Federal Judge Denies Injunction to Captive Hunters

U.S. District Court Judge Beryl A. Howell has denied requests for preliminary injunctions filed (1) by the Safari Club International to enjoin enforcement of endangered species status for non-native captive populations of the scimitar-horned oryx, dama gazelle, and addax, three species of antelope; and (2) by Exotic Wildlife Association, a group of Texas ranchers that own most of the state’s exotic wildlife, to stop the enforcement of a final Fish & Wildlife Service rule that goes into effect today, April 4, 2012, that would end the exemption since 2005 that has allowed these endangered antelope species to be bred and held on ranches and then killed in captive or canned hunts, all under the guise of "conservation".

On "September 2, 2005, the FWS listed the Three Antelope species as endangered under the ESA, after finding that the Three Antelope species faced extinction because
of all of the endangered species listing factors other than ‘disease or predation.’ 70 Fed. Reg. at 52,321-52,322 (Sept. 2, 2005).

"At the same time, the FWS added a new regulation, codified at 50 C.F.R. § 17.21(h), authorizing certain otherwise prohibited activities for U.S. captive-bred individuals of the Three Antelope species … See 70 Fed. Reg. 52,319-52,320 (Sept. 2, 2005). The FWS noted at that time that ‘[c]aptive-breeding programs operated by zoos and private ranches have effectively increased the numbers of these animals while genetically managing their herds. As future opportunities arise for reintroduction in the antelope range countries, captive-breeding programs will be able to provide genetically diverse and otherwise suitable specimens. Currently, however, continued habitat loss and wonton killing have made reintroduction [of captive-bred herds to the wild] nonviable in most
cases.’ 70 Fed. Reg. at 52,322 (Sept. 2, 2005).

"Animals rights groups, including the defendant-intervenors, subsequently and successfully filed suit alleging that the FWS unlawfully promulgated the Captive-bred Exemption. See Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009) (Kennedy, J.). SCI and EWA intervened as defendants in that consolidated case. There, Judge Kennedy found that ‘[a]fter examining the text, context, purpose and legislative history of section 10 [of ESA] . . . subsection 10(c) requires case-by-case consideration before the FWS may permit otherwise prohibited acts to enhance the propagation or survival of endangered species,’ and that the ‘blanket exemption’ reflected by the Captive-bred Exemption violated the ESA’s subsection 10(c) requirement to provide public notice in the Federal Register of each application for a permit allowing such otherwise prohibited acts. Id. at 116, 118. The court remanded the rule to the FWS for further proceedings."  

"On July 7, 2011, the FWS published a proposed rule to withdraw the Captive-bred Exemption, consistent with the holding in Friends of Animals. See 76 Fed. Reg. 39,804 …This would eliminate the exclusion for the Three Antelope species from certain prohibitions in the ESA and require any person intending to engage in otherwise prohibited activity to qualify for an exemption or obtain a permit authorizing such activity."  

"On January 5, 2012, FWS issued its final rule removing the Captive-bred Exemption, effective on April 4, 2012 ("Final Rule"). 77 Fed. Reg. 431 (Jan. 5, 2012). The Final Rule explained that "[t]his change to the regulations is in response to a court order that found that the rule for these three species violated section 10(c) of the Act. 

"These three antelope species remain listed as endangered under the Act, and a person will need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to conduct any prohibited activities. Id. …

"The Final Rule stated that the FWS ‘considered whether there were alternative means to comply with the Court’s ruling without requiring ranches or other facilities holding these species to obtain a permit or other authorization’ and determined that there was no alternative ‘other than the currently established regulations at 50 C.F.R. 17.21(g) and 17.22 – providing for the
registration of captive-bred wildlife or issuance of a permit – that would provide the public an opportunity to comment on proposed activities being carried out with these species.’ 77 Fed. Reg.at 432. 

"The Final Rule also noted that the FWS ‘did not receive any comments or suggestions from the public that presented a viable alternative.’ Id. The FWS provided an ‘extended effective date’ of April 4, 2012 for the Final Rule in order to ‘allow the affected community to either legally sell their specimens, if they choose to divest themselves of these species, or to apply for authorization or permits to continue carrying out previously approved activities.’" Id.  

The judge found the defendants had failed to present evidence that would entitle them to preliminary injunctions either to remove these animals from the endangered species list or stop the rule removing the exemption from ESA restrictions; the exemption has allowed the antelope to be bred, hunted down and killed on "game ranches" in captive or canned hunts. Here is a copy of the opinion.

As Priscilla Feral, Friends of Animals, put it to the Los Angeles Times, "They’re breeding those antelopes, they’re seeming them and killing them and calling it conservation. You live a year or two before your head’s blown off – the Endangered Sepcies Act wasn’t created for that."  Feral called the idea that this is conservation a "hoax".  For more on laws on canned hunts…..