## Facts

- The Endangered Species Act (ESA) and a special rule for African elephants required the U.S. Fish and Wildlife Service (FWS) to make a positive “enhancement” determination before allowing importation of sport-hunted elephant trophies.
- In April 2014, FWS announced it lacked sufficient information to make a positive enhancement finding for trophies from Zimbabwe for the 2014 season; the determination was later published and operated prospectively to bar imports absent a positive finding.
- FWS issued additional negative enhancement findings in July 2014 and March 2015, citing uncertainty about Zimbabwe’s elephant population status and concerns about conservation management and use of hunting revenues.
- Safari Club International and the National Rifle Association challenged the 2014–2015 negative enhancement findings under the Administrative Procedure Act (APA) and ESA.
- The district court rejected the substantive challenges (ESA/APA arbitrariness) and held the findings were informal adjudications not requiring notice-and-comment rulemaking.
- Plaintiffs appealed to the D.C. Circuit.

## Issues

1. Whether FWS’s 2014 and 2015 negative enhancement findings were arbitrary and capricious under the APA or otherwise unlawful under the ESA and implementing regulations.
2. Whether the negative enhancement findings were legislative rules requiring APA notice-and-comment procedures rather than informal adjudications or nonbinding statements.

## Decision

- The court affirmed the judgment for the government on the substantive claims, holding FWS reasonably applied the enhancement standard and adequately explained its evidentiary judgments.
- The court reversed on the procedural claim, holding the negative enhancement findings functioned as legislative rules subject to APA notice-and-comment requirements.
- The court rejected harmless-error arguments and remanded for further proceedings consistent with its notice-and-comment holding.

## Legal Principles

- Under the ESA special rule for African elephants, trophy importation depends on a positive agency determination that the killing “will enhance the survival of the species”; without sufficient support, the agency may decline to make that finding.
- Under APA arbitrary-and-capricious review, courts defer to reasonable agency judgments in scientific and conservation matters when the agency provides a rational explanation grounded in the record.
- Agency actions that operate prospectively, apply categorically to a broad class, and impose binding norms are properly treated as legislative rules requiring APA § 553 notice-and-comment procedures.
- Failure to use notice-and-comment for a legislative rule is not excused as harmless when public participation could materially affect the agency’s factual and policy determinations.

## Conclusion

The D.C. Circuit upheld FWS’s substantive application of the ESA enhancement requirement to Zimbabwe elephant trophies but held that the agency implemented the import restrictions through legislative rules adopted without required notice-and-comment, requiring reversal and remand on procedural grounds.


Safari Club Int'l & Nat'l Rifle Ass'n of Am. v. Zinke, 878 F.3d 316 (D.C. Cir. 2017)