United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2017 Decided December 22, 2017

No. 16-5358

SAFARI CLUB INTERNATIONAL AND NATIONAL RIFLE 

ASSOCIATION OF AMERICA,

APPELLANTS

v.

RYAN ZINKE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF 

THE U.S. DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Consolidated with 16-5362

Appeals from the United States District Court

for the District of Columbia

(No. 1:15-cv-01026)

(No. 1:14-cv-00670)

Douglas S. Burdin argued the cause for appellants. With 

him on the briefs were Anna M. Seidman, Christopher A. 

Conte, and Michael T. Jean. Jeremy E. Clare entered an 

appearance.

Avi Kupfer, Attorney, U.S. Department of Justice, argued 

the cause for federal appellees. With him on the brief were 
2

Jeffrey H. Wood, Acting Assistant Attorney General, and 

Andrew C. Mergen, and Matthew Littleton, Attorneys.

Michael Ray Harris and Jennifer E. Best were on the brief 

for appellees Friends of Animals, et al. Courtney R. McVean 

entered an appearance.

Tanya Sanerib, Sarah Uhlemann, and Anna Frostic were 

on the brief for amici curiae The Humane Society of the United 

States, et al. in support of defendants-appellees.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: By regulation issued 

pursuant to the Endangered Species Act (“ESA”), sport-hunted 

African elephant trophies may only be imported into the United 

States if, among other things, the U.S. Fish and Wildlife 

Service (“Service”) makes “[a] determination . . . that the 

killing of the trophy animal will enhance the survival of the 

species.” 50 C.F.R. § 17.40(e)(6)(i)(B) (“Special Rule”). On 

April 4, 2014, the Service issued a press release stating that the 

agency lacked sufficient information to support a positive 

enhancement determination with respect to elephant trophies 

hunted in Zimbabwe during the 2014 hunting season. The 

finding, which was subsequently published in the Federal 

Register, banned the importation of such trophies going 

forward from the date of the finding. The Service also made 

negative enhancement findings in July of 2014 and March of 

2015, each time concluding that information concerning the 

size of the Zimbabwean elephant population and status of 

conservation efforts in Zimbabwe did not support a conclusion 
3

that killing the animal “will enhance the survival of the 

species.” Id.

Safari Club International (“Safari Club”) and the National 

Rifle Association (“NRA”) (collectively, “Appellants”) filed 

suit in District Court to challenge the 2014 and 2015 findings.

Appellants claimed that the agency’s actions were arbitrary and 

capricious under the Administrative Procedure Act (“APA”) 

and violated the ESA because, inter alia, in its determinations 

to ban the elephant imports, the Service impermissibly relied 

on standards that are more stringent than the statutory 

requirements in the ESA. The District Court denied 

Appellants’ motion for summary judgment on these claims and 

granted judgment for the Service. For the reasons explained 

below, we affirm judgment for the Service on these claims.

Appellants also contended that the Service erred in 

adopting the 2014 and 2015 enhancement findings without 

adhering to the notice-and-comment rule-making requirements 

of the APA. See 5 U.S.C. § 553. The District Court rejected this 

claim on the ground that the enhancement findings were the 

product of adjudications and, therefore, not covered by the 

APA’s rule-making requirements. The District Court erred on 

this point. Under the APA, a “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.” Id. § 551(4). And as the Supreme Court has 

explained, rule-making procedures are “used in the formulation 

of a basically legislative-type judgment, for prospective 

application only, rather than in adjudicating a particular set of 

disputed facts.” United States v. Fl. E. Coast Ry. Co., 410 U.S. 

224, 246 (1973). The enhancement findings in this case fit 

these definitions of “rule” to a tee. Therefore, the Service erred 

in adopting the findings without first following the notice-andcomment rule-making requirements of the APA. Accordingly, 
4

we reverse the District Court’s grant of summary judgment in 

favor of the Service on the § 553 claim. The case will be 

remanded to the District Court with instructions to remand to 

the Service so that it may initiate rule making to address 

enhancement findings for the time periods at issue in this case.

I. BACKGROUND

A. Statutory and Regulatory Background

1. The CITES Treaty

The United States and Zimbabwe are parties to the 

Convention on International Trade in Endangered Species of 

Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 (“CITES” 

or “Convention”). See 16 U.S.C. § 1538(c)(1) (incorporating 

the Convention into U.S. domestic law through the ESA). The 

Convention regulates the international trade of imperiled 

species that are listed in its appendices, which include African 

elephants, or Loxodonta africana, from Zimbabwe. See, e.g., 

id. §§ 1537a–1539; 50 C.F.R. § 17.11.

As relevant here, Appendix I lists species that are 

“threatened with extinction which are or may be affected by 

trade,” CITES art. II(1), 27 U.S.T. at 1092, and Appendix II 

lists species that may become threatened with extinction unless 

their trade is regulated, id. art. II(2), 27 U.S.T. at 1092. Parties 

to the Convention may not allow trade in species listed in the 

appendices except in accordance with the treaty’s provisions. 

Id. art. II(4), 27 U.S.T. at 1092. 

Appendix I species may be shipped internationally only if 

both the importing and exporting countries grant permits, 

which are subject to certain conditions. Id. art. III, 27 U.S.T. at 

1093–95. Among the requirements for a permit to issue, both 
5

countries must make a “non-detriment” finding, certifying that 

the trade in threatened species “will not be detrimental to the 

survival of that species.” Id. art. III(2)(a), 27 U.S.T. at 1093; 

id. art. III(3)(a), 27 U.S.T. at 1093. Until 1994, the Convention 

also required an importing country to make an “enhancement 

finding,” a determination that “the killing of the animal . . . 

would enhance the survival of the species.” Retention of 

Threatened Status for the Continental Population of the African 

Elephant, 57 Fed. Reg. 35,473, 35,485 (Aug. 10, 1992). The 

parties to the Convention removed the enhancement finding

requirement from the treaty by resolution in 1994.

For Appendix II species, the Convention requires a permit 

from the exporting country only. CITES art. IV, 27 U.S.T. at 

1095–97. While subject to the non-detriment finding 

requirement, permits for Appendix II species have never been 

conditioned on the exporting country making an enhancement 

finding. In 1997, over opposition from the United States, the 

parties to the Convention transferred African elephants in 

Zimbabwe from Appendix I to Appendix II. Changes in List of 

Species in Appendices to the [CITES], 62 Fed. Reg. 44,627, 

44,628–29 (Aug. 22, 1997). 

It is undisputed that the proscriptions in the Convention 

are a floor, not a ceiling, for protection of Appendix II species. 

The treaty “in no way affect[s] the right of Parties to adopt . . . 

stricter domestic measures regarding the conditions for trade, 

taking possession or transport of specimens of species included 

in Appendices I, II, and III, or the complete prohibition 

thereof.” CITES art. XIV(1), 27 U.S.T. at 1108.

2. The Endangered Species Act

Congress passed the Endangered Species Act (“ESA”), 16 

U.S.C. §§ 1531–44 (2000), to provide for the conservation of 
6

“endangered” and “threatened” species, id. § 1531(b); see id.

§ 1532(6) (defining “endangered species” as “any species 

which is in danger of extinction throughout all or a significant 

portion of its range”); id. § 1532(20) (defining “threatened 

species” as “any species which is likely to become an 

endangered species within the foreseeable future throughout all 

or a significant portion of its range”). Except in narrow 

circumstances, the Act generally prohibits the importation of 

endangered species into the United States. Id. § 1538(a)(1)(A); 

50 C.F.R. § 17.21(b). 

For threatened species, section 4(d) requires the Service to 

“issue such regulations as [it] deems necessary and advisable 

to provide for the[ir] conservation.” 16 U.S.C. § 1533(d). 

Pursuant to this authority, the Service has promulgated a 

regulation extending the general import prohibition on 

endangered species to threatened species. See 50 C.F.R. 

§ 17.31(a). The Service reserved the right, however, to create 

“special rule[s]” regarding threatened species, which “contain 

all the applicable prohibitions and exceptions” regarding 

import of that species. Id. § 17.31(c). In other words, “the 

[Service] has, with this regulation, established a regime in

which the prohibitions established for endangered species are 

extended automatically to all threatened species by a blanket 

rule and then withdrawn as appropriate, by special rule for 

particular species and by permit in particular situations.” Sweet 

Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 5 

(D.C. Cir. 1993).

Since 1978, the Service has listed the African elephant as 

a threatened species under the ESA, see Listing of the African 

Elephant as a Threatened Species, 43 Fed. Reg. 20,499, 20,503 

(May 12, 1978); 50 C.F.R. § 17.11(h), and maintained a 

Special Rule governing its importation, see 50 C.F.R. 

§ 17.40(e) (“Special Rule”). In 1992, the Service added a 
7

provision to the Special Rule providing that sport-hunted 

African elephant trophies may only be imported into the United 

States under certain conditions, including that the Service must 

make “[a] determination . . . that the killing of the trophy animal 

will enhance the survival of the species.” Id.

§ 17.40(e)(6)(i)(B). This means that, in the United States, the 

enhancement finding requirement continues to apply in 

accordance with the Special Rule under the ESA. The 1994 

removal of the enhancement finding requirement from the 

Convention for the issuance of import permits for Appendix I 

species “d[id] not supersede import or export requirements 

pursuant to [the ESA].” 62 Fed. Reg. at 44,633. 

The Service maintains the right to make nation-wide 

enhancement findings sua sponte, “on a periodic basis upon 

receipt of new information on the species’ population or 

management.” Id. Current findings “remain in effect until the 

Service finds, based on new information, that the conditions of 

the special rule are no longer met and has published a notice of 

any change in the Federal Register.” Id.

Finally, section 9(c)(2) of the ESA provides that “[a]ny 

importation into the United States” of non-endangered, 

Appendix II species such as Zimbabwean elephants “shall,” 

where certain conditions are satisfied, “be presumed to be an 

importation not in violation of any provision of [the ESA] or 

any regulation issued pursuant to [the ESA].” 16 U.S.C. 

§ 1538(c)(2).

3. The Enhancement Findings

In 1997, the Service made a positive enhancement finding 

for sport hunting of African elephants in Zimbabwe. 

Memorandum, Enhancement Finding for African Elephants 

Taken as Sport-hunted Trophies in Zimbabwe, U.S. Fish and 
8

Wildlife Service (July 2, 1997), reproduced at Joint Appendix 

(“J.A.”) 373–76. The Service explained that revenues 

generated by sport hunting benefited rural communities and 

elephant conservation programs in Zimbabwe. In addition, 

Zimbabwe’s government had in place conservation and antipoaching programs to protect the elephants. And “one of the 

best sets of elephant population data in Africa” indicated that 

Zimbabwe’s elephant population was growing at “about 5% 

per annum,” from 46,000 elephants in 1980 to 66,000 in 1997. 

J.A. 373–74. Thus, “[b]ased on available information,” the 

Service found that “the import of sport-hunted elephant 

trophies from Zimbabwe enhances the survival of the species.” 

J.A. 373. 

Those findings remained in effect until April 4, 2014, when 

the Service made an interim negative enhancement finding and 

suspended the importation of sport-hunted elephant trophies 

from Zimbabwe. Memorandum, Enhancement Finding for 

African Elephants Taken as Sport-hunted Trophies in 

Zimbabwe during 2014, U.S. Fish and Wildlife Service (Apr. 

17, 2014), reproduced at J.A. 496–501. The Service noted that 

publicly available survey information suggested that “the 

elephant population in Zimbabwe has declined from 84,416 

elephants in 2007 to 47,366 elephants in 2012.” J.A. 500. But 

the Service explained that “[t]he most significant aspect of [its] 

analysis is the lack of recent data on what is occurring in 

Zimbabwe.” J.A. 501. The Service had not received any 

information in writing from the Zimbabwean Government 

since 2007, when it had received three undated and unsigned 

papers that relied on dated information. And the Service had 

gained little new information from the occasional meetings it 

had with Zimbabwean officials since 2007. Lacking current 

data from the Zimbabwean government regarding its 

conservation programs and the status of the elephant 

population, the Service determined that it was not possible “to 
9

make a positive finding that sport-hunting is enhancing the 

survival of the species.” Id. It therefore temporarily banned 

imports of sport-hunted trophies of elephants from Zimbabwe 

until better information could be obtained from the 

Zimbabwean government, and sent a letter to authorities in 

Zimbabwe requesting more information. J.A. 468–69. 

The Service announced the negative enhancement finding 

in a press release on its website on April 4, 2014, but did not 

publish notice of the finding in the Federal Register until May 

12, 2014. Interim Suspension of Imports of Elephant Trophies

from Zimbabwe, 79 Fed. Reg. 26,986 (May 12, 2014). Without 

expressly inviting public comment, the notice stated that the 

Service was “actively pursuing additional information” from 

Zimbabwe and “other sources” to “make a final [enhancement] 

determination” for 2014. Id. at 26,987.

Over the next several months, the Service received and 

considered information submitted by the Zimbabwean

government, safari outfitters, including Safari Club, and 

conservation and hunting associations. Based on the submitted 

information, the Service issued a final negative enhancement 

finding on July 17, 2014. Memorandum, Enhancement Finding 

for African Elephants Taken as Sport-hunted Trophies in 

Zimbabwe during 2014, U.S. Fish and Wildlife Service (July 

22, 2014), reproduced at J.A. 520–32; see also Notice of 

Suspension of Imports of Zimbabwe Elephant Trophies Taken 

in 2014 on or After April 4, 2014, 79 Fed. Reg. 44,459 (July 

31, 2014). The Service explained that Zimbabwe’s population 

estimates for its elephants were “clearly based on outdated 

information.” J.A. 525. The few recent surveys provided by 

Zimbabwe exhibited a number of faults that rendered them 

prone to double counting. Id. The submissions similarly lacked 

reliable information regarding Zimbabwe’s management plans, 

anti-poaching efforts, and regulation of elephant hunting. Id. at 
10

524–28. Unable to make a positive enhancement finding on the 

basis of the new information, the Service forbid the importation 

of elephants harvested in Zimbabwe from April 4, 2014 

through the end of the year. 

On March 26, 2015, the Service made yet another negative 

enhancement finding, banning the importation of trophies of 

“elephants taken in Zimbabwe during the 2015 hunting season 

and future hunting seasons.” Memorandum, Enhancement 

Finding for African Elephants Taken as Sport-hunted Trophies 

in Zimbabwe On or After January 1, 2015, U.S. Fish and 

Wildlife Service (Mar. 26, 2015), reproduced at J.A. 588–605; 

id. at 588; see also Notice of Continued Suspension of Imports 

of Zimbabwe Elephant Trophies Taken On or After April 4, 

2014, 80 Fed. Reg. 42,524 (July 17, 2015). Once again, the 

finding was “due to the Service being unable to make [a 

positive] enhancement finding even after receiving additional 

materials from Zimbabwe’s Parks and Wildlife Management 

Authority and others,” including Safari Club. 80 Fed. Reg. at 

42,525.

B. Procedural Background

On April 21, 2014, Safari Club, later joined by the NRA,

filed a complaint in the District Court, challenging the 

Service’s April 4, 2014 enhancement finding pertaining to 

importation of African elephant trophies from both Zimbabwe 

and Tanzania. Safari Club Int’l v. Jewell, 47 F. Supp. 3d 29, 31

(D.D.C. 2014). The District Court granted the federal 

defendants’ motion to dismiss the Tanzanian claims on the 

grounds that the plaintiffs had not exhausted their 

administrative remedies, since no member of the Safari Club or 

NRA had applied for an import permit for any Tanzanian 

elephant. Safari Club Int’l v. Jewell, 76 F. Supp. 3d 198, 206–

09 (D.D.C. 2014). The court also allowed the plaintiffs to 
11

amend their complaint to add claims challenging the July 2014 

enhancement finding. Id. at 205–06. The Court of Appeals 

reversed the dismissal of the Tanzanian claims, holding that 

Safari Club and the NRA had standing, the April and July 

findings were final agency actions, and Safari Club did not 

need to seek a permit in order to exhaust its administrative 

remedies. Safari Club Int’l v. Jewell, 842 F.3d 1280, 1285–90 

(D.C. Cir. 2016). 

In June 2015, Safari Club and the NRA (“Appellants”) filed 

a separate action alleging that the Service’s March 26, 2015 

enhancement finding violated the ESA, 16 U.S.C. § 1531 et 

seq., and the APA, 5 U.S.C. § 706. Complaint for Declarative 

and Injunctive Relief, ¶¶ 88–125 (June 30, 2015); see also

Safari Club Int’l v. Jewell, 213 F. Supp. 3d 48, 51 (D.D.C. 

2016). Members of both organizations had harvested elephants 

in Zimbabwe in 2014 and 2015. However, as a result of the 

challenged enhancement findings, the members were barred 

from importing the trophies into the United States. Complaint, 

¶¶ 18, 24; Appellants’ Br. 57–58. The District Court 

consolidated the two Zimbabwe-related cases and granted 

leave to Friends of Animals and the Zimbabwe Conservation 

Task Force to intervene as defendants. That consolidated case 

is the subject of this appeal.

The plaintiffs made four principal ESA and APA claims 

before the District Court. First, they claimed that the Service’s 

reasoning was arbitrary and capricious, in part because the 

findings imposed a standard greater than “enhancement.”

Second, they argued that by resting on the absence of evidence 

that sport hunting enhances the survival of the African elephant 

in Zimbabwe, the findings violated the presumption of legality 

established in section 9(c)(2) of the ESA. Third, they claimed 

that the removal of the enhancement-finding requirement from 

the Convention in 1994 required the Service to initiate rule
12

making with respect to the Special Rule’s enhancement 

condition. Finally, the plaintiffs contended that the three 

enhancement findings were rules subject to notice-andcomment rule-making procedures under § 553 of the APA. See 

Safari Club, 213 F. Supp. 3d at 61.

Safari Club and the NRA moved for summary judgment on 

February 18, 2016. The Service and intervenors opposed that 

motion and cross-moved for summary judgment in their favor.

On September 30, 2016, the District Court entered 

summary judgment for the government on every claim but one, 

which the Service has not appealed. Safari Club, 213 F. Supp. 

3d at 51. The court held that (1) none of the three findings were 

arbitrary and capricious, id. at 73–81; (2) it was reasonable for 

the Service “to interpret the Special Rule as rebutting [section 

9(c)(2) of the ESA’s] statutory presumption,” id. at 66; (3) the 

Service was not required to initiate rule-making proceedings 

under the ESA when the enhancement condition was removed 

from CITES in 1994, id. at 66–67; and (4) the enhancement 

findings resulted from adjudications and therefore were not 

subject to the APA’s rule-making requirements, id. at 62–64.

Safari Club and the NRA have now appealed the denial of 

their motion for summary judgment and the entry of judgment 

for Appellees.

II. ANALYSIS

A. Standard of Review

“We review an order granting summary judgment de novo, 

viewing the evidence and drawing all reasonable inferences in 

favor of the nonmoving party.” Chenari v. George Washington 

Univ., 847 F.3d 740, 744 (D.C. Cir. 2017). “In a case like the 
13

instant one, in which the District Court reviewed an agency 

action under the APA, we review the administrative action 

directly, according no particular deference to the judgment of 

the District Court.” Holland v. Nat’l Mining Ass’n, 309 F.3d 

808, 814 (D.C. Cir. 2002).

The APA requires that we “hold unlawful and set aside 

agency action” that is “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” 5 U.S.C. 

§ 706(2)(A). A disputed action also may be set aside as 

arbitrary and capricious if the agency has acted “without 

observance of procedure required by law.” Id. § 706(2)(D); see 

Meister v. U.S. Dep’t of Agric., 623 F.3d 363, 371 (6th Cir. 

2010) (noting that “even in cases arising under § 706(2)(D), the 

arbitrary-and-capricious standard frequently governs”). In 

applying the arbitrary and capricious standard, we consider 

whether the agency “has relied on factors which Congress has 

not intended it to consider, entirely failed to consider an 

important aspect of the problem, [or] offered an explanation for 

its decision that runs counter to the evidence before the 

agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43 (1983). The court may “not . . . 

substitute its [own] judgment for that of the agency,” id., and 

deference is especially warranted where the decision at issue 

“requires a high level of technical expertise,” Marsh v. Or. Nat. 

Res. Council, 490 U.S. 360, 377 (1989). Nonetheless, we must 

determine whether the Service “examine[d] the relevant data 

and articulate[d] a . . . rational connection between the facts 

found and the choice made.” State Farm, 463 U.S. at 43 

(internal quotation marks omitted).

The APA also provides that a reviewing court shall “hold 

unlawful and set aside agency action, findings, and conclusions 

found to be . . . in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right.” 5 U.S.C. § 706(2). 
14

In considering whether an agency’s construction of its 

authorizing statute is permissible, we apply “the ordinary tools 

of statutory construction” to “determine ‘whether Congress has 

directly spoken to the precise question at issue.’” City of 

Arlington v. FCC, 569 U.S. 290, 296 (2013) (quoting Chevron

U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 

(1984)). “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.” Chevron, 

467 U.S. at 842–43. If the statute is ambiguous and the agency 

has acted pursuant to congressionally delegated authority to 

make law and with the intent to act with the force of law, we 

will defer to the agency construction so long as it is reasonable. 

United States v. Mead Corp., 533 U.S. 218, 226–27, 229

(2001). “[T]he question in every case is, simply, whether the 

statutory text forecloses the agency’s assertion of authority, or 

not.” City of Arlington, 569 U.S. at 301.

Finally, “[w]e must give substantial deference to an 

agency’s interpretation of its own regulations. Our task is not 

to decide which among several competing interpretations best 

serves the regulatory purpose. Rather, the agency’s 

interpretation must be given controlling weight unless it is 

plainly erroneous or inconsistent with the regulation.” 

Castlewood Products, L.L.C. v. Norton, 365 F.3d 1076, 1082

(D.C. Cir. 2004) (quoting Thomas Jefferson Univ. v. Shalala, 

512 U.S. 504, 512 (1994)).

B. The Meaning of “Enhance” in the Service’s 

Regulation

Appellants first argue that the disputed enhancement 

findings should be overturned because the Service failed to 

apply the correct standard in determining whether to ban 
15

elephant imports. As noted above, the Special Rule forbids the 

importation of sport-hunted elephant trophies absent a 

“determination” by the Service “that the killing of the trophy 

animal will enhance the survival of the species.” 50 C.F.R. 

§ 17.40(e)(6)(i)(B) (emphasis added). Appellants claim that the 

Service banned elephant imports on the ground that there was 

no evidence to support findings that sport hunting would 

“ensure” the survival of the elephants. Appellants’ Br. 32–36. 

Appellants thus contend that the Service erred because it 

applied a standard that is more stringent than the “enhance” 

standard in the Service’s regulation.

Appellants appear to assume that 50 C.F.R. 

§ 17.40(e)(6)(i)(B) requires the Service to make a positive 

enhancement determination if it finds any potential benefit to 

the survival of elephants from sport hunting. In Appellants’

view, it does not matter whether the benefits of sport hunting

are outweighed by its risks to the threatened species. Thus, 

according to Appellants, the Service was obliged to make a 

positive enhancement finding once it found that there were 

some benefits from hunting.

In particular, Appellants argue that it was error for the 

Service to consider whether the overall elephant population had 

declined, and to take into account non-sport-hunting related 

threats to the elephants, such as poaching. Appellants consider 

these matters irrelevant with respect to whether sport hunting 

will “mak[e] the situation better” for elephants than the absence 

of hunting. Appellants’ Reply Br. 3; see Appellants’ Br. 34. 

Appellants also point out that in both the July 2014 and March 

2015 findings, the Service acknowledged that “scattered 

around Zimbabwe” are “‘bright spots’ of elephant conservation 

efforts,” but concluded that “there are not enough of these 

‘bright spots’ to overcome the problems currently facing 

Zimbabwe elephant populations and to support a finding that 
16

sport hunting is enhancing the survival of the species.” J.A. 

532, 605. Appellants insist that requiring conservation efforts 

to “overcome” threats to the elephants amounts to a 

requirement that sport hunting guarantee, not merely

“enhance,” elephant survival. Appellants’ position is specious.

The Service reasonably interpreted the Special Rule to 

require a holistic inquiry into whether hunting enhances the 

species’ survival on net, taking into account the sustainability 

of the existing elephant population in light of the obvious 

detriments hunting poses to elephant survival. As the Service 

explained in its March 2015 finding, the enhancement 

determinations, among other things, “look[] to determine [1] if 

a country has sufficient numbers of elephants to support a 

hunting program, [2] if the country has a management plan and 

adequate laws and regulations to effectively implement a 

hunting program, and [3] if the participation of U.S. hunters in 

the program provides a clear benefit to the species to meet the 

[Special Rule’s] requirements for . . . import.” J.A. 589. 

Appellants would have the Service focus exclusively on the last 

consideration – the benefits of hunting – in isolation from 

information about the viability of the elephant population being 

hunted and Zimbabwe’s ability to regulate the hunting 

program. 

Nothing in the Special Rule supports Appellants’ reading 

of “enhance.” The sustainability of Zimbabwe’s elephant 

population and the status of the government’s elephant 

management plan bear directly on the effects of hunting on 

elephant survival. For example, one of the Service’s concerns 

is that the current level of offtake from sources other than sport 

hunting, such as poaching, culling, or problem animal control, 

might be higher than appropriate to maintain a healthy 

population of elephants. See, e.g., Memorandum, July 22, 2014 

Enhancement Finding, J.A. 524; see also 80 Fed. Reg. at 
17

42,526; 79 Fed. Reg. at 44,460. In these circumstances, sport 

hunting might on net decrease the number of elephants in the 

wild if the existing population is simply too sparse to support 

reductions by hunting. 

The Service’s interpretation of its regulation is entirely 

consistent with the definition of “enhance” and perfectly 

reasonable. Appellants define “enhance” as to “heighten, 

increase.” Appellants’ Br. 32 (citing Merriam-Webster.com, 

“Enhance” (Dec. 5, 2017), http://www.merriam-webster.com/

dictionary/enhance). That definition in no way forecloses the 

Service from requiring hunting to “increase” elephant survival 

on the whole, taking into account the full biological and 

institutional context bearing on the health of the species. The 

Service’s interpretation of its Special Rule easily passes muster 

under the applicable standard of review. See Thomas Jefferson 

Univ., 512 U.S. at 512 (holding that “the agency’s 

interpretation must be given controlling weight unless it is 

plainly erroneous or inconsistent with the regulation”).

C. Appellants’ Claim that the Enhancement Findings 

Are Foreclosed by Section 9(c)(2) of the ESA

Appellants additionally argue that the Service’s negative 

enhancement findings are improper because they rest on the 

absence of evidence that sport hunting enhances the survival of 

the species, rather than on an affirmative finding that sport 

hunting fails to enhance the survival of the African elephant in 

Zimbabwe. Appellants assert that the Service’s approach is 

based on an impermissible construction of the ESA because 

section 9(c)(2) of the act provides that “[a]ny importation into 

the United States” of non-endangered, Appendix II species 

“shall” (where certain conditions not at issue here are satisfied)

“be presumed to be an importation not in violation of any 

provision of [the ESA] or any regulation issued pursuant to [the 
18

ESA].” 16 U.S.C. § 1538(c)(2). Given that the Special Rule is 

a “regulation issued pursuant to [the ESA],” id., Appellants 

insist that section 9(c)(2) applies to its terms. Accordingly, 

because the Service found the evidentiary record inadequate to 

make an affirmative determination as to whether sport hunting 

was a net positive for Zimbabwe’s African elephant 

population, Appellants contend that the statutory presumption 

required the Service to authorize importation. We find no merit 

in this claim. We also find that the Service’s interpretation of

the ESA is reasonable and entitled to deference. See City of 

Arlington, 569 U.S. at 296.

“To establish a ‘presumption’ is to say that a finding of the 

predicate fact . . . produces a required conclusion in the absence 

of explanation.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 

506 (1993) (internal quotation marks omitted) (emphasis 

added). Thus, a presumption is generally rebuttable by the 

presentation of contrary evidence. See FED. R. EVID. 301; Tex. 

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). 

Indeed, Appellants acknowledge that the presumption is not 

conclusive. See Oral Arg. Recording 1:52–2:09 (“We[, the 

Appellants,] are not arguing . . . that section 9(c)(2) . . . creates 

a conclusive presumption of importability.”). 

In this case, there is no serious dispute over the fact that the 

regulatory criteria for import were not satisfied. Therefore, the 

section 9(c)(2) presumption was overcome by the combination 

of the Special Rule, the administrative record underlying the 

Special Rule, and the fact-finding in this case with respect to 

the current status of Zimbabwe’s elephant population and 

management program. The Special Rule says that “sporthunted trophies may be imported into the United States 

provided . . . [a] determination is made that the killing of the 

trophy animal will enhance the survival of the species.” 50 

C.F.R. § 17.40(e)(6)(i). No such determination was made here. 
19

Any “presumption” that this precondition was satisfied is easily 

rebutted by the self-evident fact that it was not.

The principal problem with Appellants’ argument is that it 

mischaracterizes the Special Rule and the Service’s application 

of the rule. The Special Rule does not require the Service to 

affirmatively find that killing the species does not enhance 

species survival in order to ban importation of sport-hunted 

elephant trophies. The Special Rule allows such imports only 

if, among other things, the Service can find that hunting 

enhances survival. Given that an affirmative enhancement 

finding is a regulatory precondition to the lawful importation 

of Zimbabwean elephants, so too, by necessary extension, is an 

adequate evidentiary basis for making such a finding. 

Therefore, the Service’s conclusion that it lacked evidence to 

make a positive enhancement finding, together with the Special 

Rule’s affirmative enhancement condition and the underlying 

administrative record that led to the rule’s adoption, rebuts any 

presumption that the importation of African elephants complies 

with the Special Rule.

Section 9(c)(2) in no way constrains the Service’s section 

4(d) authority to condition the importation of threatened 

Appendix II species on an affirmative enhancement finding. 

Under section 4(d) of the ESA, the Service “shall issue such 

regulations as [it] deems necessary and advisable to provide for 

the conservation of [threatened] species” and may “prohibit 

with respect to any threatened species any act prohibited . . . 

with respect to endangered species.” 16 U.S.C. § 1533(d). 

Because the Service may generally bar imports of endangered 

species, see id. § 1538(a)(1)(A), it may do the same with 

respect to threatened species under section 4(d), see id. 

§ 1533(d). Appellants do not dispute that the promulgation of 

a blanket ban would be permissible and rebut the presumptive 

legality of Zimbabwean elephant imports. If the Service has the 
20

authority to completely ban imports of African elephants by 

regulation under section 4(d), it logically follows that it has 

authority to allow imports subject to reasonable conditions, as 

provided in the Special Rule. Therefore, even assuming that 

section 9(c)(2) applies to the Special Rule, it merely establishes 

a presumption that the regulation’s conditions have been met, 

absent a finding to the contrary. It does not dictate the content 

of the conditions.

In fact, Appellants have conceded that the Special Rule’s 

enhancement condition is consistent with section 9(c)(2). At 

oral argument, counsel for Appellants repeatedly disavowed 

any argument that the Service lacked the authority to require a 

positive enhancement finding as a condition of importation of 

African elephant trophies. See Oral Arg. Recording 1:30–2:16 

(“We are not arguing that section 9(c)(2) prevents the Service 

from enacting a special rule under Section 4(d). We are not 

arguing that [section] 9(c)(2) overrides any such special rule. 

We are not arguing that section 9(c)(2) conflicts with section 

4(d) of the ESA. And we are not arguing . . . that section 9(c)(2) 

. . . preempts section 4 or creates a conclusive presumption of 

importability.”); see also id. at 12:25–16:06 ([Question:] “Are 

you saying that the regulation with the elephant rule is unlawful 

under the statute?” [Answer:] “No.”).

In sum, Appellants do not dispute that the Service has 

authority under the ESA to promulgate regulations that restrict 

the importation of African elephant trophies. The Service has 

chosen to exercise this authority by requiring an affirmative 

demonstration that sport hunting enhances the survival of the 

African elephant as a precondition to import. Even if 

Appellants are correct that the statutory presumption applies to 

this precondition, the presumption has been rebutted by an 

affirmative finding of a lack of evidence of enhancement.
21

D. The Removal of the Enhancement Requirement 

from the Convention

Appellants additionally contend that the 2014 and 2015 

enhancement findings should be overturned on the ground that 

they cannot be squared with the 1994 amendment to the 

Convention. We find no merit in Appellants’ arguments resting 

on this claim.

As noted above, before 1994, both the Convention and the 

Special Rule required the Service to make an enhancement 

determination before issuing a permit to import the trophy of 

an Appendix I species. See 57 Fed. Reg. at 35,485 (adding the 

enhancement requirement to the Special Rule in 1992). The

Convention was amended to remove this requirement in 1994. 

However, the United States retained the requirement in its 

African elephant Special Rule issued under the ESA. See 50 

C.F.R. § 17.40(e)(6)(i)(B); 62 Fed. Reg. at 44,633 (explaining 

that the enhancement condition “continue[d] to apply” after 

African elephants were transferred to Appendix II of the 

Convention). Appellants argue that the Special Rule cannot 

stand now that the enhancement requirement has been 

eliminated from the Convention. This claim is meritless.

First, Appellants allege that the Service “violated [§ 553 of] 

the APA by changing a regulation—retaining an enhancement 

finding requirement although the reason for it disappeared—

without going through a proper rulemaking process.” 

Appellants’ Br. 52. Appellants are mistaken. The fact that the 

Service continued to apply the enhancement condition after the 

1994 amendment of the Convention did not in any way alter 

the Special Rule.

Second, Appellants argue that the sole reason the Service 

added the enhancement condition to the Special Rule was to 
22

comply with the Convention. Appellants’ Br. 54. Thus, 

according to Appellants, once the provision was removed from 

the Convention, the only justification for the Special Rule’s 

enhancement condition disappeared and the agency was 

obligated to explain its continued reliance on the provision. 

Appellants’ view of the Special Rule and its purposes is off 

base. 

One purpose of the enhancement condition was to 

implement the Convention. However, another purpose was to 

promote the conservation of African elephants by authorizing 

only those imports of sport-hunted trophies that enhance

elephants’ survival. In the preamble to the Special Rule, the 

Service stated that sport hunting “provide[s] financial support 

programs for elephant conservation.” 57 Fed. Reg. at 35,485. 

In response to a comment, the Service explained that the 

Special Rule “supports . . . carefully regulated consumptive 

uses of African elephants” like sport hunting “as mechanisms 

for attaining revenues to enhance elephant and wildlife 

management throughout the African continent.” Id. at 35,476. 

And in 1997, the Service reiterated that the enhancement 

condition “ensure[s]” that each country’s management 

program “is promoting the conservation of the species.” 62 

Fed. Reg. at 44,633. The 1994 amendment of the Convention 

did not change the pro-conservation purpose of the Special 

Rule’s enhancement condition. Therefore, the Service had no 

obligation to reconsider the Special Rule or explain its failure 

to do so.

Third, “if a significant factual predicate of a prior decision 

. . . has been removed,” an agency may be petitioned to pursue 

rule making to “reconsider” its approach. WWHT, Inc. v. FCC,

656 F.2d 807, 819 (D.C. Cir. 1981). However, judicial review 

of an agency’s denial of a petition to initiate rule making “is 

extremely limited and highly deferential.” Massachusetts v. 
23

EPA, 549 U.S. 497, 527–28 (2007); see also WildEarth 

Guardians v. EPA, 751 F.3d 649, 653 (D.C. Cir. 2014); New 

York v. U.S. Nuclear Regulatory Comm’n, 589 F.3d 551, 554 

(2d Cir. 2009) (citing Massachusetts v. EPA and noting that 

review of a denial of rule making has been said to be “akin to 

non-reviewability” and falls “at the high end of the range of 

deference and an agency refusal is overturned only in the rarest 

and most compelling of circumstances,” “typically involv[ing] 

plain errors of law”). 

In this case, Appellants did not petition the Service to 

pursue rule making, so there is no denial of any such petition

for the court to review. Furthermore, it is clear that, because 

some of the principal justifications for the Special Rule have 

not changed, the Service had no obligation to act sua sponte to 

revisit the conditions contained in the rule. Indeed, the Special 

Rule is perfectly consistent with section 4(d) of the ESA, which 

authorizes the Service to promulgate rules that are “necessary 

and advisable to provide for the conservation of [threatened] 

species.” 16 U.S.C. § 1533(d).

Fourth, Appellants’ reliance on FCC v. Fox Television

Stations, Inc., 556 U.S. 502 (2009), is misplaced. It is true that 

when an agency changes its position regarding a regulatory 

matter, it must “provide reasoned explanation for its action.” 

Id. at 515. As noted above, however, the Service did not change 

course when it retained the Special Rule after the Convention 

was amended. The Service was fully within its rights to retain 

its regulatory approach because the Convention expressly 

allows signatories to enforce stricter regulations than provided 

in the treaty. See CITES art. XIV(1)(a), 27 U.S.T. at 1108. 

Finally, if Appellants’ complaint in this case was meant to 

raise a facial challenge to the Special Rule, the challenge comes 

too late. The window to challenge the validity of the regulation 
24

has long passed. See 28 U.S.C. § 2401(a) (barring civil claims 

against the United States “unless the complaint is filed within 

six years after the right of action first accrues”); Mendoza v. 

Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014); see also Sierra 

Club de Puerto Rico v. EPA, 815 F.3d 22, 26–28 (D.C. Cir. 

2016) (holding that petitioners’ challenge to the application of 

an old regulation to a new situation was untimely under the 

Clean Air Act, 42 U.S.C. § 7607(b)(1)).

E. The Service’s Failure to Engage in Notice-andComment Rule Making Before Adopting the 

Enhancement Findings

The APA provides that when an agency proposes to 

promulgate a rule, it must follow the procedures set out in 

5 U.S.C. § 553. Among other things, the agency must publish 

a notice “of proposed rule making” in the Federal Register. 

5 U.S.C. § 553(b). It must then “give interested persons an 

opportunity to participate in the rule making through 

submission” of comments, which the agency must consider. Id.

§ 553(c). A final rule must contain a statement of its basis and 

purposes, id., and be published in the Federal Register “not less 

than 30 days before its effective date,” id. § 553(d). 

At oral argument before this court, the Service conceded 

that it did not comply with the requirements of § 553 of the 

APA in issuing its enhancement findings. The Service 

maintained that it was under no obligation to do so, because, as 

the District Court found, the findings were the product of 

informal adjudications and, therefore, not subject to noticeand-comment requirements. We disagree. The enhancement 

findings reflect a final rule and, therefore, the Service was 

required to adhere to the notice-and-comment procedures 

under 5 U.S.C. § 553.
25

1. “Rule Making” Versus “Adjudication” Under the 

APA

When agencies have the statutory authority to engage in 

rule making and adjudication, they have broad discretion to 

choose which route to pursue. NLRB v. Bell Aerospace Co., 416 

U.S. 267, 291–94 (1974); SEC v. Chenery Corp., 332 U.S. 194, 

203 (1947). But when an agency chooses to issue a rule, and 

“formal” procedures are not required, it must follow the 

procedures indicated in § 553. NLRB v. Wyman-Gordon Co., 

394 U.S. 759, 763–66 (1969) (plurality opinion). An agency

may not escape the requirements of § 553 by labeling its rule 

an “adjudication.” See, e.g., id.; Nat’l Ass’n of Home Builders 

v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1284–85 (D.C. 

Cir. 2005) (finding that the Corps’ issuance of nationwide 

dredge-and-fill permits was rule making and not adjudication, 

and stating that “‘rules is rules,’ no matter their gloss”);

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. 

Cir. 2000) (“It is well-established that an agency may not 

escape the notice and comment requirements . . . by labeling a 

major substantive legal addition to a rule a mere 

interpretation.”); Thomas v. New York, 802 F.2d 1443, 1447

(D.C. Cir. 1986) (explaining that if EPA’s endangerment 

finding was binding, then it was a “rule” that “could not be 

promulgated without notice-and-comment procedures”); 

Batterton v. Marshall, 648 F.2d 694, 710 (D.C. Cir. 1980) 

(“[W]here, as here, the agency action satisfies the APA’s 

definition of a rule and eludes exemptions to § 553, it is 

procedurally defective unless promulgated with the procedures 

required by law.”).

The APA defines “rule making” as the “agency process for 

formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). 

A “rule” is defined “very broadly,” Sugar Cane Growers Coop. 

of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002), to mean 
26

“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.” 5 U.S.C.

§ 551(4). On the other hand, an “adjudication” is the “agency 

process for the formulation of an order,” id. § 551(7), and an 

“order” is “the whole or a part of a final disposition . . . of an 

agency in a matter other than rulemaking but including 

licensing,” id. § 551(6). 

The Supreme Court has explained that “[t]he basic 

distinction between rulemaking and adjudication is illustrated 

by [the] Court’s treatment of two related cases under the Due 

Process Clause of the Fourteenth Amendment.” Fl. E. Coast, 

410 U.S. at 244. In Londoner v. City and County of Denver, 

210 U.S. 373 (1908), the Court held that it violated the Due 

Process Clause for an agency to tax property that fronted 

particular streets without providing a hearing for the property 

owners. But in Bi-Metallic Inv. Co. v. State Bd. of Equalization, 

239 U.S. 441 (1915), the Court upheld a state agency’s decision 

to increase the valuation of all taxable property in Denver 

without providing any type of hearing for those affected. 

Central to the distinction was that the agency’s action in BiMetallic was generally applicable to an open class of all Denver 

property owners while Londoner involved a particularized 

order affecting particular owners “in each case upon individual 

grounds.” Bi-Metallic, 239 U.S. at 446; see also Fl. E. Coast, 

410 U.S. at 245. 

Judicial constructions of a “rule” under the APA follow 

these precepts. Two principles stand out. First, most legislative 

rules are generally applicable. E.g., Bell Aerospace, 416 U.S. 

at 293–94 (characterizing rules as framing “generalized 

standard[s]” and orders as “individual” and “case-by-case”); 

Neustar, Inc. v. FCC, 857 F.3d 886, 893 (D.C. Cir. 2017) 

(“Rulemaking scenarios generally involve broad applications 
27

of more general principles rather than case-specific individual 

determinations.”).

Second, rules generally have only “future effect” while 

adjudications immediately bind parties by retroactively 

applying law to their past actions. E.g., Wyman-Gordon Co., 

394 U.S. at 763–66 (plurality opinion); see also id. at 775–81 

(Harlan, J. and Douglas, J., agreeing with the plurality on this 

point); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216–

17 (1988) (Scalia, J., concurring) (stating that the “central 

distinction between rulemaking and adjudication” is that “rules 

have legal consequences only for the future”); Neustar, 857 

F.3d at 895 (stating that while “it may be proper to enter an 

adjudicatory order without retroactive effect,” “adjudication is 

by its nature retroactive”); Catholic Health Initiatives Iowa 

Corp. v. Sebelius, 718 F.3d 914, 922 (D.C. Cir. 2013) (stating 

that “an adjudication must have retroactive effect, or else it 

would be considered a rulemaking”). 

Thus, in United States v. Florida East Coast Railway Co., 

410 U.S. 224 (1973), the Supreme Court explained that the 

agency’s action resulted in a rule, not an order, because it was 

“generalized [in] nature” in that it “[was] applicable across the 

board to all of [a class of] common carriers,” and it was 

intended “for prospective application only, rather than [used to] 

adjudicate[e] a particular set of disputed facts.” Id. at 246. In 

this case, the 2014 and 2015 enhancement findings had all of 

the qualities of a legislative rule, so the Service was obligated 

to follow the APA’s notice-and-comment procedures before 

promulgating the findings.
28

2. The 2014 and 2015 Enhancement Findings Reflect a 

Final Rule

The disputed enhancement findings in this case applied to 

all potential imports of sport-hunted elephant trophies from 

Zimbabwe, not to any individual parties. See, e.g., April 2014 

Finding, J.A. 501 (“[T]he Service . . . will not allow the import 

of sport-hunted elephant trophies taken in Zimbabwe after 

April 4, 2014.”); July 2014 Finding, J.A. 532 (“[N]o elephants 

harvested during 2014,” except for those harvested before the 

announcement of the temporary suspension on April 4, 2014, 

“may be imported into the United States.”); March 2015 

Finding, J.A. 605 (“[N]o elephants harvested in Zimbabwe on 

or after January 1, 2015 may be imported into the United 

States.”). The findings did not adjudicate any dispute between 

specific parties.

Furthermore, the Service’s ban on imports was only meant 

to bind hunters in future permitting adjudications and 

enforcement actions, regardless of when they actually 

harvested their elephant trophy. The April 4, 2014 interim 

finding, as revised on April 17, 2014, banned importation of 

sport-hunted elephants from Zimbabwe after the date of the 

finding, April 4, 2014. J.A. 501. The District Court revised the 

effective date of that finding to May 12, 2014, the date notice 

was published in the Federal Register, Safari Club, 213 F. 

Supp. 3d at 73, and the Service has not appealed that decision. 

The July finding, which superseded the April finding, likewise 

applied only to future imports of elephants hunted after April 

4, 2014. J.A. 532. And the March 2015 finding applied to 

“elephants harvested in Zimbabwe on or after January 1, 

2015.” J.A. 605. The latter two findings covered harvests that 

took place several months before the date of the findings, but 

they only banned the importation of sport-hunted elephants 

from Zimbabwe going forward, throughout the rest of the 
29

relevant year. Those findings were not retroactive because their 

issuance resulted in no immediate legal consequences for any 

specific parties.

This is not a case in which the agency made its findings in 

the course of denying an application for an import permit, as 

was true in Franks v. Salazar, 816 F. Supp. 2d 49, 54 (D.D.C. 

2011) and Marcum v. Salazar, 810 F. Supp. 2d 56, 64 (D.D.C. 

2011), vacated and remanded on other grounds by 694 F.3d 

123 (D.C. Cir. 2012). And the Service has not argued that the

enhancement findings were “licensing” actions. Rather, the 

2014 and 2015 enhancement findings simply established a 

standard binding on the agency – a negative enhancement 

finding and ban on imports – to be applied to future requests to 

import certain sport-hunted elephants, until such time as the 

Service decides to issue a new rule based on different 

information. 

National Biodiesel Board v. EPA, relied on by the Service, 

actually illustrates this point. 843 F.3d 1010, 1018 (D.C. Cir. 

2016). In that case, the EPA certified that the compliance plan 

of a single entity, an Argentinian association of biofuel 

producers (“CARBIO”), satisfied the EPA’s regulations. See 

id. at 1013–15. Domestic biofuel producers alleged the EPA’s 

approval of CARBIO’s application was a rule making. We held 

that “EPA’s approval of the . . . plan was a straightforward 

instance of adjudication.” Id. at 1017–18. Unlike the findings 

in this case, the application’s approval was highly 

particularized, binding one entity. We emphasized that “[t]he 

approval, by its own terms, applies only to the CARBIO 

program; indeed, [the petitioner] never even suggests that an 

entity other than CARBIO or its producer-members could avail 

itself of the program without making a separate application to 

EPA.” Id. at 1018. It would have been a different situation 

entirely had the EPA suddenly issued a press release, without 
30

any application before it, that bound the agency to approving 

all future certification applications submitted from Argentinian 

biofuel producers.

Furthermore, the fact that the negative enhancement 

findings applied, and did not change, the enhancement standard 

established in the Special Rule did not make them 

adjudications. The APA’s definition of “rule” includes certain 

statements that “implement” and “interpret” law. 5 U.S.C.

§ 551(4). Here, the three findings on review “implement[ed]” 

and “interpret[ed]” the Special Rule’s enhancement 

requirement by issuing negative enhancement determinations

for African elephants. Id. And, of course, they also

“prescribe[d]” law in the form of enacting new, binding import 

bans. Id.

The District Court read Safe Extensions, Inc. v. FAA, 509 

F.3d 593 (D.C. Cir. 2007) as holding that an agency action 

could be an adjudication in the absence of “a pending matter 

before the agency.” Safari Club, 213 F. Supp. 3d at 63. That 

case involved an arbitrary and capricious challenge to the 

FAA’s imposition of testing requirements on certain 

companies but not others, through the publication of “advisory 

circulars.” Safe Extensions, 509 F.3d at 595. However, Safe 

Extensions did not consider whether the circulars were rules, 

and if so, whether they were subject to notice and comment. 

The decision is therefore inapposite.

Finally, the Service claims that any challenges to the April 

finding are moot because the July finding superseded it.

However, the Service admits it did not engage in notice-andcomment rule making for any of the disputed enhancement

findings, including the July finding. Therefore, the dispute over 

the April finding is not moot. 
31

3. Harmless Error

Finally, the Service argues that any error resulting from its 

failure to use notice-and-comment rule making was not 

prejudicial to Appellants. We reject this claim.

The court’s decision in Sugar Cane Growers Cooperative 

of Florida v. Veneman, 289 F.3d 89 (D.C. Cir. 2002), is 

controlling. That case involved a similar failure to follow 

notice-and-comment procedures. The Department of 

Agriculture (“USDA”) implemented a “payment-in-kind 

program” for sugar in 2001 without proceeding by notice and 

comment. Id. at 91–92. In January 2001, before implementing 

the program, the government met with interested persons to 

hear their concerns about the program. Id. at 92. Before 

announcing the program, “Department employees had 

approximately a dozen contacts with sugar industry 

representatives regarding the possibility of a 2001 program.” 

Id. The USDA announced the program by press release and 

subsequently published notice in the Federal Register in 

September of 2001. Id. Despite these attempts to provide public 

notice in the Federal Register and solicit comments from 

interested persons, the court held that the failure to conduct 

notice-and-comment rule making was not harmless. Id. at 96.

The court explained that “an utter failure to comply with 

notice and comment cannot be considered harmless if there is 

any uncertainty at all as to the effect of that failure.” Id. The 

court went on to reject the notion that complainants must 

indicate “additional considerations they would have raised in a 

comment procedure,” had they been given the opportunity. Id.

at 97. The court explained: 

Here the government would have us virtually repeal 

section 553’s requirements: if the government could 
32

skip those procedures, engage in informal 

consultation, and then be protected from judicial 

review unless a petitioner could show a new 

argument—not presented informally—section 553 

obviously would be eviscerated. The government 

could avoid the necessity of publishing a notice of a 

proposed rule and perhaps, most important, would 

not be obliged to set forth a statement of the basis and 

purpose of the rule, which needs to take account of 

the major comments—and often is a major focus of 

judicial review.

Id. at 96–97.

So, too, in this case. The Service insists that it effectively 

complied with § 553 because in May 2014 it published notice 

of its interim finding in the Federal Register. However, that 

notice never invited comment from the public. It merely stated 

that the agency was “actively pursuing additional information” 

from Zimbabwe and “other sources” to “make a final 

determination” for 2014. 79 Fed. Reg. at 26,987. This phrasing 

makes it far from clear that the May notice was soliciting 

comments from all interested parties. Indeed, while Safari Club 

submitted comments, the NRA did not. Nor did the July 2014 

or March 2015 findings invite public comment. Quite to the 

contrary, they presented their negative enhancement findings 

as conclusions at which the Service had already arrived—as the 

culmination, in other words, rather than the initiation, of the 

decisionmaking process. See 79 Fed. Reg. at 44,461 (“[T]he 

Service is unable to make a finding that sport hunting in 

Zimbabwe is enhancing the survival of the species.”); 80 Fed. 

Reg. at 42,524 (“[T]he suspension on the import of sporthunted African elephant trophies taken in Zimbabwe on or after 

April 4, 2014, [will] be continued until further notice.”). On the 

record before us, we hold that Sugar Cane Growers controls. 
33

Accordingly, we reject the Service’s contention that any error 

was harmless.

III. CONCLUSION

For the reasons set forth above, we affirm in part and 

reverse in part. The case will be remanded to the District Court 

with instructions to remand the case to the Service so that it 

may initiate rule making to address enhancement findings for 

the time periods at issue in this case.

So ordered.