On November 3, Conservation Force filed a comment and petition to repeal the regulations, particularly the "enhancement" requirement, applicable to threatenedlisted species and the special rules that govern the import of argali, elephant, leopard, lion, and straight-horned markhor trophies. Our comment was submitted in response to the Department of Interior's Regulatory Reform Initiative. The goal of regulatory reform is to "alleviate unnecessary burdens placed on the American people." The Initiative identifies several criteria under which interested persons may "identify regulations for repeal, replacement, or modification." Conservation Force demonstrated that these FWS regulations (1) are "unnecessary" or "ineffective," (2) "impose costs that exceed benefits," and (3) "interfere with regulatory reform initiatives and policies." We demonstrated that imposing the same regulations on threatened-listed species as on endangered-listed species is a heavy and unnecessary burden that injures US citizens and damages conservation systems around the world.
First, these regulations are unnecessary and ineffective because Congress intended threatened- and endangered-listed species to be treated differently. This is clear in the fact the ESA added the category of "threatened," which did not exist in the prior act. The ESA directs FWS to adopt regulations that are "necessary and advisable to provide for the conservation of" threatened species. This directive requires an individualized determination for each species, and not a blanket regulation imposing all the same prohibitions on both categories of listed species.
The blanket prohibition is especially ineffective for foreign species, as they do not receive the same kind or level of benefits under the ESA as native species (e.g., critical habitat designations, cooperative programs, recovery plans, funding). Requiring an "enhancement" finding overburdens range nation conservation efforts, and all too frequently delays and obstructs those efforts, most especially regulated hunting programs. The "enhancement" regulation blocks import of sport-hunted trophies and robs range nations of muchneeded funding. And it diverts limited resources from the best use of those resources: having to collect and provide unreasonably detailed data to FWS redirects resources to paperwork that could otherwise be used for management or on-the-ground conservation. We drove home this point using the example of the 3.5-year suspension of elephant trophy imports from Zimbabwe-a country with the world's second largest elephant population, which depends on sporthunting revenue to fund the wildlife authority and community incentives program (CAMPFIRE). The countries with the most successful programs and populations are insulted and punished with added costs while others are shut out completely. Permitting cannot act as a model if the costs exceed the benefits.
Second, the cost s of these regulations grossly exceed the benefits. FWS has repeatedly demonstrated an inability to responsibly administer the regulations. It has allowed permit applications to languish for years, to the detriment of the range nations and species. For example, lion permit applications were "on hold" for 21 months before FWS finally approved them. During this time, US hunters' demand for lion hunts declined greatly. Wildlife authorities, communities, and operators lost revenue they depend on to protect, combat poaching, and increase community tolerance. Concessions were returned to range nation wildlife authorities, including over 70,000 km2 in Tanzania. This land is at a high risk of encroachment and transformation to grazing and agricultural use. (And the danger remains high, as import permits for lion trophies from Tanzania have still not yet been approved.) These are real, measurable costs. On the other hand, there is no identifiable benefit to FWS from having to make an enhancement finding, especially for CITES-listed species. The offtake and export are already evaluated to ensure they are not detrimental. The enhancement finding is an extra burden that drags down the process.
Worse, the range nations saw this They opposed the listing of the lion and adoption of the special rule for these reasons. Among other evidence, we quoted a comment from seven African nations that expressed "serious concerns about the regulatory changes proposed in the 4(d) rule" because it would "only have a negative impact … range states will experience a loss of revenue generated from US hunters, which supports the capacity of governments and community districts to protect, study and manage lion populations."
We offered specific examples of how regulated hunting benefits threatened species by securing habitat, funding most wildlife authority operating costs and anti-poaching, and incentivizing better tolerance among rural communities and private landholders. Rather than acknowledging, celebrating and supporting this contribution, the enhancement requirement undermines it. Imagine, the country with more lion than the rest of the world combined, Tanzania, is still waiting for import permits to be approved.
Third, these regulations run against the goals of regulatory reform because they impose regulatory burdens where Congress sought to reduce them. When the ESA was enacted, Congress' intent was clear: listing should not occur if range nation conservation efforts, including sport hunting programs, were in place to protect and recover the species. In amending the ESA, Congress even more explicitly indicated that FWS should "facilitate" imports of sporthunted trophies from conservation hunting programs. But these regulations fail to consider successful range nation conservation efforts for threatenedlisted species and obstruct imports to the detriment of range nation programs. That special rules have been adopted unilaterally, against the express views of range nations, underscores the detrimental impact of these regulations.
Congress has also already provided how to handle imports of threatenedlisted species that are listed on Appendix II of CITES. Section 9(c)(2) of the ESA presumes the legality of non-commercial imports of non-endangered species that are listed on Appendix II of CITES. The FWS special regulations ignore Section 9(c)(2) and increase the burdens on non-commercial trade of foreign, threatened-listed, Appendix II-listed species. We offered the Canadian wood bison example. This is a threatenedlisted species that was on Appendix II until the last CITES Conference of the Parties (CoP) in 2016. Because the wood bison was removed from all CITES Appendices at the CoP, it no longer falls under Section 9(c)(2). Due to the general regulation extending all of the prohibitions applicable to endangeredlisted species, imports of wood bison now require an enhancement finding and an import permit. (This is a species carefully managed and monitored by Canada. Hunting and imports are low, and the species' management plan relies on regulated hunting to keep herd sizes within check and keep diseased herds separate.) Nothing changed with respect to the bison's status-except that imports are more difficult because of an unnecessary regulation that treats threatened species as if they were listed and at the same risk as endangered species. This is but one example in how the failure to abide by Congress' intent and the ESA's terms conflicts with the goals of regulatory reform.
We are optimistic that the Department of Interior will consider and implement our comment. This optimism has a strong foundation-on November 8, Secretary Zinke created an International Wildlife Conservation Council to "focus on increased public awareness domestically regarding conservation, wildlife law enforcement, and economic benefits that result from US citizens traveling abroad to hunt." Topics the Council will consider include: "removal of barriers to the importation into the United States of legally hunted wildlife," and "the Endangered Species Act's foreign listed species and interaction with the Convention on International Trade in Endangered Species of Wild Flora and Fauna, with the goal of eliminating regulatory duplications." These are both topics addressed in our comment, which offers the way forward-remove the unnecessary, ineffective and contrarian "enhancement" requirement for threatened-listed species. We will keep readers posted on positive developments in removing regulatory barriers to trophy imports.