Apr 042012
 

A federal judge has ruled against requests that would allow continued hunting without a permit of three non-native, privately bred antelope species on game farms in Texas (Safari Club International v. Salazar, 11-1564-BAH; Exotic Wildlife Association v. U.S. 12-340-BAH, D.D.C).

Safari Club International and the Exotic Wildlife Association had asked U.S. District Judge Beryl Howell for separate injunctions. SCI sought to enjoin enforcement of endangered status for the scimitar-horned oryx, dama gazelle, and addax, Howell noted in her April 3 opinion. EWA and co-plaintiffs “are seeking more narrow relief” to prohibit the Fish and Wildlife Service from enforcing a final rule removing a regulation “that has, since 2005, exempted U.S. non-native captive populations of the three antelope species from many of the prohibitions, restrictions, and requirements attendant to their classification as endangered species.”

That rule, which goes into effect today (April 4, 2012), was promulgated in response to a previous federal court decision (Friends of Animals v. Salazar, 626 F. Supp. 2d 102, D.D.C. 2009) that found FWS had illegally allowed the hunting of the antelope species, which are native to Africa but are raised on game farms in Texas. The “captive-bred exemption” was included in a rule listing the species as endangered. District Court Judge Henry Kennedy determined that the rule had been issued without proper public notice and comment.

In her decision, Howell said then plaintiffs had not demonstrated a likelihood of success on the merits, because FWS’s listing decision “was issued only after years of consultation and research, and appears to be consistent with the policy and practice of the FWS as well as with the purpose of the ESA.”

The judge said that examples cited by SCI where FWS treated captive and wild animals differently “are just that, examples.” She continued:

“An agency decision to treat the wild and captive antelope together in the listing decision came only after consideration over the period from 1991 to 2005. The fact that the FWS has over time differentiated between wild and captive animals in the case of other animal species does not, on its own, suggest to the court that the decision not to do so in this case was arbitrary and capricious.”

The judge also said SCI had not been able to show that FWS “ignored the conservation mandates of the ESA.”

“Indeed, by listing both the captive and wild populations of the three antelope species as endangered, the FWS has ensured that prohibitions against taking, importing, and exporting will apply to all members of the three antelope species. There will be no confusion about whether a party is attempting to ‘take’ a captive-bred antelope or a wild antelope as there might be if only some of the three antelope species were considered ‘endangered.’ ”

EWA argued that FWS should have considered delisting the species, and that removing the captive-bred exemption will harm conservation efforts. Indeed, EWA had argued that “[t]he draconian effect of this new rule is easy to predict [because], since publication of the proposed rule last summer, many owners have already disposed of half or all of their oryx, addax and dama gazelles.”

“These claims about the adverse impact on the U.S. herds of these endangered species from the final rule, even before it becomes effective, are obviously disturbing,” Howell said. “Neither SCI nor the EWA plaintiffs have shown, however, that they are entitled to a preliminary injunction because they will suffer irreparable harm. In the case of both SCI and the EWA plaintiffs, the harm alleged is (1) primarily economic and (2) in any case, remedied by the permit practice that is already in place.”

“The court does not underestimate the significance of the economic loss to individual ranchers resulting from the depreciation in the value of the animals,” the judge wrote. “Nevertheless, the standard for showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not sufficient to warrant this court’s granting of a motion for a preliminary injunction. The D.C. Circuit has made it clear that ‘economic loss does not, in and of itself, constitute irreparable harm.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).”

Said the judge: “The regulations in place after the final rule goes into effect on April 4 . . . should allow plaintiffs to continue raising the [antelopes]. First, the ESA does not regulate ‘purely intrastate activities (with the exception of take).’ 77 Fed. Reg. at 433. Thus, plaintiffs will be able to continue to possess animals, transport them within the state, or sell them to another party within the state without a permit. Beyond those activities, permits will be available for many of the other activities currently engaged in by the plaintiffs.”

Supreme Court to take up takings case involving flooding in Arkansas

The Supreme Court granted a petition for writ of certiorari in a case involving the Army Corp of Engineers’ flooding of a wildlife management area in Arkansas (Ark. Game & Fish Commission v. U.S., 11-597).

The question is “whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.”

Links

Investigation demanded of trapping, killing of Idaho wolf by Forest Service employee

The Center for Biological Diversity has asked the Forest Service and Idaho Attorney General to investigate the actions of a Forest Service employee “who posted photos of a wolf he had trapped in northern Idaho that had been maliciously and non-fatally shot by people who spotted the animal from a nearby road.”

The photos were originally posted on the trapperman.com website but havre since been taken down. [Editor’s note: The Center for Biological Diversity also had posted a photo to which we linked earlier, but CBD has removed that picture, as well as a letter it sent to the Idaho Attorney General.]

“A year ago, that wolf was protected as a member of an endangered species, but last month he was trapped, tortured and killed thanks to an underhanded congressional rider that’s also responsible for the deaths of hundreds of other wolves in the northern Rocky Mountains,” said the Center’s Michael Robinson. “A lack of respect for the balance of nature is leading to a war on wolves in the northern Rocky Mountains.”

Bransford with the wolf before he shot it (pic downloaded from Idaho Statesman page; I have no intention of removing it.)

According to the Boise Weekly,” a spokesman for [Idaho Fish and Game’s] Clearwater Region said the wolf was legally trapped by Bransford and subsequently checked by department officials.”

Bransford works in the Nez Perce National Forest, but there has been no suggestion that the incident occurred while he was on the job.

Here’s the Earth Island Journal account.

Author info

Steve Davies is editor and publisher of Endangered Species & Wetlands Report, which he started in 1995. Davies began his professional journalism career as a copy editor for the weekly Gazette Newspapers in Gaithersburg, Md., before becoming a reporter there. He then moved to Carlisle, Pa., covering Cumberland County government for the daily Sentinel. He returned to the Washington area to cover Congress and federal regulatory agencies for a series of trade newsletters before starting his own publication, which is an independent venture. Click LinkedIn for more detail.