By Regina Lennox, Staff Attorney
On August 10, we argued the denial of two permit applications to import elephant trophies hunted in Zimbabwe in 2015 before the Director of the Fish and Wildlife Service (FWS). John J. Jackson, III and I represented the applicants. The Acting FWS Director, Greg Sheehan, was accompanied by the Chief of Permits, Chief of the Division of Management Authority (DMA), Deputy FWS Director for Operations, and two representatives of the Solicitor's Office of the Department of Interior. In short, we had a full house. We held everyone's attention when we described the hunting community's disappointment with the 40-month (and pending) suspension of elephant trophy imports.
I focused on the details of the argument, and John added big-picture concerns, including the length of the continuing suspension, its impact on Zimbabwe's community wildlife management program (CAMPFIRE), and the apparent FWS policy against Zimbabwe, among other key points. He noted that the suspension of elephant trophy imports and de facto suspension of lion trophy imports has been an unexpected double-attack on Zimbabwe and other countries in Southern Africa with stable or increasing game populations. John stated, flatly, that the suspension must end, and imports must be re-established, or CAMPFIRE and rural community tolerance for elephant will disappear. He also stated, flatly, that if the FWS does not have the capacity to make decisions under a "special rule" enhancement standard-which is not required by the Endangered Species Act itself-then the FWS should not adopt a special rule. These actions are not in the best interests of the elephant.
The Acting FWS Director asked only one question, about the scope of the argument: did it cover just two permits, or did it go further to apply to the entire suspension? We responded that our appeal covered two import permit applications; however, the information, particularly a July 2015 response from Zimbabwe to the FWS, dated both before and after these applications. The information dated to 2014, 2016, and future hunting seasons. Therefore, although only two applications were technically on appeal, the entire suspension (past, present and future) was actually at issue, if the FWS finally incorporated relevant data that still had not been considered in an enhancement finding. The Director clearly understood our point.
Our argument began by laying out a timeline of the suspension, Zimbabwe's responses to FWS questionnaires, numerous comments filed by Conservation Force and other parties, and the DMA's negative enhancement findings. The key take-aways were, first, that negative findings preceded FWS data requests to Zimbabwe's Parks and Wildlife Management Authority (ZPWMA). Although the trophy import suspension was allegedly based on a lack of information, the FWS' decision to "make negative findings first, ask questions later" was insulting to ZPWMA, and suggested the negative decisions had already been made. The second key take-away was that the process had stagnated. A lot of activity occurred in 2014, and quite a bit in 2015. ZPWMA responded in July 2015 to an FWS questionnaire, and then everything ground to a halt. That response was not incorporated into any finding. Few communications or decisions occurred in 2016 and 2017. That lack of progress had to be corrected.
Our argument then addressed alleged data gaps and "sticking points" in the March 26, 2015 negative enhancement finding. The two permits were denied based on that finding, which applies to the "2015 season and future hunting seasons." We broke down and rebutted this finding to clear the way for future imports. But again, we noted that ZPWMA's July 2015 response provided extensive 2014 data, which would be sufficient to reverse the past negative findings and lift the suspension across the board.
We went through each section of the enhancement finding, identifying and resolving "sticking points." For the first section, "Management Plans," the negative March 2015 finding primarily objected that Zimbabwe's prior elephant management plan had not been updated since its adoption in 1997, and there were no "specific measurable indicators" to gauge the plan's implementation. We pointed out that, at the end of 2014, Zimbabwe prepared a brand-new management plan, with specific action steps, Key Performance Indicators (KPIs), and means of verifying the implementation of those KPIs. ZPWMA also held regional workshops to prepare action plans to address each region's unique management situation. The first draft of the new plan was sent to the FWS in December 2014; the final draft was sent in July 2015; and regional workshop materials were sent throughout 2015. Because the 1997 plan had been replaced, the first objection was moot. We also cited information from ZPWMA which described specific management actions and means of verification used under the prior, 1997 plan. This information was available to the FWS, and should have been incorporated into an updated enhancement finding. This information alleviated the FWS' concern that there were no "measurable indicators," and it should have been considered in the March 2015 finding.
For the second section, "Population Status," the FWS' key concerns were an asserted lack of recent surveys, and a six percent decline in Zimbabwe's elephant population compared to the 2001 countrywide survey. We provided seven recent surveys and evidence of other monitoring activities, which showed that ZPWMA was keeping abreast of its elephant population trend. Further, the six percent decline was considered "not statistically significant" by the survey's authors. Zimbabwe's elephant population was basically stable between 2001 and 2014. Zimbabwe simply cannot hold ~140,000 elephant, because the range capacity is only about ~45,000 and the human population is rapidly expanding. The stability of Zimbabwe's population reflects strong management given the 20% increase in the human population during the same period. This fact should not be dismissed by the FWS.
The March enhancement finding identified a lack of information on ZPWMA's capacity to enforce "adequate" laws in the section on "Regulations and Enforcement." However, the FWS' concern relied upon a non-existent panel of experts. Moreover, the FWS received ZPWMA's budget data in July 2015. That data revealed that ZPWMA received sufficient revenue from hunting to protect safari areas and part of the national parks. This is essential revenue to protect critical habitat for elephant. ZPWMA updated FWS on its implementation of the new Elephant Management Plan, and funds spent, in November 2016. According to this update, ZPWMA had sufficient capacity to manage elephant; however, the FWS suspension on elephant trophy imports was standing in the way of full implementation. This data resolves the finding's concern about lack of capacity-any lack is due to the FWS' policy, not Zimbabwe's.
The negative finding's largest criticism of ZPWMA's "Sustainable Use" was insufficient data on elephant offtakes and quota-setting practices. But ZPWMA's July 2015 response provided the mortality information, so this criticism was unwarranted. Further, all ZPWMA's responses (April and October 2014 and July 2015) explained quota-setting in detail. Quotas are based on a range of data, including offtakes from all sources and environmental, biological and social factors. Reported offtakes have been way more than sustainable-they averaged about 0.25% of the elephant population in the 2010-2015 period. This limited offtake benefited the elephant and was not detrimental to its survival.
For the sixth and seventh sections ("Revenue Utilization" and "Local Conservation Efforts"), we emphasized the importance of CAMPFIRE. The devolution of Appropriate Authority to local landholders has invested them with stewardship of wildlife on their land. It has reduced human-wildlife conflicts and benefitted hundreds of thousands of rural Zimbabweans. ZPWMA, the CAMPFIRE Association, and Conservation Force provided data to show the essential role played by US hunters, who represent most tourist hunters in Zimbabwe. The negative finding failed to comprehend that Appropriate Authority is a government mechanism benefiting elephant and other game. We spoke passionately on these points, because the rural communities who live alongside wildlife are ultimately the ones who will determine the species' long-term survival.
We then focused on the ESA's "enhancement" standard. We cited specific facts and figures to prove that tourist hunting creates incentives to protect almost four times as much habitat as in National Parks. It generates over one-third of the revenue for ZPWMA-revenue then used for enforcement and wildlife management. Tourist hunting funds anti-poaching in safari areas, most communal areas, and private conservancies. Operators maintain their own anti-poaching teams and, in 2013 alone, a sample of 14 operators spent almost $1 million on anti-poaching. ZPWMA relies upon the public-private partnership that exists between safari operators and the government to sustain elephant management over a huge area.
Finally, over 90% of CAMPFIRE's revenue comes from hunting, and two-thirds from elephant hunting, which means elephant hunting alone is responsible for increasing tolerance among rural Zimbabweans through infrastructure investment, game meat donations and more. The Director, and even the Solicitors, nodded in appreciation of these benefits. They undoubtedly satisfy the ESA (and the self-imposed "special rule" for elephant), which requires the activity only "enhance the survival of the specie." We emphasized that this standard should not be redefined in each finding, and John stated that there is no replacement for the value generated by tourist hunting in Zimbabwe.
We focused on what is at stake by continued suspension in the last section of our 59-slide presentation. ZPWMA lost 12% of its revenue from 2013 to 2014 because of the suspension. CAMPFIRE lost 37.5% of its revenue from 2013 to 2015. Zimbabwe's reliance on tourist hunting as a management tool-enshrined in the new plan-is being undermined. Even the authors of the negative findings had to appreciate the suspension's counter-productive impact following our presentation.
The Acting Director thanked us and confirmed his team would dig into our information and issue a ruling soon. We are confident that we made a compelling case, to guide this upcoming decision.