Litigation Newsletter, February 2016 Vol. X, No. I CONVENTION EDITION

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1 Litigation Newsletter, February 2016 Vol. X, No. I CONVENTION EDITION SCI DONATES FEE AWARD TO ANTI-POACHING EFFORT IN ZIMBABWE When SCI sues a federal or state government over an illegal rule, policy or other decision the goal is not to obtain a monetary reward or financially penalize the government for its errors. Instead, SCI seeks to obtain a judicial decision that will require the federal or state government to reverse, withdraw or change decisions that harm hunting and sustainable use conservation. Nevertheless, on some occasions, SCI has been able to recover modest attorney fee awards from the federal government in the settlement of cases. Unlike the animal rights and antihunting groups that use such awards to finance membership or propaganda campaigns, SCI has put these awards toward programs and projects that benefit the species at issue in the litigation. SCI last invested such an award in a scimitar-horned oryx program conducted at the Selah, Bamberger Ranch Preserve in Texas. Recently, SCI received an attorney fee award in a case SCI brought against the U.S. Fish and Wildlife Service (FWS). In that case, SCI challenged the FWS s failure to provide documents, related to the Zimbabwe elephant importation ban, that SCI requested in a Freedom of Information Act Request. With the approval of SCI s Executive Committee, SCI s Inside this Issue SCI Donates Fee Award to Anti-Poaching Effort in Zimbabwe p. 1, 5 Elephant Memory Needed to Understand Litigation over Importation Bans p. 2 What Were They Thinking? The African Lion Rule p. 3 Where Oh Where Will the Mexican Wolf Case Go? p. 4, 5 SCI Supports Symposium on Hunting and Sustainable Use Conservation p. 6 Your Litigation Team Join Us at Our Many Seminars p. 7 Current Litigation p. 8 Continued on page 5 (202)

2 ELEPHANT MEMORY NEEDED TO UNDERSTAND LITIGATION OVER IMPORTATION BANS It is said that elephants have great memories. You would need a good memory, and a dose of patience, to appreciate the ins and outs of SCI s legal challenges to the U.S. Fish and Wildlife Service s 2014 and 2015 bans on the importation of sport-hunted elephants from Tanzania and Zimbabwe. Although SCI, joined by the NRA, first challenged the importation ban decisions in April 2014, the cases are far from resolved. Shortly after filing the initial complaint, SCI asked the court for a preliminary injunction. A PI, as it is known, would have allowed imports to continue while the case moved forward. In addition to responding to this request, the FWS asked the court to dismiss the case on a number of grounds. The parties filed numerous briefs regarding the request for a PI. Citing a lack of irreparable injury, the court denied our request in early June SCI appealed this denial to the D.C. Circuit Court of Appeals. To complicate matters further, in July 2014, the FWS announced a new decision to continue the ban for elephants in Zimbabwe. This required SCI to amend its complaint to challenge this new decision. The parties continued to file briefs on the FWS s motion to dismiss. When it looked like the appeal of the denial of SCI s PI motion was going to delay a possible resolution of the merits of the case, SCI dismissed its appeal before the D.C. Circuit issued a decision. Finally, in December 2014, the court decided that the Zimbabwe claims could move forward, but dismissed the Tanzania claims. SCI then had to ask the court for permission to immediately appeal the Tanzania dismissal, which the court eventually granted over the objection of the FWS. SCI appealed the dismissal of the Tanzania claims to the D.C. Circuit. After an attempt to mediate a settlement of the case, SCI filed its opening brief in the appeal on January 29, Briefing on the current appeal should be done by April 15, The D.C. Circuit will then schedule an oral argument. In the Zimbabwe part of the case, SCI first battled against anti-hunting groups Friends of Animals and the Zimbabwe Conservation Task Force joining the case on the side of the FWS (the court eventually let them in the case). Then SCI battled with the FWS over the administrative record, the documents the FWS considered and relied on in deciding to ban importation of elephants from Zimbabwe. This involved a successful lawsuit under the Freedom of Information Act and months and months of back and forth over the inclusion of documents into the record. In March 2015, the FWS announced a new decision continuing the Zimbabwe ban. This required SCI to file a new lawsuit challenging the 2015 decision. Eventually, the parties and court decided to consolidate the two cases. After negotiation between the parties, a schedule was finally set for resolving the merits of the case on summary judgment. Resolving the case will entail each party filing multiple legal briefs containing the party s arguments. SCI s opening brief on summary judgment is due on February 18, We expect summary judgment briefing to be complete by June 3, The court likely will then schedule a hearing. By the time the district court issues its decision, with a likely appeal to follow, one will indeed need an elephant-like memory to recall that this all started on April 4, PAGE 2

3 WHAT WERE THEY THINKING? THE AFRICAN LION RULE On December 21, 2015, the U.S. Fish and Wildlife Service (FWS) announced a final rule to list African lions under the Endangered Species Act (ESA). The rule, which was published in the Federal Register on December 23, 2015, lists African lions as two separate subspecies Panthera leo leo, found in western and central Africa (and India), and Panthera leo melanochaita, found in southern and eastern Africa. Lions in western and central Africa are now listed as endangered, while southern and eastern Africa lions are listed as threatened. The rule went into effect on January 22, Together with the listing rule, the FWS issued a special 4 (d) rule that will require ESA permits for the importation of threatened lions harvested from eastern and southern Africa. These permits will be required for all lions harvested on or after January 22, The finalization of these rules has left the hunting community with more questions than answers. As of the date that this article is being written, the FWS has not made any findings about whether the importation of lions from any country enhances the survival of lions in the wild. The FWS generally considers such findings a prerequisite to the issuance of any importation permit. Consequently, we do not yet know if, when, or from what countries the FWS will grant permits for lion importation. The FWS s explanation for the rules gives hunters reason for concern. For each of the countries where lions can be hunted, the FWS found problems with the existing systems for wildlife management and/or for utilizing hunting revenues to enhance wild lion survival. The rule also telegraphs the FWS s intent to place heavy burdens on the hunting community to show that hunting does more than simply enhance the survival of Africa s lions. The FWS intends to examine whether the import of the lion contributes to the overall conservation of the species by considering whether the biological, social, and economic aspects of a program from which the specimen was obtained provide a net benefit to the subspecies and its ecosystem. What qualifies as a net benefit is yet to be seen. Along with the lion rules, the FWS also released a Director s Order stating that the FWS would no longer issue importation permits to individuals who have previously been convicted of or pled guilty to violations of wildlife laws. The Service has not specifically defined the type of violations to which this prohibition will apply. SCI is doing its best to obtain the most accurate and current information about the FWS s plans for administering these new rules. We will share that information at a seminar to be held at the SCI Convention on Saturday, February 6, 2016, at 2:00 P.M. The seminar entitled What Were They Thinking? the African Lion Rule will take place in Breakers B at the Mandalay Bay Convention Center. If you have any questions, please contact Anna Seidman, Director of Litigation at aseidman@safariclub.org. PAGE 3

4 WHERE OH WHERE WILL THE MEXICAN WOLF CASE GO? In October 2015, SCI filed its lawsuit challenging the U.S. Fish and Wildlife Service s (FWS) decision to amend the rule pertaining to the management of the Mexican wolf experimental population living in Arizona and New Mexico. SCI filed suit in federal court in New Mexico. Two animal rights groups had previously filed their own suits in federal court in Arizona to challenge the same rule. A third case, filed by several New Mexico and Arizona counties and the New Mexico Cattle Growers Association was also before the Arizona court. Although the Counties and Cattle Growers had originally filed their case in New Mexico, the suit was transferred to Arizona after the FWS filed an unopposed motion with the New Mexico federal court to move the case to Arizona. As a result the score is currently Arizona 3, New Mexico with SCI s case being that 1. SCI chose New Mexico because the majority of SCI s case is about New Mexico. SCI s claims focus on the FWS s disregard of the New Mexico Department of Game and Fish s (NMDG&F) disagreement with the rule changes and the FWS s decision to move forward with finalizing the rule despite NMDG&F s choice to withdraw from participation in the rulemaking process. SCI s suit also focuses on the impact the rule will have on New Mexico hunters, outfitters and others involved in the New Mexico hunting community. In addition, SCI s two New Mexico chapters recently joined the case as plaintiffs. They will be represented by Albuquerque attorney Nathan Winger, who is also acting as SCI s local counsel for the case in New Mexico. As SCI expected, the FWS asked the New Mexico court to transfer SCI s case to Arizona with the intent of seeking consolidation with the three other cases in that jurisdiction. SCI is opposing the transfer despite the odds against it. In its opposition to the motion to transfer, SCI argued that two different courts can simultaneously consider cases that challenge a similar rule or action without duplicating each other s efforts or wasting judicial resources. From its own experience, SCI provided two examples of different Endangered Species Act lawsuits where a district court retained jurisdiction over a case despite another court simultaneously presiding over a case involving the same or very similar challenges. Meanwhile, the federal government is doing its utmost to stall the Arizona cases in order to persuade the New Mexico court that SCI will suffer no disadvantage if SCI s case is transferred to Arizona. With the agreement of the animal rights litigants and the Counties and Cattlemen plaintiffs in the Arizona cases, the federal government has persuaded the Arizona court to delay the Arizona suits twice. The rationale is to potentially accommodate the inclusion of SCI s suit, assuming that the New Mexico federal court grants the federal government s transfer motion. While the final home of SCI s Mexican wolf litigation is being decided, the states of New Mexico, Arizona, Utah and Colorado have mounted their own out-of-court challenge to the FWS s ongoing planning for Mexican wolf recovery. On November 13, 2015, the governors of the four states sent a letter to FWS Director Dan Ashe, criticizing several actions recently announced by the FWS. Those actions include Continued on Page 5 PAGE 4

5 WHERE OH WHERE WILL THE MEXICAN WOLF CASE GO? Continued from Page 4 the FWS s attempt to recover Mexican wolves across areas that are not part of the Mexican wolves historical range. In addition, the letter expressed the states dissatisfaction with the FWS s failure to consult with the states, the questionable scientific approach to developing a recovery plan, the naming of non-neutral individuals to facilitate recovery workshops and lead modeling efforts, and the selection of an inappropriate venue for those workshops. In a nutshell, challenges to the FWS s approach to Mexican wolves continue on multiple fronts and from multiple sources. Many are challenging the rule as well as the way in which the FWS previously handled and is planning to handle decisions about Mexican wolf management and recovery. The home of SCI s lawsuit will soon be decided and the case will move forward. Wherever that is, SCI and its New Mexico Chapters will be in a battle to force the FWS to reverse very poor decision-making and a disregard for the input from and impact on the New Mexico hunting community. Stay tuned to Crosshairs for future developments on this case. SCI DONATES FEE AWARD TO ANTI-POACHING EFFORT IN ZIMBABWE Continued from Page 1 Litigation Department selected the Dande Anti-Poaching Unit (DAPU), run by Charlton McCallum Safaris in Zimbabwe, as the recipient of these funds. DAPU operates in Dande East, the Dande Safari Area, and Dande North. Since its founding in 2010, DAPU s anti-poaching patrol teams have picked up over 5000 snares and arrested over 60 poachers. Game in the area has rebounded significantly since DAPU began operating. Most of DAPU s expenses have been covered by Charlton McCallum Safaris but individual hunters and some organizations have provided some support. SCI s donation will be used to purchase tents, boots and other important equipment for the DAPU anti-poaching teams. We are very excited to make our donation to DAPU as the latest installment in our effort to invest our litigation successes in SCI s conservation missions. A formal presentation to DAPU will take place at the 2016 SCI Convention in Las Vegas. For additional details on the date and time of the presentation, please check the Convention editions of Safari Times. PAGE 5

6 SCI SUPPORTS SYMPOSIUM ON HUNTING AND SUSTAINABLE USE CONSERVATION This summer, when the newspapers, television and internet were all bursting with rhetoric about lions, Hastings College of the Law sought to host a symposium on trophy hunting. The law student putting together the symposium knew little about hunting or sustainable use and was anxious to choose topics that would boost attendance. As a result, her early list of possible topics included several that did not reflect a proper understanding of hunting. It didn t appear the symposium was going to be balanced or objective. Fortunately, the organizer had an open mind and requested help to balance out the topics. She reached out to Doug Burdin, SCI Litigation Counsel, because she learned he is an alumnus of Hastings and works for SCI. She asked him to both present SCI s views and help her find other presenters who support hunting. Doug enlisted Carol Bambery, General Counsel for the Association of Fish and Wildlife Agencies, to help round up speakers. Before long, the symposium had changed its focus. Its new title was Hunting for Sustainable Use Conservation and the presenters included SCI members, university professors who generally support hunting as a form of sustainable use conservation, and several other excellent speakers on our side. Although the anti-hunting community was represented as well, the final version of the event offered a balanced, if not substantially supportive, view of hunting and conservation The symposium took place on October 30th in San Francisco. Doug s presentation focused on the importance of hunting, the various things a trophy can mean to a hunter, and two case studies on congressionally-approved hunting/ sustainable use conservation efforts: the captive three antelope species and the polar bear. The other presentations on the pro-hunting/ sustainable use side were numerous and excellent. Much of the discussion focused on the importance of hunting for conservation in Africa. The speakers on the side of hunting clearly had spent far more time in Africa than had the antihunting speakers. The undeniable message was that well-managed hunting can and does support conservation better than any other approach. SCI also was well represented in the audience. SCI members, including Bob Keagy, Reg Barrett, Tom Mattusch, Bev Valdez, John Ware, and Marc Fong, far outnumbered attendees from any other hunting organization and any antihunting group. We have seen signs that this symposium may spur others to put on similar gatherings to discuss the benefits of hunting and sustainable use conservation. Special Thanks to Legal Task Force Committee Members: Rew Goodenow (Chairman), Kevin Anderson, Bruce Benson, James Berglund, Donald Black, Ryan Burt, Richard Capozza, Brent Cole, Tina Cunning (consultant), John Daly, Marc Fong, Ned Johnson, Linda Linton, John Monson, Sue Monson, Alan Stevenson, Paul Turcke, Robert Welch, and David Willms PAGE 6

7 YOUR LITIGATION TEAM JOIN US AT OUR SEMINARS AND CLE During the 2016 Convention, SCI Litigation staff is sponsoring several opportunities for you to learn about what SCI is doing to protect your rights and opportunities to hunt. We have seminars -- for lawyers and non-lawyers -- that will address international and domestic hunting, conservation, and importation issues. Our seminars will feature presentations from the SCI Litigation staff and experts from around the country. If you have questions about what s happening with the recent African lion Endangered Species Act listing, join us on Saturday, February 6, 2016, at 2:00 P.M. for a seminar entitled, What Were They Thinking? The African Lion Rule in Breakers B, Level 2 - South. Anna Seidman, SCI Director of Litigation, will discuss SCI s ongoing efforts to address the FWS s rule and future enhancement findings. See our article on page 3 for more information on the lion listing. If you are an attorney, it is not too late to satisfy your mandatory CLE credit with a course all about what you love wildlife and hunting. SCI s annual Wildlife Law Continuing Legal Education Course is scheduled from 1:00-5:15 P.M. on Friday, February 5, 2016 in Breakers E, Level 2-South. Registration is $ and the course includes 1 hour of ethics. In years past, SCI s CLE course has been approved by over 25 state bar CLE approval boards. SCI will seek CLE credit for all attorneys who attend. Registration at the door will be accepted. Speakers include SCI Litigation staff, as well as state and private practice attorneys who will speak about hunting, trophy importation, recent wildlife-related cases, and a variety of topics of interest to every hunter/lawyer. Featured presentations will include a discussion about the use of drones for wildlife management and an inside look at the Ringling Brothers decisive legal victory over HSUS. Back by popular demand, the CLE will also include the third edition of Wildlife Law Jeopardy. For more information, contact Anna Seidman at aseidman@safariclub.org. If you are a resident of Nevada, Colorado, Utah, Wyoming, Montana or Idaho, or plan to hunt in one of these states in the future, don t miss our second annual Western State Directors Forum, scheduled for Saturday, February 6, 2016 at 10:00 A.M. in Breakers B, Level 2- South. These leaders of the fish and game authorities of western states will share their thoughts about their greatest successes and the challenges they face concerning hunting and access in the coming year. Last year s forum was a great success and we have designed this year s event to be even better. Join the discussion and come to ask questions at this unique gathering of experts. These seminars can give you time to rest your feet because this year s SCI Convention promises to be bigger and better than ever! So join us for a break, get re-energized, and then, get back out there and have fun! For any questions or feedback on litigation matters, please contact Anna Seidman at aseidman@safariclub.org, Doug Burdin at dburdin@safariclub.org, or Jeremy Clare at jclare@safariclub.org PAGE 7

8 CURRENT LITIGATION SCI is currently involved or has recently been involved in the following cases: Elephant Importation Bans Challenge (SCI v. Jewell ) Challenge to the FWS s decisions to suspend the importation of sport-hunted elephant trophies from Zimbabwe in 2014 and 2015 and from Tanzania in Status: At the court s recommendation, the parties consolidated the briefing of the 2014 and 2015 Zimbabwe cases. We will file our opening brief on summary judgment in the consolidated cases on February 18, We appealed the Court s decision to dismiss our claims regarding the 2014 Tanzania importation ban and filed our opening brief in the appeal in late January. SCI also sued to challenge the FWS s failure to respond to SCI s request for documents pertaining to the July 2014 decision to ban the importation of elephants from Zimbabwe. Status: After SCI filed suit, the FWS responded by providing all relevant documents. We settled our claim for attorneys fees for $8,900 and will contribute that amount to the Dande Anti-Poaching Unit in Zimbabwe. California s Ban on Importation of Mountain Lion Trophies (SCI v. Harris) Challenge to the constitutionality of a California law that bans individuals from importing or possessing trophies of mountain lions hunted outside of California. SCI claims that the California law violates the U.S. Constitution s Commerce and Equal Protection Clauses. Status: For the second time, the State moved to dismiss SCI s complaint and the Court granted the motion. Instead of amending our complaint again, SCI has chosen to appeal the dismissal to the Ninth Circuit. Wyoming Wolf Delisting Challenges (Defenders of Wildlife v. Jewell; HSUS v. U.S. FWS) Defense of delisting and hunting of Wyoming portion of the northern Rocky Mountain wolf population in D.C. federal court. SCI is a defendant-intervenor. Status: D.C. district court invalidated the rule and returned Wyoming wolves to endangered status. All parties have appealed the court s decision. Briefing is ongoing. Western Great Lakes Wolf Delisting Challenge (HSUS v. Jewell) Defense of delisting and hunting of WGL wolf population. SCI, NRA, USSAF and several other organizations intervened. Status: The district court vacated the delisting and placed the WGL wolves back on the endangered species list. All defendants and defendantintervenors appealed the decision. After a failed attempt to mediate the appeal, briefing started late last year and is ongoing. Three Antelope Cases (FoA v. Jewell et al.) In the 2014 Appropriations Law, Congress directed the FWS to reissue a 2005 permit exemption rule regarding the hunting of three antelope species on ranches in the United States. After the FWS reissued the rule, FoA filed suit to challenge the constitutionality of Congress s action and the rule. SCI joined as a defendant-intervenor. Status: The district court denied FoA s summary judgment motion, and FoA appealed to the D.C. Circuit. Briefing has been completed and oral argument is scheduled for late February. (SCI v. Jewell et al.) SCI challenged the FWS s classification of U.S. captive populations as endangered. Status: Court upheld the legality of the listing. SCI appealed the ruling to the D.C. circuit court. Appeal has been stayed on SCI s request, pending the appellate court ruling on the constitutional challenge. (FoA v. Ashe et al.) FoA challenged permit process for culling members of captive herds of the three antelope. SCI is a defendant-intervenor in the case. Status: Briefing has been stayed, also pending the outcome of the appeal in the constitutional challenge. Big Cypress ORV/Wilderness Plan (NPCA et al. v. DOI et al.) Defense of National Preserve (Addition Lands) Management Plan facilitating hunting and ORV use. SCI intervened in case to defend plan. Status: After extensive briefing and an all-day hearing, the Flor- ida federal district court ruled in the NPS and SCI s favor and upheld the plan. The case is now on appeal to the Eleventh Circuit Court of Appeals. Briefing has been completed. Lead Ammunition in Kaibab National Forest (CBD v. U.S. Forest Service) Defense against attempt to ban lead ammunition use in Kaibab National Forest. Status: district court granted a motion to dismiss filed by the federal government. CBD appealed decision to Ninth Circuit. After a year-long delay, the appellate court overturned the district court and remanded to proceed on the merits. SCI will attempt to intervene in the case. Grand Teton National Park Elk Hunt (Mayo v. Jarvis; Sierra Club v. Jewell) Two photographers challenged the elk management program administered on Grand Teton National Park in Wyoming. In a separate case, Sierra Club challenged the FWS s approval of the hunt. SCI is participating as a defendant-intervenor in both cases. Status: Briefing was completed in late The court has yet to schedule oral argument. NPS Regulations in Alaska (Sturgeon v. Masica) SCI member, John Sturgeon, challenged the NPS s authority to regulate activities on non-federal waters in Alaska. An Alaska district court and the Ninth Circuit upheld the NPS s exercise of authority. Sturgeon petitioned the U.S. Supreme Court to consider his case. Status: SCI filed an amicus brief in support of Sturgeon s petition to demonstrate the broader impact of the lower courts ruling on resident and nonresident hunters in Alaska. The Supreme Court accepted review of the case and held oral argument in late January. SCI filed a second amicus brief in support of Mr. Sturgeon. Revisions to the Mexican Wolf Experimental Population Rule In January 2015, the FWS finalized revisions to the regulations concerning the management of the Mexican wolf nonessential experimental population. The regulations increase the number of wolves to be recovered and expand the area into which they will be released and allowed to range. Status: SCI filed suit in New Mexico and have been joined by two New Mexico chapters. FWS moved to transfer the case to Arizona. We are awaiting a decision on that motion. Lesser Prairie-Chicken Listing Various states and entities have filed six lawsuits concerning the listing of the LPC and/or the ESA multispecies settlements that led to the species listing. After lengthy procedural debate, three cases are in federal court in DC, two cases are in federal court in Oklahoma, and one case is in court in Texas. Status: The Texas court ruled in favor of the plaintiffs and set aside the LPC listing. The cases in D.C. continue. SCI attempted to file an amicus brief but the judge denied our request to participate. McKittrick Policy (WildEarth Guardians v. DOJ) In 2013, WildEarth Guardians sued to challenge the Department of Justice s policy not to prosecute individuals who accidentally shoot ESA listed species. Plaintiffs claim that the policy jeopardizes Mexican wolf recovery. Status: The Arizona federal district court denied the DOJ s motion to dismiss the case. SCI filed a motion to intervene shortly before DOJ and WEG entered into settlement negotiations. The case is stayed until those negotiations conclude. Florida Black Bear Hunt (Speak Up Wekiva v. Wiley) - Florida group filed suit to challenge Florida s authorization of a black bear hunt. The group filed an emergency request to halt the hunt. SCI participated in the briefing and attended a hearing. Status: The Court denied the group s request and allowed the hunt to move forward. The state held the hunt. The case continues and SCI will continue to stay involved. PAGE 8