The Court has denied our request for legal fees in the first wood bison suit to compel the processing of the wood bison permits. The permit applications to import the wood bison trophies from the Yukon had languished within the USF&WS for nine years. Conservation Force and allied organizations sent a notice of intent to sue in the waning months of the Bush Administration, which was wholly ignored. Of course, when we sued under the Endangered Species Act and Administrative Procedures Act, the International Affairs Division of USF&WS finally processed the permits. (They denied the permits, which denials we are challenging in a subsequent suit, Wood Bison No. 2, being briefed at this time.)
The Court held that it could not award fees under the “citizen suit” provision of the ESA. Although the ESA and the regulations the USF&WS had adopted to implement timelines expressly provide for the permitting, those timelines are “discretionary,” not fixed by Congress in the ESA. Under the ESA, one can only sue under the citizen suit provision to enforce fixed, “non-discretionary” timelines. The Court stated that although the process was obviously “not efficient,” there was no legally enforceable right since there was no fixed timeline set by Congress under the ESA.
The Court ruled that the processing delay was actionable under the Administrative Procedures Act, APA, but to get fees under that law the litigation had to be more than just the catalyst for the permit processing action. The litigation must have reached the stage of the court compelling the result. Fees would be due under the APA if the case had reached the judgment or Court order stage. Of course, that will seldom happen as the USF&WS processes applications once sued.
We have three other cases in the same position, where International Affairs did not process the permits until suit or at least notice of intent to sue: the markhor, Zambia elephant and Mozambique elephant applications all languished for five to 10 years until litigation. Fees will no doubt be denied in those cases as well. This is pioneering litigation, so there are no prior case decisions exactly on point. It means that two years of work will go uncompensated. The pro bono legal staff of Conservation Force only gets paid for their legal services out of Court awards. We work for free. No APA legal fees were awarded because the permits were finally processed (denied) before being Court ordered, though processed after suit and notice of intent to sue. The cases have gone on for nearly two years without reaching the Court order stage because of the stalling tactics of the defendants in Court.
We are appealing this denial of fees because of the importance to all those that submit import permit applications, and the other three cases pending and more to follow. Maybe the appellate Court will fashion an exception because of the extraordinary delay and harm to the recovery of the species in this instance. At least the administrative malpractice will not be a secret anymore. The chronic disrespect and disregard for foreign programs and hunters certainly should go down in history.
We know from administrative records produced in the litigation that the processing of import permit applications is not prioritized and the International Affairs Division has a negative attitude toward importation of trophies of listed species. International Affairs is an independent section of USF&WS that is not ever held accountable, though they certainly jump when the anti-hunters suggest they hop. It is time for Congress to improve fixed deadlines for processing permit applications.