Conservation Force Bulletin: New Motions in Suits Challenging the Positive 2017 Elephant and Lion Enhancement Findings

More animal extremists have joined the suits to set aside the Zimbabwe lion and elephant enhancement findings, and all have filed motions for summary judgments citing the SCI/NRA case as the legal precedent for their motions that a full APA “rulemaking” is necessary for an enhancement finding (positive or negative).

As we wrote a few months ago, in November 2017, two sets of animal extremist plaintiffs filed separate lawsuits to invalidate the FWS enhancement findings authorizing lion and elephant trophy imports from Zimbabwe that were made in October and November 2017, respectively.

As we wrote last month, on December 22, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in SCI and NRA’s challenge to the 2014 and 2015 FWS suspension of elephant trophy imports from Zimbabwe. The Circuit Court held that the 2014 and 2015 enhancement findings were invalid because they did not follow the rulemaking procedures of the Administrative Procedure Act (APA). Under the APA, an agency must prepare and publish notice of a proposed rulemaking, give the public an opportunity to comment, and address the comments in a final, published rule. (The process normally takes nine months to over a year, depending on the agency’s workload and the volume of comments received.) Both SCI/NRA and the intervening animal extremists argued in favor of the full rule making requirement and both claimed victory. The appellate court sent the case back to the district court, which will direct the FWS to initiate a rulemaking procedure if the FWS wishes to reimpose the trophy import suspension for 2014 and 2015. In the new cases, the extremists want that decision to be applied to other enhancement findings.

The animal extremist plaintiffs are now seeking to incorporate the holding from the D.C. Circuit into their lawsuits, to further challenge the positive 2017 findings under the APA.

In the first suit, the Center for Biological Diversity (CBD) and Natural Resources Defense Council (NRDC) sued the FWS and the FWS Director and the Department of Interior and Secretary of Interior to challenge the positive findings for both elephant and lion trophy imports. The complaint alleges mismanagement and corruption in Zimbabwe and alleges that the enhancement findings were arbitrary and capricious, in violation of the APA. It initially requested that the enhancement findings be declared void on these grounds, and that the court declare it would be illegal to issue any permits pursuant to the positive findings. These claims were of little concern, but new claims have been added.

On January 19, 2018, CBD and NRDC amended their complaint. They added four new plaintiffs—Humane Society International, The Humane Society of the United States, Born Free USA, and an individual, Ian Michler of the anti-canned hunting documentary “Blood Lions.” The amended complaint also added two new claims. These claims allege that the FWS failed to follow proper rulemaking procedures under the APA and should have published the positive 2017 elephant and lion enhancement findings for public comment before finalizing them. The complaint cites the D.C. Circuit’s decision in the SCI/NRA case.

On February 6, the CBD-NRDC plaintiffs moved for partial summary judgment (i.e., a final ruling) on the two new claims. They argue that the 2017 elephant and lion enhancement findings were “rulemakings” because they are generally applicable and forward-looking. They argue the findings are generally applicable because they apply to every hunter who files an import permit application for an elephant or lion trophy with the FWS. For each applicant, the enhancement findings satisfy the enhancement requirement. Therefore, the findings are not case-by-case adjudications, but are general rule pronouncements.

The plaintiffs argue that the findings have future effect (even though they are in part “backdated” to apply from January 2016 through December 2018) because the findings constrain the FWS’ decision on the enhancement factor of a permit application. The findings are “pronouncements of how FWS will address all the trophy import permit applications it receives,” because it will check off “enhancement” as being satisfied. The plaintiffs argue that they are injured from the FWS’ failure to propose and publish the lion and elephant enhancement findings and accept public comments because there was a chance that the FWS would have changed its position after receiving public comments. The plaintiffs point to the 2014-2015 suspension of elephant trophy imports from Zimbabwe and statements made in the 2015 final rule listing the lion across Africa as evidence that they could have changed the FWS’ mind.

Similarly, in November 2017, Friends of Animals (FoA) and the Zimbabwe Conservation Task Force (ZCTF) sued Secretary Zinke and the FWS to enjoin application of the positive enhancement finding authorizing the import of elephant hunting trophies from Zimbabwe. The FoA-ZCTF complaint focuses on elephants and does not challenge lion trophy imports. The plaintiffs initially alleged violations of the APA, but in mid-December they added a specific claim for failure to provide rule making notice and an opportunity to comment under the APA. On January 12, 2018, FoA and ZCTF filed a motion for partial summary judgment on the FWS’ alleged failure to provide notice and the opportunity to comment. Like the CBD-NRDC plaintiffs, FoA and ZCTF argue that the positive 2017 enhancement finding authorizing elephant trophy imports should have been published in the Federal Register, and that the public should have been given an opportunity to comment before the positive finding was finalized. These plaintiffs also argue the FWS cannot stop publishing notice of elephant enhancement findings in the Federal Register without also going through an APA rulemaking process.

In each suit, the federal defendants (FWS/DOI) have moved for an extension of their time to oppose the plaintiffs’ motions. The extension was granted in the FoA-ZCTF suit, and the extension motion is pending but is likely to be granted in the CBD-NRDC suit. (The same judge is assigned to both cases, and it would not make sense to grant an extension in one case and not the other.) However, all proceedings are generally stayed in these cases pending the court’s issuance of a mandate following the SCI-NRA case. Simply put, the appellate court directed the lower court to enter an order consistent with the appellate court’s ruling. The lower court now needs to issue that order. It will ultimately determine how broadly or narrowly to construe the D.C. Circuit’s decision. The FWS has requested permission to file a brief with the district court to explain its views on the breadth of the D.C. Circuit’s decision. That motion is still pending, and it is unclear right now whether the district court will grant it.

What does all this legal posturing mean for hunters? Basically, it means that permitting is slowed way down. If the plaintiffs succeed, the 2017 enhancement findings allowing imports will be in the same position as the 2014 and 2015 elephant findings that suspended imports—the positive findings will be declared void for failure to follow the required procedure. In theory, that means the positive, 1997 enhancement finding will control. In theory, that means import permits for elephant trophies from Zimbabwe should issue freely, but lion trophies would be on hold. However, whether the FWS will rely on that 1997 finding is unclear. It is more likely that if the plaintiffs succeed in having the 2017 findings declared void, the FWS will handle import permit applications for both elephant and lion on a case-by-case basis. It will slow down the process but keep it inching along.

By the time this article goes to print, Conservation Force and others will have moved to intervene in both cases to defend the 2017 enhancement findings and to challenge the plaintiffs’ alleged claims. We have strong arguments to differentiate the 2014-2015 import suspension, which existed at a time when no import permit was required and came out of nowhere after 17 years, from the 2017 findings, which are based on extensive information provided by Conservation Force and Zimbabwe’s wildlife authority, including extensive information provided in support of specific permit applications. We are optimistic the court will grant our motion, and the plaintiffs’ claims will be dismissed. We will keep readers updated on developments in the litigation.