Organization of Professional Aviculturists, Inc. v. U.S. Fish and Wildlife Service

130 F.4th 1307

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 14, 2025
• Docket: 23-11984
• Status: Published

Opinion

USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 1 of 32

[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11984 ____________________

ORGANIZATION OF PROFESSIONAL AVICULTURISTS, INC., LINEOLATED PARAKEET SOCIETY, Plaintiffs-Appellants, versus U.S. FISH AND WILDLIFE SERVICE,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cv-23536-KMW ____________________ USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 2 of 32

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Before ROSENBAUM, ABUDU, and TJOFLAT, Circuit Judges. ROSENBAUM, Circuit Judge: As it turns out, a bird in the hand is not worth as much as two in the bush. At least, that’s what Congress decided when it enacted the Wild Exotic Bird Conservation Act of 1992 (“Act”), 16 U.S.C. § 4901 et seq., and protected birds in the bush (the wild) by limiting when they can be in the hand (domestically imported). To promote exotic-bird conservation, the Act prohibits the importa- tion of certain exotic bird species into the United States. See 16 U.S.C. §§ 4902, 4904. But a person may petition to add a species to a list of those approved for import, so long as the species meets certain criteria. Id. §§ 4905, 4909. Plaintiffs (“Aviculturists”) are organizations that represent “aviculturists,” people who care for or breed birds. The Avicultur- ists sought to import two captive-bred species of parrots, the Cac- tus conure and the green form of the Lineolated parakeet, from certain European countries. But the Act prohibits those species’ importation. So the Aviculturists petitioned the United States Fish and Wildlife Service (“Service”) to add the two parrot species to the list of species approved for import under the Act. There was a small catch, though. Rather than petitioning the Service to add these two parrot species as a whole to the list, the Aviculturists petitioned to add the species, but only those members of the species that have been captive-bred in certain European countries. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 3 of 32

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The Service denied the Aviculturists’ petitions as invalid. It said that the Act’s implementing regulations didn’t allow the Ser- vice to approve species in a country-by-country manner. The Aviculturists sued, contending that the Service must add captive-bred species to the exemption list on a country-by- country basis under the Act. Because the Service rejected the Avi- culturists’ petitions asking it to do just that, the Aviculturists as- serted, the Service’s determination that the Aviculturists’ petitions were invalid violated both the Act and Sections 706(1) and 706(2) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. The district court dismissed the Aviculturists’ claims with prejudice. It reasoned that the text of the Act instructs the Service to consider the addition of different “species” as a whole to the list of approved species, rather than the addition of a species from par- ticular countries. And the district court found that this reading aligned with both the agency’s own decades-old interpretation and the statute’s other sections, which list the substantive criteria for adding species to the approved list. We agree that the plain text and structure of the Act instruct the Service to consider adding “species” of exotic birds, as a whole, to the list of species approved for importation. So we affirm the district court court’s judgment. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 4 of 32

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I. BACKGROUND A. Statutory Framework Because our analysis focuses on the Act, we begin with a dis- cussion of the Act’s purpose, text, and structure. Congress’s purpose in enacting the Wild Exotic Bird Conser- vation Act is easy enough to discern. After all, Congress said what its purpose was in the legislative findings it made within the Act. Those findings show that Congress passed the Act because it con- cluded that “the international pet trade in wild-caught exotic birds is contributing to the decline of species in the wild . . . .” 16 U.S.C. § 4901(1). And Congress sought to “ensur[e] that the market in the United States for exotic birds does not operate to the detriment of the survival of species in the wild.” Id. § 4901(2). To accomplish its goal, the Act sets forth “measures that are necessary for the con- servation of exotic birds,” limiting the species that can be lawfully imported into the United States. Id. § 4901(14). Among other things, the Act aims to support implementa- tion of the Convention on International Trade in Endangered Spe- cies of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (“CITES Treaty” or the “Convention”), to which the United States is a signatory. See 16 U.S.C. §§ 4901, 4904. The CITES Treaty is an agreement among 183 countries and the Euro- pean Union to strictly regulate the trade of species to avoid the threat of extinction. CITES Treaty art. II; see also https://www.fws.gov/international-affairs/cites [https://perma.cc/G5DQ-Y2VS] (listing the current number of USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 5 of 32

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parties to the treaty). To promote the goal of the CITES Treaty, the Act recognizes that Congress can “adopt stricter domestic measures for the regulation of trade in all species” than the CITES Treaty does, but the CITES Treaty sets the floor. 16 U.S.C. § 4901(12) (citing CITES Treaty art. XIV). The CITES Treaty maintains three Appendices that list dif- ferent species, which are subject to different regulations. See CITES Treaty art. II. The parties agree that both species at issue— Cactus conure and green-form Lineolated parakeet—appear in Ap- pendix II to the CITES Treaty. 1 Because both species appear in an Appendix to the CITES Treaty, they are subject to the Act.

1 Appendix II includes “(a) all species which although not necessarily now

threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation . . . ; and (b) other species which must be subject to regulation in order that trade in specimens of certain species . . . may be brought under effective control.” CITES Treaty art. II. Congress expressed concern that species listed in Appendix II were especially vulnerable before the Act’s moratorium. A House Report explained, “In many cases there is evi- dence that the existing level of trade is resulting in declines in wild populations of certain species, but the evidence is insufficient to list birds on Appendix I. As a result, the birds are traded in very large numbers (while they are listed on Appendix II) until their numbers dwindle to the point that they are endangered enough to warrant an Appendix I listing.” H.R. Rep. No. 102-749, pt. 1, at 9 (1992). Not only that, but Congress expressed specific concern about species of parrots like the ones at issue. See id. at 8. It noted that birds in this order made up half of the “hundreds of thousands of live birds” imported into the United States each year, while finches made up the other half. Id. at 8–9. And it said that parrots, relative to finches, are “less prolific breeders, and the health of their populations is more greatly impacted by harvest from the wild for the pet trade.” Id. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 6 of 32

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For its part, the Act establishes a moratorium on “the impor- tation of any exotic bird of a species that is listed in any Appendix to the Convention . . . unless the Secretary [of the Interior] makes the findings described in section 4905(c) of this title and includes the species in the list published under section 4905(a) of this title.” 2 16 U.S.C. § 4904(c). The list published under subsection 4905(a), in turn, includes “species of exotic birds that are listed in an Appendix to the Convention and that are not subject to a prohibition or sus- pension of importation otherwise applicable . . . .” Id. § 4905(a)(1). In other words, species on the list published under subsection 4905(a) can be imported, even though they appear in an Appendix. Zooming out to Section 4905 as a whole, that section ad- dresses how the Secretary must decide whether to list a species for importation. Under the header “Bases of determinations,” Section 4905 requires the Secretary to, among other things, account for how “all countries of origin” regulate and enforce against illegal trade in the species. The statute provides, “In making a determina- tion required under this subsection, the Secretary shall—(A) use the best scientific information available; and (B) consider the adequacy of regulatory and enforcement mechanisms in all countries of origin

2 The term “Secretary” in the Act means the Secretary of the Interior or his

designee. 16 U.S.C. § 4903(6). The Secretary of the Interior has designated the Service to act for it under the Act. See, e.g., Importation of Exotic Wild Birds to the United States, 58 Fed. Reg. 60524, 60529 (November 16, 1993) (codified at 50 C.F.R. pt. 15). USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 7 of 32

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for the species, including such mechanisms for control of illegal trade.” Id. § 4905(a)(3) (emphases added). Section 4905 also instructs the Secretary on how he must list species that he approves for importation. Under the header “Man- ner of listing,” Section 4905 requires the Secretary to “list a species under paragraph [(a)](1) [for inclusion on the importation list] with respect to—(A) the countries of origin from which the species may be imported; and (B) if appropriate, the qualifying facilities in those countries from which the species may be imported.” Id. § 4905(a)(2) (emphasis added). Then Section 4905 identifies the criteria that the Secretary must assess in determining whether to include captive-bred species and non-captive-bred species, respectively, on the exemptions list. Id. § 4905(b)–(c). For captive-bred species, like the two kinds of parrots the Aviculturists petitioned to add to the list here, the Act requires the Secretary to “include a species of exotic birds in the list . . . if the Secretary determines that” the species meets one of two qualifications: “(1) the species is regularly bred in captivity and no wild-caught birds of the species are in trade; or (2) the species is bred in a qualifying facility.” Id. § 4905(b). 3

3 For non-captive-bred species, the Secretary must “include in the list” of ap-

proved species certain Appendix-listed species of exotic birds if he “finds the Convention is being effectively implemented with respect to that species be- cause” four factors are met. Id. § 4905(c). First, “[e]ach country of origin for which the species is listed [must be] effectively implementing the Convention . . . .” Id. Second, “[a] scientifically-based management plan for the species [must] ha[ve] been developed” that “provides for the conservation of the USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 8 of 32

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Now that we’ve reviewed the Secretary’s role in determin- ing what species to exempt from the moratorium and how to list those species, we focus on Section 4909. That part of the Act de- scribes the mechanism for a person to seek to add, modify, or abol- ish a moratorium, quota, or exemption on importing a bird species. It allows “[a]ny person [to] at any time submit to the Secretary a petition in writing requesting that the Secretary . . . establish, mod- ify, or terminate any prohibition, suspension, or quota under this chapter on importation of any species of exotic bird . . . [or] add a species of exotic bird to, or remove such a species from, a list under section 4905 of this title . . . .” Id. § 4909(a). When a person submits such a petition, within 90 days, the Secretary must “issue and publish in the Federal Register a prelim- inary ruling regarding whether the petition presents sufficient in- formation indicating that the action requested in the petition might be warranted.” Id. § 4909(b)(1). If the Secretary determines that a petition might have merit, the Secretary must provide an oppor- tunity for public comment, and then he must issue and publish a final ruling on the petition. Id. § 4909(b)(2). Title 50, part 15, of the Code of Federal Regulations sets forth the Act’s implementing regulations. Those regulations list

species,” ensures that its use “is biologically sustainable and maintained throughout the range of the species in the country to which the plan applies,” and “addresses factors relevant to the conservation of the species . . . .” Id. Third, that plan must be “implemented and enforced.” Id. And fourth, “[t]he methods of capture, transport, and maintenance of the species [must] mini- mize[] the risk of injury or damage to health . . . .” Id. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 9 of 32

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the species of exotic birds that the Service has determined are ex- empt from the importation prohibition. See 50 C.F.R. § 15.33 (2017). Section 15.31 describes the “[c]riteria for including species in the approved list for captive-bred species,” and Section 15.32 does so for non-captive-bred species. Id. §§ 15.31–15.32. To add a captive-bred species (like the parrots the Aviculturists sought to add) to the exemptions list, the Secretary must make four findings: (a) All specimens of the species known to be in trade (legal or illegal) are captive-bred; (b) No specimens of the species are known to be removed from the wild for commercial purposes; (c) Any importation of specimens of the species would not be detrimental to the survival of the species in the wild; and (d) Adequate enforcement controls are in place to ensure compliance with paragraphs (a) through (c) of this section. Id. § 15.31 (emphases added). By their nature, these findings re- quire the Secretary to consider the species’s status in all countries. See id. B. Facts and Procedural History In the summer of 2021, the Aviculturists filed petitions to add captive-bred Cactus conures and green-form Lineated para- keets “from Certain European Countries to the List of Approved Species under 16 U.S.C. § 4905.” We refer to these two specific pe- titions as the “Petitions.” The Petitions explained that both species are “regularly bred in captivity in Europe,” and that “no wild- USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 10 of 32

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caught birds of the species are in the relevant European trade.” Based on these assertions, the Aviculturists sought to add to the exemptions list captive-bred Cactus conures and green-form Line- olated parakeets from specified European countries “[p]ursuant to 16 U.S.C. § 4905(b) . . . .” The Service denied both Petitions as invalid. It said that “the [Act] and our implementing regulations do not allow for inclusion of species in the approved list for captive-bred species in such a country-by-country manner.” In explaining its decision, the Ser- vice cited the final rule that the Secretary promulgated to imple- ment the Act. During that rule-making process, the Service noted, the agency received some comments “that species should be listed on the approved list of captive-bred species, on a country-by-country basis, if they are reliably bred in captivity in a specific country only.” Importation of Exotic Wild Birds to the United States, 59 Fed. Reg. 62255, 62257 (December 2, 1994) (codified at 50 C.F.R. pt. 15) (em- phasis added). But “[t]he Service disagree[d] and [made] no changes based on these comments.” Id. Rather, the Service, reasoned, “The [Act] does not provide for species listings in such a country-by-country manner.” Id. (emphasis added). Only “the qualifying overseas breeding facilities can be listed by the country from which the species is to be imported,” the Service said. Id. At bottom, the Service informed the Aviculturists that it would “take no further action” on the Petitions, declining to pub- lish a preliminary ruling on their merits. Still, the Service reminded USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 11 of 32

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the Aviculturists that they could file new petitions in a non-country- specific manner if they had “sufficient information” that each spe- cies “as a whole meets the criteria” listed in 50 C.F.R. § 15.31. Taking the Service up on this, the Aviculturists filed new pe- titions, for both species, “without conceding the appropriateness” of the denials of their first-filed Petitions. These attempts fared lit- tle better than their first ones. The Service announced 90-day rul- ings on both of the second-filed petitions. Analyzing the species as a whole (and not just the species in the countries the Aviculturists designated), the Service found that the second-filed petitions did “not present sufficient information” to warrant the addition of ei- ther species to the exemptions list. So the Service declined to take further action. Those second-filed petitions are not at issue here, so we discuss them no further. Rather, the Aviculturists filed suit, challenging the Service’s denials of only the first two Petitions. The Aviculturists alleged that (1) the Service “‘unlawfully withheld’ and ‘unreasonably de- layed’” action to grant their Petitions, in violation of Section 706(1) of the APA (Count I); and (2) the Service’s denials of the Avicultur- ists’ Petitions were “arbitrary, capricious, and [an] abuse of discre- tion, and contrary to law,” in violation of Section 706(2) of the APA (Count II). To remedy these alleged violations, the Aviculturists sought declarations that the denials violated federal law and an or- der requiring the Service to publish preliminary 90-day findings on the Petitions. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 12 of 32

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The Service moved to dismiss the complaint, and the district court granted the motion with prejudice. First, the court explained that the Aviculturists have standing—even though the second-filed petitions were substantively denied—because the specific relief the Aviculturists sought was not a favorable ruling, but a published rul- ing. Second, the court held that subsection 4905(a)(2) of the Act unambiguously “requires petitions to list captive-bred exotic bird species on a species-wide basis.” As a result, the court reasoned, the Aviculturists’ Petitions “were invalid under the [Act] and [the Service’s] implementing regulations.” And so the court found that the Service was not required to publish a ruling on the Petitions because it had correctly determined that the Petitions were invalid. Based on these conclusions, the court concluded that the Avicul- turists failed to state a claim in Count I. Third, for roughly the same reasons, the court held that the Aviculturists also failed to show that the Service’s denials of the Pe- titions were arbitrary, capricious, an abuse of discretion, or other- wise unlawful (Count II). So the court dismissed Count II. The court alternatively dismissed Count II on the grounds that, if con- strued as a facial challenge of the 1994 implementing regulation we’ve described, the claim is also time barred. The Aviculturists now appeal. II. STANDARD OF REVIEW We review questions of statutory interpretation de novo. United States v. St. Amour, 886 F.3d 1009, 1013 (11th Cir. 2018). USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 13 of 32

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III. DISCUSSION The Aviculturists argue that subsection 4905(a)(2)’s text un- ambiguously requires the Service to list exotic birds approved for import on a country-by-country basis. Based on that text, the Avi- culturists assert that the Service necessarily must “accept and adju- dicate country-specific petitions.” We disagree. The text, structure, and purpose of the Act all demand the conclusion that the Act requires the Service to deter- mine whether to exempt a “species” as a whole—not just members of the species that hail from certain countries—from the Act’s im- portation moratorium. 4 A. The text and structure of the Act require the Secretary to add species as a whole to the list approving them for impor- tation. We begin with the text and structure of the Act. See People for Ethical Treatment of Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142, 1146 (11th Cir. 2018) (per curiam). And when a “statute’s meaning is plain and unambiguous,” we also end there. Id. (quot- ing United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir. 2002)) (in- ternal quotation marks omitted). In “deciding whether the lan- guage is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’” King v.

4 The Service contends that the Aviculturists forfeited any challenge to the

district court’s ruling on Count I and to its alternative timeliness ruling on Count II. We need not address the Service’s forfeiture argument because the arguments fail on the merits, in any case. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 14 of 32

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Burwell, 576 U.S. 473, 486 (2015) (citation omitted). “Our duty, af- ter all, is ‘to construe statutes, not isolated provisions.’” Id. (cita- tion omitted). With this guidance in mind, we turn to the Act to determine whether, as the Aviculturists assert, it requires the Secretary to de- cide whether a species qualifies on a country-by-country basis for exemption from the moratorium. We conclude that it does not. 1. The text directs the Secretary to consider approving species as a whole for importa- tion. The Act’s text requires us to first consider the meaning of “species.” After all, the Act prohibits “the importation of any exotic bird of a species that is listed in any Appendix to the Convention . . . unless the Secretary makes the findings described in section 4905(c) of this title and includes the species in the list published under section 4905(a) of this title.” 16 U.S.C. § 4904(c) (emphases added). In the same way, the list that subsection 4905(a) anticipates in- cludes only “species of exotic birds that are listed in an Appendix to the Convention and that are not subject to a prohibition or suspen- sion of importation otherwise applicable . . . .” Id. § 4905(a)(1) (em- phasis added). Conveniently enough, the Act defines “species.” Less con- veniently, the Act’s definition requires further exploration. Under the Act, “species” means “any species, subspecies, or any distinct population segment of a species or subspecies; and . . . includes hy- brids of any species or subspecies.” Id. § 4903(7). As relevant here, USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 15 of 32

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this definition requires us to consider, in turn, the ordinary mean- ing of “species” and the meanings of “subspecies” and “distinct pop- ulation segment of a species or subspecies.” We start with “species.” Because the Act’s definition of “spe- cies” uses the word “species” to define “species,” we must consider the “ordinary, contemporary, and common meaning” of “species.” See Drazen v. Pinto, 106 F.4th 1302, 1343 (11th Cir. 2024) (en banc) (cleaned up). That means “we look to the plain meaning of [‘spe- cies’] as it was understood at the time the law was enacted.” Id. (citation omitted). Because Congress enacted the Act in 1992, we turn to dic- tionaries from that period. See id. (“[O]ne of the ways to figure out [the] meaning [of ‘statutory language as it was understood at the time the law was enacted’] is by looking at dictionaries around the time of enactment.”) (citation omitted). At the time, dictionaries defined “species” as a class of animals that share common traits or characteristics and can interbreed. None defined species by refer- ence to the countries that they hail from. For instance, the OXFORD ENGLISH DICTIONARY defined “species,” in the zoological or botanical context, as “[a] group or class of animals or plants (usually constituting a subdivision of a genus) having certain common and permanent characteristics which clearly distinguish it from other groups.” Species, OXFORD ENGLISH DICTIONARY (2d ed. 1989). WEBSTER’S NEW WORLD DICTIONARY likewise defined biological “species” as “a naturally ex- isting population of similar organisms that usually interbreed only USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 16 of 32

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among themselves, and are given a unique, latinized binomial name to distinguish them from all other creatures.” Species, WEBSTER’S NEW WORLD DICTIONARY (3d ed. 1988). And the CONCISE AMERICAN HERITAGE DICTIONARY defined “species” as “[a] fundamental category of taxonomic classification consisting of or- ganisms capable of interbreeding,” or “[a]n organism belonging to such a category,” or, more generally, “[a] kind, variety, or type.” Species, CONCISE AMERICAN HERITAGE DICTIONARY (rev. ed. 1987). 5 Similarly, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY de- fined biological “species” as follows: [(1)] a category of biological classification ranking immedi- ately below a genus or subgenus and being denominated in taxonomic usage by a binomial that consists of the name of its genus followed by a Latin [word that] . . . agrees gram- matically with the genus name: a group of intimately re- lated and physically similar organisms that actually or poten- tially interbreed and are less commonly capable of fertile in- terbreeding with members of other groups, that ordinarily comprise differentiated populations limited geographically (as subspecies) or ecologically (as ecotypes) which tend to intergrade at points of contact, and that as a group represent

5 Other dictionaries from the period defined “species” as a more general term,

not specific to the animal kingdom. For example, BLACK’S LAW DICTIONARY defined “species” as “[i]n the civil law, form; figure; fashion or shape. A form or shape given to materials.” Species, BLACK’S LAW DICTIONARY (6th ed. 1990). These types of definitions, which do not address the subject matter of the Act, are not instructive here, and we do not discuss them further. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 17 of 32

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the stage of evolution at which variations become fixed . . . [or] [(2)] an individual plant or animal or a kind [thereof] belong- ing to a particular species . . . . Species, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1986). 6

Even this last definition from WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, which observed that species “ordi- narily comprise differentiated populations limited geographically (as subspecies)” does not define species—or for that matter, sub- species—by reference to particular countries of origin. Put simply, the ordinary meaning of “species” does not support the Avicultur- ists’ interpretation that the Act requires the Secretary to decide whether a species qualifies for exemption from the moratorium on a country-by-country basis. That’s so because a species may (and often does) exist over more than a single country, even if it may have some general geographic limitations. See id. So a country-by- country assessment, under the common meaning of “species,” vi- olates Congress’s directive that the Secretary determine qualifica- tion on a “species” basis. That brings us to the meaning of “subspecies.” But that def- inition doesn’t help the Aviculturists any more than the definition

6 Compared to WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, we can

see why the CONCISE AMERICAN HERITAGE DICTIONARY, whose definition of “species” we just reviewed, refers to itself as “concise.” USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 18 of 32

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of “species.” It, too, declines to classify animals based exclusively on country of origin. WEBSTER’S NEW WORLD DICTIONARY defines “subspecies” as “any natural subdivision of a species that exhibits small, but persistent, morphological variations from other subdivi- sions of the same species living in different geographical regions or times: the subspecies[’] name is usually the third term . . . in a tri- nomial . . . .” Subspecies, WEBSTER’S NEW WORLD DICTIONARY (3d ed. 1988). Again, the reference to general geographical or regional boundaries does not mandate the interpretation that “subspecies,” by definition, are confined to particular countries. The ordinary meaning of “subspecies,” like “species,” doesn’t support the Avicul- turists’ interpretation of the Act. That leaves the phrase “distinct population segment of a spe- cies or subspecies.” 16 U.S.C. § 4903(7)(A). But the Aviculturists forfeited any argument that they sought to add only a “distinct pop- ulation segment” to the importation list. Their Petitions requested to add the Cactus conures and green-form Lineolated parakeets to the exemptions list as “species,” not as “distinct population seg- ments” of those species. Nor in the district-court proceedings did the Aviculturists so much as suggest that their Petitions sought to add only a “distinct population segment,” rather than a species as a whole, to the importation list. The Aviculturists also didn’t make the argument in their opening brief in this Court. In fact, their opening brief said that “a species does refer to all genetically related individuals worldwide . . . .” In short, the Aviculturists forfeited this argument. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir.), cert. denied, 143 S. Ct. 95 (2022) (“Typically, issues not raised USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 19 of 32

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in the initial brief on appeal are deemed abandoned.”). So we do not consider now whether the Service could add a distinct popula- tion segment country by country. 7 In sum, the Act authorizes the Secretary to add birds to the list by “species,” and birds do not qualify as “species” under the Act simply because they are in one country versus another. 2. The Act’s structure also shows that the Sec- retary cannot approve species on a country- by-country basis. But we don’t stop with the definition of “species.” Rather, we turn next to the structure of the Act. At least seven features of the Act’s structure show that the Service cannot determine, on a country-by-country basis, whether to authorize the importation of a species.

7 That said, we are doubtful that it could. That term—“distinct population segment”—is not one in common parlance. But it has taken on a certain meaning under the Endangered Species Act, Pub. L. No. 95-632, § 2(5), 92 Stat. 3751, 3752 (1978), which uses the same phrase when it defines “species.” And “[w]hen Congress uses the same language in two statutes having similar pur- poses, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.” Smith v. City of Jackson, 544 U.S. 228, 233 (2005). In the case of the Endangered Species Act, the Secretary adopted a policy defining “distinct pop- ulation segment.” See Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (“Policy”), 61 Fed. Reg. 4722, 4722 (February 7, 1996). Under the Policy, it seems clear that these parrot populations can’t qualify as “distinct population segments” simply be- cause they happen to exist in one set of countries versus another. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 20 of 32

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First, subsection 4904(c) prohibits the importation “of any exotic bird of a species that is listed in any” CITES Appendix “unless the Secretary makes the findings described in section 4905(c) . . . and includes the species in the list published under section 4905(a)[.]” 16 U.S.C. § 4904(c) (emphasis added). By its terms, this subsection imposes a moratorium at the “species” level. It does not refer to countries. Second, subsections of the Act speak in terms of “species,” without qualifications for specific countries. For instance, subsec- tion 4905(a)(1) requires the Secretary to publish “a list of species of exotic birds . . . .” 16 U.S.C. § 4905(a)(1). Similarly, subsections 4905(b) and (c) state requirements for determining whether to “in- clude a species of exotic birds” on the list. Id. § 4905(b)–(c) (empha- sis added). Third, in determining whether to allow importation of a species, the Act requires consideration of “the best scientific infor- mation available.” Id. § 4905(a)(3). Country borders aren’t “scien- tific information.” Fourth, in determining whether to allow importation of a species, the Act also requires the Secretary to consider “the ade- quacy of regulatory and enforcement mechanisms in all countries of origin for the species, including such mechanisms for control of illegal trade.” Id. (emphasis added). In other words, the Secretary may not limit its consideration of the adequacy of regulatory and en- forcement mechanisms to those in only certain countries of origin for the species. It must consider those factors as they pertain to USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 21 of 32

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every country of origin in the world. And it would make little sense for Congress to require the Secretary to consider the adequacy of regulatory and enforcement mechanisms “in all countries of origin for the species” if the Secretary could grant a petition for exemption on a country-by-country basis. Cf. Carachuri-Rosendo v. Holder, 560 U.S. 563, 573 (2010) (stating that statutory interpretation involves examining not only the statute’s terms, but also “the ‘com- monsense conception’ of those terms”). Fifth, subsection 4905(b)’s criteria for including a “species of exotic birds in the list” preclude the possibility that the Service can decide on a country-by-country basis. To include a captive-bred species, the Service must determine either that “the species is reg- ularly bred in captivity and no wild-caught birds of the species are in trade; or . . . the species is bred in a qualifying facility.” 16 U.S.C. § 4905(b). As subsection 4905(b) employs the phrase “regularly bred in captivity,” that phrase is a relative one that requires consid- eration of the universe of how a species globally—not just in a par- ticular country—reproduces. As for the phrase “no wild-caught birds of the species are in trade,” that requires the Service to assess whether even a single wild-caught bird is in trade, anywhere in the world—not just in a given country. We know this not simply because of the text that appears in subsection 4905(b). But comparing that text to the other way in which the Secretary may add a species to the list—if “the species is bred in a qualifying facility”—shows that Congress knew how to limit the Secretary’s consideration to a smaller universe of a species USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 22 of 32

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when it wanted to do so. That’s so because to be a “qualifying fa- cility,” a facility must meet the criteria that subsection 4906(b)(6) sets out. Id. § 4906. And those criteria require assessing infor- mation about the particular country in which the facility is located. Id. § 4906(b)(4) (“The appropriate governmental authority of the country in which the facility is located has certified in writing, and the Secretary is satisfied, that the facility has the capability of breed- ing the species in captivity.”) (emphasis added); id. § 4906(b)(5) (“The country in which the facility is located is a Party to the Con- vention.”) (emphasis added). This discrete, country-level analysis differs from the global analysis that subsection 4905(a) contem- plates. We think it’s telling that Congress chose to (1) authorize im- ports based on narrower categories than the species as a whole and (2) require consideration of country-specific information in deter- mining whether to add a captive-bred species to the list—but Con- gress did so only for facilities, not with respect to countries.8 “Where Congress knows how to say something but chooses not to, its silence is controlling.” Animal Legal Def. Fund. v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015) (citation omitted).

8 Similarly, the criteria that the Secretary considers in determining whether to

add a non-captive-bred species to the importation list include assessing discrete countries of origin. See supra n.4 (citing 16 U.S.C. § 4905(c)). The same is not true for captive-bred species under the Act. Compare 16 U.S.C. § 4905(c) with id. § 4905(b). USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 23 of 32

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Sixth, Section 4907 also shows that Congress knew how to limit consideration to a particular country if it wanted to. Section 4907 deals with exotic birds that aren’t listed in any Appendix to the CITES Treaty. As relevant here, that section does two things. First, it authorizes the Secretary to establish a moratorium or quota on the importation of “any species of exotic birds from one or more countries of origin for the species” under certain conditions. 16 U.S.C. § 4907(a)(2)(A) (emphasis added). And second, it authorizes the Secretary to establish a moratorium or quota on the importa- tion of all species of exotic birds from a particular country” in some cases. Id. § 4907(a)(2)(B) (emphasis added). Once again, Congress’s use of country-specific phrases shows that Congress knew how to mandate country-specific deter- minations under the Act when it wanted to do so. But conspicu- ously absent from Section 4905 is any such reference when it comes to the requirements of adding captive-bred species for importation. And seventh, the Aviculturists filed their Petitions under subsection 4909(a)(2). That provision allows petitions to “add a species of exotic bird to, or remove such a species from, a list under section 4905 of this title . . . .” Id. § 4909(a)(2) (emphases added). It doesn’t authorize petitions for species from particular countries of origin. We think these features of the text and structure of the Act require the conclusion that Congress authorized the Secretary to determine whether to exempt birds from the importation USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 24 of 32

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moratorium on a species-by-species basis, not on a country-by- country basis. Not only that, but the Secretary reached this same conclu- sion way back in 1994, when the Secretary issued the final rule im- plementing the Act. At that time, the Secretary said that the agency had received some comments “that species should be listed on the approved list of captive-bred species, on a country-by-country basis, if they are reliably bred in captivity in a specific country only.” Im- portation of Exotic Wild Birds to the United States, 59 Fed. Reg. 62255, 62257 (December 2, 1994) (codified at 50 C.F.R. pt. 15) (em- phasis added). The Service disagreed. Id. It explained its under- standing that “[t]he statute does not provide for species listings in such a country-by-country manner. However, the qualifying overseas breed- ing facilities can be listed by the country from which the species is to be imported.” Id. (emphasis added). Under Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), we find the Secretary’s consistent interpretation persuasive for three reasons. First, the Secretary issued this explanation soon after Congress enacted the Act. And the Supreme Court has in- structed that “interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning.” Id. at 2262. Second, the Service has consistently applied the understand- ing that the final rule conveyed thirty years ago. See id. And third and most importantly, for the reasons we’ve already stated, we USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 25 of 32

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independently think the text and structure of the Act require the same conclusion that the Secretary reached. For all these reasons, we conclude that the Act does not au- thorize the Secretary to consider exempting from the importation ban a species on a country-by-country basis, as the Aviculturists’ Petitions asked the Service to do. 3. The Aviculturists’ counterarguments do not persuade us. The Aviculturists’ efforts to convince us otherwise fail to persuade us. The Aviculturists make four arguments. We address each in turn. First, the Aviculturists look to the text of Section 4905. They argue that the district court’s (and our) interpretation would render the manner-of-listing provision “surplusage.” We disagree. And the title of the heading helps explain why. See Dubin v. United States, 599 U.S. 110, 120–21 (2023) (“[The Supreme] Court has long con- sidered that the title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” (citations and internal quotation marks omitted)). The “manner of listing” provision of Section 4905(a)(2) dictates just that—how the Secretary must list an approved species, after the Secretary has determined the species is substantively approved un- der Section 4905(b) or Section 4905(c). Simply put, the direction in Section 4905(a)(2) that the Sec- retary “shall list a species” on the importation list with respect to discrete countries of origin means what it says. 16 U.S.C. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 26 of 32

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§ 4905(a)(2) (emphasis added). And the following subsection, enti- tled the “Bases for determinations,” means what it says: “[i]n mak- ing a determination,” the Secretary shall consider “the best scientific information” and “regulatory and enforcement mechanisms in all countries of origin for the species . . . .” Id. § 4905(a)(3) (emphases added). The substantive determinations the Service must consider in adding a species to the importation list differ from the technical requirements the Secretary must abide by in listing a given species. Construing these two requirements as Congress wrote them leaves no surplusage. Second, the Aviculturists contend that because the Act’s def- inition of “species” includes subspecies, distinct population seg- ments, and hybrids, the Act’s text “explicitly accepts[] the idea that species may be subdivided,” and one such form of “subdivision” is on a country-by-country basis. But the mere fact that the Act con- templates some forms of divisibility does not mean that it author- izes every form of divisibility. In fact, the contrary is true. That Congress chose to permit specific forms of divisibility suggests that it did not approve of forms of divisibility outside the ones it ex- pressly authorized. Cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (“We construe [the statute’s] silence as ex- actly that: silence.”) And by its terms, the Act does not contem- plate subdividing captive-bred species on a country-by-country basis in Section 4905. Third, the Aviculturists expand on this “subdivision” argu- ment by pointing to the Act’s use of the term “distinct population USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 27 of 32

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segment.” The Aviculturists argue that this term supports their in- terpretation because “a [distinct population segment] is an amor- phous category” that, in the Endangered Species Act context, in- volves considering a given species’s international boundaries. This, too, is unpersuasive. As we’ve explained, the Aviculturists did not petition to add the parrots as “distinct population segments,” so we have no reason to reach the question of what doing so might hypothetically re- quire under the Act. And even if distinct-population-segment de- terminations in the Endangered Species Act context involve some assessment of international boundaries, that does not mean that we define a distinct population segment—nor a species—by reference to international boundaries alone. In fact, the examples the Aviculturists cite underscore that international boundaries are only one among many factors the Ser- vice might account for in determining what counts as a “distinct population segment” in the Endangered Species Act context. See, e.g., 78 Fed. Reg. 38162-01, 38172 (June 25, 2013) (codified at 15 C.F.R. pt. 17) (finding that distinct population segments of the broad-snouted caiman existed in Argentina and elsewhere because of the “significant differences in the management of habitat, con- servation status, exploitation, and regulatory mechanisms between . . . Argentina and the species in the rest of its range,” and clarifying that the two population segments “are clearly defined by interna- tional governmental boundaries and these other differences” (empha- sis added)); 67 Fed. Reg. 35942-01, 35955 (May 22, 2002) (codified USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 28 of 32

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at 15 C.F.R. pt. 17) (finding that populations in specified countries “satisfy the discreteness criterion because they are sovereign na- tions with defined international boundaries that have implemented national laws to control exploitation and conserve habitats” (emphasis added)). Fourth, the Aviculturists argue that the meaning of “country of origin,” as it appears in regulations implementing the CITES Treaty, supports their interpretation. We disagree. The Avicultur- ists point to subsection 4905(a)(2)’s reference to “countries of origin.” Then they contend that two regulations require the con- clusion that we must construe that phrase to mean that the Service may determine whether to exempt a species on a country-by-coun- try basis. More specifically, the Aviculturists cite two regulations that define “country of origin” as, respectively, “the country where the wildlife or plant was taken from the wild or was born or prop- agated in a controlled environment,” 50 C.F.R. § 23.5, and “the country where the animal was taken from the wild, or the country of natal origin of the animal,” 50 C.F.R. § 10.12. We don’t see how that moves the needle here. As we’ve ex- plained, Section 4905(a)(3) tells the Service how to determine whether to include a “species” for exemption. For its part, Section 4905(a)(2) pertains to only listing after the Service makes “species” determinations. Not only that, but Section 4905(a)(2) provides that “the Secretary shall list a species with respect to” “the countries of origin from which the species may be imported.” 16 U.S.C. § 4905(a)(2) (emphasis added). So again, the substantive criteria for addition to USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 29 of 32

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the list require the Secretary to consider “species” as a whole. In other words, the key question is not what “countries of origin” means, but what “species” means. And at the risk of parroting our- selves once again, “species” means “species.” In short, the Aviculturists’ reading would undermine the plain language of the statute. The Act specifies countries of origin as a substantive consideration when Congress wished for the Sec- retary to consider countries of origin and does not do so when Con- gress thought countries of origin irrelevant. 9 The statute’s plain language directs the Secretary to make the relevant substantive de- terminations about whether to exempt a species from the morato- rium through a global assessment of captive-bred species’s charac- teristics. See 16 U.S.C. § 4905. In sum, we think the Act cannot sustain the Aviculturists’ proposed interpretation. B. The purpose of the Act supports the conclusion that the Act authorizes consideration of exemption on a species level ra- ther than a country level.

9 Compare 16 U.S.C. § 4905(b) (not listing countries of origin among the criteria

for consideration for whether to include captive-bred species on the exemp- tion list) with id. § 4905(c) (directing the Secretary to consider whether “[e]ach country of origin . . . is effectively implementing the Convention,” and whether a “scientifically-based management plan . . . has been developed which . . . ensures that the use of the species is biologically sustainable and maintained throughout the range of the species in the country to which the plan applies,” among other factors, for non-captive-bred species (emphases added)). USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 30 of 32

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Because “the statute’s meaning is plain and unambiguous,” we need not proceed. Miami Seaquarium, 879 F.3d at 1146 (quoting Fisher, 289 F.3d at 1338) (internal quotation marks omitted). But we think it’s worth noting that the interpretation we set forth is also in line with the stated purpose of the Act: “to promote the con- servation of exotic birds.” 16 U.S.C. § 4902. The statute seeks to achieve this, in part, by “ensuring that all trade in species of exotic birds involving the United States is . . . not detrimental to the spe- cies,” id. § 4902(2) (emphasis added), and by “prohibiting imports of exotic birds when necessary to ensure that . . . wild exotic bird populations are not harmed by removal of exotic birds from the wild for the trade,” id. § 4902(3). Congress was particularly concerned about this goal when it comes to parrots. As a House Report explained, “the health of [par- rot] populations is most threatened by the [global pet] trade,” re- quiring protections like the moratorium on importation. See H.R. Rep. No. 102-749, pt. 1, at 9 (1992). And in passing the Act, Con- gress found that the United States, “as the world’s largest importer of exotic birds” like these parrots, “should play a substantial role” in protecting them in the wild. 16 U.S.C. § 4901(2). Congress sought to effect this goal, in part, by limiting the birds that the Service may approve for domestic import. See id. § 4901(3). But the Aviculturists’ reading of the statute would in- stead expand the importation list and risk domestically importing USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 31 of 32

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wild-caught birds misrepresented as captively bred. 10 This would risk the exploitation of wild bird populations, rather than their con- servation; and so it contradicts the purpose of the Wild Exotic Bird Conservation Act. In this way, not only the text mandates the interpretation that Section 4905 contemplates analyzing captive-bred bird species for approval on a global basis. The Act’s stated goals of promoting the conservation of exotic birds in the wild also well align with the text’s plain meaning. *** In sum, the Act does not permit the Secretary to consider exempting a species from the moratorium on a country-by-country basis. So the Service did not “unlawfully withh[o]ld” or “unreason- ably delay” action when it denied the Aviculturists’ Petitions, and the Service’s denials of the Petitions were not “arbitrary, capri- cious, and [an] abuse of discretion, [nor] contrary to law.” So the Service’s denials of the Petitions did not violate the APA.

10 The 1994 final rule implementing the Act observes that when Congress

passed the Act, it “recognized that there are serious concerns that wild-caught birds are often intentionally misrepresented as captive-bred. For this reason, the law specifies criteria for the import of captive-bred species; it does not simply exempt them.” 59 Fed. Reg. at 62257. It also notes that “the Service is aware of illegal trade whereby wild-caught birds are misrepresented as cap- tive-bred and laundered as captive-bred birds.” Id. Reading limitations out of the statute, as the Aviculturists ask us to do, would heighten this risk and con- tradict the Act’s purpose as Sections 4901 and 4902 state it. USCA11 Case: 23-11984 Document: 58-1 Date Filed: 03/14/2025 Page: 32 of 32

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IV. CONCLUSION For these reasons, we affirm the judgment of the district court dismissing the Aviculturists’ case. AFFIRMED.