Attorneys for Defendant-Intervenors Montana Trappers Assoc. & National Trappers Assoc.

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 1 of 34 Kathleen L. DeSoto GARLINGTON, LOHN & ROBINSON, PLLP 350 Ryman Street P. O. Box 7909 Missoula, MT 59807-7909 Telephone (406) 523-2500 Telefax (406) 523-2595 kldesoto@garlington.com Ira T. Kasdan (pro hac vice) KELLEY DRYE & WARREN 3050 K Street, NW, Suite 400 Washington, DC 20007-1497 Telephone (202) 342-8864 Telefax (202) 342-8451 ikasdan@kelleydrye.com Attorneys for Defendant-Intervenor FICA W. Carl Mendenhall WORDEN THANE PO Box 4747 Missoula, MT 59806-4747 Telephone (406) 721-3400 Telefax: (406) 721-6985 cmendenhall@wordenthane.com Gary R. Leistico RINKE NOONAN 1015 W. St. Germain Street, Suite 300 PO Box 1497 St. Cloud, MN 56302-1497 Telephone 320-251-6700 Telefax 320-656-3500 gleistico@rinkenoonan.com Attorneys for Defendant-Intervenors Montana Trappers Assoc. & National Trappers Assoc.

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 2 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION WILDEARTH GUARDIANS, Plaintiff, CENTER FOR BIOLOGICAL DIVERSITY, vs. Plaintiff, UNITED STATES FISH AND WILDLIFE SERVICE; et al., Defendants, Montana Trappers Association, et al. & Fur Information Council of America, Defendant-Intervenors. Lead Case No. 9:16-CV-00065DWM Member Case No. 9:17-CV-00099DWM MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS COMPLAINTS UNDER FED. R. CIV. P. 12(B)(7)

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 3 of 34 TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. BACKGROUND... 2 The EA and The Finding of No Significant Impact... 3 The Draft EA; Comments by Affected States... 4 Plaintiffs Lawsuits... 7 (i) Plaintiffs Alleged Injuries Due to Trapping and Hunting... 7 (ii) Plaintiffs Claims and Requests for Relief... 8 III. ARGUMENT...11 A. The Standards for Applying Rule 19...11 B. The States and Tribes are Required Parties...14 1. The States and Tribes Have Legally Protectable Interests Under the CITES Export Program...14 2. The States and Tribes Also Have Legally Protectable Interests Relating to the Management of Wildlife and Trapping Within Their Borders...16 C. Joinder of the States and Tribes is not Feasible Because They Both Enjoy Immunity From Being Sued...19 D. The States and Tribes are Indispensable Parties Under the Four-Factors Test in Rule 19(b); Therefore, Plaintiffs Claims Must Be Dismissed...21 E. The Court Should Not Apply the Public Rights Exception...23 IV. CONCLUSION...24 i

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 4 of 34 TABLE OF AUTHORITIES Page(s) Cases Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002)... 12, 21, 23, 24 California Dump Truck Owners Ass n v. Nichols, 924 F. Supp. 2d 1126 (E.D. Cal. 2012)... 18 California v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979)... 20 Davis Companies v. Emerald Casino, Inc., 268 F. 3d 477 (7th Cir. 2001)... 5 Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, No. CV-16-08077-PCT-SPL, 2017 WL 4277133 (D. Ariz. Sept. 11, 2017)... 11 English v. Cowell, 10 F.3d 434 (7th Cir. 1993)... 5 Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489 (9th Cir. 1995)... 19, 22 Friends of Amador Cty. v. Salazar, 554 F. App x 562 (9th Cir. 2014)... 11, 12 Friends of the Wild Swan v. U.S. Forest Service, 875 F. Supp. 2d 1199 (D. Mt. 2012)... 14 Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306 (3d Cir. 2007)... 13 Holley v. California Dept. of Corrections, 599 F. 3d 1108 (9th Cir. 2010)... 20 New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916)... 16 ii

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 5 of 34 Kescoli v. Babbitt, 101 F. 3d 1304 (9th Cir. 1996)... 21 Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990)... 12 McShan v. Sherrill, 283 F.2d 462 (9th Cir. 1960)... 5 Mich. v. Bay Mills Indian Cmty., 134 S. Ct. 2024 (2014)... 20 Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir. 2008)... 17 Navajo Nation v. United States, 263 F.3d 1325 (Fed. Cir. 2001), rev d on other grounds, 537 U.S. 488 (2003)... 19 Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)... 16 Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (9th Cir. 1994)... 11 RPR & Assoc. v. O Brien/Atkins Assocs., 921 F.Supp. 1457 (M.D.N.C. 1995)... 16 Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992), cert. den., 509 U.S. 903 (1993)... 12, 23 Southwest Center for Biological Diversity v. Berg., 268 F.3d 810 (9th Cir. 2001)... 22 In re Toyota Motor Corp. Unintended Acceleration, 826 F.Supp.2d 1180 (C.D. Cal. 2011)... 5 U.S. v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974)... 16 Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005)... 15 iii

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 6 of 34 Westside Building Materials Inc. v. Travelers Casualty and Surety Co., No. SACV 14-00299 JVS (RNBx), 2014 WL 12695691 (C.D. Cal. 2014)... 5 White v. University of California, 765 F.3d 1010 (9th Cir. 2014)... 12, 21, 23, 25 Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010)... 17 Statutes Endangered Species Act...passim National Environmental Policy Act...passim Other Authorities 50 C.F.R. 23.69... 2, 5, 14 82 Fed. Reg. 13360 (March 10, 2017)... 4 4 JAMES WM. MOORE ET AL., MOORE S FEDERAL PRACTICE 19.05 (3d ed. 1997)... 13 Eleventh Amendment... 20 Fourteenth Amendment... 20 Federal Rule of Civil Procedure Rule 19...passim iv

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 7 of 34 EXHIBIT INDEX Exhibit 1 Appendix 6 to the Environmental Assessment... Pg. 1 Exhibit 2 Appendix 7 to the Environmental Assessment... Pg. 2 Exhibit 3 Wyoming Game & Fish Dept., Comments on Draft EA... Pg. 6 Exhibit 4 Wisconsin Dept. of Natural Resources, Comments on Draft EA... Pg. 6 Exhibit 5 North Carolina Wildlife Resources Commission, Comments on Draft EA... Pg. 6 Exhibit 6 New Mexico Dept. of Game & Fish, Comments on Draft EA...Pgs. 6-7 v

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 8 of 34 I. INTRODUCTION Plaintiffs herein, WildEarth Guardians ( Guardians ) and the Center for Biological Diversity (the Center ), are challenging the application and implementation of a wildlife export program by the U.S. Fish and Wildlife Service (the Service ) and its head, Craig Hoover (collectively referred to as Defendants ), that permits certain fur skin and fur skin products to be exported. Plaintiffs claim that the Service s Convention on International Trade in Endangered Species ( CITES ) wildlife export program (the CITES Export Program or the Program ) violates both the National Environmental Policy Act ( NEPA ) and the Endangered Species Act (the ESA ). Plaintiffs ask this Court for both declaratory and injunctive relief with the purpose of halting, if not wholly eradicating, the Program. In bringing this action, however, Plaintiffs have failed to join the many states (the States ) and Native American tribes (the Tribes ) whose rights will be severely impaired if Plaintiffs get their way, and who consequently are required to be joined to the lawsuit. See generally Federal Rule of Civil Procedure 19. These States and Tribes are approved by the Service to participate in and benefit from the Program, 1 under which they possess the current right, inter alia, to develop a 1 A list of States and Tribes that are approved to participate in the Program is found in Appendices 6 and 7 to the EA. See Appendix 6 ( States With Approved U.S. CITES Fur Export Programs ) attached hereto as Exhibit 1; Appendix 7 ( Tribes With Approved U.S. CITES Fur Export Programs ) attached hereto as Exhibit 2.

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 9 of 34 Service-approved tagging program that requires the tagging of the skins of the [furbearer] species [which are the subject of this lawsuit] for the skins to be eligible for export. See Final Environmental Assessment ( EA ) at p. 7 [Doc. No. 56-3]. The States and Tribes also have existing, sovereign rights and authority over the harvesting and trapping of wildlife within their borders and tribal areas additional legal rights at which Plaintiffs also take aim in this case, as further described below. [A]s a practical matter all these interests will be impaired and impeded if the lawsuit continues without the States and Tribes being joined to protect their rights. See Rule 19(a)(1)(B)(i). Yet, as a result of their sovereign status which they need not waive, the States and Tribes are immune from suit. As set out in Rule 19(b), therefore, their joinder is not feasible. Based on the four factors set out in Rule 19(b), equity and good conscience demands that this case not proceed. Instead, because the States and Tribes are classical indispensable parties, the Court respectfully must dismiss Plaintiffs claims with prejudice. II. BACKGROUND The Service s CITES Export Program governs the permitting system for the export of the skins and skin products of bobcat, river otter, Canada lynx, gray wolf and brown bear harvested in the United States (hereafter these five species being referred to as the Furbearers ). See generally 50 C.F.R. 23.69. See also EA at p. 2

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 10 of 34 11. In an attempt to have the Program enjoined, in this action Plaintiffs are challenging the EA and a Finding of No Significant Impact [Doc. 56-3 at pages 68-73 (numbered at bottom as pages 1-6)] issued by the Service relating to the Program. The EA and The Finding of No Significant Impact In the EA, the Service evaluated whether the Program would result in a significant impact to the quality of the human environment. It did so by analyzing four alternatives, including one under which no action was needed, i.e., no changes were needed to the Program in its current form. See EA at p. 12 (numbering at top of page). Based on the analysis in the EA, the Service selected the no-action alternative and issued the Finding of No Significant Impact. The Service concluded that continuing the CITES Export Program in its current form will not have a significant effect on the quality of the human environment under the meaning of section 102(2)(c) of the National Environmental Policy Act of 1969 (as amended). As such, an Environmental Impact Statement is not required. Finding of No Significant Impact at p. 6. In support of its conclusion, the Service explained: [m]aintaining the [Program] in its current form... will facilitate the continued efficient export of [the Furbearers] from the United States, while ensuring that trade is legal and export is not detrimental to the survival of these species as required by CITES. Finding of 3

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 11 of 34 No Significant Impact at p. 5. In ensuring that CITES would be implemented and enforced effectively, the Service paid special attention to the vital role of States and Tribes in this regard. The Service noted: Our regulations allow States and Tribes to request approval of a [program] for these native furbearers. States and Tribes set up and maintain management and harvest programs designed to monitor and protect CITES furbearers from over-harvest. When a State or Tribe with a management program provides the Service with the necessary information, we make programmatic findings and have specific requirements that allow export under CITES. We must still issue a CITES export permit for each export, but the programmatic findings and tagging program provide for a more streamlined and efficient permitting process. A State or Tribe must provide sufficient information for us to determine that its management program and harvest controls are appropriate to ensure that CITES furbearers harvested within its jurisdiction are legally acquired and that export will not be detrimental to the survival of the species in the wild. We rely on information supplied annually by the professionally run State and tribal agencies that manage these species to assist us in making the determinations required under CITES. Finding of No Significant Impact at pages 5-6. The Draft EA; Comments by Affected States The conclusions of the Finding of No Significant Impact were consistent with the earlier preferred no action alternative in a draft EA that the Service had published in the Federal Register and for which it invited public comments. See 82 Fed. Reg. 13360 (March 10, 2017). Comments on the draft EA were filed by wildlife agencies representing 25 different States, with all 25 States supporting the preferred no action alternative. 4

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 12 of 34 EA at p. 37. Twenty-one states expressed concern that restricting exports (as envisioned under the third alternative) of the five furbearer species would have negative economic impacts to their programs and local economies. See EA at p. 39. For example, the Alaska Department of Fish and Game commented that restricting exports of sustainably harvested species would have negative economic impacts on Alaska s citizens who engage in considerable international trade of pelts, sell pelts to foreign tourists and provide guiding services to foreign hunters. Id. at p. 40 2. Similarly, Wyoming s Game and Fish Department wrote: If export were made illegal, this would unnecessarily impact rural lifestyles and a sustainable source of income for citizens. It would also impact revenues obtained from license sales and tax on sporting arms and ammunition that ultimately fund conservation and management of these species. Wyoming Game and Fish Department 2 In ruling on a dismissal for lack of joinder of an indispensable party, a court may go outside the pleadings and look to extrinsic evidence. See, e.g., Davis Companies v. Emerald Casino, Inc., 268 F.3d 477, 480 n. 4 (7th Cir. 2001) (citing English v. Cowell, 10 F.3d 434, 437 (7th Cir. 1993)); Westside Building Materials Inc. v. Travelers Casualty and Surety Co., 2014 WL 12695691, *2 (C.D. Cal. 2014) (same). See also In re Toyota Motor Corp. Unintended Acceleration, 826 F.Supp.2d 1180, 1187 and n.8 (C.D. Cal. 2011), recognizing that public records subject to judicial review as well as other materials are relevant, admissible evidence for purposes of ruling on a motion to dismiss for lack of joinder of an indispensable party; and id. at 1196 that evidence concerning absent indispensable parties may also be presented by the affidavit of any person having knowledge bearing upon their existence. (Quoting McShan v. Sherrill, 283 F.2d 462, 464 (9th Cir. 1960)). 5

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 13 of 34 Comments on Draft Environmental Assessment (April 7, 2017) (attached hereto as Exhibit 3) at p. 4. Wisconsin s Department of Natural Resources likewise commented: Many of the regulatory mechanisms employed by states are tied to the CITES tagging program. The loss of this program would disrupt management programs through declines in trapper participation and license sales. Loss of this program would also severely impact the ability of users to fully utilize the resource by limiting marketing options. State of Wisconsin Department of Natural Resources Comments on Draft Environmental Assessment (April 5, 2017) (attached hereto as Exhibit 4) at p. 1. See also the North Carolina Wildlife Resources Commission Comments on Draft Environment Assessment (April 10, 2017) (attached as Exhibit 5 hereto) at p.2: [T]he CITES Export Program has been critical in our ability to maintain regulated trapping as a wildlife management tool by providing financial incentives to licensed trappers, which reduces the costs of population and damage management from being passed onto the public ; and the New Mexico Department of Game & Fish Comments that export restrictions would result in fewer people purchasing furbearer licenses, which would impact the Department as a self-funded agency [which would] not receive general fund allocations to offset this loss in revenue, which would translate into decreased funding for wildlife and habitat research, monitoring and conservation projects. New Mexico Department of Game & Fish Comments 6

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 14 of 34 on Draft Environmental Assessment (April 6, 2017) (attached hereto as Exhibit 6) at p.2. Plaintiffs Lawsuits Following issuance of the EA, Guardians filed an Amended Complaint ( Am. Compl. ) [Doc. No. 62] 3, and the Center filed its own Complaint ( Compl. ) in a separate action [Doc. No. 1 in Case No. 9:17-cv-00099-DWM]. The Court subsequently consolidated the two actions. See Order Consolidating Cases (Aug. 10, 2017) [Doc. No. 68]. (i) Plaintiffs Alleged Injuries Due to Trapping and Hunting Both Plaintiffs grounded standing to bring their lawsuits and seek redress based on purported injuries to their members arising from trapping and hunting in general, and alleged specific means and methods of the kill and capture of wildlife to which they object. In that regard, Guardians Amended Complaint ( 7-8) states: [M]embers and supporters of Guardians are affected by trapping and other capture methods in Montana and other states that harm or reduce numbers of bobcats, gray wolves, and other non-target animals in these areas, and make it less likely that they will see these animals, see evidence of these animals, photograph these animals, enjoy looking for these animal [sic] and evidence of these 3 The Guardians original complaint [Doc. No. 9] led to the Service s agreement to prepare a draft EA. See Order dated December 13, 2016 [Doc. No. 42]. 7

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 15 of 34 animals, or experience habitat in which these animals live.... If this Court issues the relief that Guardians requests or will request, the harm or injury to Guardians and its members and supporters will be alleviated and/or lessened. A court order... would likely lessen the extent or amount of trapping, capture, or killing of species subject to export from approved states and tribal areas, including Montana, as well as other species, and thereby help redress Guardians and its members and supporters injuries. [Emphasis added.] See also generally Am. Compl. 23-25, 27-28, 32-33 wherein Guardians complains about snare, leg-hold and other traps that Guardians alleges leads to illegal takes of protected wildlife. For its part, the Center in its Complaint also rested standing on the same notion as Guardians, namely, that trapping and hunting injures its members in various specified States. See generally Center Compl. 12-17. The Center complains: The Service s [Program] creates and maintains incentives for individuals to kill bobcats, river otters, gray wolves, lynx, and brown bears. The Service s [Program] facilitates and allows trappers and hunters to access the lucrative international fur market through export and thus creates a profit incentive for trappers and hunters to kill bobcats, river otters, gray wolves, lynx, and brown bears. Id., 18. (ii) Plaintiffs Claims and Requests for Relief Both Plaintiffs pleadings seek a declaration from the Court that the Service has violated NEPA. See, e.g., Guardians Am. Compl. 8 (seeking court order that 8

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 16 of 34 the EA issued by the Service is invalid and further seeking a remand with instructions for the Service to prepare a sufficient NEPA analysis); 38 (listing alleged deficiencies of the EA including that the EA fails to disclose all bases for the Service s determinations of non-detriment for bobcats, wolves, and other species approved for export under the CITES wildlife export program and arguing that the Service should have prepared an EIS); A. of the Request for Relief at Am. Compl. p. 22 (seeking declaration that the Service violated NEPA ); Center Complaint 7 (instant lawsuit challenges the Service for failing to comply with NEPA and seeks remedy for those violations ); 1 of the Requested Relief at Compl. p. 41 (seeking declaration that the Service violated NEPA in enumerated ways). Guardians also has alleged violations of the ESA. See generally Guardians Am. Compl. Second Cause of Action: ESA (at pages 19-21). More specifically, Guardians alleges that a Biological Opinion that the Service issued under Section 7 of the ESA to evaluate effects on Canada lynx of bobcat trapping in states and tribal areas approved for export of bobcat pelts and parts under the CITES wildlife export program and an Incidental Take Statement that accompanied the Biological Opinion are deficient. Am. Compl. 40, 8. The Biological Opinion authorized the issuance of the Incidental Take Statement which exempts the take of two lynx by death and two lynx by injury annually. Id. 41. 9

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 17 of 34 For redress, both Plaintiffs are seeking injunctive relief from the Court to remedy the alleged violations of NEPA and the ESA: Guardians specifically asks the Court (at D. of the Request for Relief at Am. Compl. p. 22) to set aside the Biological Opinion and Incidental Take Statement and further (at E.) to [e]njoin the Service from issuing tags that authorize or otherwise authorizing the export of bobcat pelts or parts from states and tribal areas that include habitat for Canada lynx. More generally, Guardians also asks that the Court [i]ssue any other relief this Court deems necessary, just, or proper, or that [Guardians] subsequently requests. Similarly, the Center is asking the Court (at 1 of the Requested Relief at Compl. p. 41) to [i]ssue such temporary restraining order(s), preliminary injunction(s) and/or permanent injunctive relief as may be requested hereafter. ************** The above allegations and claims make it clear that Plaintiffs have a dual purpose in bringing suit. First, they wish to compel the Service to do away with the CITES Export Program, and thus eliminate the ability of States and Tribes to facilitate the export of the Furbearer skins and products covered by the Program. At the same time, it is evident that Plaintiffs also are seeking to interfere with the way the States and Tribes manage their wildlife, by forcing them to limit, if not eliminate, the harvesting of the Furbearers and at the very least restrict the means by which trapping is conducted. 10

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 18 of 34 The problem is that Plaintiffs have not joined, and indeed cannot join, the States and Tribes whose above interests and rights will be impaired and impeded by this lawsuit. As a result, as next discussed, this Court respectfully should dismiss both Plaintiffs complaints under Federal Rule of Procedure 19, which governs the treatment of indispensable parties like the States and Tribes. See, e.g., Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, 2017 WL 4277133, at *4 (D. Ariz. Sept. 11, 2017) (dismissing under Fed. R. Civ. 19 complaint alleging violations by the federal government of the ESA and NEPA, where the arm of an Indian tribe was an indispensable party, was thus immune as a sovereign from suit and could not be joined), appeal filed (9th Cir. Nov. 9, 2017) (docket number unavailable). III. ARGUMENT Federal Rule Civil Procedure 19 sets the framework for determining whether a party is required and indispensable. Friends of Amador Cty. v. Salazar, 554 F. App x 562, 564 (9th Cir. 2014) (emphasis added). A plaintiff s failure to join a party determined to be indispensable under Federal Rule of Civil Procedure Rule 19 provides a basis for dismissal of a complaint, Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1458 (9th Cir. 1994), as sought herein. A. The Standards for Applying Rule 19 The examination under Rule 19 proceeds in three stages. 11

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 19 of 34 First, a party whose joinder will not deprive the court of subject matter jurisdiction is required to be joined to the action if that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person s absence may: (i) as a practical matter impair or impede the person s ability to protect the interest;.... Fed. R. Civ. P. 19(a)(1)(B)(i). The interest that the person under Rule 19 claims may be impaired or impeded is a legally protected one, albeit not one that must rise to the level of a property interest in the sense of the due process clause. Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1023 (9 th Cir. 2002). While the interest must be more than a financial stake and more than speculation about a future event, see Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990) (internal citations omitted), it need only be a claimed one that is not patently frivolous. White v. University of California, 765 F.3d 1010, 1027 (9th Cir. 2014) citing Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992), cert. den., 509 U.S. 903 (1993). Stated otherwise, [i]t is the party s claim of a protectable interest that makes its presence necessary. Hull, 305 F.3d at 1024 (emphasis in original) (citation omitted). If joinder of a party is required under Rule 19(a), the second question is whether such joinder would be feasible under Rule 19(b). As pertinent here, it is not feasible to join a party which cannot be sued due to the doctrine of sovereign immunity. See, e.g., Friends of Amador Cty., 554 Fed. App x at 565 (explaining that 12

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 20 of 34 federally recognized Indian tribes enjoy sovereign immunity from suit and finding no abuse of discretion in district court s dismissal under Rule 19 based on sovereign immunity) (internal citations omitted). As the third step in the analysis, if joinder is not feasible, the Court must examine whether in equity and good conscience the party is indispensable. In making this determination, under Rule 19(b) the Court must weigh whether (1) the extent to which a judgment rendered in the person s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided...; (3) whether a judgment rendered in the person s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Fed. R. Civ. P. 19(b). The four factors clearly overlap with each other and, moreover, overlap with the factors addressed to determine whether the absentee was necessary in the first place. See 4 JAMES WM. MOORE ET AL., MOORE S FEDERAL PRACTICE 19.05 at pp. 19-83 (3d ed. 1997); see also Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 319 (3d Cir. 2007) (declaring that the four factors, while not exhaustive, are the most important factors a court should consider). Applying these Rule 19 standards here, because it is impossible for the States and/or Tribes to be compelled to be joined as required parties due to their 13

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 21 of 34 immunity from suit, the Court should find that in equity and good conscience, the suit should be dismissed. B. The States and Tribes are Required Parties There is no question that States and Tribes have bona fide claims of legal, protectable interests and entitlements in this litigation that may be impaired or impeded, making them required parties. 1. The States and Tribes Have Legally Protectable Interests Under the CITES Export Program. Pursuant to the Service s regulation that governs the CITES Export Program, 50 C.F.R. 23.69, those States and Tribes that participate in the Program and are approved thereunder are granted the right and entitlement to have fur skins and fur skin products of bobcat, river otter, Canada lynx, gray wolf, and brown bear harvested within their jurisdictions exported through the stream-lined tagging process. See page 4, supra. If Plaintiffs prevail in this case, that right will be vitiated. As noted above, both Plaintiffs seek a declaration from the Court that the Service has violated NEPA, while Guardians additionally alleges violations of the ESA. See pages 9-11, supra. A court may enjoin agency action when it finds a violation of NEPA until the agency remedies the matter. See, e.g., Friends of the Wild Swan v. U.S. Forest Service, 875 F. Supp. 2d 1199, 1221 (D. Mt. 2012). The same is true regarding a violation of the ESA. See Washington Toxics Coalition v. 14

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 22 of 34 EPA, 413 F.3d 1024, 1034 (9th Cir. 2005) (finding that the remedy for a substantial procedural violation of the ESA must be an injunction of the project pending compliance with the ESA. ). Indeed, to remedy the purported NEPA and ESA violations here, Plaintiffs are seeking injunctive relief designed to put a stop to the CITES Export Program. See generally pages 9-11, supra. For example, Guardians specifically is seeking injunctive relief to stop the Service from issuing tags under the Program that authorize or otherwise authorizing the export of bobcat pelts or parts from states and tribal areas that include habitat for Canada lynx. Id. at page 10. According to Guardians own Amended Complaint, at least 14 States and three Tribes are implicated and would lose their rights if an injunction is issued. See Am. Compl. 39 ( Fourteen states and three tribal areas that participate in the CITES wildlife export program include lands within the range of the Distinct Population Segment of Canada lynx in the contiguous forty-eight states. ). In sum, affected States and Tribes have protectable legal rights and interests relating to the CITES Export Program that may be impaired or impeded by this litigation. That makes their joinder required for that reason alone. 15

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 23 of 34 2. The States and Tribes Also Have Legally Protectable Interests Relating to the Management of Wildlife and Trapping Within Their Borders. States have sovereign rights over the management of their wildlife. See New York ex rel. Kennedy v. Becker, 241 U.S. 556, 562 (1916) ( It is not to be doubted that the power to preserve fish and game within its borders is inherent in the sovereignty of the State. ) (citation omitted); U.S. v. State of Washington, 384 F. Supp. 312, 336 (W.D. Wash. 1974) (same). Tribes have broad trustee and policy powers to control and regulate the taking and possession of resident wild species within their boundaries. See EA at p. 6. Guardians and the Center are seeking to impair and impede those rights and interests. This is confirmed by each of their complaints, in which Plaintiffs premise their standing to bring this lawsuit and seek redress based on purported injuries to their members arising from alleged trapping and hunting methods and types of traps to which they object. See pages 7-8, supra. In determining whether a party is indispensable, courts must consider the practical potential for prejudice in the context of the particular factual setting presented by the case at bar. RPR & Assoc. v. O Brien/Atkins Assocs., 921 F.Supp. 1457, 1463 (M.D.N.C. 1995) (citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)). As a practical matter, Guardians and the Center are attempting to impinge upon the States and Tribes rights in terms of how they manage their wildlife; in essence through this lawsuit Plaintiffs seek to force 16

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 24 of 34 modifications to, and impose requirements on, the States and Tribes regulation over trapping and hunting within their respective jurisdictions. For example, Guardians seeks from the Court a declaration that the Biological Opinion and Incidental Take Statement are deficient. Am. Compl. 8. Guardians are seeking this declaration as a means of targeting trapping as a whole, and are deliberately attempting to impair the rights of a number of States in doing so. Guardians notes: The Service asserts that states and tribes that authorize or license bobcat trapping are immune from liability for incidental take of Canada lynx due to bobcat trapping under the [Incidental Take Statement]. Id. 45. Specifically, any amount of take less than or equal to two lynx takes by death and two lynx takes by injury per year cannot be an ESA violation, because, these takes are already accounted for in the Biological Opinion and Incidental Take Statement. See Wild Fish Conservancy v. Salazar, 628 F.3d 513, 519 (9th Cir. 2010) ( An incidental take statement exempts a specified number of incidental takings from the take prohibition of section 9. ). See also Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., 524 F.3d 917, 924 25 (9th Cir. 2008) (explaining the biological opinion process and concluding that, if followed, an Incidental Take Statement exempts the agency action from the prohibition on takings found in Section 9 of the ESA). Here, however, Guardians is attempting to deprive the States and Tribes of the exemption under the Biological Opinion and Incidental Take Statement from 17

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 25 of 34 ESA liability granted to trappers within their jurisdictions for trapping that implicates incidental take of lynx. Moreover, Guardians is seeking to have the States and Tribes be required by the Service to adopt the trapping methods published by the Service. Guardians thus alleges that [t]he Service published a brochure stating nine methods for avoiding incidental take of Canada lynx while trapping bobcats or other furbearers but that [t]he Service has not required states or tribes approved for export of bobcats under the CITES wildlife export program to adopt any of the methods in the brochure as a condition for approval in the program. Am. Compl. 44. It is settled that a governmental entity, for purposes of determining whether it is an indispensable party, has an interest in a lawsuit that could result in the invalidation or modification of one of its... rules [or] regulations. California Dump Truck Owners Ass n v. Nichols, 924 F. Supp. 2d 1126, 1147 (E.D. Cal. 2012) (internal citations omitted). As a practical matter, success by Guardians and the Center in this case will prejudice the States and Tribes who would have to make changes to the way they regulate the harvest of their wildlife through trapping and/or hunting. The States and Tribes, therefore, have a claim to legitimate protectable 18

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 26 of 34 interests that could be impaired or impeded, which would make their joinder required. 4 C. Joinder of the States and Tribes is not Feasible Because They Both Enjoy Immunity From Being Sued. Because the States and Tribes are necessary, required parties to this suit, the Court must next examine whether joinder of the States and Tribes is feasible. The answer to this inquiry is no. 4 Plaintiffs may argue that the federal Defendants can adequately represent the States and Tribes interests and therefore that neither States nor Tribes are required parties. But that is not the case. The federal government does not have a specific interest in protecting the States sovereign rights over management of their wildlife. Cf., Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498-99 (9th Cir. 1995) (U.S. Forest Service would not adequately represent the interests of the state and county in an action by environmental advocacy organizations regarding management of a national forest). Similarly, the federal government has a history of not representing Native American rights even when it had the obligation to do so. See, e.g., Navajo Nation v. United States, 263 F.3d 1325, 1332 (Fed. Cir. 2001), rev d on other grounds, 537 U.S. 488 (2003) (holding federal government violated the most basic common law fiduciary duties owed to the Navajo Nation. ). Moreover, in comments on the draft EA, many States expressed concern that restricting exports of the five furbearer species would have negative economic impacts. See pages 5-7, supra. See also EA at p. 39. There is no reason to believe that the federal Defendants will structure arguments to protect and preserve those economic interests. This Court has already opined that the Defendants cannot adequately represent the interests of Defendant-Intervenors because: Defendants are bound to follow the proper regulatory process even if exportation under CITES becomes limited in a way contrary to... intervenors goals, rebutting the presumption of adequate representation. Order Granting Motion to Intervene [Doc. No. 21] at pages 3-4, 2016 WL 7388316, at *2 (D. Mt. Dec. 20, 2016). The same is true with respect to the federal government s inadequate representation of the economic and other rights and interests of the States and Tribes. 19

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 27 of 34 It is axiomatic that both States and Tribes are immune from suit as sovereigns, unless they waive their immunity. Holley v. California Dept. of Corrections, 599 F. 3d 1108, 1111 (9th Cir. 2010) (Eleventh Amendment bars suits against a state unless Congress has abrogated state sovereign immunity under its power to enforce the Fourteenth Amendment or a state has waived it. ); Mich. v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014) ( Indian tribes are domestic dependent nations that exercise inherent sovereign authority. ) (internal citations omitted); California v. Quechan Tribe of Indians, 595 F.2d 1153, 1155 (9th Cir. 1979) ( It is a well-established rule that Indian tribes are immune from suit.... Sovereign immunity involves a right which courts have no choice, in the absence of a waiver, but to recognize. ). In this instance, no State or Tribe has waived its sovereign immunity. Because they are immune from suit, the States and Tribes joinder is not feasible. 5 5 Presumably, the Court can invite the States and Tribes to waive their immunity in order to intervene into the case, but the States and Tribes cannot be compelled to do so. 20

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 28 of 34 D. The States and Tribes are Indispensable Parties Under the Four-Factors Test in Rule 19(b); Therefore, Plaintiffs Claims Must Be Dismissed. The States and Tribes are indispensable parties if, in equity and good conscience, the district court should not allow the action to proceed in their absence under the four factors set out in Fed. R. Civ. P. 19(b). Kescoli v. Babbitt, 101 F. 3d 1304, 1310-11 (9th Cir. 1996). The four factors are: (1) the prejudice to any party or to the absent party; (2) whether relief can be shaped to lessen prejudice; (3) whether an adequate remedy, even if not complete, can be awarded without the absent party; and (4) whether there exists an alternative forum. Id. [T]he first factor of prejudice... largely duplicates the consideration that made a party necessary under Rule 19(a): a protectible interest that will be impaired or impeded by the party s absence. Hull, 305 F.3d at 1024-25. Thus, given their protectable interests as described above, the States and Tribes clearly will be prejudiced if they are absent from this lawsuit. As to the prejudice to Plaintiffs, that consideration is tied to the fourth factor, i.e., they undoubtedly will assert that there is no alternative forum for them to bring their claims. However, even if so (which is not certain), when the necessary party is immune from suit, there may be very little need for balancing Rule 19(b) factors because immunity itself may be viewed as the compelling factor. White, 765 F. 3d at 1028 (citation omitted). This is especially true with respect to the sovereign 21

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 29 of 34 immunity of Tribes. See id. ( virtually all the cases to consider the question appear to dismiss under Rule 19, regardless of whether a remedy is available, if the absent parties are Indian tribes invested with sovereign immunity ) (citation omitted). The second factor whether prejudice can be reduced by shaping the relief also works in favor of dismissal with prejudice. Both Guardians and the Center are seeking to enjoin the CITES Export Program. As detailed above, the injunctive relief sought by the plaintiffs will have direct, immediate, and harmful effects upon [the States and Tribes ] legally protectable interests. Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). And the States and Tribes will have no opportunity to object to the injunctive relief. See Forest Conservation Council, 66 F.3d at 1498 ( Although the injunction sought in this action is not literally a permanent one, expiring upon the Forest Service's compliance with NEPA and NFMA, its duration is unknown, and could potentially last for years.... If appellants are not made a party to this action, they will have no legal means to challenge that injunction while it remains in effect. ) (all citations omitted). Indeed, the only way this actual prejudice and harm to the States and Tribes could be lessened would be if Guardians and the Center were to agree not to seek an injunction 6 and the Court were not to impose one. Yet, even if both Plaintiffs chose 6 For example, Plaintiffs can amend their pleadings to omit any request for injunctive relief. However, that very fact would work against them and buttresses 22

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 30 of 34 not to seek an injunction, it is still likely that both Plaintiffs will challenge the EIS if it does not comport with their views, much as they have already challenged the EA, which will only prolong needless litigation and allow another opportunity for Rule 19(b) dismissal to be raised. Cf. Fed. R. Civ. P. 19, Advisory Comm. Note of 1966 (noting a public interest in avoiding repeated lawsuits on the same essential subject matter ). E. The Court Should Not Apply the Public Rights Exception. Plaintiffs undoubtedly will argue that the public rights exception to the indispensable party rule should apply here because they simply are trying to ensure that the Service acts in accordance with NEPA and the ESA. But [a]lmost any litigation,... can be characterized as an attempt to make one party or another act in accordance with the law. Hull, 305 F.3d at 1026. In truth, Plaintiffs are seeking to vindicate the private interests of their members to be free of the alleged injuries to them due to trapping and hunting. See pages 7-8, supra. And [t]o qualify for the public rights exception, the litigation must transcend the private interests of the litigants and seek to vindicate a public right. Hull, 305 F.3d at 1026. the need for the States and Tribes to be joined (which they cannot): That appellants concerns have prompted appellees to revise their request for injunctive relief suggests that appellants may provide a beneficial public interest role in this litigation, by bringing to the court's attention valuable information not available to or provided by the parties. Forest Conservation Council, 66 F.3d at 1497 n. 9. 23

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 31 of 34 In any case, the public rights exception to the indispensable party rule will not apply because the litigation must not destroy the legal entitlements of the absent parties as an injunction will do here. See White, 765 F. 3d at 1028 (citation omitted). Indeed, the mere threat to the absent States and Tribes legal entitlements under the Export Program, and to their sovereignty in managing their wildlife, alone should suffice to render the public rights exception inappropriate. See Shermoen, 982 F.2d at 1319. Finally, the public rights exception should not apply here as the litigation is aimed at the indispensable parties the States and Tribes rather than merely incidentally affecting them. Hull, 305 F.3d at 1026. Guardians and the Center aim to fundamentally destroy the States and Tribes existing rights under the Export Program, and also to have the Service exert influence over the management of their (i.e., the States and Tribes) wildlife, including over the numbers and the methods of trapping within their jurisdictions. See Doc. No. 35 (Order and Opinion) at 9 (... the numbers and methods of trapping are not wholly outside the Service s control ). IV. CONCLUSION Unquestionably, the States and Tribes are immune from suit, yet are necessary, required parties given their legal rights and interests that will be negatively affected here and which they cannot protect. As noted above, when the necessary party is immune from suit, there may be very little need for balancing 24

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 32 of 34 Rule 19(b) factors because immunity itself may be viewed as the compelling factor [to dismiss the case]. White, 765 F.3d at 1028 (citations omitted). But even after the balancing of the four factors, equity and good conscience requires the Court to dismiss this lawsuit with prejudice. Date: November 10, 2017 Respectfully submitted, /s/ Ira. T. Kasdan Ira T. Kasdan Attorney for Defendant-Intervenor FICA /s/ Gary R. Leistico Gary R. Leistico Attorney for Defendant-Intervenors Montana Trappers Association and National Trappers Association 25

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 33 of 34 CERTIFICATE OF COMPLIANCE I, Ira T. Kasdan, certify that this brief complies with the requirements of Local Rule 7.1(d)(2). The document is proportionally spaced, has a typeface of 14 points and contains 6,081 words. I relied on the word count from Microsoft Word, which was used to prepare this document. /s/ Ira. T. Kasdan Ira T. Kasdan

Case 9:16-cv-00065-DWM Document 76 Filed 11/10/17 Page 34 of 34 CERTIFICATE OF SERVICE I certify that on November 10, 2017, I electronically filed the foregoing Memorandum in Support of Defendant-Intervenors Joint Memorandum in Support of Motion to Dismiss Plaintiffs Complaints Under Fed. R. Civ. P. 12(b)(7) with the Clerk of the Court through the CM/ECF system, which will send notice of the filing to all counsel of record. /s/ Ira Kasdan Ira T. Kasdan