United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2016 Decided December 6, 2016

No. 15-5170

SAFARI CLUB INTERNATIONAL AND NATIONAL RIFLE 

ASSOCIATION OF AMERICA,

APPELLANTS

v.

SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF 

THE DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00670)

Douglas S. Burdin argued the cause for appellants. With 

him on the briefs were Christopher A. Conte, Michael T. 

Jean, Anna M. Seidman, and Jeremy E. Clare.

Erika B. Kranz, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were 

John C. Cruden, Assistant Attorney General, and Matthew 

Littleton and Meredith L. Flax, Attorneys.

Anna E. Frostic was on the brief for amici curiae The 

Humane Society of the United States, et al. in support of 

appellees.
2

Before: ROGERS and TATEL, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, Circuit Judge: Although the African elephant is 

protected under both domestic and international law, the 

Interior Department’s Fish and Wildlife Service has long 

allowed American hunters who shoot Tanzanian elephants to 

repatriate their trophies because, according to the Service, 

doing so “would not be detrimental to the survival of the 

species.” 50 C.F.R. § 23.61(a). In 2014, however, the Service 

changed course and indefinitely suspended issuance of import 

permits due in part to a “significant decline in Tanzania’s 

elephant population.” 2014 Non-Detriment Finding, at 

Deferred Appendix 123. Two organizations representing 

hunters challenged the suspension in district court as 

substantively and procedurally flawed. Because no member of 

either group had applied for a permit, the court dismissed the 

case for lack of final agency action and for failure to exhaust 

administrative remedies. For the reasons set forth below, we 

reverse.

I.

The Fish and Wildlife Service, part of the U.S. Interior 

Department, is tasked with regulating the import of species 

protected under the Convention on International Trade of 

Endangered Species of Wild Fauna and Flora (CITES), Mar. 

3, 1973, 27 U.S.T. 1087, which includes African elephants, or 

Loxodonta africana, from Tanzania. See, e.g., CITES art. 

III(3) & App’x I; 16 U.S.C. §§ 1537a–1539; 50 C.F.R. 

§§ 17.11, 17.22. Among its duties, the Service determines 

whether and under what conditions hunters may receive 

permits to import “sport-hunted trophies,” which “means a 
3

whole dead animal or a readily recognizable part or derivative 

of an animal.” 50 C.F.R. § 23.74(b).

The Service’s permitting scheme is somewhat intricate, 

but because it has faced many legal challenges, the particulars 

have been thoroughly described in numerous opinions of this 

court. See, e.g., Marcum v. Salazar, 694 F.3d 123, 124–25

(D.C. Cir. 2012). An abridged summary will do here. 

For threatened species, like African elephants, the 

Service must ensure that two conditions are satisfied before it 

may grant a permit. First, the Service’s Division of Scientific 

Authority must find that the “import will be for purposes 

which are not detrimental to the survival of the species.” 

CITES art. III(3)(a); see 50 C.F.R. § 23.61. This 

determination is known as a “non-detriment” finding. Second, 

the Service’s Division of Management Authority must find—

the “enhancement” finding—“that the killing of the trophy 

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

§ 17.40(e)(6)(i)(B). For example, sport hunting might enhance 

the survival of a species where it causes no measurable impact 

on its population and where “revenues generated by sport 

hunting[] ha[ve] the potential to provide conservation benefits 

to the species.” January 3, 2014, Information Memorandum, 

at Deferred Appendix 122.

For the African elephant, along with a handful of other 

species, the Service makes annual, blanket non-detriment and 

enhancement findings that cover all applications filed for 

sport-hunted trophies “taken” during that year. Although the 

Service had long granted permits for sport-hunted Tanzanian 

elephant trophies—meaning it had consistently made positive 

non-detriment and enhancement findings—it reversed course 

in 2014. On February 21 of that year, the Division of 

Scientific Authority completed its non-detriment finding for
4

trophies taken during calendar year 2014. Acknowledging its 

history of finding sport hunting non-detrimental to the 

survival of Tanzanian elephants, the Division explained that it 

could no longer do so given the availability of more current 

information demonstrating a significant decline in elephant 

populations. The Division of Management Authority soon 

followed suit, concluding that it could no longer find that 

sport hunting would enhance the survival of the species. As a 

result, the Service announced a “suspension on imports of 

sport-hunted African elephant trophies taken in 

Tanzania . . . during calendar year 2014.” See April 4, 2014,

Press Release, at Deferred Appendix 161.

Challenging the Service’s suspension, two industry 

groups, Appellants Safari Club International and the National 

Rifle Association (collectively, “Safari Club”), filed suit on 

behalf of their members, which include disappointed elephant 

hunters, several of whom had planned hunts in Tanzania for 

the fall of 2014. In its second amended complaint, Safari Club 

alleged that the Service’s decisionmaking suffered from three 

flaws. First, it asserted that the 2014 non-detriment and 

enhancement findings were legislative rules requiring noticeand-comment rulemaking (Count VI). Second, it claimed that 

the Service failed to justify its decision to require an 

enhancement finding for African elephants (Count VII). And 

third, it alleged that the Service’s non-detriment finding rested 

on an incorrect standard (Count VIII). 

The district court dismissed the suit under Federal Rule 

of Civil Procedure 12(b)(6). Bypassing the Service’s 

argument that Safari Club lacked Article III standing, the 

court concluded that the non-detriment and enhancement 

findings were not final agency action and that, by failing to 

apply for an import permit, Safari Club’s members had failed 

to exhaust their administrative remedies. See Safari Club 
5

International v. Jewell, 76 F. Supp. 3d 198, 207–08 (D.D.C. 

2014). 

Safari Club appeals, arguing that the Service’s decision to 

suspend import permits—including the two 2014 findings—

was final, and that its members had no obligation to exhaust 

administrative remedies. The Service defends the district 

court’s dismissal for lack of finality and exhaustion, adding 

that Safari Club lacks standing and that its claims are moot.

Our review is de novo. See Cohen v. United States, 650 F.3d 

717, 722 (D.C. Cir. 2011) (reviewing de novo questions of 

subject matter jurisdiction and failure to state a claim).

II.

The parties devote the bulk of their briefing to finality 

and exhaustion, but this puts the cart before the horse, for we 

must begin with our own jurisdiction. Bender v. Williamsport 

Area School District, 475 U.S. 534, 541 (1986) (“[E]very 

federal appellate court has a special obligation to satisfy itself 

not only of its own jurisdiction, but also that of the lower 

courts in a cause under review . . . .” (citation and internal 

quotation marks omitted)). To determine whether we and the 

district court have Article III jurisdiction, we must decide 

whether Safari Club has standing and whether its claims are 

moot. See, e.g., Worth v. Jackson, 451 F.3d 854, 857 (D.C. 

Cir. 2006) (explaining that standing and mootness, along with 

ripeness, define the constitutional bounds of our subjectmatter jurisdiction).

A.

To demonstrate Article III standing, plaintiffs must 

“establish, as an ‘irreducible constitutional minimum,’ that 

they face ‘injury in fact’ caused by the challenged conduct 

and redressable through relief sought from the court.” Shays 
6

v. Federal Election Commission, 414 F.3d 76, 83 (D.C. Cir.

2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560–61(1992)). An organization, like Safari Club, has Article 

III standing if one of its members has standing. See Summers 

v. Earth Island Institute, 555 U.S. 488, 494 (2009)

(“[O]rganizations can assert the standing of their members.”). 

The Service argues that Safari Club lacks standing because 

none of its members filed a permit application, meaning that 

the Club’s injury stems from its members’ inaction rather than 

from any decision by the Service. For its part, Safari Club 

insists that seeking a permit would have been futile given that 

the Service had determined and publicly announced that no 

permits would issue for Tanzanian elephants killed in 2014. 

According to the Service, however, futility can never excuse a 

nonapplicant’s failure to seek a permit, adding that even were 

there a futility exception, Safari Club has failed to show 

futility here. We disagree with the Service on both counts. 

It is true that “a plaintiff must generally . . . submit to a 

[government] policy to establish standing” to challenge it. 

Grid Radio v. FCC, 278 F.3d 1314, 1319 (D.C. Cir. 2002) 

(citation and internal quotation marks omitted). In the context 

of applications for government benefits, however, “‘[t]his 

threshold requirement . . . may be excused . . . where a 

plaintiff makes a substantial showing that the application for 

the benefit . . . would have been futile.’” Id. (quoting Prayze 

FM v. FCC, 214 F.3d 245, 251 (2d Cir. 2000)); see United 

States v. Decastro, 682 F.3d 160, 161, 164 (2d Cir. 2012) 

(recognizing futility exception for nonapplicant for firearm 

permit but finding no futility on summary-judgment record). 

Even our decision in Albuquerque Indian Rights v. Lujan, 930 

F.2d 49 (D.C. Cir. 1991), on which the Service itself relies, 

supports the existence of a futility exception. There, we held 

that a nonapplicant lacked Article III standing because the 

summary-judgment record contained no “evidence relating to 
7

the asserted ‘futility’ of applying” for government 

employment. Id. at 57 (emphasis added); accord id. at 62

(D.H. Ginsburg, J., concurring) (“A non-applicant would also 

have standing . . . to challenge as unlawful a policy . . . that 

has the effect of disqualifying her and rendering her 

application pointless.”). 

But does the record here show that submitting an 

application would have been futile? The Service says no, 

relying heavily on a statement from its non-detriment finding 

that if an applicant includes in its submission “new or 

additional information showing that elephant management 

practices by the Government of Tanzania have led to the 

sustainability of its elephant population on a nation-wide 

basis, these applications should be referred to the Division of 

Scientific Authority for consideration on a case-by-case 

basis.” 2014 Non-Detriment Finding, at Deferred Appendix 

123. In the Service’s view, this caveat saves the day by 

leaving open the possibility that applicants might have 

obtained a 2014 permit. 

On closer examination, however, this possibility was 

illusory given the definitive nature of the Service’s nondetriment and enhancement findings. Based on its review of 

the best biological information available as of February 2014, 

see 50 C.F.R. § 23.61(f), the Service found that Tanzanian 

elephants were suffering a “significant decline” in population, 

“primarily due to poaching.” 2014 Non-Detriment Finding, at 

Deferred Appendix 123. Largely for that reason, the Service 

concluded that the “additional killing of elephants, even if 

legal, is not sustainable and will not support effective elephant 

population recovery efforts in Tanzania.” Id. at 133. Given 

this, an internal agency memorandum directed that “if an 

import permit application [for 2014] is received, the 

application will be denied.” Targeted Communications 
8

Strategy, at Deferred Appendix 137. True, in later years the 

Service might change its mind if it “receive[s] information 

that indicates a significant improvement for elephants in 

Tanzania.” April 4, 2014, Letter from Bryan Arroyo, 

Assistant Director of International Affairs, to Hon. Lazaro 

Nyalandu, Tanzanian Minister of Natural Resources, at 

Deferred Appendix 223–24. That, however, hardly casts 

doubt on the conclusion that seeking a permit in 2014 would 

have been entirely futile.

The Service also argues that any harm to Safari Club’s 

members is speculative because hunters might fail to “kill[]

any elephants to import.” Appellee’s Br. at 38; see Lujan, 504 

U.S. at 560 (injury must be “actual or imminent, not 

‘conjectural’ or ‘hypothetical’” (citation omitted)). But Safari 

Club is not arguing that its members are injured only when 

stopped at the border, trophy in tow. Instead, it claims an 

antecedent injury: the inability to obtain a permit in the first 

place. “We have consistently treated a license or permit denial 

pursuant to a state or federal administrative scheme as an 

Article III injury.” See Parker v. District of Columbia, 478 

F.3d 370, 376 (D.C. Cir. 2007), aff’d sub nom. District of 

Columbia v. Heller, 554 U.S. 570 (2008).

Because the de facto permit denial gives Safari Club 

Article III standing, we need not address its alternative theory 

for standing, namely that by requiring hunters to submit “new 

and additional information” with their applications, see 2014 

Non-Detriment Finding, at Deferred Appendix 123, the 

Service increased the hunters’ regulatory burden and cost of 

compliance. See, e.g., CropLife America v. EPA, 329 F.3d 

876, 883–84 (D.C. Cir. 2003). And because Safari Club’s 

member hunters, and therefore Safari Club, have standing, we 

have no need to determine whether other individuals 

represented by Safari Club, including guides, outfitters, and 
9

conservationists, have likewise suffered harm on account of 

the Service’s decision. See Comcast Corp. v. FCC, 579 F.3d 

1, 6 (D.C. Cir. 2009) (“‘[I]f one party has standing in an 

action, a court need not reach the issue of the standing of 

other parties when it makes no difference to the merits of the 

case.’” (quoting Railway Labor Executives’ Association v. 

United States, 987 F.2d 806, 810 (D.C. Cir. 1993))).

B.

We turn next to the Service’s argument that the case has 

become moot. “A case becomes moot—and therefore no 

longer a ‘Case’ or ‘Controversy’ for purposes of Article III—

‘when the issues presented are no longer “live” or the parties 

lack a legally cognizable interest in the outcome.’” Already, 

LLC v. Nike, Inc., 133 S. Ct. 721, 726–27 (2013) (quoting 

Murphy v. Hunt, 455 U.S. 478, 481 (1982)) (per curiam). The 

Service argues that because the challenged findings pertain 

only to 2014, and because none of Safari Club’s members 

killed an elephant during that year, “[n]either this Court nor 

the district court can afford Safari Club any relief with respect 

to the 2014 findings.” Appellee’s Br. at 25. This argument 

suffers from two fatal flaws.

First, the relief Safari Club seeks extends well beyond the 

two 2014 findings. Although the second amended complaint 

does challenge the now-expired 2014 findings (Count VI), it 

also speaks more broadly to whether the Service may require 

an enhancement finding at all (Count VII), as well as to 

whether it employed an incorrect standard when making its 

non-detriment finding (Count VIII). “It is well-established 

that if a plaintiff challenges both a specific agency action and 

the policy that underlies that action,” as Safari Club does in 

Counts VII and VIII, “the challenge to the policy is not 

necessarily mooted merely because the challenge to the 

particular agency action is moot.” City of Houston v. 
10

Department of Housing & Urban Development, 24 F.3d 1421, 

1428 (D.C. Cir. 1994). 

We applied that principle to a situation nearly identical to 

the one we face here in Defenders of Wildlife v. Endangered 

Species Scientific Authority, 659 F.2d 168 (D.C. Cir. 1981). 

There, the plaintiff challenged the Service’s non-detriment 

findings for export of bobcats for a specific year. See id. at 

175. Even though the hunting season for that year had long 

passed, we concluded that the case was not moot because the 

plaintiffs “more broadly . . . attack[ed] the standards federal 

agencies apply in approving bobcat exports.” Id. Because

Safari Club likewise “more broadly” challenges the standards 

by which the Service makes its elephant findings—Counts 

VII and VIII—those counts are similarly not moot.

Count VI, in which Safari Club alleges the Service failed 

to conduct notice-and-comment rulemaking for its 2014 

findings, presents a different issue because Safari Club 

concedes that claim is moot but nonetheless argues that it falls 

within the narrow exception for quick-burning disputes that 

are “capable of repetition, yet evading review.” Kingdomware 

Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 

(2016) (citation and internal quotation marks omitted). 

Specifically, although expiration of a government policy 

ordinarily moots a challenge to it, the controversy remains 

live if “(1) the challenged action [is] in its duration too short 

to be fully litigated prior to cessation or expiration, and (2) 

there [is] a reasonable expectation that the same complaining 

party [will] be subject to the same action again.” Id. (citation 

and internal quotation marks omitted).

Defenders of Wildlife once more guides our path. 

Although the relevant bobcat-hunting season had passed by 

the time the case reached this court, we nonetheless deemed 
11

the dispute capable of repetition yet evading review. See

Defenders of Wildlife, 659 F.2d at 175. As we explained, 

because the findings were both made and expired within a 

single hunting season, the window for litigating a challenge to 

the agency’s decision was far too short. See id. Moreover, 

since the Service made clear that it would “apply[] the same 

criteria and . . . seek[] essentially the same types of 

information . . . in developing advice for the 1980–81 

season,” the plaintiff would have been subject to the same 

action again. See id. (citation and internal quotation marks 

omitted). 

We see little to distinguish this case from Defenders of 

Wildlife. Here, as there, the findings “expire by [their] terms 

within a year,” Appellee’s Br. at 30, and the Service nowhere 

indicates that it will change the criteria by which they are 

made. 

The Service nonetheless maintains that future challenges 

to the findings “will not evade review because there is no time 

limit for importing a trophy killed in a certain year.” Id. at 29–

30. By this, we assume the Service means that a hunter could 

have traveled abroad without a permit in 2014, shot an 

elephant, attempted to repatriate the trophy in a later year, and 

then challenged the Service’s refusal to issue a permit. But 

Safari Club’s alleged injury derives from the Service’s refusal 

to issue a permit in 2014, and the purpose of that permit, as 

Safari Club argues and the Service concedes, is to give 

advanced assurance to hunters that if they invest in a hunting 

trip—“$100,000 for [a] hunt[,] . . . $10,000 for [a] plane 

ticket[,] . . . $50,000 in trophy fees[,] . . . and $50,000–70,000 

in taxidermy costs,” Decl. of Walter Allen Tarpley, at 

Deferred Appendix 179—they will be allowed to return with 

trophies. See id. (“If I am unable to import my elephant 

trophy, I will not participate in the elephant portion of the 
12

hunt.”); Decl. of Timothy Van Norman, Chief of Permits 

Branch, Division of Management Authority, at Deferred 

Appendix 200 (“By applying [for a permit] before traveling, 

the hunter can, in many cases, make adjustments to their 

hunting trip, if desired, based on the FWS determination on 

whether a permit can be issued.”). Because Safari Club is

unable to fully litigate a challenge to the findings underlying 

the suspension without taking on risk that the permitting 

scheme is designed to avoid, the controversy evades review. 

See LaRouche v. Fowler, 152 F.3d 974, 978 (D.C. Cir. 1998)

(controversy must be “by its very nature short in duration, so 

that it could not, or probably would not, be able to be 

adjudicated while fully live.” (citation and internal quotation 

marks omitted)).

III.

Having assured ourselves of our jurisdiction, we turn to 

the Service’s arguments relating to finality and exhaustion.

The Service argues that because the hunters failed to 

apply for a permit, it “has not yet been given an opportunity 

to render a final decision regarding an import permit,” 

meaning “there is no final decision for this Court to review.” 

Appellee’s Br. at 49. Under the Administrative Procedure 

Act, an agency action is final if it meets two conditions. First, 

it must “mark the consummation of the agency’s 

decisionmaking process,” i.e., it is not “merely tentative or 

interlocutory.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) 

(citation and internal quotation marks omitted). Second, “the 

action must be one by which rights or obligations have been 

determined, or from which legal consequences will flow.” Id.

(citation and internal quotation marks omitted). The finality 

inquiry “is a ‘pragmatic’ and ‘flexible’ one.” National 

Association of Home Builders v. U.S. Army Corps of 

Engineers, 417 F.3d 1272, 1279 (D.C. Cir. 2005).
13

As to the first factor, the Service argues that its two 

findings were tentative, “predicate” determinations “subject to 

amendment based on new information.” See Appellee’s Br. at 

13, 50–51. We disagree. As explained above, supra Part II.A, 

the findings represented the agency’s final decision that no 

permit would issue for the 2014 calendar year. See, e.g., 

Targeted Communications Strategy, at Deferred Appendix 

137 (noting that the 2014 findings operated to “prohibit 

import of sport-hunted elephant trophies from Tanzania”). In 

addition, the content of the two findings reveals a considered 

determination, based on a thorough examination of recent 

biological studies, elephant population data, Treaty reports,

and official documents from the Tanzanian government. The 

“possibility” that the Service “may revise [its decision] . . . 

based on ‘new information’ . . . is a common characteristic of 

agency action, and does not make an otherwise definitive 

decision nonfinal.” U.S. Army Corps of Engineers v. Hawkes 

Co., 136 S. Ct. 1807, 1814 (2016). In short, the suspension 

was not a “moving target,” but a “final and binding 

determination.” See Franklin v. Massachusetts, 505 U.S. 788, 

798 (1992).

The definitiveness of the Service’s position also leads 

inexorably to the conclusion that Safari Club’s “rights . . . 

have been determined.” Bennett, 520 U.S. at 178 (citation and 

internal quotation marks omitted). For all practical purposes, 

the findings represented a de facto denial of permits for any 

Safari Club member wishing to import sport-hunted elephant 

trophies from Tanzania for 2014—that is, a “result . . . 

that . . . directly affect[s] the parties.” Franklin, 505 U.S. at

797. 

Contrary to the Service, nothing in National Mining

Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014),
14

requires a different result. There, we held that the challenged 

agency action—an Environmental Protection Agency 

guidance—was not final because it amounted to nothing more 

than a recommendation that petitioners were “free to ignore.” 

Id. at 252 (internal quotation marks omitted). To be sure, we 

recognized that “parties may feel pressure to voluntarily 

conform their behavior” to agency guidance where it seems 

“the writing is on the wall.” Id. at 253. For the petitioners in 

that case, however, the writing was not on the wall. Here it is. 

The Service has made abundantly clear that it would grant no 

permits for 2014. See supra Part II.A. 

The Service’s final argument—that Safari Club failed to 

exhaust its administrative remedies—is absurd. The remedies 

of “reconsideration” and “appeal” that the Service points to 

are available only to those who apply for a permit and have it 

denied. See 50 C.F.R. § 13.29(a) (persons who “may request 

reconsideration” include “[a]n applicant for a permit who has 

received written notice of denial”); id. § 13.29(e) (“A person 

who has received an adverse decision [following a] request 

for reconsideration may submit a written appeal.”). In this 

case the Service had nothing to “reconsider,” as Safari Club 

never sought, nor was obliged to seek, a permit for 2014. 

Insisting that Safari Club nonetheless failed to exhaust its 

administrative remedies, the Service cites our decision in 

Marcum v. Salazar, 694 F.3d 123 (D.C. Cir. 2012). There, 

after the Service denied import permits for Zambian elephant 

trophies, see id. at 124–25, hunters brought near-simultaneous 

challenges to the permit denials in two separate forums: one 

administratively before the Service and another before the 

district court, the latter of which granted summary judgment 

to the government without realizing that the hunters’ 

administrative appeals remained pending, see id. at 125–26. 

Because the district court “unknowingly decided the case 
15

without the full administrative record before it,” we 

concluded that the matter was unripe. Id. at 129. But we did 

not hold that applicants faced with a total ban on permits must 

nonetheless seek a permit and then challenge the agency’s 

preordained denial in administrative proceedings.

IV.

For the foregoing reasons, we reverse and remand to the 

district court for further proceedings consistent with this 

opinion.

So ordered.