Argali Suit Finally Finished: Positive Gains

The Antis who filed the Argali case have voluntarily dismissed their appeal. The case is over. It was more than a win. We are better off because of the suit. Ironically, hunting interests have been advanced by the suit, not the interests of anti-hunters and animal rights organizations.

The plaintiffs dismissed their appeal by a motion filed on July 7, 2004. There was no reason given for the dismissal one full month before their appeals brief was due. Everything the Antis did up to that point suggested that they intended to vigorously pursue the appeal.

The suit lasted more than three years (it was filed April 2001) and dominated my personal life as was expected. The boxes of files almost fill a storage room. All of my legal services were provided pro bono to the hunting community, Mongolia and the Kyrgyz Republic (for strategic purposes, we only filed a formal intervention on behalf of Mongolia, not Kyrgyzstan). Conservation Force, through its many contributors, bore the many thousands of dollars of out-of-pocket court costs and expenses from transcripts to legal clerks. Conservation Force represented the greatest number of interveners, filed and won the greatest number of motions, filed the greatest number of supporting declarations and affidavits, and selected and initiated the unique arguments and strategy that won the case.

The end results are positive and have advanced hunter’s interests. The following are some of the gains:

First, the suit caused the US Fish & Wildlife Service (USF&WS) to "withdraw" its decade-old proposal to uplist the Argali in Mongolia, Kyrgyrstan and Tajikistan as "endangered" (58 FR 25595, April 27, 1993). An "endangered" listing would have stopped US trophy imports. Through the suit, we learned that the USF&WS proposal that would have listed all Argali as "endangered" had not been abandoned. It was like a cloud hanging over the hunting community. Now, the Service has finally ruled that the Argali in Mongolia, Kyrgyzatan and Tajikistan are not "endangered" (67 FR 35942, May 22, 2002). The Service’s "withdrawal" of that foreboding proposal has also withstood the suit of the Antis. After that proposal was withdrawn, they amended the Argali suit to include a claim that the "withdrawal" was improper.

Second, in the Argali suit, the interests and rights of foreign governments under the Endanger Species Act (ESA) was established and judicially recognized for the first time. In a precedent-setting opinion, a three-judge federal appeals panel held that foreign governments (Mongolia) have an absolute right to participate in every part of the ESA process as the owners and managers of their resources (Argali), including participation in third-party lawsuits. Anti-hunting organizations are not free to impose their "new morality" or will on indigenous peoples and other nations in the Developing World without the participation of those it impacts the most.

Third, the Judge’s opinion resolves some important ESA legal issues about trophy importations. The prohibition against the "take" of a domestic listed species that stopped wolf hunting in Minnesota and grizzly hunting in Montana does not apply to issuance of permits for importation of "threatened" game taken in foreign countries. That is important. For more than a decade the Antis have been threatening the USF&WS with suit for issuing trophy import permits of "threatened" species. Their position has been that trophy import permits can only be granted "in the extraordinary case where population pressures (of the species being imported) within a given ecosystem cannot be otherwise relieved.…" That is because the Courts have applied that test to the taking of "threatened" listed wolf and grizzly when taken within the United States. Thanks to the Argali case, the ESA prohibition against hunting has now been determined not to be applicable to importation of trophies "taken" (hunted) in foreign lands. The Antis first raised the legal issue that trophies of "threatened" species should not be importable in the Elephant Law Suit but their intervention occurred too late for that issue to be adressed in that case.

Fourth, the suit also sheds a great deal of light on the "special" regulations governing importation of Argali trophies. Those regulations had confounded everyone. We now know exactly what must be done before the USF&WS will allow trophy importations from the three countries (Mongolia, Tajikistan and Kyrghizia) without a permit. If and when the six criteria in the "special" regulations are satisfied, the Service will no longer require import permits for that country. In fact, the Argali is the only "threatened" listed species on Appendix II of CITES for which an import permit is required. It is an unusual requirement never before applied to foreign species listed as "threatened" under the ESA when they are already protected by an Appendix II CITES listing. Until information is received that satisfy the six criteria to the Service’s satisfaction, trophy import permits will continue to be required. Not surprisingly, the conditions (information needed) for trophy imports without import permits closely tracks the criteria for listing species set forth in the ESA. Nevertheless, the six conditions of the special regulations hopefully will be applied less rigidly and more expeditiously than the formal downlisting process. Dowlisting petitions for cheetah, wood bison in Canada, markhor in Pakistan and even elephant in southern Africa have all been denied or left pending indefinitely over the past decade. Satisfying the "special" regulation for argali may be more reasonably received.

As explained above, the Service has not been issuing permits under the "Special" Argali regulation. That regulation dispenses with the need for a permit when the Service’s conditions are satisfied and is only intended to apply after that circumstance. Instead, the Service issues trophy import permits under its general authority. Each year, it determines that the hunting does not jeopardize the Argali (non-jeopardy finding) and that it enhances the Argali’s survival (enhancement finding). These findings are made by two different divisions of the USF&WS before permits are issued each year. This means that the Service has been making a finding that Argali hunting is benefiting the Argali each year since they were listed. Stated differently, hunters have in fact been found to be a force for the conservation of Argali each year.

Fifth, the Argali decision is also the first formal judicial recognition under the ESA that hunting benefits a "threatened" listed species. Although USF&W has been making that internal decision each year in each of the three countries exporting Argali trophies, no court had reviewed it. In fact, this was the first suit attempting directly to stop the importation of hunting trophies. The Antis suit rested on the assumption that hunting of a listed foreign species is inherently detrimental to its survival. The Trial Court’s opinion makes it clear that US tourist hunting of Argali is preferable because the sheep are to be taken or even eliminated anyway. The regulated hunting by US hunters that is the primary incentive and revenue for the sheep conservation is a better, more beneficial use. Organizations like The Earth Inland Institute (one of the Argali plaintiffs) have long argued that "USF&WS funds, and taxpayer support, should not be used for the research that would contribute to the foundation of, or enable, ‘hunting conservation’ schemes in any argali-range nation…. In addition, sanctioned hunting is the most easily eliminated factor contributing to species decline." The Argali suit result is also a far cry from the press release assertion of the Fund for Animals that, "[i]t is unconscionable that hundreds of animals in this imperiled species have been killed (Editor Note: Closer to a total of one thousand today) simply so wealthy American trophy hunters can add more heads to their collections." The Antis were cocksure that "head" hunting, as they mischarac- terized it, would be enjoined. Wrong.

Sixth, the suit also caused an unexpected response from the hunting community that promises to be a formidable force in the future. With Conservation Force in the lead, Safari Club International and the US Sportsmen’s Alliance’s legal teams all filed full interventions. The Antis found themselves facing the legal expertise and capacity of those three legal teams and that of the government agencies’ attorneys as well. Despite the Antis’ successes in other cases, it must have been bewildering for the them to suddenly be confronted with so much opposition. They can expect no less opposition in the future. The sheep hunting community also pulled together when both the Foundation for North American Wild Sheep and Grand Slam/OVIS stepped into the ring with Conservation Force. That can be expected in the future as well. The "Ducks Unlimited" of the sheep conservation world will no longer sit by while the Antis dictate bad policy to the world.