States. Franks, 816 F. Supp. 2d at 53. Hunters must also apply for a permit to export their sport-hunted trophy from the country the animal was hunted in as well. Id. The permits are conditioned upon an enhancement finding, where the U.S. Department of Fish and Wildlife Service (Service) is tasked with determining whether "the killing of the animal whose trophy is intended for import would enhance survival of the species." Id. at 53.

(3.) 213 F. Supp. 3d 48 (D.C. Cir. 2016) (determining whether Service properly followed administrative law procedures).

(4.) See id. at 60 (examining whether Service was permitted to suspend trophy imports). "[T]he court's role is to 'determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. Otherwise the court must find the agency action '"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."' Id. See also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (determining whether agency decision deemed arbitrary or capricious). The National Highway Traffic Safety Administration enacted a rule that would require all automobiles to be manufactured with "passive restraint" safety systems. See Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 35-36. However, as the rulemaking process went on, the Traffic Administration rescinded the requirement because of concerns that the public would not like the new rule, despite the fact that implementing the new rule was feasible. Id. at 36-37. Acting Secretary, Andrew Lewis, then explained "that it was no longer able to find, as it had in 1977, that the automatic restraint requirement would produce significant safety benefits." Id. at 38. The Supreme Court of the United States held the agency was "arbitrary or capricious" in rescinding their rule. Id. at 49. Agency action is arbitrary or capricious:
   [I]f 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.


Id. at 43. The Court found that rescinding the rule because of resistance from automobile manufactures was not a good reason to rescind the rule. Id. at 49. A reviewing court, however, should not try to fix problems with an agency's decision making and cannot give their own reason for an agency's decision when a reason does not exist. Id. at 43. See also Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (stating agency must examine relevant data and provide sufficient explanation when making decisions). In order to avoid making an "arbitrary or capricious" decision, the agency must have a "rational connection between the facts found and the choice made." Id.; see also Occidental Engineering Co. v. Immigration and Naturalization Service, 753 F.2d 766, 769 (9th Cir. 1985) (maintaining court reviews whether agency action is permitted). Where issues of fact may exist for an administrative agency, the role of a reviewing court is "to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Occidental Engineering Co., 753 F.2d at 769. "De novo factfinding by the district court is allowed only in limited circumstances." Id.

(5.) See Safari Club Int'l, 213 F. Supp. 3d at 78 (concluding Service properly considered data and reasonably made decision). The Service determined that importing elephant trophies would not enhance the animal's survival. Id. at 80. The Court went on to say that for the reasons given by the Service, the agency made a rational decision. Id. at 81. The Service implemented the importation ban because the data provided to the agency was incomplete and preliminary. Id. at 78. The Service was concerned with the elephant management plan of Zimbabwe. Id. at 81. The elephant population status "did not warrant a positive enhancement." Id. See also Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 415 (1971) (presuming agency action valid). "[T]he Secretary's decision is entitled to a presumption of regularity." Id.; see also Ethyl Corp. v. Environmental Protection Agency, 541 F.2d I, 36 (D.C. Cir. 1976) (holding agencies to "minimal standards of rationality" when reviewing agency decisions). The court was tasked with determining whether the Environmental Protection Agency (EPA) was "arbitrary or capricious" in its decision making process. See Ethyl Corp., 541 F.2d at 36-37. "We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality." Id. at 36.

(6.) See Safari Club Int'l, 213 F. Supp. 3d at 55 (evaluating enhancement finding data). The available data concerning the elephant population in Zimbabwe showed a "significant decline in the elephant population." Id. The Service also relied heavily on information taken by the International Union for Conservation of Nature Elephant Database Report. Id. The Elephant Database Report showed that the "elephant population in Zimbabwe in 2007 was 84,416 but in 2013 it was 'reduced to 47,366."' Id. See also Zimbabwe Provisional African Elephant Population Estimates: update to 31 Dec 2013, Elephant Database (Sept. 26, 2017), http://www.elephant database.org/preview_report/2013_africa_final/2013/Africa/Southern_Africa/Zimbab we (providing elephant data for 2013). Based on the data reflected in the database charts, the population decline was based on information that was not relevant anymore, or "Data Degraded." Id.; see also Anouk Ziljma, An Introduction to Africa's Big Five Safari Animals, Tripsavvy (Sept. 26, 2017), available at https:// www.tripsav vy.com/africas-big-five-safari-animals-1454083 (describing history of legal hunting of elephants in Africa for sport). Elephants, among other animals in Africa, have been considered one of the most prized, popular, and difficult animals to hunt. See Ziljma, supra; see also Robyn Kriel and Don Melvin, Treasure or trophy? Legal hunts for big elephants spark ferocious debate, CNN (Sept. 26, 2017), http://www.cnn.com/ 2015/10/ 16/africa/great-tusker-elephant-killed-zimbabwe/index.html (remarking on legal elephant hunting). "[A]s long as a hunter has the proper permits and has stayed within a designated area, in Zimbabwe, natures bounty is at a fee-payers fingertips." Kriel and Melvin, supra. Elephant hunting in Zimbabwe, as a sport, is legal. Id. See generally Zimbabwe Hunting Safaris, African Hunting Consultants (Sept. 26, 2017), http:// www.Iuxuryhunts.com/zimbabwe_elephant_hunt.html (offering price information to hunt elephants in Zimbabwe). The starting price for an elephant hunting expedition in Zimbabwe, offered by this company, is around USD 10, 950. Id.

(7.) See Safari Club Int'l, 213 F. Supp. 3d at 55 (expressing concern about information Service examined). The Service cited data gathered that showed a significant drop in the elephant population from 2007 to 2013. Id. The Service also cited concerns with Zimbabwe's current management of park resources and financing. Id. Lastly, the Service was most concerned with the Zimbabwe government's lack of data and lack of acknowledgement of the poaching in the country. Id. Until more data is gathered, the Service refused to make a "positive finding." Id. at 56. See also Memorandum from the Chief, Branch of Permits of the U.S. Fish and Wildlife Service on Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe during 2014 (April 17, 2014), available at https://www.fws.gov/international/pdf/enhancemen t-finding-April-2014-elephant-Zimbabwe.pdf [hereinafter April 2014 Findings] (explaining evidence Service relied on to make decision about trophies). An enhancement finding is a report made by the Service, which determines whether hunting an elephant to import the trophy back to the United States would "enhance the survival of the species." Id. When making such a determination, the Service considers whether a country has a good hunting management plan, whether the objectives of a management plan are achievable, whether a government can enforce the management plan, and whether the government can change the management plan to adapt to changes in policy. Id. The Service also relies on the total population of elephants in the country. Id. The Service noted, "the most significant aspect" of the agency's analysis was the lack of data regarding the current elephant situation in Zimbabwe. Id. at 6. Agencies do not make decisions in a vacuum, and without information to help the agency come to a rational decision, the Service could not come to a conclusion of a positive enhancement finding. Id. Current funding for enforcing and deterring poaching was low, and the reduction of funds concerned the Service. Id. at 4. Zimbabwe has not calculated elephant population counts in certain areas since 2001, some particular areas that have not been surveyed were problem areas. Id. Furthermore, in areas where surveys were done, significant declines in the elephant population were seen. Id. The Service concluded the report by stating that they were "unable to find that the killing of elephants intended for import as sport-hunted trophies from Zimbabwe will serve to enhance the survival of the species." Id. at 6. The Service also expressed that they would make an effort to reach out to NGO's and the government of Zimbabwe to gather more information to try to make a positive finding. Id. Until that time, the ban would be put in place. Id.

(8.) See Safari Club Int'l, 213 F. Supp. 3d at 56 (noting lack of data influenced Service decision). "[W]e recognize that our inability to make a finding is based primarily on a lack of information." Id. The Service was adamant on gathering more information from the government of Zimbabwe. Id. See also In re Polar Bear Endangered Species Act Listing and [section]4(d) Rule Litigation, 794 F. Supp. 2d 65, 90 (D.C. Cir. 2011) (acknowledging courts' deference to reasonable agency discretion). The Service examined data concerning polar bears and determined that the species should be listed as threatened. Id. at 72-73. The Service relied primarily on climate data that showed the polar bear would be affected in the future because of significant destruction of their habitat. Id. at 73-74. The court noted that even though one party would have weighed and considered evidence differently, what truly matters is the "reasoned judgment" of the agency when it weighs and considers evidence. Id. at 90.

(9.) See Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48, 57 (D.C. Cir. 2016) (extending importation ban to following year's hunting season). Despite receiving documents regarding Zimbabwe's policies and plans to manage the elephant population, the information received was all show, no tell, and the Service was not satisfied. Id. at 56-57. The Service noted some "bright spots" in Zimbabwe's conservation effort, but could still not make an assessment. Id. at 57. See also Memorandum from Chief, Branch of Permits of the U.S. Fish and Wildlife Service Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe during 2014 (July 22 2014), available at https://www.fws.gov/internationaI/pdf/enhancement-finding-July2014-elephant-Zimbabwe.pdf [hereinafter July 2014 Findings] (superseding April 2014 report, this new finding included new information received from Zimbabwe). The Service again stated that "little new or additional information has been provided" to the Service in meetings with the government of Zimbabwe. Id. at 3. The government of Zimbabwe provided the Service with a comprehensive document that detailed their elephant management plan, but the Service was still not satisfied. Id. at 4. Particularly, the management plan the government of Zimbabwe wanted to promulgate was heavily based and influenced by elephant management plans the government designed in 1996 and 1997; at the time, these old plans were over ten years old. Id. at 3. The Service viewed the data from Elephant Management in Zimbabwe, third edition, as irrelevant because the primary focus of the plan is to slaughter elephants selectively in order to balance out the ecosystem. Id. at 4. The Service found the information conveyed in Zimbabwe's management plants to not be meaningful. Id. at 5. The Service noted, "[Wjhile the document makes a clear goal statement and establishes ten objectives with management actions identified, it does not sufficiently expand on any methodology to meet the objectives or complete management actions." Id. at 4. Because of the lack of any real plan to meet the established objectives to manage the elephant population in Zimbabwe, the Service remained unsatisfied and essentially viewed the current management plan as useless. Id. at 4-5. There was also a lack of current population estimates and almost no information concerning the issue of poaching. Id. at 7. Zimbabwe failed to provide the Service with basic financial information concerning the management plan such as an annual operating budget, revenue generated from hunting elephants, and allocation of funds back into the management plan. Id. The Service, again, refused to make a positive finding. Id. at 12. "Some of the information did indicate that hunting in Zimbabwe was providing a benefit to elephants, while other information raised questions that were not answered." Id. For a second time, a general lack of information concerning, among other things, poaching, budget, and elephant management programs to support a positive finding was absent. Id. at 13. See generally The Policy and Plan for Elephant Management in Zimbabwe, ICUN, available at https://www.iucn.org/sites/dev/files/import/downloads/laebra1997_111.pdf (outlining elephant management plan briefly). The elephant management plan in Zimbabwe was created as a result of a meeting held in 1997. Id. at 1. The government of Zimbabwe calculated the elephant population via aerial censuring and concluded the population of elephants was around 66,000. Id. at 1-2.

(10.) See Safari Club Int'l, 213 F. Supp. 3d at 57 (declining to make positive finding allowing trophy imports). The Service received data regarding the laws in Zimbabwe, however there was no information on the enforcement of the policies. Id. at 58. With regard to poaching, there was no data to prove that hunters, specifically from the United States, would deter poachers in the area. Id. at 59. Furthermore, based on information gathered from third parties, poaching was shown to be on the rise in Zimbabwe. Id. In the end, it was an overall lack of concrete information about Zimbabwe's management program that lead the Service to determine that a ban should be in place to protect elephants. Id. at 57-58. However, if there is new information made available to the Service, the ban could be lifted. Id. at 59. See also Memorandum from Chief Branch of Permits of the U.S. Fish and Wildlife Service on Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe On or After January 1, 2015 (Mar. 26, 2015), available at https://www.fws .gov/international/pdf/enhancement-finding-March-2015-elephant-Zimbabwe.pdf [hereinafter March 2015 Findings] (upholding importation ban indefinitely). Over the course of the enhancement findings, the Service always takes into consideration (1) a national management plan, (2) implementation of such plan, (3) success of the plan, (4) population levels of elephants in the country, and lastly (5) whether hunting elephants contributes to the overall "conservation and management of the species." Id. at 1-2. After requesting even more information to determine the issues, the Service received information from a number of sources, including the government of Zimbabwe, several NGOs, and the Safari Club International. Id. at 3. In the end, the Service expressed dissatisfaction for information received concerning the country's current management plan. Id. at 6. Particularly, there was no information to indicate that Zimbabwe was "implementing appropriate management of the national elephant population." Id. Moreover, the Service was also concerned with "the existence of organized criminal activities within Zimbabwe, including reports of the involvement of politicians, military personnel, and Chinese nationalists in illicit wildlife trade." Id. at 10. There was also no information provided to the Service from Zimbabwe regarding the enforcement and prosecution of poaching crimes. Id. at 8. When evaluating the population of elephants, the Service stresses the importance of current and relevant data on "population numbers and population trends to base management decisions." Id. at 6. The Service stated again, because of the lack of current information regarding the population of elephants, as well as a lack of information on the trends (mortality rate and population demography) in the elephant's population, there was simply not enough information to make a determination of the impact that hunting and poaching are having on the elephant population. Id. at 6-7. The government of Zimbabwe still did not provide the Service with enough information relating to finances, plan management, funding, equipment, and infrastructure of the current management plan. Id. at 11. The Service summarized all of the information provided as lacking and concluded that many questions still remained unanswered and none of the current information at their disposal would allow them to make a positive enhancement finding. Id. at 17. At this point, the Service decided to implement the ban until further notice. Id. at 18.

(11.) See Safari Club Int'l, 213 F.Supp. 3d at 59-60 (detailing procedural posture of case). In April of 2014, the plaintiffs challenged the first enhancement finding. Id. at 59. Later, in December of 2014, the Court granted plaintiffs "leave to file a second amended complaint to add claims to challenge the July 2014 finding." Id. at 60. Lastly, on June 30, 2016, the plaintiffs filed another case that challenged the March 2015 enhancement finding and the Court granted the plaintiffs motion for consolidated briefing of the two cases. Id. The plaintiffs brought the challenge in federal court arguing that the three enhancement findings "are arbitrary and capricious." Id. at 51. See also International Affairs, Safari Club International, https://www .safariclub.org/what-we-do/freedom-to-hunt/international-affairs (providing background information of Safari Club International). "[Safari Club International] actively works in the international arena to protect the freedom to hunt worldwide." Id. Safari Club International participates in CITES and recently "was successful in lobbying to relax the definition of a hunting trophy which will ease the importation of trophies that have been altered in the country where the animal was harvested." Id. "[M]any countries impose additional regulations that prohibit or limit trophy importation. [Safari Club International] works around the world to reduce the burden on hunters who try to bring back trophies from hunting abroad." Id.

(12.) See Safari Club Int'l, 213 F. Supp. 3d at 61 (describing Safari Club International's assertions against Service). Safari Club International claims that the Service did not do enough to seek out useful information and misconstrued available data when the Service made the three enhancement findings. Id. The plaintiffs also assert that the Service's enhancement findings have "a number of procedural and substantive defects." Id. Safari Club International and the NRA contend that, in regard to the three enhancement findings, the Service failed to provide notice per Administrative Procedure Act (APA) rulemaking requirements, the Service interpreted the data provided to them incorrectly, the Service acted beyond their powers and violated a statutory presumption in the Act, and failed to explain why the Service continued to make enhancement findings even though the requirement had been removed from the Convention. Id. at 61.

(13.) See Safari Club Int'l, 213 F. Supp. 3d at 51, 74 (addressing claims made by plaintiffs). Safari Club International and the NRA thought that the Service's ruling was "arbitrary and capricious" because the Service did not properly consider or weigh the information given to them. Id. at 74. The plaintiffs presented their own analysis of the information and wanted the Court to consider it. Id. Safari Club International and the NRA requested summary judgement on the issues asserted; when reviewing agency action, courts do not use the standard set forth in Fed. R. Civ. P. 56(a) because of "the limited role of a court in reviewing the administrative record." Id. at 60. The Court noted that the role of the agency "is to resolve factual issues and arrive at a decision that is supported by the administrative record." Id. The role of the court, however, is to "determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id.

(14.) See Safari Club Int'l, 213 F. Supp. 3d at 81 (holding agency decision rationally determined). The Court concluded "the agency rationally determined that the status of the elephant population" based on the available data. Id. The Court made this determination despite claims from the plaintiffs that the agency interpreted the data incorrectly. Id. The Service stressed time after time that "it needed more reliable information" to make a positive finding that would allow hunters to import their elephant trophies. Id. The Court did not want to consider the arguments of how the plaintiffs would have interpreted the data because the role of the Court is to determine whether the agency decision was rationally determined based on available information; the Court is not supposed "to substitute its judgment for that of the agency." Id. at 80. In addition, the Service did not have to provide notice and comment for the importation ban because the Court found that the ban was an adjudicatory decision, not a rule. Id. at 64. Lastly, the Court ruled the Service acted within their "broad authority and discretion to promulgate regulations to protect threatened species" and that the Secretary's actions rebut the statutory presumption in the Act. Id. at 66. The only victory for Safari Club International and the NRA was a finding in their favor that the Service failed to publish their April 2014 Enhancement Finding before the ban was implemented; the Court held that the Service "failed to live up to its commitment" to provide public notice because the enhancement findings were published on May 12, 2014, but the ban was put in place on April 4, 2014. Id. at 73.

(15.) See What is CITES?, Convention of International Trade in Endangered Species of Wild Fauna and Flora, available at https://www.cites.org/eng/ disc/what.php (providing brief history of Convention). Species are threatened nowadays more than ever; however, when CITES was first started, the thought of protecting threatened species on an international level was relatively new. Id. CITES is designed as a way for nations to make their own laws regarding the trade of animals and plants, as well as a way to encourage international cooperation and hold other nations accountable. Id. See also How CITES Works, Convention on International Trade in Endangered Species of Wild Fauna and Flora, available at https://www.cites.org/eng/disc/how.php (describing how species are categorized and then regulated). Species designated in Appendix I and II are most threatened, and therefore CITES affords them significant protection when being traded internationally. Id. Species in Appendix I require both an import permit and an export permit when bringing a trophy back home; while Appendix II only requires an export permit from the country the animal was hunted in. Id. See also CITES & Elephants, U.S. Fish and Wildlife Service, https://www.fws.gov/le/pdf/CITES-and-Elephant-Conservation.pdf (explaining how CITES protects African Elephants specifically). Protecting African elephants is particularly important because of the illegal ivory trade and intense poaching. Id. The Service has noticed a strong correlation between poaching and "a lack of strong governance" of a country's elephant management program. Id. The Service also notes the movement of the African elephant from the strict restrictions listed in Appendix I to the less stringent restrictions of Appendix II. Id. The Service affirms that "[t]he United States will continue to work through CITES, engaging with foreign governments and driving meaningful action along all points of the supply chain." Id. See also supra note 1 and accompanying text (providing brief history of CITES). CITES sets out the definitions of trading, how species will be listed either as endangered or threatened, and how the listed species will be protected. Id.

(16.) See Endangered and Threatened Wildlife of Plants, 43 Fed. Reg. 20, 499 (May 12, 1978) (to be codified at 50 C.F.R. pt. 17) (listing African elephants as threatened species). In 1978, the Service listed African elephants as a threatened species subject to strict trade regulations in compliance with CITES. Id. See also Franks v. Salazar, 816 F. Supp. 2d 49, 53 (D.C. Cir. 2011) (subjecting American hunters to regulations). The Service has outright banned importing and exporting African elephants, except as a sport-hunted trophy. Id. Importing a sport-hunted elephant trophy "requires the Service to determine that 'the killing of the animal whose trophy is intended for import would enhance survival of the species.'" Id. (internal citations omitted). The Service must find a positive enhancement finding in order for hunters to import their sport-hunted elephant trophy into the United States. Id. Enhancement findings are based on the '"best available biological information,' and in cases where 'insufficient information is available,' the Service 'take[s] precautionary measures and [is] unable to make the required finding of non-detriment.'" Id. See also Convention on International Trade in Endangered Species of Wild Fauna and Flora, 62 Fed. Reg. 44.627, 44.633 (Aug. 22,1997) (to be codified at 50 C.F.R. pt.23) (listing elephants from Zimbabwe in Appendix II). Members of CITES voted to list elephants from Zimbabwe to move to Appendix II, granting less stringent regulations regarding their trade. Id. Now, sport-hunted elephant trophies from Zimbabwe only need an export permit from the country the elephant was hunted in to bring the trophy back. Id. However, "importation into the United States of sport-hunted elephant trophies from these other countries will continue to require prior issuance of both an import and export permit." Id. See also Employee Pocket Guide, U.S. Fish & Wildlife Service, available at https://www.fws.gov/info/pocketguide/fundamentals.html (providing Service mission statement). "The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people." Id. The Service "will continue to be a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals, and commitment to public service." Id. See also. Endangered Species, U.S. Fish & Wildlife Service, available at https://www.fws.gov/endangered/about/index.html (explaining Services' commitment to protecting endangered species). "[0]ur two major goals are to: 1) Protect endangered and threatened species, and then pursue their recovery; and 2) Conserve candidate species and species-at-risk so that listing under the [Act] is not necessary." Id.\ see also supra note 2 and accompanying text (providing background information on Act and Service). The Act incorporates the framework of CITES into American law. See supra note 2 and accompanying text. The Service has the power to issue rules and regulations to protect threatened or endangered species. Id. The United States promises to uphold CITES through the Act. Id.

(17.) See 50 C.F.R. 17.40(e)(6)(i)(B) (2002) (establishing Special Rule Governing African Elephants). Sport-hunted African elephant trophies may be imported to the United States so long as "[a] determination is made that the killing of the trophy animal will enhance the survival of the species and the trophy is accompanied by a threatened species permit." Id. See also 50 C.F.R. 23.61 (f)(l-4) (2001) (explaining factors Service weighs when making enhancement findings required by Special Rule). The Service sets out how the enhancement findings are determined:

We base the non-detriment finding on the best available biological information. We also consider trade information, including trade demand, and other scientific management information. We make a nondetriment finding in the following way:

(1) We consult with the States, tribes, other Federal agencies, scientists, other experts, and the range countries of the species.

(2) We consult with the Secretariat and other Parties to monitor the level of trade that is occurring in the species.

(3) Based on the factors in paragraphs (c) through (e) of this section, we evaluate the biological impact of the proposed activity.

(4) In cases where insufficient information is available or the factors above are not satisfactorily addressed, we take precautionary measures and would be unable to make the required finding of non-detriment.

50 C.F.R. 23.61 (f)(l-4) (2001); see also supra note 2 and accompanying text (noting "special rules" can create new species import conditions). The Act notes species listed in Appendix 11 of CITES are presumed to be valid for importation. See supra note 2 and accompanying text. But a special rule, if one is made, can set forth new conditions that will govern the species importation. Id.

(18.) See 5 U.S.C. [section] 553(b)-(c) (2011) (listing agency rulemaking requirements). The Administrative Procedure Act requires "general notice of [a] proposed rule" that needs to be published in the Federal Registrar. Id. [section] (b). Notice also has requirements that need to be met, such as "time, place, and nature of public rule making proceedings." Id. [section] (b)(1). Furthermore, the legal authority for which the rule relies upon must be referenced and a substantive description of the rule needs to be included. Id. [section] (b)(2)-(3). Importantly, interested parties have a right to petition an amendment of the rule or an outright repeal of a rule. Id. [section] (e). See also A Guide to the Rulemaking Process, Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (providing roadmap of rulemaking process). "Agencies must follow an open public process when they issue regulations, according to the [APA]." Id. at 2. Agencies often allow interested parties to "participate in shaping the proposed rule" by submitting comments. Id. at 3. See also Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) (determining whether agency rulemaking procedure complied with due process). The Court held that due process protections do not apply for administrative rules that affect a large group of people equally. Id. at 446. "Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption." Id. at 445.

(19.) See Franks, 816 F. Supp. 2d at 59 (reviewing agency decision as rulemaking or adjudication). This case arose when the plaintiffs asked the court to review the denial of their trophy import permit. Id. at 55. The court held that the enhancement findings made by the Service were adjudications. Id. at 59. Hunters could only import their trophy if the Service found an enhancement finding that declared the elephant hunting management plan in Mozambique sufficient. Id. at 54, 59. The court reasoned that because the Service was merely reviewing current regulatory standards against permit applications (i.e. weighing and considering facts) and not promoting a legislative-type policy the Service was not subject to rulemaking requirements. Id. at 59-60. The court rejected the plaintiffs' argument that basing the denial on the fact that an elephant management plan was lacking did not amount to enforcing a new rule. Id. See also Marcum v. Salazar, 810 F. Supp. 2d 56, 71-72 (2011) (determining agency action was adjudication and not rulemaking). After plaintiffs handsomely paid to shoot and kill an elephant in Zambia, they could not get an import permit to take the trophy back to the United States. Id. at 59-60. The permit was conditioned on a finding of whether killing an elephant and importing the trophy would be beneficial to the species. Id. at 62-63. The Service did not make a determination that killing an elephant and importing the trophy would help the species. Id. at 63. Next, the plaintiffs alleged that the enhancement findings were rules and that the Service failed to follow APA rulemaking procedure. Id. at 71. The court noted that adjudication is best defined as an order, and most importantly, adjudication fixes disputes with individual facts on an individual basis. Id. at 71-72. The court reasoned that the enhancement findings were adjudications because each hunter's permit application was based on an individual basis based on particularized facts. Id. at 72. The court concluded by remarking on how rules have a future effect, and in this case, the denial of the plaintiffs' import permit did not have an effect on future permits. Id. See also 5 U.S.C. [section] 551(4) (2011) (defining agency rules and rulemaking). An agency rule is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency." Id. Adjudication is defined under the APA as "an agency process for the formulation of an order." Id. [section] (7). The APA defines an order as "the whole or a part of a final disposition." Id. [section] (6). See also Sugar Cane Growers Co-op. of Fla. v. Venenman, 289 F.3d 89, 95 (D.C. Cir. 2002) (remarking on APA's broad definition of rule). The court states that "[tjhe APA defines a rule very broadly as" an agency statement with a "future effect designed to implement, interpret, or prescribe law or policy." Id.; see also Robert W. Ginnane, "Rule Making," "Adjudication" and Exemptions Under the Administrative Procedure Act, 95 U. Penn. L. Rev. 621, 622 (1947) (distinguishing rule making and adjudication). A rule "must be of future effect." Ginnane, supra, at 623. Adjudication is described under the APA, as anything that is not a rule; therefore, when determining if agency action is adjudication, it must be determined if it fits within the APA definition of a rule. Id. See also Jeffery S. Lubbers, A Guide to Federal Agency Rulemaking 44 (5th ed. 2012) (discussing differences between rules and adjudication). The definition of what adjudication is seems to be whatever is left-over from what a rule entails. Id. However, when the stronger definition of a rule is considered, the differences with what an adjudication is can be contrasted. Id. Here, the author emphasizes how rules have future effects, but also that rules promulgate policy type action and are "essentially legislative in nature." Id. "The object of the rule making proceeding is the implementation or prescription of law or policy for the future rather that the evaluation of a respondent's past conduct." Id. In contrast, adjudication is more focused on "the determination of past and present rights and liabilities." Id. Typically, the agency determines if past conduct was lawful and then decides whether the violator's rights should be revoked. Id.

(20.) See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216 (1988) (summarizing APA definition of rule). Justice Scalia characterized an agency rule to "have legal consequences only for the future." Id. See also United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 244 (1973) (remarking on distinctions of rulemaking and adjudication). The Court defines rulemaking as agency "proceedings for the purpose of promulgating policy-type rules or standards" while adjudication done by an agency are "proceedings designed to adjudicate disputed facts in particular cases." Id. at 244-55. Here, the Court determined that the agency action was a rule, where all railroads were effected equally. Id. at 245-46. The Court notes that incentive payments to railroads were not based on particular facts regarding particular railroads, but rather the agency action amounted to a rule because it was a like a policy. Id. at 246. See also supra note 19 and accompanying text (providing examples of courts differentiating rules and adjudications).

(21.) See 5 U.S.C. [section] 706 (2011) (establishing courts' standard of review regarding agency action). "The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." Id. A reviewing court will declare judgement against agency decisions, conclusions, and findings if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. [section] 706(2)(A). See also United States v. Bean, 537 U.S. 71, 77 (2002) (describing "arbitrary or capricious" standard). The APA sets the standard for how courts can review agency decisions. See Bean, 537 U.S. at 77. Here, the Court found that the Bureau of Alcohol, Tobacco, and Firearms' (ATF) denial to process plaintiff's application to relieve him from firearm restrictions did not warrant a review on the "arbitrary or capricious standard" because there was no agency action to begin with. Id. See also Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (reviewing agency decision under "arbitrary or capricious" standard). When making a decision, an agency must examine "relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Id. The agency's explanation must explain why the agency made a decision in the manner they did and the agency's explanation must be able to show a court that the agency's action was a result of reasonable decision making. Id. A court can vacate or remand agency action if the agency decision fits within the "arbitrary or capricious" standard. Id. See also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989) (applying "arbitrary or capricious" to agency expertise decisions). The Court describes cases where factual disputes in agency decisions, "the resolution of which implicates substantial agency expertise[,]" as a classic example. Id. This case revolved around the construction of a dam that would be located on the Rogue River in the Rogue River Basin. Id. at 363 68. Here, the respondents who challenged the construction of the dam criticized the agency stating that their expert review of reports regarding dam construction were "incomplete, inconclusive, or inaccurate." Id. at 376-77. The Court noted that analyzing the reports the agency relies on "requires a high level of technical expertise" and courts "must defer 'to "the informed discretion of the responsible federal agencies."'" Id. at 377. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. at 378. The Court held that, although the agency had access to new information that may have influenced the decision of the agency, the agency based their ultimate decision on a reasonable scientific analysis of the information before them. Id. at 385. See also Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 534 (2007) (finding agency action arbitrary and capricious). After the Environmental Protection Agency (EPA) concluded that "greenhouse gases cannot be 'air pollutants,'" the state of Massachusetts and several others petitioned the EPA to make a rule to regulate greenhouse gases but were subsequently denied. Id. at 513. The EPA stated they did not want to make a rule because "such regulation would conflict with the President's 'comprehensive approach' to the problem" of greenhouse gases. Id. The EPA further stated that such a rule might conflict with motivating private organizations to develop their own technological innovations to reduce greenhouse gases as well as hampering further research in climate-change. Id. "According to [the] EPA[,] unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also hamper the President's ability to persuade key developing countries to reduce greenhouse gas emissions." Id. at 513-14. The Court noted that the EPA's arguments that such regulation would disrupt the President's plan was not a valid excuse. Id. at 533-34. The Court went on to hold that the agency's action was arbitrary and capricious because the "EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change." Id. at 534-35. See also Wendy E. Wagner,/I Place for Agency Expertise: Reconciling Agency Expertise with Presidential Power, 115 Colum. L. Rf.v. 2019, 2024 (2015) (providing history of agency expertise in decision making in America). Agencies acting as experts respective to the agency's field of work is considered a "cornerstone of the U.S. administrative process[;]" however, perspectives have changed over time. Id. Currently, agencies have experts advise and review the agency's own analysis. Id. at 2027. Judicial review has also forced agencies to make decisions based on "well-supported explanations" for their decisionmaking analysis. Id. at 2028. The author remarks:
   Just as science is defined by virtue of its process, expert
   regulation is now characterized by its adherence to a
   decisionmaking process that seeks both the best science and the
   best policy through multiple explication and oversight
   requirements. Transparency, peer and public scrutiny, and more
   structured analysis processes are the hallmarks of the
   agency-as-expert in the United States today and appear to have
   helped agencies retain their authoritative role as the nation's
   experts Id. at 2028-29.


(22.) See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (reviewing agency's construction of statutory powers). If an agency's construction of a statute is not consistent with the intent of Congress on the issue, the courts must defer to the intent of Congress. Id. at 842-43. However, if the intent of Congress is unclear or the issue was never addressed by Congress, the courts must apply a two-part analysis when determining whether an agency's interpretation of a statute was reasonable. Id. 842-44.
   First, always, is the question whether Congress has directly spoken
   to the precise question at issue. If the intent of Congress is
   clear, that is the end of the matter; for the court, as well as the
   agency, must give effect to the unambiguously expressed intent of
   Congress. If, however, the court determines Congress has not
   directly addressed the precise question at issue, the court does
   not simply impose its own construction on the statute, as would be
   necessary in the absence of an administrative interpretation.
   Rather, if the statute is silent or ambiguous with respect to the
   specific issue, the question for the court is whether the agency's
   answer is based on a permissible construction of the statute.


Id. A court does not owe an agency any deference if "Congress has directly spoken to the precise question at issue." Id. at 842. See also Pauley v. Beth Energy Mines, Inc., 501 U.S. 680, 702 (1991) (deferring to agency interpretation of statutory powers). An "[agency's] view need be only reasonable to warrant deference." Id. When interpreting statutory power, the "Secretary's interpretation need not be the best or most natural one by grammatical or other standards." Id. "An interpretation that harmonizes an agency's regulations with their authorizing statute is presumptively reasonable." Id. at 706.

(23.) 467 U.S. 837 (1984) (developing two-part analysis for determining whether agency acted within their statutory authority).

(24.) See Otay Mesa Property, L.P. v. United States Department of the Interior, 144 F. Supp. 3d 35, 55 (D.C. Cir. 2015) (applying Chevron analysis). Courts should defer to agency construction of a statute unless it is "arbitrary and capricious." Id. at 66. Moreover, agencies can change their interpretation of a statute so long as the agency provides a reasonable explanation. Id. See also United States Association of Reptile Keepers, Inc. v. Jewell, 103 F. Supp. 3d 133, 144 (D.C. Cir. 2015) (discussing framework of Chevron analysis). Agency discretion in interpreting ambiguous statutes established by Congress is a presumption of Congress itself. Id. Congress wants statutory ambiguity to be determined "first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Id. See also In re Polar Bear Endangered Species Act Listing and [section]4(d) Rule Litigation, 794 F. Supp. 2d 65, 88 (D.C. Cir. 2011) (determining when Chevron analysis applies). The two-part analysis applies in situations where Congress gave an agency authority to make and enforce rules and "when agency interpretation claiming deference was promulgated in the exercise of that authority." Id. at 87-88; see also supra note 22 (developing Chevron analysis); ABA Section of Administrative Law and Regulatory Practice, A Blackletter Statement of Federal Administrative Law 34-35 (2d ed. 2013) (providing overview of Chevron analysis). Courts determine if the agency's interpretation is reasonable, then the court may also review whether the interpretation is "arbitrary or capricious." See ABA Section of Administrative Law and Regulatory Practice, A Blackletter Statement of Federal Administrative Law at 35.

(25.) See Chevron, 467 U.S. at 846 (interpreting statutes made by Congress). This part of the two-step analysis requires the reviewing court to simply look at the language of the statute at issue. Id. In the Chevron case, the Court had to determine the scope of the definitions within certain language of the Clean Air Act. Id. The Court determined that the statute was silent on what Congress intended the definitions of language within to truly mean. Id. at 862. The Court held that the agency's interpretation of the language in the statute was permissible. Id. at 864. "When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail." Id. at 866. Importantly, the Court remarks and upholds the long-standing policy that the role of the court is only to review, never to supplement agency action with its own decision and that agency policies should be respected if legitimate. Id. at 864-66. See also Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 708 (1995) (describing agency power as broad and agency discretion reasonable). Congress grants agencies considerable power to interpret statutes. Id. If an agency's interpretation reasonably used to promulgate the agency's goals, the agency will pass the twopart test. Id. See also Nat'l Treasury Employees Union v. Federal Labor Relations Authority, 392 F.3d 498, 500 (2004) (finding agency interpretation fails first part of Chevron analysis). Absent supporting statutory language, an agency will fail the first part of a Chevron analysis thereby making the second part of the analysis unnecessary. Id.

(26.) See Chevron, 467 U.S. at 856 (finding agency interpretation reasonable). Agencies deal with "technical and complex" regulations and if the agency carefully considered the issue reasonably, the agency passes the two-part analysis. Id. at 865. See also Sweet Home Chapter of Communities 515 U.S. at 704 (concluding agency acted reasonably within their delegated powers).

(27.) See Chevron, 467 U.S. at 865 (noting agency expertise). Agencies have expertise and are therefore, "in a better position" to make administrative decisions. Id. The Court remarks:
   Judges are not experts in the field, and are not part of either
   political branch of the Government. Courts must, in some cases,
   reconcile competing political interests, but not on the basis of
   the judges' personal policy preferences. In contrast, an agency to
   which Congress has delegated policy making responsibilities may,
   within the limits of that delegation, properly rely upon the
   incumbent administration's views of wise policy to inform its
   judgments.


Id. See also Sweet Home Chapter of Communities, 515 U.S. at 708 (remarking on agency expertise influencing policy decisions). "The task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress." Id. Congress gave the Secretary of the Service broad discretion to make decisions because of the complex nature of their goals. Id. In this case, the Court had to decide whether the Secretary of the Interior acted within the power granted to him by Congress to make a law that not only prohibited taking endangered or threatened animals but also damaging or changing their habitat. Id. at 690-91. The Court concluded that the interpretation of the power granted to the Secretary was reasonable. Id. at 708. The reason courts and Congress rely on agency expertise is because the agencies knowledge of issues exceeds the knowledge of Congress and the courts. Id. at 703, 708. Importantly, the Court notes that agencies have broad powers to promulgate their goals because of the range of issues that require expertise beyond that of the normal person and reaffirm that the role of the court is to review, not substitute an agency's decision if it is reasonable. Id. at 708. See also In re Polar Bear Endangered Species Act Listing and [section] 4(d) Rule Litigation, 794 F. Supp. 2d at 80 (acknowledging agency expertise). This case dealt with the listing of Polar bears as threatened species and whether the agency acted reasonably when making the determination based on interpreting data. Id. at 73, 78. Here, the agency relied on complex climate data and projections regarding the Polar bear's habitat from the world's top climate research organization. Id. at 73-75. The plaintiffs in this case challenged the interpretation of the data; however, the court held that the agency acted reasonably. Id. at 107-08. The court noted that historically, agencies are considered experts and have broad power to interpret and consider scientific data when making a decision. Id. at 107. Courts should never replace an agency's decision especially given the high level of expertise agencies have. Id. at 80. However, a reviewing court does not have to look at an agency's decision as if the court is an expert on the issue; as long as there is a minimum amount of rationality, the court should defer to the agency's expert decision. Id. See also Am. Wildlands v. Kempthorne, 478 F. Supp. 2d 92, 96 (D.C. Cir. 2007) (detailing court deference to agency expertise). This case dealt with the Service listing a certain trout as endangered or threatened. Id. at 93. The court noted the history of presuming agency actions are valid when the decision involves areas of high expertise. Id. at 96. The court concluded that the agency made their decision solely on the scientific data before them and that agency decision was valid. Id. at 99, 101. See also Carlton v. Babbit, 900 F. Supp. 526, 530 (D.C. Cir. 1995) (noting strong presumption in favor of agency decisions). "Given the expertise of the [Fish and Wildlife Service (FWS)] in the area of wildlife conservation and management and the deferential standard of review, the Court begins with a strong presumption in favor of upholding decisions of the FWS on the reclassification petitions." Id.; see also Wagner, supra note 21, at 2024 (describing history of agencies as experts).

(28.) See Chevron, 467 U.S. at 844 (recognizing Court's history of deference to agency interpretation). In this case, the Court had to determine whether the agency interpretation of the Clean Air Act was reasonable. Id. at 840. The Court noted how agency interpretation is developed over time, and not simply made on the spot. Id. at 863-64. This was important to the Court because the statutory interpretation of the agency relied on the "wisdom of the agency" in making an important decision. Id. at 866. "The principle of deference to administrative interpretations ... 'has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies...."' Id. The Court goes further into its judicial history to remark on how agency decisions should not be disturbed unless the decision does not fit within Congress' intent. Id. See also Michael C. Tolley, Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective, 13 Policy Studies Journal 421, 424 (2003) (describing history of agency deference in America). When considering agency interpretation of a statute, courts are influenced by factors such as the type of agency, the rule the agency is trying to enforce, and agency expertise. Id. Historically, courts begin their analysis with the presumption that the agency's interpretation at issue is correct as long as it is reasonable. Id. The Court's decision in Chevron was considered a landmark decision that expanded and emphasized deferring to agency interpretation of a statute. Id. at 425. In Chevron, the Court reasoned that deference to agency decisions are preferred because they are experts and Congress intended to delegate "interpretative authority to agencies." Id. at 432.

(29.) See Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48, 48, 62, 66, 75, 78 (D.C. Cir. 2016) (concluding enhancement findings adjudications, Service acted reasonably, and enhancement findings valid). The Court had to analyze the enhancement findings and then distinguish the difference between agency rules and agency adjudication. Id. al 62. The Court held that the enhancement findings were not subject to notice and comment requirements set forth in the APA. Id. at 64. The Court then had to apply the two-part Chevron analysis to determine whether the Service acted within its statutory powers. Id. at 65. Finally, the Court examined the enhancement finding data and how the Service interpreted it. Id. at 74-75, 78-79. The plaintiffs, however, did win on one claim and as a result, the Court found that the Service implemented the trophy ban on April 4, 2014, before the enhancement finding was published on May 12, 2014. Id. at 73. Therefore, "imports of trophies from elephants sport-hunted in Zimbabwe from April 4, 2014 to May 11, 2014 may" be imported. Id. See also supra note 19 and accompanying text (providing examples of courts distinguishing rules and adjudications). Courts often emphasize how rules, in their legislative-type nature, have future effects of wide ranging applicability and adjudications deal with specific parties with individual facts. Id. I see also supra note 25 and accompanying text (analyzing agency statutory interpretation under Chevron analysis). Courts apply the two-step analysis when determining whether an agency acted reasonably within their statutory power. See supra note 25 and accompanying text; see also supra note 21 and accompanying text (providing overview of "arbitrary and capricious" standard of review). The APA sets out the "arbitrary or capricious" standard in statutory language. See supra note 21 and accompanying text. Courts then follow and apply the standard to agency decisions. Id.

(30.) See Safari Club Int'l, 213 F. Supp. 3d at 63 (reasoning enhancement findings do not promote policy-type rules). The Court notes that here, the enhancement findings do not establish rules or standards that will apply in the future. Id. at 64. Rather, the findings help the Service arrive at a decision by evaluating the elephant population and management plans in Zimbabwe; the Court remarks that this process "is the hallmark of adjudication." Id. at 63. Moreover, the enhancement findings do not have to establish rules or policies on future enhancement findings. Id. at 64. See also United States v. Fla E. Coast Ry. Co., 410 U.S. 224, 244-245 (1975) (explaining difference between rulemaking and adjudication). The "basic distinction between rulemaking and adjudication" is that rules are "proceedings for the purpose of promulgating policy-type rules or standards" and agency adjudication resolve "disputed facts in particular cases." Id.; see also Franks v. Salazar, 816 F. Supp. 2d 49, 59 (D.C. Cir. 2011) (holding Service enhancement findings as adjudications). The enhancement findings involved weighing facts involving the country's elephant management plan. See Franks, 816 F. Supp. 2d at 59. The court did not find that the enhancement findings amounted to rulemaking. Id. See also Marcum v. Salazar, 810 F. Supp. 2d 56, 72 (2011) (distinguishing enhancement findings as adjudications and not rules). Rules have a future effect, adjudication does not. Id.; see also supra note 20 and accompanying text (affirming promulgating policy as basic rulemaking characteristic).

(31.) See Safari Club Int'l, 213 F. Supp. 3d at 63 (reasoning enhancement findings deal with disputed facts). The enhancement findings are not set in stone, and can be changed when new facts or information arise, at which point the Service can begin a new analysis and give a new enhancement finding. Id. at 64. Here, the Court emphasizes that the Special Rule Governing Elephants requires the enhancement findings and lists the facts the Service needs to consider when making a finding. Id. This is important to the Court, because the Service needs to settle and consider disputed facts to make the finding. Id. As a result, new facts can arise which could lead the Service to make a determination that the importation ban does not need to be in place. Id. See also supra note 19 and accompanying text (providing examples of agency adjudication). Agency adjudication deals with individual facts on a case-by-case basis. Id. Agency adjudication does not have a binding future effect on other adjudicative actions, whereas agency rules do have a future effect. Id.; see also supra note 20 and accompanying text (explaining agency adjudication weighs different facts for different situations). But see Fla. E. Coast Ry. Co., 410 U.S. at 245-46 (holding agency action as rule). The Court held the agency action to be a rule because no party was "singled out" by the agency action; rather, all parties under the rule's influence were affected the same way. Id. at 246. The agency did not have to weigh or consider any individual facts like an agency would if it were an adjudicative action, instead the action was akin to "promulgating policy-type rules or standards," like a rule. Id.

(32.) See Safari Club Int'l, 213 F. Supp. 3d at 65 (applying two-part Chevron analysis). When a court uses the Chevron analysis, it must "first consider whether the statute is unambiguous on the issue" and, if not, the court must move on and next determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 65. See also supra note 22 (discussing development of Chevron two-part analysis). If Congress has spoken on the issue in dispute, the agency action is invalid. Id. However, if Congress was unclear on the issue in dispute, courts should apply this test to determine whether the agency properly interpreted the law. Id.

(33.) See Safari Club Int'l, 213 F. Supp. 3d at 65-66 (applying first part of Chevron analysis). First, the Court looked to the statutory presumptions in the Act, which provides that species listed in Appendix II of CITES are presumed okay for importation into the country. Id. The Court then went on and looked at section 4 of the Act, which gave "the agency broad discretion to protect threatened species." Id. at 66. The Court reasoned the Act was ambiguous on the issue because of the fact that species listed in Appendix II of CITES are presumed to be okay to import but at the same time, the agency has the broad power to create rules and policies to accomplish their goals. Id. at 65-66. Here, the two provisions conflict because the Service used its power to establish the Special Rule, which required a positive enhancement finding to allow elephant trophy imports, but the Act also states species in Appendix II, like the African elephant, are presumed valid to import. Id. at 64-66. See also supra note 25 (explaining first part of Chevron analysis). The first part of the analysis requires a court to look to the statutory language to determine if Congress gave the agency the power to take the action at issue. Id. If the intent of Congress is clear, and the agency acted outside of the intent of Congress, the agency will fail the first part of the analysis. Id. Compare 16 U.S.C. [section]1538(c)(2) (1988) (establishing presumption importing Appendix II species valid under Act) and 62 F.R. 44627, 44633 (1997) (moving African elephants to Appendix II under CITES), with 16 U.S.C. [section]1533(d) (2003) (granting Service broad rulemaking authority to protect threatened species).

(34.) See Safari Club Int'l, 213 F. Supp. 3d at 66 (declaring Service reasonably interpreted Act). Here, the Act gives the Service broad authority to carry out its goal of protecting threatened species, and it was reasonable for the Service to assume that creating the Special Rule would rebut the Appendix II statutory presumption. Id. The Court focused again, on the statutory language and found that 50 C.F.R. [section] 17.31 establishes when a special rule is made, "[t]he special rule will contain all the applicable prohibitions and exceptions." Id. at 65. Essentially, a special rule, in this case the Special Rule Governing African Elephants, establishes new conditions that regulate the trade of the threatened species. Id. at 64-65. The Court summarizes by holding that the Service acted within their authority delegated by the Act by making the Special Rule and based on the language of 16 U.S.C. [section] 1533(d), which grants the Service broad authority to "issue regulations 'deemfed] necessary and advisable' to protect threatened species," it was reasonable for the Service to believe that making the Special Rule would rebut the statutory presumption of 16 U.S.C. [section]1538(c)(2). Id. at 6566. See also supra note 25 and accompanying text (noting agency passes part two of Chevron if agency acted reasonably). Agencies naturally have broad powers, granted by Congress, to fulfill their goals. Id. If an agency is reasonable in interpreting those broad powers, courts must defer to the agency's interpretation. Id. The role of the court is to review an agency's interpretation, and never to supplement it. Id.\ see also 16 U.S.C. [section]1538(c)(2) (1988) (establishing statutory presumption for Appendix II species); 16 U.S.C. [section] 1533(d) (2003) (granting Service broad authority to make rules); 50 C.F.R. [section] 17.8 (2005) (listing import conditions for CITES Appendix II species except when special rule exists); 50 C.F.R. [section] 17.31 (2005) (noting special rules set and use new import conditions); 50 C.F.R. [section] 17.40(e)(6)(B) (2005) (establishing Special Rule Governing African Elephants). The rule requires that in order for hunters to import their sport-hunted elephant trophy to the United States, the Service must make an enhancement finding to determine whether hunting elephants and importing the trophy back to the United States helps the survival of the species. See 50 C F R [section] 17 31 (2005).

(35.) See Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48, 74 (D.C. Cir. 2016) (examining agency action). Here, the plaintiffs argued that the July 2014 Findings were made improperly because the Service '"ignored, rejected or discounted' [the] information ... provided to the agency" to help make the decision. Id. Plaintiffs also made the same assertion against the March 2015 Findings. Id. at 78. However, the Court noted that their role here is to only review, narrowly and with a small standard of rationality, "whether the Service examined the relevant data and articulated a satisfactory explanation for its finding" and that the Service also include "a 'rational connection between the facts found and the choice made.'" Id. at 74, 78. The Court concluded their analysis by stating that the Service needed more information "to make a causal connection between imports of sport-hunted elephant trophies and enhancement of the elephant's survival in Zimbabwe." Id. at 81. See also Alpharma, Inc. v. Leavitt, 460 F.3d 1,6 (D.C. Cir. 2006) (explaining rational connection between facts and agency action). An agency must examine relevant facts and provide a rational explanation for the agency action. Id. The agency must be able to show that it acted reasonably. Id.

(36.) See Safari Club Int'l, 213 F. Supp. 3d at 74 (determining Service acted rationally). For the 2014 findings, the Service expressed concern over the certainty and reliability of the elephant population status taken by the government of Zimbabwe. Id. at 74-75. The July 2014 findings regarding population status were based not only on population estimates, but also on the "conclusion that the available population data was inadequate to determine the status of the population or to understand Zimbabwe's management of the species." Id. at 76. The Service also expressed concern with the issue of poaching in Zimbabwe. Id. Particularly, the Service noted the Zimbabwe government's budget to deter poachers, was insufficient. Id. Lastly, for the July 2014 Findings, the Court reasoned the Service was rational in their dissatisfaction with the outdated management plan the government of Zimbabwe presented to the Service. Id. at 77. The management plan Zimbabwe relies on was written in 1997, and that are major "difference[s] between the quality and substance of the information before the agency in 1997 and before it in July 2014." Id. The Court concludes, in regard to the July 2014 Findings, the Service "properly weighed the competing data and information before it" and reasonably considered the enhancement finding factors. Id. at 78. The Service also failed to make a positive enhancement finding for March 2015 because "much of the data before it was preliminary or incomplete" and the Court went on to conclude that it was rational to not give the incomplete data much weight when making the enhancement determination. Id. See also supra note 9 and accompanying text (detailing July 2014 Findings). There is a heavy theme of a lack of relevant or concrete information in the July 2014 Findings. Id. There was no data to support that the government of Zimbabwe was properly dealing with factors the Service considers to support a positive finding, such as poaching, budget, and elephant management programs. Id.; see also supra note 10 and accompanying text (detailing March 2015 Findings). The government of Zimbabwe has a plan to manage the factors the Service considers when making a finding, however the Service was not provided with any evidence to show that the goals of the plan were being accomplished. See also supra note 10 and accompanying text. The factors the Service considers are the government's elephant management plan and population status. Id.; see also Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 534-35 (2007) (finding agency arbitrary and capricious). The EPA denied a petition to regulate greenhouse gasses because such a rule would conflict with the President's plan. See Massachusetts v. Environmental Protection Agency, 549 U.S. at 513. "According to the climate scientist Michael MacCracken, 'qualified scientific experts involved in climate change research' have reached a 'strong consensus' that global warming threatens ... severe and irreversible changes to natural ecosystems." Id. at 521. The only explanation the EPA argued was that making a rule would interfere with the President's policies and the Court found that such an explanation was insufficient and ruled the agency action was arbitrary and capricious. Id. at 533-35.

(37.) See Safari Club Int'l, 213 F. Supp. 3d at 78, 81 (holding Service was "arbitrary or capricious" for both enhancement findings). The Court summarizes the plaintiffs' assertions as "challenging] how the agency weighed competing data before it" and strikes down the arguments by reaffirming that such "a task that that [sic] is left to the expertise of the agency." Id. at 78. The plaintiffs contended a number of claims that the Service failed to interpret data properly or that they (Safari Club International and the NRA would have weighed and considered the data differently than the Service; however, the Court states that their arguments of data and interpretation are "issues that courts must leave to the expertise of the agency." Id. at 78-79. The Court refuses to acknowledge the plaintiff's arguments because "[t]hese arguments not only ask the Court to substitute its judgment for that of the agency but also misperceive the regulatory standard" and then reaffirms the Court's position to only review whether the information explains the rationale behind the agency enhancement finding. Id. at 80. See also supra note 27 and accompanying text (recognizing agencies as experts). Agencies are granted broad power and discretion by Congress to deal with problems that "require expertise and attention to detail that exceeds the normal province of Congress." Id. Agencies have considerable knowledge that go beyond that of the court and Congress, which is why considerable deference is given to them in areas that require expertise. Id. Historically, courts have viewed agencies as experts because they often interpret and consider scientific data and so long as there is some rationality in the agency's decision, the court will find the decision to be valid Id * see also Marsh v. Oregon National Res. Council, 490 U.S. 360, 377 (1989) (deferring to expert discretion of agency). Agencies often must examine data on issues that "requires a high level of technical expertise" and courts must defer to the discretion of the agency. See Marsh, 490 U.S. at 377; see also Wagner, supra note 21, at 2024 (remarking on agency expertise). Agencies as experts in their field is a historical foundation of administrative law in the United States. See Wagner, supra note 21, at 2024. Nowadays, agencies continue to affirm their role as experts through excellent peer review and effective, more structured, analysis when making a decision. Id. at 202-829. Judicial review and peer review of agency data acts as a good check to agency power and it forces agencies to provide "well-supported explanations." Id. at 2027-28.

(38.) See supra notes 19, 29 and accompanying text (applying analysis of agency adjudication, Chevron test, and "arbitrary or capricious" standard). Rules have a legislative-type characteristic that has equal wide-ranging effects on all parties. Id. Adjudication has smaller, often individualized effects and deals with disputed facts. Id. Courts have used the characteristics above to distinguish the two agency actions. Id. When an agency's interpretation of their own statutory powers is at issue, the Chevron analysis is applied. Id. Reasonable deference is given to an agency's reasonable interpretation of a statute because of the naturally broad powers Congress delegates them. Id. When the action of an agency is at issue, courts apply the "arbitrary or capricious" standard of review to see if an agency can provide a rational explanation for the choice they made. Id.

(39.) See id. (describing analysis and holding). Courts often have to distinguish whether an agency action is a rule or an adjudication. Id. This determination is important because if something is a rule, it is subject to different procedural requirements compared to adjudications. Id. Typically, rules have been characterized by the courts as having a future effect, promoting policies, or having wide ranging applicability. Id. Here, the Court analyzed the enhancement findings and held that they had none of the characteristics that rules have. Id.

(40.) See supra note 20 and accompanying text (discussing distinction between rules and adjudication). Courts have long held that rules are more like legislative policies and adjudications are agency actions that deal with weighing and considering disputed facts. Id.; see also supra notes 30-31 and accompanying text (describing Court's reasoning in Safari Club Int'l). The enhancement findings miss the mark with a number of characteristics that make agency action a rule. See supra notes 30-31 and accompanying text. Here, the enhancement findings do not have a binding future effect on the importation of elephant trophies; rather, they are merely suspended until a positive finding is found. Id. Moreover, the Court explains "the basic distinction between rulemaking and adjudication" is that rules promote policy and adjudications consider and deal with disputed facts. Id. The Court applies this distinction and describes the enhancement finding process as adjudication because the Service had to weigh and consider information to make a determination of whether hunting and importing elephant trophies to the United States would help the species survive. Id. The Service had to arrive at a decision by considering disputed facts; the Court remarks that this "is the hallmark of adjudication." Id.

(41.) See supra note 32 and accompanying text (applying Chevron analysis).

(42.) See supra note 33 and accompanying text (interpreting Act). The Court compared the language of the statutory presumptions and compared it to the broad powers the Act delegates to the Service. Id. The Court found the language to be conflicting because the Act set forth certain provisions but also provided language that supported the Service could make rules that would change such provisions. Id.; see also supra note 25 and accompanying text (describing first step in Chevron analysis). The first step requires the court to determine whether Congress has spoken to or addressed the agency interpretation at issue. See supra note 25 and accompanying text. If Congress has spoken on the issue and the intent of Congress is clear, the second part of the test is not needed and the agency interpretation must be struck down if it is inconsistent. Id.; see also supra note 34 and accompanying text (holding agency interpretation reasonable). The Act gives the Service broad powers to promulgate their goals and it was reasonable to interpret those powers to assume that the Special Rule would rebut the provisions in the Act. See supra note 34 and accompanying text. The Court delves further into the language of the Act to try and understand why the Service would have thought this, and the Court finds in 50 C.F.R. [section] 17.31 if a special rule is made regarding species in the Act, then "[t]he special rule will contain all applicable prohibitions and exceptions." Id. The Court goes on to reason that given the broad power the Service has, coupled with the language of 50 C.F.R. [section] 17.31, the Service reasonably interpreted their statutory power to make the Special Rule that would create new conditions that govern the trade of African elephants. Id.; see also supra note 2 and accompanying text (explaining language in Act). The Act incorporates the framework of the CITES. See supra note 2 and accompanying text. The Act also gives the Service considerable power to determine which species are listed as endangered. Id. If an animal is not endangered and found in Appendix II of CITES, the trade of that animal is presumed to be valid. Id. However, if a "special rule" is made, new conditions will be set for the species for which the "special rule" pertains to. Id.; see also supra note 26 and accompanying text (stating agency passes part two of Chevron analysis if interpretation deemed reasonable). If an agency reasonably interpreted their statutory power, the court defers to the agency interpretation. See supra note 26 and accompanying text. The court does not supplement their own interpretation for that of the agency's. Id.; see also Otay Mesa Property, L.P. v. United States Department of the Interior, 144 F. Supp. 3d 35, 55 (D.C. Cir. 2015) (examining agency interpretation of statute). If an agency's interpretation is "arbitrary of capricious" then courts will not defer to the interpretation of the agency. See Otay Mesa Property. L.P., 144 F. Supp. 3d at 55.

(43.) See Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 708 (1995) (noting broad power of agencies). Agencies are given broad powers to accomplish their goals. Id. See also In re Polar Bear Endangered Species Act Listing and [section]4(d) Rule Litigation, 794 F. Supp. 2d at 107 (remarking on broad agency discretionary power). "[I]t is well-settled that an expert agency has wide latitude to consider and weigh scientific data and information." See Id. (citing Am. Bioscience Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). See also 16 U.S.C. [section] 1533(d) (2003) (delegating power to Service). The Service can make rules and regulations regarding whether a species should be listed as threatened or endangered. See 16 U.S.C. [section] 1533(d) (2003); see also Wagner, supra note 21, at 2025 (noting scope of agency powers). Agencies have considerable policymaking power. See Wagner, supra note 21, at 2025.

(44.) See supra note 37 and accompanying text (holding enhancement findings not "arbitrary or capricious"); see also supra note 21 and accompanying text (discussing "arbitrary or capricious standard").

(45.) See supra notes 36-37 and accompanying text (accentuating Service's expert role). The enhancement findings dealt with complex data concerning elephant population and how to manage properly a sustainable hunting program. Id. The plaintiffs challenged how the Service interpreted the data and stated it was misconstrued and improperly considered. Id. The Court remarks that interpreting such data is a task "left to the expertise of the agency." Id. Asking a court to consider and weigh competing views of interpreting complex data is improper because those "arguments not only ask the Court to substitute its judgment for that of the agency but also misperceive the regulatory standard." Id. The role of the court is only to review the agency decision and see if it was made rationally. Id.; see also Safari Club Int'l v. Jewell, 213 F. Supp. 3d 48, 61 (D.C. Cir. 2016) (stating deference to expert agency decision). Areas of "high technical expertise" that the agency deals with requires deference from a court when reviewing an agency decision. Safari Club Int'l, 213 F. Supp. 3d at 61. Agencies have the sole task of weighing competing data, there is no room for court intervention. Id. at 78. Interpreting or giving certain weight and consideration to data is an issue left to the agency; a court can only review to see if the agency decision was rational. Id. at 79. See also supra note 27 and accompanying text (considering agency expertise to determine agency rationality). Agencies deal with issues that "requires expertise and attention to detail that exceeds the normal province of Congress" which is why agencies have "broad discretion to make decisions because of the complex nature of their goals." Id. Moreover, when the interpretation of such data and information is at issue, agencies are considered the experts and deference is given to the agency's interpretation of the data. Id. The expertise of the Service, specifically, has also been noted by courts and there is a strong presumption that the agency is correct when dealing with "wildlife conservation and management." Id.

(46.) See supra note 37 and accompanying text (affirming courts' role for judicial review of agency decision). The role of the court is, has been, and will continue to be purely for reviewing the rationality of an agency decision. Id. Here, the Court found that the enhancement findings were rationally based on available data and information to the Service. Id.-, see also Safari Club Int'l, 213 F. Supp. 3d at 60 (remarking on Court's role in case). "[T]he agency's role is to resolve factual issues and arrive at a decision that is supported by the administrative record, and the [Cjourt's role is to "determine whether ... the evidence in the administrative record permitted the agency to make the decision it did.'" See Safari Club Int'l, 213 F. Supp. 3d at 60. The role of the Court is to determine if the Service acted reasonably and whether the Service had provided a rational explanation. Id. at 74. The Court maintains to only review agency determination of enhancement finding, not supplement its own decision in place of the agency's. Id. at 80-81. See also Sweet Home Chapter of Communities, 515 U.S. at 708 (stressing Courts' role to review agency decisions). The Court's role is to only review the agency's decisions. See Sweet Home Chapter of Communities, 515 U.S. at 708; see also In re Polar Bear Endangered Species Act Listing and 54(d) Rule Litigation, 794 F. Supp. 2d 65, 80 (D.C. Cir. 2011) (reviewing agency decisions on minimum standard of rationality). A reviewing court need not review the agency's decisions as if the court were an expert, the court must only try to find if the agency decision was rational. See In re Polar Bear Endangered Species Act Listing and [section]4(d) Rule Litigation, 794 F. Supp. 2d at 80.

(47.) See supra note 37 and accompanying text (refusing to substitute agency interpretation). Safari Club International, through their challenge to the interpretation of data done by the Service, essentially asked the Court to substitute the agency's interpretation for that of their own. Id. The Service, however, has considerable knowledge about how to interpret data and information, and the Court was not going to step out of their role as a reviewer. Id. Agency decisions, in areas that require a high level of expertise, are given strong deference by courts and are presumed to be valid Id.

(48.) See July 2014 Findings, supra note 9, at 3 (providing little information to Service). The government of Zimbabwe has failed to provide the Service with any useful information. Id. The Service needed information to determine if hunting elephants to import the trophy to the United States would help enhance their survival, but the information provided to the Service was either not relevant or went against the goals of the Service. Id. at 3-13. The Service also wanted concrete information to help make a determination; however, the government of Zimbabwe provided them with only a small window of what their elephant management plan was. Id. at 4. In addition, much of the information provided by the government was outdated and lacked any meaning. Id. at 4-5. See also March 2015 Findings, supra note 10, at 6 (shedding little light on Zimbabwe's elephant management plan). When making the enhancement findings, the Service considers the country's elephant management program, its enforcement, its success, the current elephant population levels in the country, and importantly the Service considers whether hunting the elephants is helping the survival of the species. Id. at 1-2. The Service was not provided with any information that would be helpful to determine the effectiveness of Zimbabwe's elephant management program. Id. at 6. There was also evidence of corruption within the government of Zimbabwe regarding illegal elephant trading. Id. at 10. No information was provided on how poaching is prevented and whether punishments are enforced. Id. at 8. Moreover, the elephant population levels provided to the Service was not enough to determine if hunting was helping their conservation. Id. The Service, again, expressed overall dissatisfaction with the information because it was incomplete and lacking. Id. at 17. See also supra notes 35-37 and accompanying text (providing courts' reasoning regarding enhancement findings). Compare Employee Pocket Guide, U.S. Ftsh & Wildlife Service (vowing to protect wildlife through scientific excellence) and Endangered Species, U.S. Fish & Wildlife Service (protecting endangered species) with International Affairs, Safari Club International (working to reduce regulatory burdens on hunters worldwide).

(49.) See supra notes 30-31 and accompanying text (holding enhancement findings deal with disputed facts). The enhancement findings are not legislative-type policies, instead the enhancement findings deal with facts about the elephant management plan in Zimbabwe that need to be resolved. Id. The findings do not have a binding future effect because if the facts in Zimbabwe change, the findings change too, and the trophy ban could be lifted. Id.; see also supra notes 19-20 and accompanying text (detailing courts' historical distinction of rules and adjudications). Rules promulgate legislative or policy type standards and they have a future effect. See supra notes 1920 and accompanying text. Adjudication deals with particular facts in particular circumstances. Id.; see supra note 34 and accompanying text (holding Service reasonably interpreted their statutory powers). Given the fact that the Service has broad statutory authority to make rules and regulations to protect threatened species, it was reasonable for the Service to expect that making the Special Rule Governing African Elephants would go over the statutory presumptions in the Act that state species listed in Appendix II of CITES (African elephants are listed in Appendix II) are presumed to be valid to trade. See supra note 34 and accompanying text. The Act also provides additional support in the fact that 50 C.F.R. [section] 17.31 notes that special rules can change the conditions a species needs to be traded. Id.; see also supra notes 25-26 and accompanying text (explaining deference to reasonable agency statutory interpretation). Agencies are granted considerable power by Congress to deal broadly with a variety of issues. See supra notes 25-26 and accompanying text. Therefore, courts hold the agencies to a standard of reasonableness when determining if the agency acted within their statutory powers. Id. If an agency acted reasonably within their statutory powers, the courts defer to the agency's interpretation. Id.

(50.) See supra note 37 and accompanying text (emphasizing agency expertise as major factor in judicial review). Agencies deal with subject matter that goes beyond the knowledge of the court. Id. Therefore, the Court should only review the agency decision to see if it was rationally made. Id. Here, the Court found that the Service provided a rational explanation for the enhancement findings and the court declined to consider supplementing plaintiffs knowledge to the agency's decision. Id.; see also supra note 21 and accompanying text (providing examples of agencies as experts). Agency decision making often "requires a high level of technical expertise" and deference should be given to the agency. See supra note 21 and accompanying text. Historically, agencies acting as experts is a long-standing belief. Id.; see also Wagner, supra note 21, at 2029 (recognizing agencies as experts). When agencies are transparent in their decision making process and structure their analysis properly, it affirms the view in the United States that agencies act as experts. See Wagner .supra note 21 at 2028-29.
   [E]ach branch of government recognizes and reinforces this
   revitalized model of the agency-as-expert. The courts, for example,
   defer to the agency-as-expert, particularly when the agency
   explains its underlying methods and assumptions. Congress similarly
   conditions its recognition of the agency-as-expert on the agencies'
   fidelity to a proceduralized and transparent decisionmaking
   process. Id. at 2029.


(51.) See supra note 27 and accompanying text (noting agency knowledge). Congress relies on an agency's knowledge because the issues that agencies deal with are outside the realm of knowledge of the average member of Congress. Id. Agencies have long been seen as experts in the courts. Id. As a result, agency decisions that involve a high level of expertise that are reviewed by courts presume that the agency decision is valid. Id. Judges are not experts in the respective fields that agencies deal with; but agencies are, therefore, agencies are in better positions to make administrative decisions. Id.; see also Carlton v. Babbit, 900 F. Supp. 526, 530 (D.C. Cir. 1995) (acknowledging Service expertise). The Service is highly knowledgeable and considered an expert in its respective field; therefore, the Court gives the agency a strong presumption that their decision is valid. See Carlton, 900 F. Supp. at 530; see also Babbit v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 708 (1995) (remarking that Service requires expertise to fulfill its job). Dealing with endangered species and determining whether the species belongs on the endangered list or threatened list requires expert knowledge and high attention to detail. See Babbit, 515 U.S. at 708. The average person or member of Congress lacks the knowledge to do such a task. Id. See also Am. Wildlands v. Kempthorne, 478 F. Supp. 2d 92, 96 (D.C. Cir. 2007) (noting history of agency expertise). Agencies that base their decisions on the scientific data available to them are reasonable under the court's review. Id. at 99, 101. See also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989) (deferring to agency expertise). Agencies analyze complex reports that require expert knowledge. Id. Therefore, the court should defer to the expert knowledge of the agency. Id. See also Wagner, supra note 21, at 2024 (noting historical view of agencies as experts).

(52.) See supra note 27 and accompanying text (providing examples of information agencies interpret). For example, agencies deal with gathering and interpreting information about climate change. Id. Additionally, agencies deal with information about animals and their habitat. Id.; see also Marsh, 490 U.S. at 377 (reviewing agency reports). Here, the agency had to interpret reports regarding dam construction. See Marsh, 490 U.S. at 377. When there are conflicting views on how to interpret information, the agency must have the discretion to rely on their own expert analysis and reasonable opinions. Id. at 378.

(53.) See supra notes 27-28 and accompanying text (remarking on broad authority of agencies and review by courts). Agencies have broad power that is delegated by Congress because of the wide range of issues that agencies typically deal with. Id. Congress relies on agencies to deal with complex issues that require expert analysis in an agency's respective field. Id. However, as a check, courts have the authority to review agency decisions to make sure the decisions are rationally based. Id.; see also supra note 22 and accompanying text (providing history of development of Chevron test). The Chevron analysis is a way to review an agency's interpretation of their statutory power. See supra note 22 and accompanying text. First, the court looks to see if Congress has spoken on the issue, if Congress has made their intent clear that the agency was not supposed to interpret their power the way they did, the matter ends there. Id. However, if Congress was unclear, the court moves on to see if the agency was reasonable in interpreting their statutory power in the way that they did. Id.; see also supra note 21 and accompanying text (describing judicial review under "arbitrary or capricious" standard). The APA sets forth the standard that courts apply to agencies when reviewing their decisions or interpretations of their own statutory power. See supra note 21 and accompanying text. This holds agencies to make sure they can back up their decisions by showing that they examined relevant data and provided a satisfactory explanation for their decision. Id. The agency must show that the decision was based on reasonable decision-making. Id. Courts can vacate or remand agency decisions that are found to be "arbitrary or capricious." Id.; see also Wagner, supra note 21, at 2027 (holding agencies to high standards of decision making). Agencies employ experts to advise on and review the agency's own analysis that is used in decision-making. See also Wagner, supra note 21, at 2027. The courts act as an incentive for agencies to base their decisions on "well-supported explanations." Id. at 2028. When agencies make their rules, regulations, or other agency actions, the agency adheres to a process that uses the best science to make the best policy. Id. at 2028-29. "Transparency, peer and public scrutiny, and more structured analysis processes are the hallmarks of the agency-as-expert in the United States today and appear to have helped agencies retain their authoritative role as the nation's experts." Id.
   [M]any agencies have instituted formal and often extensive expert
   peer review processes to solicit feedback on their
   science-intensive analyses. Sometimes coaxed by the White House or
   Congress and sometimes of their own volition, the last four decades
   have seen agencies subject their decisions not only to formal
   layers of internal staff peer review, but to external-peer review
   as well.


Id. at 2027-28. "[JJudicial review has emerged as an important disciplining force" regarding agency decision making. Id. at 2028. As a result, this review acts as a check against agency decision-making power. Id.
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Author:Perrino, Nicholas
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jan 1, 2018
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