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There's No Right to Import Endangered Species Trophies

By Robyn Hagan Cain on November 19, 2012 | Last updated on March 21, 2019

You might expect that a group called Conservation Force would be militantly committed to conserving wildlife or plant life. Instead, this "wildlife conservation" group actually wants to preserve hunting, because it "uniquely provides self-actualization, completeness and expression which are complex, higher order needs deserving of protection."

And what better way to achieve self-actualization and completeness than to display an endangered species hunting trophy?

The obstacle on this path completeness? The Endangered Species Act.

Conservation Force sued the Secretary of Interior and the Fish and Wildlife Service (FWS), alleging that FWS violated the Endangered Species Act (ESA) by refusing to process applications for permits to import Canadian wood bison as hunting trophies.

Of course, Canadian wood bison have been a listed species for nearly nine years.

More than six months after Conservation Force filed the complaint, FWS denied the permits. The district court then dismissed the permit processing claims as moot.

Conservation Force asked the district court for attorneys' fees and costs under a catalyst theory pursuant to the ESA's provision authorizing the district court to award fees "whenever ... appropriate."

The court did not consider this to be one of those "appropriate" times.

The district court denied the motion, concluding that the Supreme Court's Bennett v. Spear decision foreclosed review of the appellants' claims and rendered them ineligible for fees.

The ESA generally prohibits the importation of endangered species, including as hunting trophies. The Secretary of Interior may, however, grant permits to applicants to import endangered species under limited circumstances, such as "for scientific purposes or to enhance the propagation or survival of the affected species." Individuals seeking to import hunting trophies of endangered species must apply to the FWS for a permit.

Upon receiving a completed import permit application, the FWS must publish the application in the Federal Register and allow 30 days for public comment. After considering a number of factors, the FWS will make a decision.

The regulations provide that the FWS "will process all applications as quickly as possible," but "cannot guarantee final action" within a requested time period.

Conservation Force argued that the Secretary's delayed decision on its permit application amounted to a failure to perform a non-discretionary act or duty, thus warranting a suit. Last week, the D.C. Circuit Court of Appeals disagreed, finding that appellants had not identified a neglected non-discretionary duty, so their claims were not subject to judicial review. Consequently, they were not eligible for attorneys' fees under the ESA attorneys' fees provision on those claims.

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