https://www.law360.com/sports/...ugh-dc-circuit-bench



Elephant Trophy Ban Faces Tough DC Circuit Bench


By Jimmy Hoover

Law360, Washington (October 13, 2017, 2:27 PM EDT) -- A skeptical D.C. Circuit panel on Friday suggested that the U.S. Fish and Wildlife Service bypassed its required rule-making process when it banned imports of sport-hunted African elephant trophies from Zimbabwe.
The FWS, an agency within the U.S. Department of the Interior, faced pushback from the three-judge panel while fending off a challenge from the Safari Club and the National Rifle Association to its decision to ban the imports under the Endangered Species Act.

The service adopted the policy after finding that Zimbabwe didn’t have enough information about the country’s elephant hunting program to conclude that sport hunting was enhancing survival of the species — a requisite condition for allowing imports of African elephant hunting trophies under a special rule that the FWS enacted in 1978 under the ESA.

During oral arguments on Friday, the judges asked why the agency didn’t make that determination through its normal rule-making process, subject to the public comment requirements of the Administrative Procedure Act.

“That’s the problem with your case,” U.S. Circuit Judge Harry Edwards told an attorney for the government. “Where’s the rule-making required by the APA?”

Department of Justice attorney Avi Kupfer responded, saying that the agency's enhancement finding that there wasn’t enough information to conclude that sport hunting enhanced the elephants’ survival was an “adjudication” that did not have to go through the notice and comment procedures of traditional rule-makings.

There is “no regulation or statute that requires the agency to proceed with a rule-making,” Kupfer said.

The judges pushed back against that argument.

“Who is the party of the adjudication?” asked U.S. Circuit Judge David Tatel. “How can you have an adjudication without another party?”

Judge Edwards offered his answer: “There’s no adjudication here, counselor.”

Perhaps sensing the tenor of the judge’s questions, Kupfer fell back on his argument that even if the agency should have made its enhancement finding through the normal rule-making process, it was harmless error because the Safari Club still submitted comments and hasn’t shown how its arguments would have been different under a rule-making proceeding.

That argument also appeared to fall flat.

Judge Tatel raised a 2002 case called Sugar Cane Growers Cooperative of Florida v. Veneman, in which the panel — which coincidentally included two of the members of Friday’s panel: Tatel himself and now-Chief Judge Merrick Garland — held that the failure to do notice and comment was not harmless, even though the government received some input from the parties.

“In the Sugar [Cane] Growers case, we rejected that argument,” he told Kupfer.

“I believe the facts in that case were somewhat different,” Kupfer responded.

“Of course,” Judge Tatel replied. “The facts in all cases are different.”

The FWS first announced that it would suspend trophy imports from Zimbabwe in April 2014. The service expressed concern about the management, funding and resources of wildlife authorities in Zimbabwe, noting a lack of data on the population numbers in the country, according to court documents.

The service first published notice of that interim suspension in the Federal Register on May 12, 2014, but said that the suspension would be effective dating back to elephants that were killed on or after April 4, 2014.

The Safari Club and NRA have argued that if the FWS wanted to ban the imports, it needed to make an “affirmative finding” that sport hunting in the country would not aid the animals' survival, not simply that the regulator “lacked” information to conclude so.

“What they’ve never been able to say, what the presumption requires them to find, is that the service finds that hunting does not enhance survival,” Douglas S. Burdin, an in-house attorney at the Safari Club, said on behalf of the challengers.

Burdin said that the service based its decision to ban the imports in part on inaccurate media reports that poachers poisoned 300 elephants in Hwange National Park in 2013. Although unfortunate, the actual figure was closer to 100 elephants, Burgin said.

Burdin said that the service also underestimated the number of elephants in Zimbabwe, saying that the actual number of animals was closer to 85,000 rather than the government’s estimate of around 45,000.

On appeal is a September 2016 ruling from U.S. District Judge Royce C. Lamberth, who granted summary judgment to the government on most of its APA defenses.

Judge Lamberth, shelving the challengers’ arguments that the government needed to make an “affirmative” enhancement finding, ruled that the regulations were not that clear and that the FWS was entitled to deference under the U.S. Supreme Court’s 1984 ruling in Chevron USA Inc. v. Natural Resources Defense Council Inc., which gives deference to agency interpretations of unclear or ambiguous laws.

Judge Lamberth did, however, side with the Safari Club and the NRA in finding that the FWS should not have been able to backdate the suspension, granting the groups’ motion for summary judgment on that issue. He ordered that the effective date of the interim suspension should be May 12, 2014, the date it appeared in the Federal Register.

The Safari Club is represented in-house by Anna M. Seidman, Douglas S. Burdin and Jeremy E. Clare. The NRA is represented in-house by Christopher A. Conte and Michael Thomas Jean.

The U.S. Department of the Interior is represented by Avi Kupfer, Jeffrey Heath Wood, Matt Littleton and Andrew C. Mergen of the U.S. Department of Justice.

The activist groups are represented by Anna Frostic of The Humane Society of the United States, and Tanya Sanerib and Sarah Uhlemann of the Center for Biological Diversity.

The consolidated cases are Safari Club International et al. v. Ryan Zinke et al., case numbers 16-5358 and 16-5362, in the U.S. Court of Appeals for the District of Columbia Circuit.

--Additional reporting by Natalie Olivo. Editing by Stephen Berg.

Booyah!! Give me my tusks.

BOOM!

Thank you again President Trump!

Do you think Hillary would have appointed Zinke?

And the NRA? Hillary’s biggest enemy.......
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