New Import Scheme for Big-Game Trophies Gets DC Circuit Dissection

Attorneys for the government and the conservationists faced a tough go of it at arguments held in a teleconference Wednesday morning.

An elephant walks next to a carcass of another elephant in October 2019, beside an almost dry pool that used to be a perennial water supply in Mana Pools National Park, Zimbabwe.(AP Photo/Tsvangirayi Mukwazhi)

WASHINGTON (CN) — Conservationists who say the Trump administration opened the floodgates for the hunting of threatened animals in Zimbabwe faced a tough teleconference Wednesday at the D.C. Circuit.

The case stems from a March 2018 memorandum from the U.S. Fish and Wildlife Service that changed the permit process for hunters to import elephant tusks and lion hides out of the landlocked nation in southern Africa.

Previously, Fish and Wildlife considered trophy imports on a country-by-country basis — a process by which exporting nations had to demonstrate that hunting was needed to enhanced the survival of a species. With the 2018 change, it said it would consider applications individually, making findings on a case-by-case basis with consideration of such factors as whether the animal is an endangered species or whether CITES, short for the Convention on International Trade, has made a finding that trophies pose no detriment.

Oral arguments were held virtually in the case this morning, adhering to new court protocols for the coronavirus pandemic.

In laying out the challenge by conservationists, Tanya Sanerib with the Center for Biological Diversity quickly faced an interruption from U.S. Circuit Judge Laurence Silberman.

“Even though it’s a 2-page document,” Sanerib said, “the agency completely re-envisions how it is going to implement, and make critical—”

“Are you taking the position that it was illegal?” the Reagan-appointed Silberman asked sharply.

Before Sanerib stated directly that it is the plaintiffs’ position the Trump administration broke the law, the judge pushed her repeatedly to clarify her side’s briefings.

“I got an allusion of that but I didn’t get a real argument on that,” Silberman said at one point.

Sanerib fared little better with the rest of the three-judge panel, which collectively challenged her interpretation of the 2017 ruling Safari Club International v. Zinke.

In that case, the appeals court found that the Fish and Wildlife Service ignored public-comment requirements before implementing an Obama-era ban on some trophies.

Sanerib struggled Wednesday to argue that the upshot of this ruling is that the agency must go down the rulemaking path for each individual permit it issues. 

“I think they’re very different cases,” U.S. Circuit Judge Thomas Griffith said, having focused earlier on agency discretion.

“That’s their call,” the G.W. Bush appointee said. “That’s their discretion.”

The Trump administration lifted the countrywide ban on elephant trophies from Zimbabwe in 2017. Stephen Hernick, representing Friends of Animals, said hunters were unlikely before the rollback to dish out $100,000 to hunt down an elephant or lion if they were not certain they could return to the U.S. with the animal’s remains.

Lifting the ban, Hernick said, “is an open invitation to trophy hunters that they can go and not worry that there will be an outright ban on importing these animals into the U.S.” 

While there was heavy backlash toward the conservationists’ claims, the Justice Department did not present its arguments unscathed by the panel’s skepticism. 

Griffith questioned Justice Department attorney Sommer Engels’ assertion that the government was well equipped to make individual determinations for each permit application. 

“Is that really how it works on the ground? Because it sure seems like there is a lot of cutting and pasting going on here,” the judge said. 

Engels claimed the permitting process remains “a lot more nimble” by making individual determinations.

But U.S. Circuit Judge Cornelia Pillard echoed Griffith’s concern, saying she did not understand how the government can effectively look into corruption on the ground and seek the necessary information from stakeholders for each hunting permit.

“It’s just hard to envision how that really could be done on a permit-by-permit basis,” the Obama appointee said. 

Responding to a question from Judge Silberman on how parties that oppose trophy hunting can now challenge a permit, the Justice Department attorney said email addresses and phone numbers are listed on the websites for the relevant agency officials.

Sommers claimed that the environmental organizations will be no less able to provide information to the Fish and Wildlife Service than before the March memo was issued. 

“The service wants to get it right,” Sommers said. “So we’re eager to receive information from interested parties — both interested in promoting hunting and parties who are interested in opposing it.”

As for retrospective permitting, Judge Pillard found further fault with how endangerment findings can be relevant after an animal has already been killed in Zimbabwe. 

“Those animals are dead one way or the another,” Pillard said. “So with respect to whether that death can be contributing to endangerment or not is a little metaphysical.”

The Justice Department’s Sommers argued the Fish and Wildlife Service does its best to manage activities abroad but does not regulate hunting, a response to Pillard’s speculation that Judge Silberman backed.

“Yes this is an important point,” the Reagan appointee said. “Our government doesn’t regulate hunting in Zimbabwe. We only regulate the return of the trophy.”

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