https://www.law360.com/article...t-hunting-trophy-ban


Enviros Urge DC Circ. To Keep Elephant Hunting Trophy Ban
By Natalie Olivo

Law360, New York (June 2, 2017, 1:33 PM EDT) -- Animal rights groups have asked the D.C. Circuit not to revive a challenge from the Safari Club and the National Rifle Association against the U.S. Fish and Wildlife Service’s decision to ban imports of sport-hunted African elephant trophies from Zimbabwe, saying the agency has broad authority to protect threatened species.
In asking the circuit court to affirm a district court ruling and toss an appeal lodged by the NRA and the Safari Club, a handful of activist groups on Wednesday argued that not only does the FWS have broad authority to protect the goals of the Endangered Species Act, but it also has authorization under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES.

According to their amici curiae brief, the groups — the Humane Society of the United States, Humane Society International, the Center for Biological Diversity and the Fund for Animals — contended that the Safari Club offered “specious readings” of the ESA in an effort to have the FWS defer to Zimbabwe’s claims that it is properly managing its elephants.

“However, the enhancement standard — i.e., that an otherwise prohibited activity should only be permitted if it enhances the survival of the species — is central to the conservation purpose of the ESA, and CITES clearly authorizes the service to create more stringent domestic measures,” the groups said.

According to the groups, the FWS has not found that Zimbabwe has “adjusted its management strategy” for the species, despite their decreasing population.

On appeal is a late-September ruling from U.S. District Judge Royce C. Lamberth, who granted summary judgment to the government on most of its assertions that it had followed the Administrative Procedure Act when determining that sport hunting in Zimbabwe would not enhance the survival of the elephants, a requisite condition for allowing such imports under a special rule that the FWS enacted in 1978 under the ESA.

Anna Frostic, senior wildlife attorney for The Humane Society of the United States, said in a statement shared with Law360 on Friday that “it was eminently reasonable for our federal wildlife agency to determine that Zimbabwe has not demonstrated its ability to sustainably manage elephants and to prohibit the import of ivory tusks from elephants hunted there.”

A representative for the U.S. Department of Justice declined to comment and counsel for the NRA and Safari Club did not respond to a press inquiry on Friday.

The Safari Club and NRA had argued to the district court 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.

But Judge Lamberth ruled on Sept. 30 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.

The FWS had 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 the suspension would be effective dating back to elephants that were killed on or after April 4, 2014.

Judge Lamberth in September did 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.

After receiving more information from the Zimbabwe government, the FWS enacted its final ban in July 2014. According to Judge Lamberth's opinion, the service generally found that Zimbabwe’s information about the country's hunting program was lacking, citing a dearth of specific information about how quotas were established, outdated information about the number of animals alive in the country and not enough information to conclude whether sport hunting was enhancing survival of the species.

In March 2015, the service again found that trophy hunting in Zimbabwe could not be shown to enhance the survival of the species.

Judge Lamberth had dismissed the groups’ claims relating to Tanzanian elephants in December 2014, finding they hadn’t exhausted their administrative remedies because they hadn’t applied for and hadn’t been denied an import permit.

But in reviving their case this past December, the D.C. Circuit said that doesn’t deprive the groups of standing, agreeing that seeking a permit would have been futile given that the FWS had determined and publicly announced that no permits would be issued for Tanzanian elephants killed in 2014.

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 Stan Parker, Juan Carlos Rodriguez and Caroline Simson. Editing by Jack Karp.