By EVA FEDDERLY
WASHINGTON (CN) – Safari Club International and the National Rifle Association can move forward with their lawsuit seeking to overturn a federal ban on the importation of “trophies” taken in Tanzanian elephant hunts, an appeals court ruled.
The decision overturned an earlier ruling by the U.S. District Court for the District of Columbia.
Although the African elephant is protected under both domestic and international law, the U.S. Fish and Wildlife Service had allowed American hunters who shoot Tanzanian elephants to repatriate their trophies on the grounds, in the agency’s view, that doing so “would not be detrimental to the survival of the species.”
In 2014, however, the agency changed course and indefinitely suspended issuance of import permits due in part to a “significant decline in Tanzania’s elephant population.”
Two weeks after the ban went into effect in April 2014, the Safari Club and NRA sued the agency arguing it had been implemented “without warning or public input,” that it was based on limited data and anecdotal evidence, and that the Fish and Wildlife Service failed to follow its own procedures in changing a longstanding position.
The district court dismissed the lawsuit, saying the organizations’ case was “substantively and procedurally flawed” because neither had applied for a permit to import elephant ivory or meat into the country in 2014.
The organization’s appealed, arguing that it was irrelevant if they had applied for a permit or not — that in fact, because the ban was already in place, applying for a permit would have been an exercise in futility.
On Dec. 6, a three-judge panel of the D.C. Circuit agreed8.
“According to the Service … 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,” wrote U.S. Circuit Judge David Tatel. “We disagree with the Service on both counts.”
The agency also argued that any harm to the plaintiff organization’s members was purely “speculative” because hunters going after big game in Africa “might fail to ‘kill any elephants to import.'”
But Tatel failed to find this line of argument any less frustrating that the others.
“Safari Club is not arguing that its members are injured only when stopped at the border, trophy in tow. Instead, it claims an antecedent injury: the inability to obtain a permit in the first place,” he wrote.
The federal regulators then argued that its action caused no lasting harm because its findings were “tentative” and “subject to amendment” based on new information.
But the panel again disagreed, Tatel explaining that as far as it was concerned, the agency’s action was a “final decision” because it had said not permit would be issued for the 2014 calendar year.
In addition, he said, the record showed the import ban was premised on “a considered determination, based on a thorough examination of recent biological studies, elephant population data, Treaty reports, and official documents from the Tanzanian government. The “possibility” that the Service “may revise [its decision] … based on ‘new information’ … is a common characteristic of agency action, and does not make an otherwise definitive decision nonfinal.”
“The definitiveness of the Service’s position also leads inexorably to the conclusion that Safari Club’s ‘rights … have been determined,'” Tatel added.
The continued: “The Service’s final argument — that Safari Club failed to exhaust its administrative remedies — is absurd. The remedies of ‘reconsideration’ and ‘appeal’ that the Service points to are available only to those who apply for a permit and have it denied.
“In this case, the Service had nothing to ‘reconsider,’ as Safari Club never sought, nor was obliged to seek, a permit for 2014,” Tatel said.
A spokesperson for the Fish and Wildlife Service said, “We are reviewing the court’s decision. The prohibition began in 2014 and remains in place today.”