DC Circuit Backs Rule Change on Big-Game Trophy Imports

(Robin Silver / Center for Biological Diversity via Courthouse News)

WASHINGTON (CN) — Conservation groups failed Tuesday to persuade the D.C. Circuit that the Trump administration improperly carved out a loophole for big-game hunters to import elephant tusks and lion hides from Africa. 

The challenge stems from a March 2018 memorandum in which the U.S. Fish and Wildlife Service changed how it would handle applications from hunters to import the trophies of elephants they had hunted abroad.

Whereas the service previously conducted country-by-country assessments to determine whether hunting was needed to enhance the survival of a species — studies that in 2014 and 2015 led it to ban elephant trophies from Zimbabwe — the new standard switched to considering import permits individually.

Friends of Animals, the Center for Biological Diversity and several other conservation groups in turn filed suit, arguing that the new method would let the Trump administration subvert the need to seek public comment as they would on a country-wide finding when greenlighting the importation of threatened species.

After a federal judge tossed the challenges, the D.C. Circuit held oral arguments in April and affirmed dismissal Tuesday.

“The trouble with this theory is that it assumes the service will make substantively different decisions depending on which procedure is used,” U.S. Circuit Judge Laurence Silberman wrote for the three-judge panel.

Disappointed in the outcome, Stephen Hernick, a lawyer for Friends of Animals, said the ruling allows the Trump administration to avoid accountability and issue permits to import threatened species without involving or even alerting the public. 

“This is particularly inappropriate because scientists believe that these species will not even survive in the wild fifty years from now,” Hernick said in an email. “We can only hope that a new administration reverses this ill-conceived policy.”

There are no plans to petition the D.C. Circuit for a rehearing of the case, Hernick added.

In 2017, it was pro-hunting groups that successfully challenged the Obama-era ban on some trophies. A month after the D.C. Circuit ruled in Safari Club International v. Zinke that the Fish and Wildlife Service ignored public-comment requirements, the Trump administration rolled back restrictions on elephant trophies from Zimbabwe and Zambia. 

This time around, however, the Center for Biological Diversity failed to establish that it is harmed by way of its advocacy and lobbying efforts. 

“As the center and its members put it, the move to case-by-case determinations will require them to expend more time and resources tracking permit decisions in hopes of commenting on and influencing them,” wrote Silberman, who is a Reagan appointee. 

Friend of Animals established standing, on the other hand, by arguing its interest in educating the public would be impaired by the switch to case-by-case determinations. Instead, agency discretion through the Administrative Procedure Act secured a win for the executive branch. 

“The act gives the secretary broad authority to issue such regulations,” Silberman wrote, “‘as he deems necessary and advisable, and nothing in the provision at issue prevents him from creating rules that in turn make use of subsidiary adjudications.”

Tanya Sanerib, international legal director and senior attorney for the Center for Biological Diversity, said the ruling marks a sad day for lions and elephants. 

“While the decision doesn’t address the validity of authorizing imports of threatened animals killed for sport, it does leave the Trump administration to make these crucial decisions behind closed doors and without public involvement,” Sanerib said in an email.

Fish and Wildlife Service representatives did not respond to a request for comment Tuesday afternoon.

U.S. Circuit Judges Thomas Griffith, a George W. Bush appointee, and Cornelia Pillard, an Obama appointee, rounded out Tuesday’s panel.

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