In August 8, 2003, the United States District Court in Washington, D.C., denied a request by animal rights organizations to stop the importation of live African elephants into the United States. Consequently, live elephants were imported pursuant to a permit issued by the US Fish & Wildlife Service (USF&WS) for the first time since late 1989 when the African elephant was listed on Appendix 1 of CITES. The case is important and significant as pointed out below. It addressed everything from how "non-detriment" determinations are made for import permits of all Appendix 1 species to the real motive behind animal rights litigation. In the words of the lawyer for the animal rights plaintiffs, "[I]t’s an extremely important precedent that you’re (court) being asked to make here . . . . The world’s leading experts on African elephants . . . say they are extremely concerned about the precedent this decision is going to set for the international trade, not only in this species, this Appendix 1 species, but in other Appendix 1 Species. . . ."
The plaintiffs sought to invalidate import permits issued by the USF&WS to the San Diego and Lowry Park Zoos that were trying to import elephants from Swaziland. The plaintiffs were the Born Free Foundation, Elephant Alliance, Elephant Sanctuary, In Defense of Animals, Animal Protection Institute (API), People for the Ethical Treatment of Animals (PETA), Animal Welfare Institute, San Diego Animal Advocates, Animal Legal Defense Fund, Toshim- suke Katoh and Richard Allan.
The animal rights plaintiffs raised every possible argument including challenging the non-detriment determination made by the Service. All import permits for Appendix 1 species, whether for hunting trophies or live animal trade, require the Service to make a non-detriment finding. In technical jargon, the Service must determine that the "purpose of the import is not detrimental to the species." "The country receiving the animal under CITES is supposed to look at the purposes. The country exporting is supposed to look at whether it’s detrimental to the survival of the elephant," said Wayne Hettenback representing the Department of Justice.
The plaintiffs tried to shift Swaziland’s determination to the USF&WS, but Judge John D. Bates kept rejecting that. The plaintiffs argued that the Service had to duplicate the biological findings made by the exporting country, but the Service’s position, which the Court accepted, was that the US (importing country) was only required to make a "purpose" finding. The protectionist even argued that the Service should take into account the effect of the removal of the elephants on the "social structure" of the elephants remaining in Swaziland. In this case, the U.S. Attorney actually admitted that "they (the Service) do more in practice than they’re required to under the language of this convention."
That doing "more in practice" itself is not good for U.S. hunting interests. That practice is what led to the Elephant Trophy Import Guidelines Suit I filed and won against the Service in the early 90s. Despite the success in that elephant trophy importation case, the Service appears to be continuing their excessive and illegal practices that can make import of trophies of Appendix I Species nearly impossible.
The zoos and USF&WS that issued the permits argued that the import of the elephants was necessary to reverse the decline in the gene pool of African elephants in the U.S. because of the lack of successful breeding. In other words, the elephants in the zoos in the United States are at risk, which risk would be lowered with the importation. The plaintiffs demonstrated complete contempt for maintaining elephants in the United States for exhibition. The antis complained that "[i]t is for one purpose only: to make more animals to put on display at these zoos and other zoos around the country because they’re planning on trading them and entering them into a captive breeding program with other zoos." The antis claimed that was exclusively a "commercial purpose," which trade is prohibited for CITES Appendix 1 species. Apparently, the antis do not care if U.S. zoo elephants genetically decline or cease to exist. They do not want animals in zoos. The ESA and CITES have become their tools against zoos.
The plaintiffs stated on the record that they would prefer the elephants be euthanized than imported. They prefer that animals cease to exist rather than be hunted. This is a position that animal rightists organization leaders have made to me personally at various CITES meetings over the years. In this case, the elephants had been separated and were to be culled in Swaziland if they could not be imported:
THE COURT: But his most recent declaration is pretty unequivocal.
MS. MEYER: He says it again. He says it again. ‘I would like to avoid it if I could.’
THE COURT: But he says, if we can’t export these elephants now, I’m going to cull them.
MS. MEYER: Because, Your Honor, that’s a convenient thing to say to make sure the deal goes through.
THE COURT: It may be Russian roulette, but how do I look behind it?
MS. MEYER: I think there’s plenty of evidence in the record for you to look behind it. And the last thing I want to say, Your Honor –
THE COURT: You’re telling me to let the chips fall where they may, and the chips falling where they may, may be that the elephants are culled.
MS. MEYER: If the elephants are euthanized in Swaziland, if Mr. Reilly and the zoos or their brokers all decide that that’s the better outcome here than to have a preliminary injunction in place until you can decide the merits, that would be a better outcome than to have these elephants put in crates, put on airplanes, brought over here, trained with bull hooks, put in cages, and live the rest of their lives in captivity. That’s right, Your Honor.
THE COURT: That’s the position of your client.
MS. MEYER: Absolutely, Your Honor.
THE COURT: Or at least some of your clients.
MS. MEYER: All of them. Thank you, Your Honor, I have nothing further.
Twice in his decision denying plaintiffs’ preliminary injunction, the trial judge cites plaintiffs’ shocking position:
1.) "In the end, as stated unequivocally by counsel for plaintiffs, given the choice, plaintiffs would rather see the elephants dead than in a zoo. . . ." 2.) "[I]f an injunction is granted, the elephants will be culled. This might appear to mean, somewhat ironically, that plaintiffs would be irreparably injured as the result of the very injunction that they request; however, at the August 6 hearing in this matter, counsel for plaintiffs explained that, from plaintiffs’ perspective, the elephants will be better off – and thus plaintiffs’ interests will be more fully advanced – if the elephants are killed rather than imported and placed in the zoos. Taking the plaintiffs at their word, the Court concludes, on balance, that plaintiffs’ interests – interests about which the Court has some concerns in terms of standing - will be harmed if an injunction is not granted, yet somewhat advanced if an injunction is granted."
In short, the culling of the elephants would ironically advance plaintiffs’ interests! They view the risk that the elephant would be culled as the lesser of two evils. The Environment News Service quotes Dr. Michael Hutchins, Director of Conservation and Science for the American Zoological Association (AZA), as commenting "we can provide these elephants with excellent care, rather than seeing them culled, as their current park home cannot accommodate them. It is surprising animal rights activists who profess to care about animals would rather have them killed, than to live and help support essential wildlife conservation, research and educational efforts."
The elephants were imported in late August, but the underlying suit is still proceeding in the trial court. The denial of the injunction has also been appealed. The lawyers for the protectionists and animal rightists plaintiffs were Meyer and Glitzenstein, the same lawyers as in the recent Argali case (see below). Also, one of the plaintiffs, Animal Legal Defense Fund, was a plaintiff in the Argali case. The primary motion before the Court at this time is one to dismiss the case on the grounds that plaintiffs do not have standing. That is what won the Argali case, so we are watching this elephant case closely for we expect the Argali case may be appealed. In fact, the government cited our Argali case as authority to deny the elephant/zoo case request for an injunction. "This case (Argali) supports defendants’ arguments that since the interim relief the plaintiffs seek does not prevent the harm to their interests, the Court should not enter an order that does not redress this harm." They actually attached a copy of the Argali decision. The appellate court in this elephant case may also establish important precedent on how non-detriment determinations are to be made, which apply to import of trophies of Appendix 1 game animals, as well as to trade in live animals. I must express sympathy for the zoos, the Service, and the conservation of elephants for all that the protectionists are putting them through. We cannot protect our institutions, ourselves, our wildlife or our way of life without a commitment to fight for our rights.