By John J. Jackson, III
Two separate suits have been filed requesting that the positive FWS enhancement findings for trophy imports from Zimbabwe be vacated. Conservation Force is preparing to intervene and defend these challenges.
On November 20, 2017, the Center for Biological Diversity (CBD) and Natural Resources Defense Counsel (NRDC) jointly sued the FWS and Department of Interior over the positive enhancement findings for both elephant and lion trophy imports from Zimbabwe. Their complaint alleges that Zimbabwe has "failed to sustainably manage elephants," basically because Zimbabwe allows elephant hunting despite an asserted six percent decline in the elephant population since 2001. The complaint cites the negative enhancement findings made by the FWS in 2014 and 2015 and points to a number of prior negative FWS statements to show that the positive 2017 finding is arbitrary.
Similarly, this complaint alleges that Zimbabwe has "failed to sustainably manage lions," largely because Zimbabwe's lion management plan dates to 2006 and allegedly has not been implemented. The complaint alleges that Zimbabwe's lion population is "703" and cites the IUCN. To the contrary, the 2015 Red List assessed Zimbabwe as one of only four African countries where lion populations are increasing.
The complaint challenges both findings under the Administrative Procedure Act, and alleges that each finding is "arbitrary and capricious." It asserts that these findings are "contrary to law," without specifying which law is violated. The complaint requests that the court set aside the positive 2017 enhancement findings for imports of elephant and lion trophies and-of course-award the plaintiffs their attorneys' fees.
Two days later, Friends of Animals (FoA) and the Zimbabwe Conservation Task Force (ZCTF) filed a similar suit seeking similar relief with respect to the import of elephant trophies from Zimbabwe. Their complaint focuses on elephants and does not challenge lion trophy imports. Like the CBD-NRDC complaint, FoA and ZCTF allege that the FWS's positive enhancement finding was "arbitrary and capricious." The plaintiffs request to have the enhancement finding authorizing elephant trophy imports from Zimbabwe set aside, and also request the recovery of their attorneys' fees.
Unlike the CBD-NRDC complaint, FoA and ZCTF claim that the FWS "changed their previous rule requiring notice of new findings be published in the Federal Register" when the FWS published notice of the positive 2017 enhancement finding. The plaintiffs ask the court to declare that the FWS should have provided notice and an opportunity for them to comment before making the positive finding.
Both suits are full of misstatements and false facts. Among other things, they misleadingly suggest Zimbabwe's elephant population is "continuing" to decline, citing reports that all rely on the same data but which were published in different years.
They also both accuse Zimbabwe of unspecified "corruption." The CBD-NRDC complaint cites Transparency International's Corruption Perceptions Index (CPI) as support for this allegation. However, the CPI does not measure actual occurrences of corruption in a country, such as how often public officials are prosecuted. Rather, it measures perceptions of corruption in a country's public sector based on opinion surveys. Transparency International admits: "There is no meaningful way to assess absolute levels of corruption in countries or territories on the basis of hard empirical data," and "The CPI is an indicator of perceptions of public sector corruption … It is not a verdict on the levels of corruption of entire nations or societies, or of their policies, or the activities of their private sector." Basically, this index suggests a country is corrupt because people think it is corrupt. It is not "evidence," as the plaintiffs assert, of corruption.
Perhaps most egregious, the plaintiffs cherry-pick negative statements from the FWS' negative 2014 and 2015 enhancement findings to conclude that the 2017 finding approving elephant trophy imports must be wrong. Neither complaint acknowledges that those prior findings were basically asking to be reversed. They repeatedly state they will be reconsidered upon receipt of additional information from Zimbabwe.
Moreover, the 2017 positive finding approving elephant trophy imports contains a table at the end that specifically
explains how the FWS' prior stated concerns have been addressed and resolved. This table demonstrates that the positive finding is not arbitrary and capricious. It is based on a reasoned consideration of additional information and new information provided by Zimbabwe and others.
Conservation Force plans to intervene in these suits to defend the FWS' enhancement findings. These positive findings were based on the best available information that has been submitted to the FWS for over three years (for elephant) and almost two years (for lion). Zimbabwe responded to at least seven FWS information requests (five for elephant and at least two for lion). Conservation Force submitted at least six substantive comments with thousands of pages of supporting information, followed by dozens of emails attaching real-time enhancement data. These attachments have included everything: the proceedings of Zimbabwe's numerous elephant management planning workshops, updated survey results, information from hunting operators on their anti-poaching efforts and community investment, reports from the CAMPFIRE Association and traditional leaders (Chiefs) describing the use of funds from hunting, and much more. There can be no doubt the FWS' positive conclusions that Zimbabwe's elephant and lion management is strong and that regulated hunting "enhances the survival" of these species are well-supported and these suits are baseless.
Conservation Force intervened in similar suits challenging permits to import black rhino trophies in 2015 and argali before that. One of those suits was brought by current plaintiffs FoA and ZCTF. In that case, the court dismissed the complaint because the plaintiffs did not have legal standing. We anticipate the same result in the CBD-NRDC and FoA-ZCTF cases.