In October, Conservation Force filed suit against the US Fish & Wildlife Service (USF&WS) to compel the processing of Zambia elephant trophy import permit applications. Applications to import elephant trophies dating back to 2005 have not been processed at all. A Freedom of Information Act Request disclosed that the Division of Scientific Authority had not even taken the first step of making a non-detriment determination – positive or negative – nothing at all. The USF&WS also failed to respond or act when sent the required 60-day notice of intent to sue.
What has been particularly troubling is International Affairs’ repeated representations to Zambian authorities that they were close to approval of elephant trophy imports. Recently, International Affairs has started asking for information that the Zambian authorities had already furnished in their initial request for approval. The Service has in effect started asking for what it has had from the beginning. This has exasperated the Zambian authorities, who have responded by filing a proposal to downlist its elephant at the next CITES CoP in March 2010 to avoid such arbitrary and capricious treatment. If the elephant is downlisted to CITES Appendix II, at least for the limited purpose of trophy trade, no import permit will be necessary. That is already the case in Namibia, RSA, Zimbabwe and Botswana.
Zambia has only had a quota of 20 elephant per year since it opened elephant hunting. The hunting has been limited to communal areas to reduce conflict between the local people and the growing number of elephant. Those local people get one-half of the revenue. That should meet the enhancement requirement of the USF&WS, so in effect the elephant has been denied enhancement while the permit applications go unprocessed.
Zambia has more than 20,000 elephant and the population has been growing, now approaching 30,000 according to a recent survey. The quota of 20 per annum has been less than one-one thousandth of the population, but the Division of Scientific Authority and Division of Management Authority of International Affairs have neglected to make either a non-detriment determination or an enhancement finding. They have just run Zambia around in circles for five years. To International Affairs, the applications are a low priority, and they have to make self-imposed findings before approval, contrary to very express recommendations of CITES Resolutions and Decisions. The USF&WS will no longer accept the quotas or biological non-detriment finding of exporting scientific authorities.
International Affairs’ own regulations require it to process applications “as soon as possible,” and its written acknowledgment to applicants specifies a processing time of 30 to 90 days. The suit is based upon that regulation, the Administrative Procedures Act that provides a right of action for “unlawfully withholding” or “unreasonably delaying” proper procedure, the procedural “due process” clause of the Constitution and the bundle of obligations to encourage and cooperate with foreign nations and not to jeopardize listed species under the ESA and CITES. Important legal precedent could be set in this case. Regardless, the Court should certainly issue a mandamus compelling the processing of the permits.
A copy of the suit is in the News and Alerts section of Conservation Force’s website at http://www.conservationforce.org.
International Affairs may deny the permits, in which case the suit can be amended to challenge the denials. Recently, International Affairs denied the permits for Niassa Reserve in Mozam- bique, a model program, when we compelled them through suit to act on the permits after five years. The reasons for those denials sadly reflect more on International Affairs than the merits of the permit applications and the exemplary Niassa Reserve program. In that instance the suit will simply be amended to challenge the arbitrary, capricious and irrational denials. Granted or denied, no import permit will be necessary if the elephant are downlisted to Appendix II next March.
Only when the permits are processed can we define what the issues are, since International Affairs waffles, is so indecisive, and is such a poor partner. When the ultimate denials are irrational it is time for Court review.