The parties were in court appealing what should have been a straightforward import permit denial to Americans who had hunted and killed endangered African elephants in Zambia, and wanted to bring their trophies home.
After a federal judge awarded the U.S. Fish and Wildlife Service summary last year, however, the agency countered the hunters’ appeal by pointing out that the hunters had not exhausted their administrative options.
A three-judge appellate panel balked at the new information.
“We can only guess why neither the government nor appellants advised the District Court that appellants had an administrative appeal pending with the agency during the time when this case was under consideration by the District Court,” Senior Judge Harry Edwards wrote for a three-member panel. “As soon as appellants sought review by the FWS director, it was clear that there was no final action for the District Court to review. Ongoing agency review renders an agency order non-final and judicial review premature. The parties obviously knew this – indeed, the government now advances the strange argument that the case should be dismissed as ‘moot’ because ‘[t]he non-final decisions challenged in this case are no longer operative, and this court cannot grant any effective relief.’ The parties’ failure to advise the District Court of appellants’ pending administrative appeal was inexcusable, and it has caused an extraordinary ‘waste of judicial resources.'”
The plaintiffs in the case – Ralph Marcum, Walt Maximuck, Earl Slusser and Dean Mori – each killed at least one elephant in Zambia. They sued U.S. Secretary of Interior Ken Salazar and the Fish and Wildlife Service in 2009, claiming their denied permit requests constituted a violation of the Administrative Procedure Act.
Chief U.S. District Judge Royce Lamberth backed the government.
“Plaintiffs paid a princely sum for the opportunity to shoot African elephants in Zambia and then they wanted to import the animals’ corpses back to the United States,” he wrote. “The trouble is that plaintiffs’ attempts at post-mortem importation run up against some complex law.”
Those laws are the U.S. Endangered Species Act and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a multilateral treaty that protects wildlife vulnerable to trade.
The African elephant is listed in the first and most restrictive appendix of CITES, which entrusts the U.S. government to decide whether proposed importation of a species would hurt that species survival, according to the 2011 ruling.
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