Judges al­low hun­ters to sue over ele­phant tro­phy ban

The Washington Times Daily - - NATION - BY AN­DREA NOBLE

A fed­eral court has re­vived a law­suit brought by big game hun­ters who chal­lenged the U.S. Fish and Wildlife Ser­vice’s ban on the im­port of ele­phant hunt­ing tro­phies from Tan­za­nia.

A legal chal­lenge of the ban brought by the Sa­fari Club and the Na­tional Ri­fle As­so­ci­a­tion was dis­missed in 2014 on grounds that no mem­ber of ei­ther group ac­tu­ally had ap­plied for and been de­nied a per­mit to im­port ele­phant tro­phies and there­fore lacked stand­ing to bring a case.

But the hun­ters’ ad­vo­cacy groups ap­pealed, ar­gu­ing that the Fish and Wildlife Ser­vice’s ban was fi­nal and that their mem­bers had no obli­ga­tion to ex­haust ad­min­is­tra­tive reme­dies.

In a 15-page opin­ion is­sued Tues­day, a three-judge panel from the U.S. Dis­trict Court for the D.C. Cir­cuit agreed and re­manded the case to the lower court.

“For its part, Sa­fari Club in­sists that seek­ing a per­mit would have been fu­tile given that the Ser­vice had de­ter­mined and pub­licly an­nounced that no per­mits would is­sue for Tan­za­nian ele­phants killed in 2014,” Judge David S. Ta­tel wrote in the opin­ion. “Ac­cord­ing to the Ser­vice, how­ever, fu­til­ity can never ex­cuse a non­ap­pli­cant’s fail­ure to seek a per­mit, adding that even were there a fu­til­ity ex­cep­tion, Sa­fari Club has failed to show fu­til­ity here. We dis­agree with the Ser­vice on both counts.”

The Fish and Wildlife Ser­vice pre­vi­ously has al­lowed tro­phy im­ports af­ter mak­ing de­ter­mi­na­tions that repa­tri­a­tion of such items “would not be detri­men­tal to the sur­vival of the species.” The agency says that legal, well-reg­u­lated sport hunt­ing can ben­e­fit con­ser­va­tion ef­forts “by pro­vid­ing in­cen­tives to lo­cal com­mu­ni­ties to con­serve the species and by putting much-needed rev­enue back into con­ser­va­tion.”

But in April 2014, the agency re­versed its stance and an­nounced a ban on the im­port of sporthunted African ele­phant tro­phies in Zim­babwe and Tan­za­nia.

“Ques­tion­able man­age­ment prac­tices, a lack of ef­fec­tive law en­force­ment and weak gov­er­nance have re­sulted in un­con­trolled poach­ing and cat­a­strophic pop­u­la­tion de­clines of African ele­phants in Tan­za­nia,” states a press re­lease an­nounc­ing the ban. “In Zim­babwe, avail­able data, though limited, in­di­cate a sig­nif­i­cant de­cline in the ele­phant pop­u­la­tion.”

The pro­hi­bi­tion re­mains in place in the two coun­tries, though ele­phant tro­phy im­ports are still al­lowed in others.

Sa­fari Club In­ter­na­tional Pres­i­dent Larry Hig­gins said Tues­day’s rul­ing will al­low the group to re­turn to court “to fully ar­gue our claims in sup­port of the sus­tain­able use of ele­phants as ben­e­fi­cial to ele­phant con­ser­va­tion in Tan­za­nia.”

“SCI will vig­or­ously pur­sue our ar­gu­ments that the U.S. Fish and Wildlife Ser­vice vi­o­lated the law when it abruptly ter­mi­nated its long-stand­ing prac­tice of al­low­ing im­ports of ele­phants har­vested in well-reg­u­lated hunts in Tan­za­nia,” Mr. Hig­gins said in a state­ment. “The court’s rul­ing also will help us chal­lenge ar­bi­trary de­ci­sions in­volv­ing the im­por­ta­tion of other wildlife species.”

A Fish and Wildlife Ser­vice spokesman said the agency is re­view­ing the court’s de­ci­sion.

Tens of thou­sands of hunt­ing tro­phies are im­ported into the United States each year.

A study re­leased by the Hu­mane So­ci­ety In­ter­na­tional in Fe­bru­ary found that be­tween 2005 and 2014, more than 1.26 mil­lion wildlife tro­phies were im­ported to the United States, in­clud­ing 4,600 African ele­phant tro­phies. An av­er­age of 126,000 tro­phies were im­ported ev­ery year.

The Sa­fari Club and the NRA orig­i­nally chal­lenged the wildlife ser­vice’s 2014 im­port ban on ele­phant tro­phies from Tan­za­nia and Zim­babwe. Dis­trict Judge Royce Lam­berth dis­missed the Tan­za­nia claims, so the groups moved for­ward with claims re­lated to the Zim­babwe ban while ap­peal­ing the Tan­za­nia ban. In that case, they ar­gued that the agency im­prop­erly an­a­lyzed the data used in mak­ing its de­ter­mi­na­tion.

Judge Lam­berth in Oc­to­ber up­held the Zim­babwe ban, find­ing the agency had used the proper cri­te­ria to make its de­ter­mi­na­tion that sport hunt­ing in Zim­babwe would not en­hance the sur­vival of ele­phants.

“Plain­tiffs would have the agency fo­cus only on whether sport-hunt­ing gen­er­ates rev­enue for species con­ser­va­tion and whether the pres­ence of hun­ters de­ters poach­ing,” Judge Lam­berth wrote, re­fer­ring the to hunt­ing groups. “Gen­er­at­ing hunt­ing fees and de­ter­ring poach­ing in spe­cific in­stances do not show en­hance­ment, with­out a show­ing that a govern­ment is prop­erly us­ing funds and pro­tect­ing the species more broadly.”

The rul­ing wasn’t a to­tal loss for the Sa­fari Club: Judge Lam­berth found the wildlife ser­vice did not prop­erly in­form hun­ters of its de­ci­sion.

The wildlife ser­vice pub­lished an April 4, 2014, press re­lease an­nounc­ing the ban, but it did not pub­lish a no­tice in the Fed­eral Reg­is­ter un­til May 12, 2014. As a re­sult, the judge retroac­tively pushed back the date the ban be­came ef­fec­tive to May 12, 2014, en­sur­ing hun­ters who killed ele­phants be­fore that date were able to im­port tro­phies. Hun­ters who killed ele­phants since then re­main barred from ob­tain­ing per­mits to im­port tro­phies.

The Sa­fari Club has ap­pealed the rul­ing.

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