UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

CONSERVATION FORC E, et al., P laintif fs,

v. Civil Action No. 09-496 (JD B) KENN ETH S ALAZA R, in hi s off icial capacity as Secr etary of the United S tate s Depart m ent of the Interior, e t al., Defendan ts.

MEMORAN DUM OP INION Plaintiffs -- org anizations and individuals that support sust ainable hunting of the Canadian w ood bison -- have broug ht suit allegingthat the Secr etar y of the De partment of the Interior ha s violated sever al provisions of the Enda ng ere d Species Ac t of 1973 (" ESA" or "the Act" ), 16 U.S.C. § 1531 et seq., in his treatment of that species. The Canadian w ood bison is

curr ently listed as "e ndang ere d" unde r the Ac t. In 2007, the Canadia n National Wood Bison Recove ry Tea m petitioned to "downlist" the wood bison to "thre atene d," but the Sec reta ry has not y et made a

final dete rmination on the petition. Pl aintiffs conte nd that the Secr etar y ' s failure to act on the pe tition vi olates the ESA. Sever al individual plaintiffs also challeng e as unla wful the Secr etar

y ' s failure to proce ss their applications to i mport wood bison hunting trophies. F or the re asons explained below, the Court will g rant de fenda nts' motion to dismis s, and will deny plaintiffs' motion for summary judgme nt.

-1-BACK GR OUND

I. Statutory and Regulatory Background The ESA is " the most comprehe nsive leg islation for the pre serva tion of endang ere d specie s ever

enac ted by

any nation." T enn. Va lley

Auth. v. Hill, 437 U.S. 153, 180 (1978). I t is intended to " provide a

means whe reby

the ec osy stems upon which enda ng ere d specie s and threatened spe cies de pend may be conse rved, [and] to provide a program for the conse rvation of such enda ng ere d specie s and threa

tened spe cies." 16 U.S.C. § 1531(b). To this end, the Ac t direc ts the Secre tary

to classify

specie s whose survival is in dang er a s "e ndang ere d" or "thr eate ned." See 16 U.S.C. § 1533. 1 Individuals may

petition the Secre tary

to list , downlist, or delist species. See id. § 1533(b)( 3). Afte r re ceiving any such petition, the Secre tary must, "[t] o the maxim um ext ent prac ticable," make a

finding within 90 day s "a s to whether the petition presents substantial scientific or

commerc ial information indicatingthat the petitioned ac tion may be wa rra nted" (" 90-day finding ") . 16 U.S.C. § 1533(b)(3)( A). And " [w] ithin 12 mont hs after rec eivinga petition that is found . . . to present substantial information indicatingthat the petitioned ac tion may be wa rra nted," the Secr etar

y must determine whe ther the pe titioned action is warr anted, is not warr anted, or

is warr anted but is prec luded by pendingproposals conc erningother spec ies (" 12-month finding" ). I d. § 1533(b)( 3)(B ). The ESA also g ener ally

prohibits the importation of endang ere d and thre atene d specie s,

A spec ies is "e ndang ere d" if it "is in dang er of

exti nction throug hout all or a sig nificant 1 portion of its rang e." 16 U.S.C. § 1532(6). A spec ies is "thre atene d" if it "is likely

to become a

n endang ere d specie s within the forese eable future thr oug hout all or a sig nificant portion of its rang e." I d. § 1532(20). -2-including huntingtrophies. See id. § 1538(a )(1) (A), ( c)( 2); 50 C.F.R. §§ 17.21(b), 17.32.

Certain spec ies may

be imported unde r limited circumstanc es, howe ver - - such a s "f or scientific purposes or to e nhance the propa g ation or survival of the aff ecte d specie s." 16 U .S.C. § 1539(a) (1)( A). Individuals seekingto import a listed species must apply for a permit and satisfy a number of application requireme nts. See id. § 1539(a) ; 50 C.F.R. §§ 17.22, 17.31(a). II. F actual Background The Cana dian wood bison, found in portions of northwe stern Cana da, wa s by the late 1800s hunted nea

rly to ext inction. See 74 Fe d. Reg . 5908, 5909 (F eb. 3, 2009). It was first classified a s an " endang ere d" spe cies in 1970 under the statutory

prede cessor

to the ESA, and has

rema ined so listed under the ESA. I d. Be tween 2000 a

nd 2004, the four individual plaintiffs to this action purc hased w ood bison hunts in C anada , which per mits l imited hunting of the w ood bison, and ea ch then

succe ssfully

hunted a wood bison. Am. Compl. ¶¶ 15-18. With Conservation For ce' s assistance, they eac h applied to import their wood bison trophies into the United States. Am. Compl. ¶¶ 15- 18. The Sec reta

ry had not proc essed these import permit applications by the time this action was filed. In November

2007, the Canadia

n National Wood Bison Recove ry Tea m (" the Tea

m") petitioned the Secr etar

y to downlist t he wood bison fr om endang ere d to threate ned. The Te am' s 2 petition stated that the wood bison' s "populations are he althy ," its " habitat re mains plentiful," a nd

conser vation "r ecove ry

and mana g ement plans a re be ing implemente d." I d. at 5909-10. In

Plaintiffs have no a ffiliation with the Team, and they do not appea

r to have been 2 involved in the downlisting petition. -3-Fe bruar

y 2009, the Secr etar

y , actingthroug h the United States F ish and Wil dlife Service (" the Service ") , issued a 90-da

y finding . This finding c oncluded that the T eam' s downlisting petition "pr esents substantial scientific e vidence and commer cial information indicating that r ecla ssifying the wood bison from e ndang ere d to threate ned may be wa rra nted." I d. at 5910. The Sec reta ry has not y et issued his 12-month finding on the petition. Plaintiffs broug ht this action in March 2009, a month after the Secre tary issued his 90-day finding . They

contend that the Sec reta

ry ' s failure to issue a 12-month findingon the Tea m's downlisting petition violates the ESA. Am. Compl. at pp. 19-20, 25-28. The individual plaintiffs also claim that the Sec reta ry ' s then-fa ilure to proce ss their applications to i mport wood bison hunting trophies violates both the ESA a nd their Due Process rights. Am. Compl . at pp. 21-24. Plaintiffs moved for summary judgme nt before defe ndants responde d to their amende d complaint. Three day s after plaintiffs filed their motion, the Service denied the individual plaintiffs' applications for import permits. See Def s.' Mot. to Dismi ss (" Def

s.' Mot.") [Docke t Entry 11], Ex . 1 (per

mit denials). As to eac h application, the Ser vice c oncluded that " there is insufficient e vidence to support the conce pt that this i mport of a sport- hunted trophy would provide a ' conser vation' benef

it to the wood bison." I d. at 1. Def endants subseque ntly

filed a motion to di smiss on j urisdictional g rounds, as we ll as a cr oss-motion for summary judgme nt raisingthe same issues. STANDARD OF REVIEW Under Rule 12(b)(1) , the par

ty seekingto invoke the jurisdiction of a fe dera l court -- plaintiffs here -- be ars the bur den of e stablishing that the c ourt has jurisdiction. See US Ecolog y , -4-Inc. v. De p' t of Interior, 231 F .3d 20, 24 (D.C. Cir. 2000); see a lso Grand L odg e of F rate rnal

Orde r of Police v. Ashc roft, 185 F . Supp. 2d 9, 13 (D.D.C. 2001) (a court ha s an " aff

irmative obligation to ensure that it is actingwithin the scope of its jurisdictional authority .") ; Pit ney Bow es, I nc. v. United States Postal Serv., 27 F . Supp. 2d 15, 19 (D.D.C. 1998). " ' [P ]l aintiff' s fac tual alleg ations in the complaint . . . will bear c loser scr utiny in resolvinga 12(b) (1) motion' than in resolvinga 12(b) (6) motion for f ailure to state a

claim." Gra

nd L odg e, 185 F . Supp. 2d at 13-14 (quoting5A Charles A lan Wright & Arthur R. Miller, F eder al Prac tice and Proc edure § 1350 (2d ed. 1987) ). Additionally , a cour t may consider material other

than the alleg ations of the complaint in determiningwhether it has jurisdiction to hear the c ase, a s long a s it sti ll acce pts the fac tual alleg ations in the complaint as true. See J erome Stevens Pharm., Inc. v. F ood and Dr ug Admin, 402 F.3d 1249, 1253-54 ( D.C. Cir. 2005). DISCUSSIO N I. The 12-Month F ind ing Plaintiffs' pr imary

contention is that the Secre tary has fa iled to comply

with the ESA' s 12- month finding re quirement. See 16 U.S.C. § 1533(b)(3)( B) ; Pls .' Mot. for Summ. J . (" Pls.' Mot.") [Docke t Entry

9], at 12-15. As they

point out, although the Te am submitted its downlisting petition in November 2007, a nd the Secr etar

y issued a 90-da

y finding in Febr

uary 2009, the Secr etar

y still has not issued a 12-month finding

. The Sec reta

ry contends that plaintiffs c annot cha lleng e his failure to issue a 12-month finding , howeve r, bec ause the y did not comply

with the ESA' s notice re quirement. Unde r the Act, a pr ospective pla intiff must provide written notice to the Sec reta ry at least sixt y

day s befor e suing f or an a lleg ed ESA violation. See 16 U.S.C. § 1540(g )(2) . This require ment is "mandatory

-5-and jurisdictional." Resear ch Air, Inc. v. Nor ton, 2006 WL 508341, at *10 (D.D .C. 2006) (citing Common S ense Salmon Recove ry v. Evans, 329 F . Supp. 2d 96, 104 (D.D.C. 2004)); ac cord Sw. Ctr. for B iologica l Diversity v. U.S. Bure au of Rec lamation, 143 F.3d 515, 520 ( 9th Cir. 1998). 3 Plaintiffs submit ted an intent to sue letter on J anuar

y 13, 2009, more than sixty day s befor e they

filed suit. See Def

s.' Mot., Ex . 2 (I

ntent to Sue L etter) , 1. But plaintiffs' intent to sue letter lists only

two complaints relate d to the wood bison: the Secre tary ' s then-fa ilure to issue a 90-day finding on the downlisting pe tition, and the Secre tary ' s then-fa ilure to proce ss plaintiffs' applications to import wood bison trophies. See id. at 1-2. Plaintiffs do not disput e that their intent to sue letter does not expli citly

challeng e the Secre tary ' s failure to issue a 12-month finding . Plaintiffs insis t, however , that their letter " made blatantly clea r that Conservation Forc e intended to objec t to any further violation of ESA proce dural re quirements." Pls.' Opp' n to Defs.' Mots. ("Pls.' Opp' n") [Docket Entry 20], at 19-21 (citingWater Ke eper

Alliance v. D ep' t of Def

., 271 F.3d 21, 30 ( 1st Cir. 2001) (notice suff icient wher e it made " clea

r that [plaintiff] intended to cha lleng e an ong oing de linquency ") ). B ut the letter did not do so. I ts only ref ere nce to the T eam' s downlisting petition is: "This is also notice for the f ailure of the [S ecr etar

y ] t o make a

timely 90-day deter mination on the petition to downlist the [ Canadian] wood bison . . . ." Intent to Sue L etter at 2. The letter doe s not mention any other de linquency

related to the downlisting pe tition. Nor is itvaguely worde d, leaving ambig uous whether

the objection is to the absent 90- day finding , or to delay s in addressingthe

Be cause the ESA' s notice provision is jurisdictional, the Court may addre ss this i ssue 3 without resolving the Secre tary ' s arg ument that plaintiffs also lack sta nding to c halleng e his failure to issue a 12-month finding . See Sinochem Int'l Co. v. Malay . Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (" [A] fede ral c ourt has lee way to choose among thr eshold g rounds for denying a udience to a ca se on the mer its." (inter nal quotation marks omitted)). -6-petition more g ener ally . Acc ording ly , the notice in no wa y "ma de blatantly

clea r" that plaintiffs intended to sue ove r any

future pr ocedur al violations conce rningthe downlisting pe tition. 4 I t is true that, beca

use the Sec reta

ry had not y et issued his 90-day finding when plaintiffs submitt ed their intent to sue letter , they could not have known whether a 12-month findingwas require d as to the Tea

m's pe tition. S ee 16 U .S.C. § 1533(b)(3) (12- month finding re quired only wher e 90-da

y finding conclude s that a petition "pr esents substantial information indicatingthat the petitioned ac tion may be wa rra nted" ). This does not alter the ana ly sis, however . A notice of intent to sue for the f

ailure to issue a

90-day finding does not provide pr oper notice of intent to sue for the subsequent f

ailure to issue a

12-month finding. See Fr iends of Animals v. Salazar, 670 F. Supp. 2d 7 (D.D .C. 2009). In Fr iends of Animals, the plaintiff ha d submitt ed a notice of intent to sue letter for

the Secr etar

y ' s failure to issue a timely 90-day finding . "D efe ndants had not y et missed the dea dline for the twe lve-month finding " when the plaintiff se nt its i ntent to sue letter -- indeed, be cause there was no 90-da y finding the plaintiff could not have known whethe r a 12-month findingwould be re quired. I d. at 13. Thus, " admittedly and under standably , Plaintiff did not notify

Def endants of its intent to sue" for the f ailure to issue a

12-month finding. I d. Stil l, the court found that the plaintiff' s "f ailure to provide six ty -day s' notice prior to br ingingits claims with respe ct to the 12-month findingmeans those c laims must be dism issed." I d. So too

Plaintiffs also state, without citation, that they "ha d a long standing objection to 4 Def endants' failure to downlist." Pls.' Opp' n at 20. Acc ording ly , they sug g est that the letter provided prope r notice be cause it "incor porate [d] by

ref ere nce . . . a ll the prior pleas, r equests, comments by

Conservation F orce and those it repr esents and diplomatic pr otest by fore ign nations." I

ntent to Sue L etter at 2; see Pls.' Opp' n at 19. B ut even a ssuming that docume nts incorpora ted by ref ere nce c ould ever

"a dequate ly

inform the ag ency

of the e x act grieva

nces ag ainst it," Water Ke eper Alliance, 271 F .3d at 30, plaintiffs have submitt ed no evide nce to this Court conce rningtheir prior ple as or c omments. -7-here , wher e the ne ed for a 12-month findingrema ined spec ulative when the intent to sue letter was submitted on J anuar

y 13, 2009. Moreove r, bec ause pla intiffs' intent to sue letter did not notify the Secr etar

y that they intended to cha lleng e his subsequent fa ilure to issue a 12-month finding , it would be unfair to permit this claim to procee d. "T he purpose of the 60-da y notice provision is to put the ag encie s on notice of a

perc eived violation of the statute a nd an intent to sue." Sw. Ctr. for B iologica l Diversity , 143 F.3d at 520 (internal quotation mar ks omitt ed). " When give n notice, the a g encie s have a n opportunity

to reviewtheir ac tions and take c orre ctive mea sures if wa rra nted. The provision theref

ore pr ovides an opportunity for se ttlement or other r esolution of a dispute without lit igation." I d. (interna l quotation marks omitted). This policy is borne out her e: seve ral

wee ks after

plaintiffs sent their intent to sue letter , the Secr etar y issued the ver

y 90-day finding that plaintiffs soug ht. See 74 Fe d. Reg . at 5910. B ut plaintiffs g ave the Secre tary no such "oppor tunity to review[hi s] actions and take c orre ctive mea sures" relating to his absent 12- month finding for

the wood bison. The Court ther efor e will dismiss plaintiffs' claim that the Secre tary ' s failure to issue a 12-month findingviolates 16 U.S.C. § 1533. 5 The Court will also dismiss , for the sa me re asons, plaintiffs' additional claims that the Secre tary ' s failure to issue a 12-month findingon the wood bison petition violates severa l other ESA provisions. See Pls.' Opp' n at 22-23; Am. Compl. at pp. 25-28. As explained above, plaintiffs' intent to sue letter cha lleng ed only the Secr etar

y ' s failure to issue a 90-da y findingand

Of c ourse, nothingpreve nts plaintiffs, after ensuringthat they

have pr ovided prope r 5 statutory notice pursua

nt to 16 U.S.C . § 1540(g )(2) , from filingan additional suit to compel the 12-month finding. T he Court notes, howe ver, that the Secre tary has re prese nted that he is able to submit a 12-month finding by September 15, 2010 - - less than four months from now. See De fs.' Mot. for Summ. J . (" Def

s.' Mot.") [Docke t Entry

18], at 35. -8-to proce ss plaintiffs' applications to import wood bison trophies. See Intent to Sue L etter a t 1-2. I t did not sugg est that the Secr etar y ' s failure to issue a 12-month findingviolates any other ESA provisions. 6 II. P laintif

fs' P erm it Appli cations Plaintiffs also contend that the Ser vice' s failure to proce ss their applications to i mport wood bison trophies is contrar y to the ESA and violates Due Process. While this li tigation was pending , howeve r, the Servic e denie d the four individual plaintiffs' applications for import permits. Acc ording ly , defe ndants contend that these cla ims are moot: "Plantiffs ha ve alr eady obtained the spe cific r elief - - the proc essingof their pe rmit applications -- r equeste d in their Amended Complaint." Def s.' Mot. at 13. Plaintiffs offer

two arguments in oppositi on. They first note that their pr ay er f or re lief seeks a decla ratory judgme nt that "the f

ailure to proc ess wood bison trophy import permits pursuant to exist ing r egulations is a violation of the ESA, APA, and Constitut ion." Pls.' Opp' n at 11 (citingAm. Compl. at p. 29). Accor ding to them, then, the y still "ha ve not re ceive d all of the relief they reque sted with reg ard to those c laims." I d. Plaintiffs sugg est that these a dditional claims conce rningthe 12-month findingarise not 6 only under the ESA, but also under the A PA. See Pls.' Mot. at 21-22. This would, in theory , permit such cla ims to avoid the ESA's notice provision. But the APA pe rmits courts to review "f inal ag ency

action for

which ther e is no other a dequate reme dy in a cour t." 5 U.S.C. § 704 (empha sis added). H ere , the ESA' s citiz en-suit provision provides an a dequate reme dy for plaintiffs' claims. See 16 U.S.C. § 1540(g )(1) (citizens may sue to enjoin violations of the ESA and to compel the Sec reta ry to comply

with his duti es under

the Act) . There fore , beca use "' revie w of [plaintiffs' ] claim is available under the [ESA] , it is notsubject to revie w under the APA.' " Coos County

Bd. of County Comm'rs v. Ke mpthorne, 531 F .3d 792, 810 (9th Cir. 2008) (quoting Hayes v. Whitm an, 264 F .3d 1017, 1025 (10th Cir. 2001)) (e mphasis removed) (sec ond alteration in C oos County); see a lso Bowe n v. Massac husetts, 487 U.S. 879, 903 (1988) (" Congr ess did not intend the g ener al g rant of r eview in the A PA to duplicate exist ing pr ocedur es for r eview of

ag ency action." ). -9-This argument is unpersuasive. " In deter mining whe ther a

reque st for dec laratory

relief has bec ome moot, 'the question . . . is whether the fac ts alleg ed, under all the circ umstances, show that there is a substantial controver sy , betwee n parties having a dverse leg al intere sts, of sufficie nt immediacy

and re ality

to warr ant the issuance of a de clar atory judgme nt.'" Cony ers v. Reag an, 765 F .2d 1124, 1128 (D.C. Cir. 1985) (quotingPreiser v. N ewkirk, 422 U .S. 395, 402 (1975) ( emphasis in Preiser) ). Now that the Service has proc essed plaintiffs' permit applications, the par ties are no longe r leg ally

adver se to one a

nother, a nd there no longe r exists any immediate, actua l dispute that warr ants dec laratory relief . Indeed, the relief

plaintiffs seek - - a de clar ation that a fa ilure to ac t timely on permit applications is unl awf ul -- would be a

n improper a dvisory opinion. See L awyer v. D ep' t of J ustice, 521 U.S. 567, 579-80 (1997) (" The re al value of the judicial pronounce ment -- wha t makes it a prope r judicial re solution of a case or controve rsy rathe r than a

n advisory

opinion -- is in the settling of some dispute which af fec ts the behavior of the def endant towa

rds the plaintiff." (interna l quotation marks omitted)). Plaintiffs also contend that the Court may still adjudicate their per

mit-related c laims beca use it was the Ser

vice' s voluntary

cessation of the alleg ed unlawf ul conduct -- the fa ilure to timely proce ss permit applications -- that rende red this ca se moot. "I t is well settled that a defe ndant' s voluntary

cessation of a cha lleng ed pra ctice doe s not deprive a fede ral c ourt of its power to determine the leg ality

of the pra ctice." Fr iends of the Ea rth, Inc. v. L aidlaw Envtl. Servs. (TOC), I

nc., 528 U.S. 167, 189 (2000) ( internal quotation marks omitted). This is so beca use, " while the def

endant' s unilateral c essation of the c halleng ed conduc t may g rant the plaintiff re lief, the de fenda nt is free to return to [its] old way s -- ther eby subjectingthe plaintiff to the same ha

rm but, at the same time, a voiding judicial r eview." Qassim v. Bush, 466 F .3d 1073,

-10-1075 (D.C. Cir. 2006) (pe r cur iam) (inter nal quotation marks omitted) (a lteration in orig inal). Thus, when a

defe ndant has voluntarily cea sed the a lleg edly

unlawful c onduct, a c ase is moot "only if the def endant shows that: (1) ' there is no reasona ble expectation . . . that the alleg ed violation will recur,' and (2) ' interim relief or eve nts have c ompletely and irre vocably

era dicated the ef fec ts of the alleg ed violation.' " L arse n v. United States Navy , 525 F.3d 1, 4 ( D.C. Cir. 2008) (quotingCounty

of L .A. v. Davis, 440 U.S. 625, 631 (1979) ). More over, to de feat mootness the alleg ed violation must be rea sonably expected to re cur a g ainst the plaintiff, and not simply others who may

one day be in his place . See Qa ssim, 466 F.3d at 1076. 7 In this case, the Ser

vice c an only

ag ain delay

the proc essingof plaintiffs' import permit applications if plaintiffs a g ain apply for suc h permits. But ther e is no indication in the rec ord 8 that the individual plaintiffs whose per mit applications have now be en proc essed will eve r hunt the wood bison (or a

ny other listed spec ies) ag ain, or that they will apply

to import their trophies. And eve n assuming that the Service needs to show that none of the plaintiffs to this action -- not just t hose who have pre viously applied for

import permits -- ca

n rea sonably

expect to be subject to the a lleg ed violation, it has done so. The only evidenc e in the re cord pote ntially rele vant to any

plaintiffs' future intentions re g ardingimport permits is a declar ation by J ohn J ackson, I I I , plaintiffs' attorney and the f ounder a nd chair man of Conservation Forc e. See Pls.' The voluntary

cessa tion ex ception arg uably

is not available he re at all. Rather, g iven 7 that plaintiffs soug ht to force the Service to take spec ific ac tion, its proce ssing of their import permit applications appear s "more acc urate ly char acte rized as the provision of a ppropriate relief to petitioner than as the ' cessation of illega l conduct.' " N atura l Res. Def. Council, Inc. v. Nuc lear Reg . Comm'n, 680 F .2d 810, 814 (D.C. Cir. 1982). None theless, def endants ha

ve not ra ised this argument, and henc e the Court will assume that the e x ception applies. Plaintiffs do not disput e that the pr ocessingof their pe rmit applications has " completely 8 and irre vocably

era dicated the eff

ects of the alleg ed violation." See L arse n, 525 F.3d at 4.

-11-Opp' n, Dec l. of J ohn J ackson, I I I(" J ackson D ecl." ). Jackson' s decla ration states that Conservation F orce "pr epar ed and f iled all the Wood Bison trophy import permits that are at issue" in this ca se. Jackson Dec l. at ¶ 4. B ut while this shows Cons ervation Forc e' s past eff orts to obtain import permits, itoffe rs no evidenc e that the or g anization intends to do so aga in. 9 In fac t, the only

portions of J ackson' s decla ration that eve n arguably

sug g est that any plaintiffs intend to apply

for import per

mits i n the future are statements conc erningthe Wild Sheep F oundation and Gr and Slam Club/Ovis, t wo org anizational plaintiffs. J ackson state s that the Wild S heep F oundation' s "me mbers wa nt to hunt the bison i f, but g ener ally only if, they can import their trophies." J ackson D ecl. ¶ 9. Simi larly , he off

ers that Gr and Slam Club/Ovis "has many members who w ould like to hunt wood bison i f, and g ener ally only if, they are able to bringtheir trophy

back to the United States." I d. ¶ 10. Even makingthe cha

ritable a ssumption t hat these state ments alone c ould supply a

rea sonable e x pectation that members of the two or g anizations will apply for import per

mits i n the future , howeve r, the Court ca nnot consider them. F eder al Rule of Civil P roce dure 56( e) states that " [a] supporting or opposing a ffidavit [on summary judgme nt] must be made on persona l knowledg e [and] set out facts that would be a dmissibl e in evidenc e." And " [a] lthough the rule' s directive w ith respec t to admissibi lity of an a ffidavit' s contents on summary judgme nt

In their opposition to the gove rnment' s motions, pl aintiffs off er, w ithout citation, that 9 "[m]embers of Conservation Forc e will hunt Wood Bison in the future, and Conser vation For ce will ag ain file pe rmits on their behalf." Pls.' Opp' n at 12. B ut "[t] he mer e ar g uments of counse l" -- e ven counse l who may

have pe rsonal knowledg e -- "a re not e vidence ." B arne tte v. Ridge , 2004 WL3257071, at *6 n.6 (D.D .C. 2004); see a lso Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1372 (3d Cir. 1996) (" [L ]ega l memoranda and ora l argument are not evidence and ca nnot by themselves cr eate a fa ctual dispute suffic ient to defe at a summary judgme nt motion." (interna l quotation marks omitted)). -12-has bee n liberally construed, its re quirement of pe rsonal knowledg e by the af fiant is unequivoca l, and ca nnot be circ umvented. An a ffidavit base d mere ly on information and be lief is

unacc eptable." L ondrig an v. F ed. B urea u of Investig ation, 670 F.2d 1164, 1174 ( D.C. Cir. 1981). Her e, Jackson' s decla

ration off ers no indication that his represe ntations as to these two org anizations' membe rs ar e made from per sonal knowledg e. Jackson does not state that he belong s to, or holds an administrative role in, e ither org anization. Nor does he of fer the source of his statements, or e ven how he is familiar with these groups. In short, his repre sentations as to these two org anizations' membe rs and their intentions appear

on this recor d to be made upon belief, not knowle dg e. This is inadequate. See Ha rris v. Gonzales, 488 F .3d 442, 446 (D.C. Cir. 2007) (the D .C. Circuit has "e x pressly held that af

fidavits based upon be lief ar e inade quate to support a motion for summary judgme nt" ( citing L ondrig an, 670 F .2d at 1174)). T hus, the Court will not rely

on para g raphs nine a

nd ten of Jackson' s decla

ration. 1 0 Wit hout those two para g raphs, ther e is nothing in the r ecor d indicatingthat any plaintiffs in this action intend to apply for import per

mits i n the future

. And without such evidenc e, 1 1 plaintiffs' argument in support of the voluntary cessa tion ex ception is mere ly

that if plaintiffs apply for import per

mits, i t is reasona

bly likely that the Service will not ti mely proce ss those applications. B ut "' the mere power to ree nact a

challeng ed [policy ] i s not a sufficie nt basis on which a c ourt ca

n conclude that a re asonable expectation of re curr ence exis ts. Rather, there must

The Court nee d not addre ss other portions of Jackson' s decla ration, as they

do not affe ct 1 0 the Court' s mootness analy sis. Given that ther e is no evidenc e that plaintiffs intend to apply for import per

mits, t he 1 1 Court need not dete rmine whe ther ther e is a re asonable expectation that the g overnme nt would delay the proc essingof any

such applications. -13-be evide nce indica ting that the c halleng ed [policy ] l ikely will be ree nacte d.' " L arse n, 525 F.3d at 4 (quoting Nat' l Blac k Police Ass' n v. District of Columbia, 108 F.3d 346, 349 (D .C. Cir. 1997)) (alter ations in L arse n). Absent a ny indication that plaintiffs will ag ain apply for import per

mits, there can be no evidenc e that the Ser vice will delay

proce ssing plaintiffs' applications. Acc ording ly , the Court will deny as moot plaintiffs' claims that the Service ' s failure to proce ss their import permit applications is unl awf ul. 1 2 CONCLUSION For the re asons detailed a

bove, the Court will g rant the Sec reta ry ' s motion t o dismiss , and will deny plaintiffs' motion for summary judgme nt. The Court will also deny the Secr etar

y ' s cross-motion for summar y judgme nt as moot. A separ ate Or der a ccompa nies this Memorandum Opinion.

/s/ J OHN D. B ATES United States District J udg e Dated: June 7, 2010

Plaintiffs do not argue that this case falls into the exception to the mootness doctrine 1 2 for c ases " capa

ble of re petition y et eva ding r eview." See De l Monte Fre sh Produce Co. v. United States, 570 F.3d 316, 321-26 ( D.C. Cir. 2009). Indeed, to f all within this exception, a plaintiff must show that "ther e [i] s a re asonable expectation that the same c omplaining pa rty w[il l] be subjected to the same ac tion ag ain." Weinstein v. Bra dford, 423 U.S. 147, 149 (1975) . As explained above, ther e is no such re asonable expectation here

. -14-