The U.S. Fish and Wildlife Service (“FWS”) is a federal agency within the Department of Interior which has been delegated the responsibility for the day-to-day administration of the Endangered Species Act (“ESA”). The purpose of the ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species may be conserved, [and] to provide a program for the conservation of such endangered and threatened species.” 16 U.S.C. § 1531(b). In fulfilling the purpose of the ESA, FWS believes that placing and breeding endangered species (captive-bred endangered species) on U.S. ranches and allowing hunters to pay several thousand dollars to shoot and kill an endangered species, with FWS’s explicit approval, is an effective contributor towards rebuilding dwindling populations. In following this approach, pursuant to authority delegated by FWS, the Secretary of Commerce (“Secretary”) has been charged with the responsibility of enforcing Section 10 of the ESA. Section 10 of the ESA requires the Secretary to approve a U.S. ranch’s hunting permit application for the culling of a captive-bred endangered species if the Secretary finds that the application would enhance the “propagation or survival of the affected species.”
The scimitar-horned oryx, the addax, and the dama gazelle are three species of antelopes native to northern Africa. In the wild, the oryx is believed to be completely extirpated, the addax numbers fewer than 600, and the dama gazelle numbers fewer than 700. On September 2, 2005, FWS added these three African antelope species to the Federal List of Endangered and Threatened Wildlife under the ESA. That same day, FWS approved of a regulation, thereby creating a loophole for the ESA’s otherwise prohibited activities for these three U.S. captive-bred antelope species including: “the take; export or re-import; delivery, receipt, carrying, transport or shipment in interstate or foreign commerce, in the course of a commercial activity; or sale or offering for sale in interstate or foreign commerce.” Under this regulation, if U.S. ranchers and hunters demonstrated that they were carrying out the otherwise prohibited activities that would contribute to increasing or sustaining the captive-bred numbers of the three antelope species then they were not required to notify FWS of their activities.
However, on January 5, 2012 FWS issued a final rule to eliminate this limitless regulation that authorized certain otherwise prohibited activities under the ESA for these U.S. captive-bred antelopes. With this final rule, ranchers of captive-bred antelope were required to submit and be approved by FWS’s hunting permit application process which provided the public an opportunity to comment on the ranch’s proposed activities. U.S. game ranches argue that the captive-breeding and hunting of these three antelope species has played a fundamental role in the continued survival of these species. Distinguishably, opponents argued that these hunting ranches are actually diminishing the survival and/or propagation of these species both domestically and abroad.
The opponents of FWS’s existing permitting process assert that it encourages the proliferation of the illegal international wildlife trade and the laundering of these three antelope species. Illegal wildlife trade is the act of illegally trading, trafficking, or smuggling both live animals and animal parts. Animal laundering is when an illegally obtained animal or an animal part goes through a process to “cleanse” its origin so as to make the object look like it was legally obtained. A recent law review article asserted that “[i]llegal animal trafficking is the third largest illegal business in the world. . . . It is a twenty billion dollar international business. . . . There is a steep market for these animals and animal parts, and the species traded are often already endangered.” While it is illegal to take or trade wild African antelopes or their parts in the United States, FWS’s permitting process allows individuals to take and trade captive-bred antelopes and their parts if such activities are “deemed” as enhancing the propagation or survival of the species. The argument is that with this system there is no real way to decipher the origin of the antelopes or their parts so as to distinguish between the parts of wild antelope and U.S. captive-bred antelope. Thus, making it easier for illegal goods to be brought into legal markets. The fear is that the lawful culling and trading of captive-bred antelope in the United States is likely to both encourage the killing of wild antelopes overseas, as well as aid in the illegal trafficking of wild antelopes and their parts.
U.S. ranchers and private individuals owning captive-bred scimitar-horned oryx, addax, and dama gazelle argue that it is their captive-bred wildlife management programs that have allowed for the continued existence and future reintroduction of these species into their historic range. These ranchers and hunters assert that if FWS did not allow them to sport hunt these species, then ranchers would lack an economic incentive to place and breed these animals on their ranches. In the ranchers’ view, sport hunting of “surplus” captive-bred animals generates revenue that supports these captive-breeding operations, and without this economic support they would be unable raise and breed these animals. Ranchers also argue that their captive-bred sport shooting management program may relieve hunting pressure on wild populations. They believe that it is because of the enormous demand and the willingness of individuals to pay a lot of money to kill these animals that ranchers are able to successfully use commercialization as a means of keeping these animals from going extinct.
Animal trafficking is a twenty billion dollar international business, one that is growing at an astonishing rate, and allowing ranchers to capture and place endangered species on “factory farms” for harvesting is argued to be a distorted interpretation of the ESA’s meaning of enhancing the survival of an endangered species. Categorizing such commercialization as promoting the enhancement of survival of an endangered species seems inconsistent with the real purpose and principles of the ESA. FWS’s current practices twist the ESA’s meaning of promoting and supporting the conservation efforts of others around the world. Eliminating and redeveloping the Fish and Wildlife Services’ current permitting process to genuinely require compliance with Section 10 of the ESA is a sounder approach to ensuring that hunting ranches are promoting the propagation and/or survival of these three antelope species both domestically and abroad.
Joann Kinsey is a 3L and Staff Editor for the Denver Journal of International Law and Policy.