The U.S. Court of Appeals for the D.C. Circuit had in its sights today a case about the straight-horned markhor, "an impressive subspecies of wild goat that inhabits an arid, mountainous region of Pakistan."
But just like a game animal not yet mature enough for a good trophy, the judges on Tuesday decided not to pull the trigger and declined to rule on the merits of the dispute.
That didn't stop Chief Judge Merrick Garland from having a little fun with the topic in the case, Conservation Force, Inc. v. Jewell.
Especially noteworthy to Garland was the fact that safari clubs, hunters and international conservationists described the U.S. Fish and Wildlife Service's failure to take certain actions regarding the markhor as "arbitrary and capricious." (The phrase, of course, isn't unusual at all in litigation over agency actions.)
The origins of the word capricious, Garland points out in a footnote on the first page of the D.C. Circuit opinion, citing the Oxford English Dictionary, trace to the musical term capriccioso, which denotes "a free fantastic style." That word, in turn, is derived from the Italian "capro," meaning "goat, as if 'the skip or frisk of a goat.'"
"As tempting as it may be to consider an arbitrary and capricious claim in a case involving a goat, an array of justiciability problems—mootness, ripeness, and standing—require us to decline the opportunity," Garland wrote.
Now, back to the dispute. The U.S. Fish and Wildlife Service listed the straight-horned markhor as endangered in 1976. Since 1999, safari clubs have pressed the Fish and Wildlife Service to downlist the goat from endangered to "threatened."
The D.C. Circuit today remanded the case to the district court with instructions to dismiss the complaint for lack of jurisdiction. Garland wrote that the court does not insist on record evidence and affidavits to establish standing “because we are misguided nitpickers, but rather because we must respect the limits of our jurisdiction.”
And then Garland found a goat cited in a relevant D.C. Circuit case from 1970, Scanwell Labs, Inc. v Shaffer. "As we said long ago, 'standing must be carefully controlled' to ensure 'a practical separation of the meritorious sheep from the capricious goats.'"