The US Fish & Wildlife Service (USF&WS) has finally published a response to the Court decision that it could not exempt Endangered Species Act (ESA) “endangered” listed scimitar-horned oryx, addax and dama gazelle (“The Three Amigos”) from captive-bred and cull permitting. The exemption adopted when the three were listed on September 2, 2005 (70 FR 52319) provided that no permit was necessary and no permit publication was necessary before breeding and culling those exotics within the United States. The regulation creating that exemption was held by the District Court to be in violation of the ESA because there were no permits published in the Federal Register for public comment. The matter was remanded back to the agency on June 22, 2009 for action consistent with the Court’s order.
Since June 22, 2009, two full years, the USF&WS has not been able to find a lawful way to eliminate the requirement for a permit and public notice and comments on the pending permit application. Despite some express promises that they were working on an alternative, the Notice is entitled Removal of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from Certain Prohibitions, 76 FR 39804, July 7, 2011. Permits will be required according to the proposal.
The proposed action “would eliminate the exclusion” that exempted the species from permitting. It states “a person would need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to breed or cull the three species.”
The proposed action “would eliminate the exclusion” of these three captive-bred exotics from the normal requirement that a ranch owner have both a permit to breed and a second to cull/hunt the species on his property. The permits must be individual ranch permits.
Comments must be postmarked or received on or before August 8, 2011. The agency welcomes suggestions and this is an opportunity to suggest how the longstanding captive-bred and cull permitting regime can be improved. For example, one suggestion might be that notices of expiration be sent to permittees before their permits expire. Another might be to make the cull permits two years long rather than one year so that renewals are not so often. Ranchers that have had bad experiences or complaints about the current system must speak up now. Conservation Force welcomes all suggestions and will pass them along in its own comments.
The biggest problem we have encountered with the normal regulatory requirement to have a captive-bred and cull permit is ranchers’ failure to do the required annual report and the failure to timely file a permit renewal application before it expires. A recent regulation seems to require that a renewal application be filed more than 30 days before the permits expire if they are to remain in effect while they are being noticed in the Federal Register and processed for months or more. This is necessary for both the captive-bred and cull permits.
Another problem has been the fact that the antis track down the identity of those receiving revenue from these programs for projects that benefit the species (five percent or more of the gross revenue from the culling/hunting). The antis then threaten and intimidate the recipients of the project revenue. Many then reject the funds and cancel the projects. This is why Conservation Force has had to create its Ranching for Restoration Program and substitute itself as the recipient. Then all the funds are passed through Conservation Force without any administrative fee. Perhaps it is time to curtail that because the Court upheld the USF&WS finding that the activity enhanced the survival of the species and, of course, culling of captive-bred animals is a necessary husbandry practice.
It seems to be clear and inevitable that the two permits are to be required unless the ESA is amended by Congress. The most we hope for is improvement in the administration of the permitting. On the other hand, be forewarned that the antis opposed to captive breeding and culling-husbandry necessities will have some suggestions of their own! Comments will be posted on http://www.regulations.gov. The Federal Register proposal can be found at 76 FR 39804, July 7, 2011 and is posted on Conservation Force’s website under News and Alerts at http://www.conservationforce.org/news.html.
Remember, the agency can’t change the ESA, but you can suggest a change of regulation or the way the law is administered by the agency.
So what do owners and managers of these animals do in the interval? The exemption from permits is still in effect until noticed that it is not in effect. Operate as usual but be mindful that you will have to give the status and history of your ranch population in both your breed and cull permit applications. You can prepare by collecting that information while waiting. Filing for permits now is premature. The agency does not want them until the new regulation is complete. When the time comes, Conservation Force will act as legal counsel, assist all permit applicants and maintain projects in the countries of origin of the species, as it has done for over a decade in its Ranching for Restoration Program. If you wish to get on our list, send the following information to Conservation Force at firstname.lastname@example.org: 1.) Your name, phone and contact information, including postal and e-mail addresses, 2.) the name and address of your ranch, 3.) the estimated number of the three species.
It is also important to note that the District Court upheld part of the rule that was struck down. It upheld the hunting and found it constituted “enhancement.” This means a rancher does not have to find and fund an overseas project that will accept a percentage of the revenue from the hunting. Thus, the antis can no longer intimidate overseas recipients out of accepting some of the revenue. It is important that commenters get the FWS to keep that part of the rule upheld. It is enhancement.