Winds of Change: Opportunity for Gain?

Golden Eagle

Eagle take is strictly regulated under the Bald and Golden Eagle Protection Act of 1962

Opportunity Knocks
Donald J. Trump, whether you like him or not, is the new President of the United States. That could mean big changes for wildlife policy. During his address to the joint session of congress last week, Trump made it clear that the priorities of his Administration will be far different from those of his predecessor. While life under the Obama Administration proved difficult for many wildlife stakeholders, opportunities to influence future policy at the Department of Agriculture (USDA) and the Fish and Wildlife Service (FWS), are within reach of those that seize the initiative.

After almost a decade under siege by powerful special interest groups and unfriendly government agencies, it will be interesting to see if stakeholders that were under the knife with Obama go on the offensive under Trump.

Change is in the Air
It’s no secret that agency culture at USDA and FWS became decidedly anti-business and anti-resource use under the Obama Administration. With Hilary Clinton the heir apparent as next in line for the Presidency, animal rights and environmentalist organizations were giddy with prospects for a further expansion of power and influence in a Clinton Administration. However, the unexpected victory of Donald Trump brought those aspirations to a screeching halt. In this new political climate, like their opposition before them, wildlife stakeholders stand to make significant gains of their own.

Unless there are significant economic implications, most wildlife issues will not be a priority for the new Administration. The President made it clear that his focus will be on replacing Obama-care, tax reform, energy production and infrastructure. Most of the administrative regulatory changes previously under review, will likely never see the light of day. But while that may be a relief to many, it is a double edged sword for those who are faced with trying to garner attention to a much needed roll-back of bad regulations already put in place by the outgoing Administration.

Damages Done
Particularly hard hit by rule changes were herpetoculture and antique ivory interests. The arbitrary nature of these rules from FWS have yielded damages to stakeholders that could measure upwards of $100 million in lost jobs, assets and income. The challenge then becomes, when the new Administration is focused on weighty issues like repealing Obama-care and tax reform, how to bring attention to issues like Lacey Act over-reach or the trade of certain rare antiquities?

Wildlife Rules Enacted Under Obama Administration

  • FWS — Injurious Wildlife Listing of 9 Constricting Snakes — Python Ban
  • FWS — Categorical Exemption from NEPA Requirements on Lacey Act listings — CatX
  • FWS — Injurious Wildlife Listing of 201 Salamander Species– Salamnder Ban
  • USDA/Aphis — Handling and Husbandry of Neonatal Nondomestic Cats
  • FWS — Rule for the African Elephant, Endangered Species Act — Ivory Ban

There are also questions of internal decisions at regional FWS offices regarding limits on the issuance of wildlife take permits for species that have already been approved for specific use. The decision making process appears to be colored by a culture that is decidedly anti-hunting. Mid-level agency administrators are making decisions that are contrary to approved FWS policy. But where there is minimal economic impact, it can be difficult to bring these injustices to the attention of policy makers.

Fear of Loss is a Greater Motivator than Opportunity for Gain
Some believe, contrary to the results they have been able to produce, that grass roots activism has a significant influence on policy direction. There is no doubt that grass roots can have its place, especially in the legislative arena. Ten years ago, when I was the CEO of a trade association, we mounted a massive grass roots campaign defeating HR 669 in the House Natural Resources Committee. Our 50,000 hand written letters had to be carted into committee, and gave members more than enough cover to kill HR 669. However, “fear of loss” motivated that unprecedented response at committee. We are now talking about “opportunity for gain.” If you have been unable to accomplish your agency goals, it is unlikely that writing more letters and making more calls will provide the political leverage needed to effect that change. It can help, but it won’t win the day.

You Need a Plan
Don’t get me wrong, grass roots activism can be very effective, but it works best when it is part and parcel of a comprehensive strategy, not the alpha and omega of your advocacy efforts. You must have a comprehensive plan that sets benchmarks and creates an integrated blueprint for business, communications, fundraising and government affairs. If you can’t clearly see how to reach your goals, the chances of realizing them are slim to none. One thing is for sure, if you continue to do what you have always done, you will continue to get what you have always gotten.

It would be a monumental waste for stakeholders not to take advantage of this unprecedented opportunity for gains in the wildlife sector. Whether it’s making new law, roll-back of bad regulations, or holding agencies accountable, it won’t happen by itself. In order to realize positive change, you must be able to open doors and get your issues in front of those who can make a real difference. You need a plan. It’s not too late, but you have to be in the game to have a chance to win.


Frequently Asked Questions

  • What are the benefits of professional advocacy?
  • Does grass roots advocacy really work?
  • How do I create a strategic business/government affairs plan? 
  • Is a communications strategy important?
  • What is the difference between a bill and a proposed rule?
  • How do we get a rule “rolled back?”
  • Can we get permitting expedited?
  • How can creating a caucus help?
  • What is an issue campaign?
  • How do we get more than “lip service” from my member of congress?
  • How do we get accountable answers from federal agencies?
  • Why don’t agency employees care what we want?
  • How can we raise funds to pay for advocacy/legal assistance?

Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector.

WyattP1“Wildlife issues are highly charged and contentious. I specialize in articulating clear policy ideas and getting them in front of key decision makers. Please follow ‘The Last Word on Wildlife’ for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of creating a comprehensive business/government affairs strategy, or a more targeted issue campaign, please call or email me.” ~ Andrew Wyatt


© Andrew Wyatt and The Last Word on Wildlife, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word on Wildlife with appropriate and specific direction to the original content.

Burmese Python: Dragon of the Everglades

burmese-pythons-everglades-invasive-species_31112

South Florida Burmese Python

The 2016 Python Challenge™ is moving at a record pace in south Florida. Sponsored by the Florida Fish and Wildlife Conservation Commission (FWC), the controversial python hunt, ostensibly to remove invasive snakes from the Everglades, produced a disappointing tally of only 68 snakes after 30 days of hunting in 2013. With cooler temperatures in south Florida, 100 pythons have already been taken in 2016. Hunters have capitalized on greater snake visibility as pythons bask openly in the sun to retain warmth. But is the hunt, slated to finish on Valentines Day, really for conservation or just a publicity stunt?

Raising the specter of giant pythons in the Everglades has become a media pastime in Florida. Clearly the appetite for this farfetched story is not easily sated. Lauded as some kind of invasive dragon devouring endangered wildlife and family pets alike, the Burmese python has become the stuff of folklore and myth: a modern day Jaws. A myth promulgated by environmental groups, invasion biologists and the press. Pythons being slain by champions eager to battle dark denizens for the ecological life of the Everglades has become a symbolic narrative that politicians have adopted and regurgitated for their own political purposes.

There is no denying that there are tens of thousands of Burmese pythons in the Everglades, but that’s far fewer than the 100’s of thousands touted by the likes of U.S. Senator Bill Nelson or Dan Ashe of the U.S. Fish and Wildlife Service. While pythons are certainly eating rabbits, rats, feral cats and an occasional small gator, what many people don’t realize, is that pythons don’t eat every day like a warm blooded predator. They may only eat a handful of times per year; hardly the “resource hogs” depicted by some biologists.

“Cold temperatures killed thousands of pythons in the Winter of 2009-2010. Numbers appear to be rebounding, but pythons are not being found as readily as they were. The population peaked in Summer of 2009 with highs estimated to be 30,000- 40,000 pythons.” — Shawn Heflick, Biologist and star of NatGeo WILD’s: The Python Hunters

Another part and parcel of the myth is the notion that pythons have no natural predators in the glades. Nothing to temper an unabated population growth, a notion that is patently false. Any biologist worth his salt can tell you, there are dozens of potential predators for pythons in south Florida. Baby pythons are extremely vulnerable to hawks and eagles, wading birds, predatory fish, raccoons, feral hogs, feral cats, not to mention the apex predator of the Everglades, the American alligator, which preys even on adult pythons.

The exaggeration of every detail surrounding the presence of pythons in the glades further clouds the facts. For a variety of reasons the press and the pundits seem invested in demonizing the python. The press loves the idea of a giant snake in the glades “eating everything in its path.” Clearly the public has a morbid fascination with snakes that kindles a primal fear. Environmentalists and agency personnel see opportunity to increase funding for invasive, and or endangered species research not stimulated by less sensational problems. Ambitious biologists seem to bank on decades of pythons study and research in their future. Politicians vilify the snake as a threat that can only be overcome with the appropriation of billions in Everglades restoration dollars. It is a rich issue with a handout for nearly everyone.

“… many are content to chase the ‘Burmese Dragon’ around south Florida like Don Quixote chasing windmills.” — Andrew Wyatt

But the reality is this: Burmese pythons are a relatively low rung on the ladder of serious problems facing the Everglades. They have become a red herring, a distraction, and a scapegoat from more fundamental problems that are either too contentious or too difficult to deal with. Instead of addressing issues surrounding big sugar, pollution, water flow or other more pervasive invasive species threats, many are content to chase the ‘Burmese Dragon’ around south Florida like Don Quixote chasing windmills.

Hunting invasive pythons, although not without merit, is not being pursued in earnest. The National Park Service (NPS) will not allow pythons to be hunted at the epicenter of the population in the Everglades National Park (ENP). Ironically, the NPS appears to be protecting those pythons in order to preserve a study group for ongoing research. For the hunts to be effective, they should be conducted in the ENP in an open and ongoing basis. For now, hunts are restricted to state lands around the periphery of the park, and are limited to 30 days every few years.

Screen Shot 2016-01-25 at 12.36.08 PM

Vendors selling snakeskin wallets and belts at the 2016 Python Challenge™

The actual 2016 Python Challenge™ takes on an air more commensurate with a rattlesnake round-up or a reality TV show, than an environmental clean-up. It attracts colorful characters from all over the country to ‘hunt’ the dreaded pythons. Vendors have booths and sell t-shirts, snakeskin wallets and belt buckles. There’s funnel cake and BBQ. FWC is omni-present “educating” the public about the dangers of large pythons, how to identify them, wrangle them, and how to report them. But one has to wonder if the purpose is conservation or carnival.

While some concerns regarding invasive pythons are legitimate, the dramatic characterization placing pythons at the center of all of the Everglades ecological troubles is way overblown. Efforts to reduce the population via the Python Challenge are ineffective and disingenuous. Python population will never be significantly reduced unless the hunt is conducted at the epicenter of the invasion in the heart of the ENP. Allowing an open season within the park is the only way to actually reduce numbers through hunting. This ‘Dragon’ hunt  can hardly be seen as anything but a side show, while the decline of the Everglades goes on with or without the Burmese python circus.


Andrew Wyatt is a government affairs and policy consultant working exclusively in the wildlife sector. He formerly served as the CEO of the United States Association of Reptile Keepers (USARK) where he twice testified before congress as an expert on python issues. Andrew has been interviewed on National Public Radio, by Bloomberg and by The New York Times.

Black Rhino Hunt: Conservation Controversy

One Black Rhino May Help Save All Of The Rest

One Black Rhino May Help Save All Of The Rest

How hunting a critically endangered black rhino will greatly benefit conservation of the species.

Last January the Dallas Safari Club (DSC), auctioned off a permit issued by the government of Namibia to hunt a black rhino. Namibia is legally permitted by the Convention on International Trade in Endangered Species (CITES) to sell five permits for the hunting of adult male black rhinos each year. The Namibian government has identified a small number of individual black rhinos that may be hunted that are old, incapable of breeding and pose a threat to other younger animals.

A prominent hunter and conservationist, Corey Knowlton, submitted the winning bid of $350,000 at the auction and subsequently applied to FWS for a permit to import the trophy into the US. DSC plans to donate the entire proceeds of the auction to benefit conservation of the black rhino species (Diceros bicornis).

The debate over the value of a black rhino hunt that would raise $350,000 for rhino conservation efforts in Namibia has heated to the boiling point once again. The question of whether the US Fish & Wildlife Service (FWS) will issue a permit to import a black rhino trophy into the US is at the forefront of this debate. Anti-hunting animal rights groups that vehemently oppose the hunt are using the power of their grass roots followers to pressure FWS to deny issue of the permit.

Reports from the Namibian government suggest that an older non-breeding male rhino that is disruptive to the herd, will be selected. It is important to note that this rhino will likely be culled regardless of whether FWS issues the import permit or not. If the permit is denied DSC plans to refund Mr. Knowlton’s winning $350,000 bid.  If that happens, the rhino’s life will not be saved, and the conservation efforts in Namibia will not receive the $350,000.

According to FWS spokesman Gavin Shire, FWS is ‘applying “extra scrutiny” to Knowlton’s request because of the rise in poaching.’ By all accounts, although there was a rise in the numbers of poached white rhinos in South Africa, the overall population of black rhinos has been on the rise for a number of years.

“Thanks to successful conservation and anti-poaching efforts, the total number of black rhinos has grown…” ~ World Wildlife Fund (WWF)

Anti-hunting groups have long argued that hunting and poaching are indistinguishable. However, it is clear that this is a position driven by ideology. The reality is that hunting is legal and supports conservation. Poaching is a criminal activity that undermines conservation. What is unclear from the FWS statement, is how an unrelated rise in poaching arbitrarily dictates “extra scrutiny” toward the issuance of an import permit for a legal rhino hunt.

“Hunting isn’t conservation” ~ Jeffrey Flocken, North American regional director for the International Fund for Animal Welfare (IFAW)

Additionally, animal rights groups argue that money spent on hunting in Africa never reaches local communities or conservation, but according to a report from TRAFFIC, the organization that works with the WWF, IUCN, and CITES to track the international trade of wildlife, US hunters spend $11 million annually in Namibia on controlled, legal hunts. Further, if allowed by the US government, the $350,000 proceeds from this one single hunt would go exclusively to black rhino conservation in Namibia.

Those that are opposed to hunting are predisposed to object to any hunting based conservation model. Ideology aside, there is no doubt that millions of dollars are injected into the Namibian economy every year as the direct result of hunting. For FWS to deny issuing an import permit based on misinformation and pressure from special interests, would not only be a disservice to processing a legitimate permit application, but it would block $350,000 earmarked for black rhino conservation efforts.

“Sport hunting of Namibia’s black rhino population will strongly contribute to the enhancement of the survival of the species…” ~ World Wildlife Fund

Yesterday on the IFAW Facebook page, the animal rights organization was exhorting their followers to “Save One Black Rhino” by pressuring FWS to deny import permits. The fact remains that the rhino in question will likely be culled regardless of the decision of FWS. Wouldn’t it be better to allow Mr. Knowlton to hunt the rhino and import the trophy so that the auction money can go to rhino conservation? Preventing Mr. Knowlton’s hunt will accomplish only one thing:  it will prevent black rhino conservation in Namibia from receiving a $350,000 donation.  All real conservation happens at the species level. The survival of critically endangered black rhinos should not be held hostage to special interest politics.


Andrew Wyatt is a government affairs consultant that works exclusively in the wildlife sector.

WyattP2“Endangered species conservation and other wildlife issues are highly charged and contentious. I specialize in working with clients to employ campaign style tactics to change hearts and minds on vital issues in the wildlife sector. Please follow The Last Word for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of running a targeted issue campaign, and/or a comprehensive government affairs strategy, please call or email me.” ~ Andrew Wyatt


© Andrew Wyatt and The Last Word, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word with appropriate and specific direction to the original content.

 

The Wrong Way to Protect Elephants

Reblogged from The New York Times.

Making legal trade illegal and turning good citizens into criminals will make it easier for FWS to make cases against Americans here at home, but it fails to address the hard work of catching poachers and real criminals that are determined to kill every living elephant. ~Andrew Wyatt

The New York Times | The Opinion Pages |OP-ED CONTRIBUTORS
By GODFREY HARRIS and DANIEL STILESMARCH | 26, 2014

27harris-master495THE year was 1862. Abraham Lincoln was in the White House. “Taps” was first sounded as a lights-out bugle call. And Steinway & Sons was building its first upright pianos in New York.

The space-saving design would help change the cultural face of America. After the Civil War, many middle-class families installed them in their parlors. The ability to play the piano was thought to be nearly as important to the marriage potential of single ladies as their skill in cooking and sewing, signaling a young woman’s gentility and culture.

The keys on those pianos were all fashioned from the ivory of African elephants. And that is why one of these uprights, the oldest one known to survive, in fact, is stuck in Japan.

The director of the United States Fish and Wildlife Service recently issued an order prohibiting the commercial importation of all African elephant ivory into the United States. (Commercial imports had been allowed in some instances, including for certain antiques.)

The Obama administration is also planning to implement additional rules that will prohibit, with narrow exceptions, both the export of African elephant ivory and its unfettered trade within the United States.

The Fish and Wildlife Service has said that these new rules will help stop the slaughter of elephants. But we believe that unless demand for ivory in Asia is reduced — through aggressive education programs there, tougher enforcement against the illegal ivory trade and the creation of a legal raw ivory market — these new American regulations will merely cause the price to balloon and the black market to flourish, pushing up the profit potential of continued poaching.

In short, these new rules proposed by the Fish and Wildlife Service may well end up doing more harm than good to the African elephant.

Read more at The New York Times...

 

Terrorists, Tusks and the Ivory Crush

photo: US Fish & Wildlife Service

photo: US Fish & Wildlife Service

Today ivory sells on the black market for about $1500US per pound. Al-Shabab, a Somali splinter cell of al Qaida, raises $600,000 per month from poaching activities. Local African warlords and international crime syndicates fund their own violent and illegal activities through ivory poaching. Any reduction in the supply of legal ivory to growing middle class markets in China will skyrocket prices for illegal supplies, with profit margins for terrorist groups, warlords and criminals escalating correspondingly.

Recently the Obama administration announced that US Fish & Wildlife Service (FWS) would promulgate a rule that would ban ivory sales in the United States. Government agencies around the world have postured with high profile ivory crushes and burns from China to the United States and Kenya. Even Prince William wants to crush the Royal ivory collection in the UK. This week the Administrations’ Advisory Council on Wildlife Trafficking will meet to discuss their strategy to enact  a rule ending legal trade in the US. But will destroying stockpiles of ivory and criminalizing legal trade really stop ivory poaching in Africa? There is no evidence to support that belief.

“The first lesson of economics is scarcity: there is never enough of anything to fully satisfy all those who want it. The first lesson of politics is to disregard the first lesson of economics.” ~Thomas Sowell

While seemingly noble, these measures are largely symbolic and are likely to drive the price of ivory up by creating scarcity. Markets are driven by supply and demand. When the supply is reduced and the demand continues or increases, prices move up. Even the perception of scarcity puts upward pressure on markets. This is all Economics 101, and it applies equally to legal and illegal markets.

The face of ivory poaching in Africa

The face of ivory poaching in Africa

Propaganda in support of the ivory crush theory suggests that eliminating the world’s stock piles of ivory and criminalizing legal trade works to discourage black-market trade; that somehow legal trade provides cover for illegal trade. The opposite effect is far more likely. Without a significant decrease in the demand for ivory, scarcity, even perceived scarcity, will likely drive the price for illicit ivory to all time highs. Black-market trade will become more lucrative than ever. Criminals will be emboldened by the world’s inability to protect elephants in Africa, nor implement a workable strategy to reduce demand in ivory markets.

Instead of crushing valuable stockpiles of ivory in a grand symbolic gesture, sell the ivory in legal markets and use the money for elephant conservation. This is not about writing symbolic checks that are the fodder of photo ops and behind the scenes corruption– but about putting beans and bullets directly on the ground to be used by the rangers who need them. We should use money from legal ivory sales  for the recruitment and training of additional personnel, outfit them with the equipment they need, and deploy them to fight sophisticated poaching rings. Crushing ivory out of existence only increases it’s value on the black market.

Ivory poaching is funding international terrorism. Making it more difficult and more dangerous to kill elephants, while educating  the Chinese to the realities of ivory trade, will mitigate the flow of money from ivory to terrorist activities.

Al-Shabab makes $600,000 per month on poaching and employs child soldiers.

Al-Shabab makes $600,000 per month on poaching and employs child soldiers

Money from legal ivory sales could fund educational programs targeting the Chinese middle class.

Making legal trade illegal and turning good citizens into criminals will make it easier for FWS to make cases against Americans here at home, but it fails to address the hard work of catching poachers and real criminals that are determined to kill every living elephant.

We should utilize the groups that have the most at stake in elephant conservation. Hunting groups, gun and equipment manufacturers, and NGO’s. They all need to step up to the plate and play a larger role in preservation of the species they value. Protecting elephants as a resource that will be available for future generations should be a common goal of all of these interest groups. The focus needs to be on leveraging relationships on the ground in Africa, and empowering small specialized projects that get equipment, supplies, manpower and training where they are needed most. We should be using the legal sale of confiscated ivory to fund putting boots on the ground to undercut poaching.

Additionally, a larger effort needs to go into educating middle class ivory consumers in China. Again, NGO’s funded in part by legal sales of ivory could create a model for education– essentially an “issue campaign” to change the hearts and minds that currently have such an appetite for ivory and a steadfast superstition that tusks grow like human fingernails.

If we insist on going down the primrose path of symbolic conservation gestures that actually aggravate the situation,  while wasting what could be irreplaceable conservation dollars from ivory stockpiles, we fail. We will never address the  fundamentals of supply and demand. Our current course will make it so lucrative and easy for criminals and terrorists to continue their activities that elephant populations could be pushed to the brink.

Funding for elephant conservation is limited. Criminalizing legal trade of ivory at home is foolish, ineffective and distracts from actual conservation. We are running out of time for the usual tortured process of political posturing and the stroking of egos. We need to get resources on the ground and limit markets in short order. Elephants died for the ivory being crushed. Should their deaths be for naught? Use the money from legal sales of ivory to protect the future of elephants for generations to come. Stop the ivory crush.

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WyattP2The ivory crush and other wildlife issues are highly charged and contentious. I specialize in working with clients to employ campaign style tactics to change hearts and minds on vital issues in the wildlife sector. Please follow The Last Word for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of running a targeted issue campaign, and/or a comprehensive government affairs strategy, please call or email me. ~ Andrew Wyatt

Punch and Counter Punch: Does Lacey Act Have Authority Over Interstate Transport?

Reblogged from the US Herpetoculre Alliance.

“The reptile keepers trade association has filed suit against DOI Secretary Sally Jewell and US Fish and Wildlife Service, challenging among other things, the authority of the Lacey Act to limit interstate transport of Injurious Wildlife. The government has now entered a motion to dismiss. It will be intersting to see if the reptile keepers will be able to amend their pleading and survive this preliminary action.” ~ Andrew Wyatt

USARK v. Sally Jewell et al. Part One: Procedural Posture

Posted on February 25, 2014 by  Walsh

logo5The US Herpetoculture Alliance is receiving a lot of inquiries regarding the complaint filed by the United States Association of Reptile Keepers on December 18, 2013 against Sally Jewell, Secretary of the Interior, and US Fish and Wildlife Service challenging the Constrictor Rule to the Lacey Act.  We are not involved in the litigation and are not consultants on the litigation.  However, we are glad that USARK has taken affirmative action on behalf of herpetoculture to challenge what we agree is a completely aribitrary and capricious rulemaking.

This will be a series of blogs intended to help clarify the proceedings for non-lawyers.  These blogs are not intended as legal advice; we are simply reporting on the case progression and offering opinions as we see the issues.

Procedural Posture:  Where do we stand?

What is the Constrictor Rule?  On March 12, 2010, the US Fish & Wildlife Service (“FWS”) proposed a rule to add nine large constrictors to the list of injurious species under the Lacey Act.  On January 23, 2012, Defendants enacted a partial rule, adding four of the nine species (Burmese python, North African python, South African python, and yellow anaconda) to the injurious list.  The Constrictor Rule prohibits not only importation, but all interstate transport of the four species of large constrictors.  Defendants have yet to act on the remaining five constrictors, but it appears that a finalization of the Constrictor Rule to add additional species is imminent.

USARK files its lawsuit.  

What is USARK asking for?

USARK filed a complaint for injunctive relief and declaratory judgment.  This means that they are asking the Court to enter an order stating:

  • That in issuing the Constrictor Rule, Defendants violated the Administrative Procedure Act (“APA”) and the National Environmental Policy Act (“NEPA”);
  • That the Defandants lack legal authority to ban interstate transportation and commerce in the listed species because the ban on interstate transportation and commerce of injurious species is through administrative rule making and exceeds the expressed language of the Lacey Act;
  • That the Defendants enactment of the Constrictor Rule is ultra vires (meaning beyond their powers) and contrary to law;
  • Enjoining (barring) Defendants from applying the Constrictor Rule;
  • That FWS be required to prepare a lawful environmental impact statement and rational basis for any new rule proposed; and
  • Awarding USARK its costs and attorneys’ fees.

USARK is not seeking monetary damages in its action for injunctive relief and declaratory judgment.  This means that if USARK were to win, the provisions set forth above are what it has requested in its prayer for relief.  That is what USARK is asking for from the Court.

USARK’s arguments.

USARK argues that FWS was arbitrary and capricious in its enactment of the Constrictor Rule under NEPA and APA.

NEPA argument.  USARK alleged that Defendants failed to follow NEPA’s statutory requirements in that FWS did not prepare an environmental impact statement (“EIS”) and that its environmental analysis (“EA”) was inadequate.

APA argument.  The APA provides a right of review to persons adversely affected by an agency action within the meaning of a relevant statute.

  • USARK is claiming that in prohibiting interstate transport of the four species of constrictor snakes, FWS has exceeded its authority under the statutory provisions of the Lacey Act.
  • It also argues that Defendants failed to provide  reasoned bases for the enactment of the Constrictor Rule.

The Motion to Dismiss

Once a complaint is filed, the defendants have a proscribed amount of time in which to respond or otherwise plead.  In this case, Defendants filed a Motion to Dismiss.  A motion to dismiss is a predictable response.  It is the first volley from a defendant to see if they can get rid of a case due to pleading defects or other bars to a cause of action.

Defendants brought their Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

FRCP 12(b)(1) states that a case should be dismissed when the court lacks subject matter jurisdiction.  Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter.

FRCP 12(b)(6) allows a motion to dismiss for failure to state a claim upon which relief can be granted (pleading deficiencies).

Defendants first attack USARK’s standing to bring the complaint.  In very general terms, standing is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.  There are some nuances that fall under the umbrella of standing.  Here, Defendants claim that USARK lacks prudential standing as well as constitutional standing.

Without getting into a lengthy legal discussion on standing, Defendants make a good argument about USARK’s lack of standing and Herp Alliance believes that the USARK complaint will be dismissed without prejudice on the basis of standing.  

This is not a fatal flaw.  It means that there are marks of haste in the USARK complaint and it was not drafted as carefully as it could have been.  If the Court dismisses the Complaint without prejudice, USARK will be given leave to amend its Complaint in order to cure its pleading defects.  The net result is that some time and money are wasted but USARK will likely be given a “do-over” for at least its actions under the APA, but only under NEPA if it can allege facts that establish that it has an environmental interest .

Defendants next argue that the statute of limitations has run on USARK’s challenge to the interstate transport issue because the regulation was established in 1965 and USARK is now time barred.  Herp Alliance believes that this argument is nonsensical and Defendants will not prevail on this argument.

Finally, Defendants argue that Count IV is duplicative of Counts I, II and III, which it likely is.

Conclusion

Herp Alliance believes that the Defendants’ Motion to Dismiss will be granted in part and denied in part.  As a result, we believe that USARK’s Complaint will be dismissed without prejudice and USARK will be granted leave to amend its complaint to cure the deficiencies that exist in the original pleading.

The net result is some lost time and money on attorneys’ fees without yet getting to the merits of any claim that can be asserted by USARK once its complaint is properly pled.  At this point, it is premature to conjecture as to Defendants’ responses to USARK’s substantive allegations because their Motion to Dismiss is technical and not a response to the factual allegations in USARK’s Complaint.

Will Hunting Save Lions From Extinction?

african_lion_king-wideAfrican lions are one of the most charismatic species on the planet. Images of the King of the Jungle are etched deeply into our collective conscience. The debate on how best to conserve lions has been stirred anew with a recent Twitter post by TV hostess Melissa Bachman who killed a “trophy” lion while on safari in Africa. The image of a rifle-toting Bachman posing over the carcass of a dead lion offended activists and animal lovers alike. However, Twitter hype aside, the hunting/conservation of African lions is a controversial topic that begs a thorough understanding of the facts.

In 2011 US Fish & Wildlife Service (FWS) was petitioned by animal rights activists  to add African lions to the Endangered Species list, sharpening the divide of an already philosophically polarized conservation community. Contradicting the underlying premise of the petition, at a recent lion workshop hosted by FWS, three experts on African lions agreed that the lion, in their opinion, is not currently in danger of extinction. The International Union for Conservation of Nature (IUCN), the central body in conservation for the African lion, currently lists lions as “vulnerable” on their Red List of Threatened Species.

All agree that populations of lions have declined significantly. According to a study authored by Professor Stuart Pimm of Duke University in 2012, about 75 percent of Africa’s savannahs and more than two-thirds of the lion population once estimated to live there have disappeared in the last 50 years. There are likely between 32,00 and 35,000 free ranging lions on the African continent today. According to professor Pimm, “massive land-use change and deforestation, driven by rapid human population growth” is the primary reason for the decline of the lion.

lions-550Sixty percent of all lions harvested in Africa are destined for trophy rooms in the United States. Proponents of an Endangered Species listing claim the issue is a “no brainer.” Allowing hunters to harvest lions and export trophies back to the US sends the wrong conservation message. They say lions would be best conserved by blocking access to American hunters, thereby reducing pressure on lion populations. Jeff Flocken of the International Fund for Animal Welfare (IFAW), the group spearheading the petition to list lions on the Endangered Species Act (ESA), wrote, “Why should anyone spend money to protect an animal that a wealthy American can then pay to go kill?” Mr Flocken characterizes his argument as common sense, but acknowledges that, habitat loss and human-lion conflict, not hunting, are the primary causes of the lions’ disappearance from Africa.

“As human-lion contact increases, so does human-lion conflict, resulting in reductions in lion numbers (through poisoning, trapping and shooting) and lack of support for lion conservation among local communities.” ~ IUCN SSC Cat Specialist Group

It is absolutely essential that local communities identify the presence of lions as a direct benefit to them. Reducing human-lion conflict is critical to conservation success. According to Dennis Ikanda, of the Tanzania Wildlife Research Institute’s Kingupira Research Centre, his country generated $75 million in lion hunting from 2008 to 2011. Opponents of an Endangered Species listing assert that trophy hunting is the only thing standing between the lions and extinction. Although those claims may seem counter intuitive, the money generated by hunting is being plowed back into the local economy, into conservation measures and into protecting lions from poaching. Hunting advocates say the only chance for survival of the lions is management as a valuable and sustainable natural resource.

Melissa Simpson of Safari Club International Foundation wrote in an opinion piece for the National Geographic Society, “If the (FWS) were to take regulatory action and put the African lion on the Endangered Species list, it would be in spite of the overwhelming scientific evidence to the contrary. Such an overreaching decision would deprive the countries that grapple with lion management the resources they need the most. And the most essential resource is money.”  Hunting advocates believe that more closely monitored hunting and the millions of dollars injected into management, conservation and the local economy is the best way to conserve lions.

photo: Hilton

photo: Hilton

Additionally, proponents of listing insist that adult male lions being harvested are in fact dominant pride males in their breeding prime. They assert that harvesting pride males destroys pride stability by instigating less dominant males to cull the former pride male’s cubs in order to establish themselves, thereby disrupting the natural pride dynamic and throwing breeding cycles into chaos. If this were true, and management practices didn’t focus on males who have passed their prime, then damage to pride stability would be a serious problem.

Hunting advocates have argued that it is irresponsible and unsustainable to harvest pride males in their prime. Responsible game management practices dictate only aging males that have passed their prime and are often alienated from the pride should be harvested. These are males that were possibly once dominant, but have become too old (6+ years) to maintain status within the pride structure.

Although the idea of trophy hunting does not enjoy wide popularity, its value as a pragmatic conservation tool has proven to have merit. The questions are, will an Endangered Species listing relieve pressure on lion populations? Or will blocking American hunters from harvesting lions remove economic incentives necessary to protect a valuable resource?

Best-African-Safaris-Beyond-6

photo: Elana Castle

Animal rights advocates dismiss the conservation benefits of hunting. However, a study of trophy hunting by the University of Zimbabwe supports claims of conservation success tied to responsible hunting practices. Peter Lindsey, the lead author of the study, wrote,  “trophy hunting is sustainable and low risk if well managed.” Lindsey continued, “Trophy hunting was banned in Kenya in 1977, in Tanzania during 1973–1978, and in Zambia from 2000 through 2003. Each of these bans resulted in an accelerated loss of wildlife due to the removal of incentives for conservation.  Avoiding future bans is thus vital for conservation.” When local communities are not incentivized to protect lions they are subsequently killed.

To date there appears to be no clear evidence that would support the premise that listing lions as endangered in the USA would inure conservation benefit to lions in Africa; to the contrary, listing could undermine real conservation efforts by diminishing the value of lions to local African communities.

Admittedly, oversight of hunting practices in Africa is not likely to be commensurate to standards in the west anytime soon. Trophy hunting is by no means a perfect solution, but the IUCN Cat Specialists Group says, “Properly managed trophy hunting was viewed as an important solution to long-term lion conservation.” There will always be some abuse from unscrupulous individuals. But the monetary incentive to mange sustainable lion populations for hunting is the only protection lions currently have. Removing economic incentive for Africans to conserve lions has been demonstrated to be counterproductive. Working to improve oversight and lion management should be a priority. Until a better conservation model proves it’s mettle, responsibly managed hunts are the best chance for lions to survive in Africa.

photo: Philip Briggs

photo: Philip Briggs

“Well, we all worked together. Worthy deeds were accomplished.” ~ The Ghost and the Darkness

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WyattP2The position of FWS on listing African lions as Endangered Species under ESA is transitioning. The initial 90 day finding following the petition was concluded in November 2012 with a finding of “Substantial.” The subsequent 12 month finding prior to potentially posting a proposed rule in the federal register is due later this week. Expect FWS to fail to meet that deadline.

Because of the charismatic nature of the African lion this promises to be a politically charged process. Please follow The Last Word for important news and insight on this critical issue. If you would like to discuss the potential implications for you, and/or the advantages of a comprehensive government affairs strategy, please call or email me. ~ Andrew Wyatt