Endangered Species Act

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Japanese macaques, along with 11 other primate species were first listed as threatened on October 19, 1976 by FWS.[1]  However, by special rule, 50 C.F.R. §17.40(c)(2) captive members of these species were exempted from protections under the Endangered Species Act by FWS.  Now, People for the Ethical Treatment of Animals (PETA) has petitioned FWS to correct what they describe as the unlawful deprivation of protection under the ESA.  See Petition to Include the Captive Members of the Species of Primates Enumerated in 50 C.F.R. §17.40(c) as Protected Members of their Respective Species Under the Endangered Species Act.

PETA based its petition, at least in part, on FWS’s relisting captive chimpanzees as endangered species, along with their previously listed wild counterparts.  Endangered and Threatened Wildlife and Plants; Listing All Chimpanzees as Endangered Species, 80 Fed. Reg. 34500 (June 16, 2015).  .  In 2015 The U.S. Fish and Wildlife Service announced a final rule to classify all chimpanzees, both wild and captive, as endangered under the Endangered Species Act (ESA). Until this change, only wild chimpanzees were listed as endangered while captive chimpanzees were listed as threatened.

“We are listing all chimpanzees, whether in the wild or in captivity, as endangered under the Endangered Species Act of 1973, as amended (Act). We have determined that the Act does not allow for captive chimpanzees to be assigned separate legal status from their wild counterparts on the basis of their captive state, including through designation as a separate distinct population segment (DPS). It is also not possible to separate out captive chimpanzees for different legal status under the Act by other approaches. Therefore, we are eliminating the separate classification of chimpanzees held in captivity and listing the entire species, wherever found, as an endangered species under the Act.”

FWS will only issue permits for studies of chimpanzees “only for scientific purposes to benefit wild chimpanzees or to enhance the propagation or survival of chimpanzees, including habitat restoration and research on chimpanzees in the wild that contributes to improved management and recovery.”

If FWS adopts this position for the species currently listed as threatened, more than 316 Japanese macaques involved in research at various biomedical research facilities would be subject to the same fate as many chimpanzees, who unfortunately died when moved to “sanctuaries” since they were not permitted to remain under the care of knowledgeable and trained experts at research facilities.  See Dr. Collins please save our chimps, by Cindy Buckmaster.

Regardless of the outcome of this petition, these animals should remain in facilities where they can be properly cared for, and, if at all possible, the research they have been involved with should be completed so that it is not a loss.

[1] One of the original 12 primates was relisted as endangered in 1990.

Conservation Force, a “non-profit 501(c)(3) public foundation formed to conserve wildlife and wild places,” along with several individuals and the Garden State Taxidermist Association, filed a lawsuit against the New Jersey’s Acting Attorney General and Bob Martin, Commissioner of the New Jersey Department of Environmental Protection, claiming that two New Jersey laws banning “resident possession, import, export, and transport (among other things) of certain game animal parts and products in the State of New Jersey,” are preempted by federal law.

Bills S977 and S978, “[s]igned into law as P.L. 2016, c. 6 and P.L. 2016, c. 7, respectively,” “prohibit resident possession, import, export, and transport . . . certain game animal parts and products in the State of New Jersey and in facilities owned or operated by the Port Authority of New York and New Jersey.” Conservation Force v. Porrino, Case no. 16-04124, Complaint Conservation Force v Porrino at paragraph 1.

The Complaint describes in detail the unintended consequences the challenged laws will have on “far-reaching negative consequences for the specially-designed conservation strategies and plans for elephant, leopard, lion, and rhino.” Id., at paragraph 10.

Licensed, regulated tourist safari hunting is an essential component of the conservation programs for elephant, leopard, lion, rhino, and many other species. It generates the primary means and incentives to safeguard most wildlife habitat in Southern and Eastern Africa, where most of these species persist. It funds most of the operations, including law enforcement, of the relevant range-state wildlife authorities. It creates community incentives that reduce the threat of human-wildlife conflict and lead rural people to protect wildlife as assets. And it sustains the three primary tiers of anti-poaching: government law enforcement, hunting operator anti-poaching, and community game scouts. Id., at paragraph 2.

Revenue from licensed, regulated tourist safari hunting is the backbone of anti-poaching in Southern and Eastern Africa. For example, in Tanzania hunting revenue funds approximately 80% of usual wildlife authority anti-poaching, and a similar percentage in Zimbabwe. Hunting revenue funds anti-poaching teams equipped and run by individual operators, and community game scouts providing additional ―boots on the ground.‖ All three primary tiers of anti-poaching (state wildlife authority, operators, and communities) are sustained by the user-pay, safari hunting conservation system – which it was designed to do. Id., at paragraph 6.

Southern and parts of Eastern Africa have excelled in sustainable use-based conservation, depending mainly on tourist safari hunting. Successful safari hunting programs exist in the range nations that support and secure the largest populations of Cape buffalo, African elephant, leopard, lion, and rhino (the ―Big Five; ―Big Four refers to these species without Cape buffalo). Big Five hunts in these countries are the highest priced and so provide the greatest revenue and benefits, by expert design, in cooperation with the endangered species programs of the U.S. Fish and Wildlife Service (―USFWS) through import permitting. Id., at paragraph 7.

In the Complaint and the Memorandum of Law in support of Plaintiffs’ Application for a Preliminary Injunction, Plaintiffs assert that the laws are preempted by the Endangered Species Act (ESA) and New Jersey impermissibly seeks to substitute its judgment for that of the U.S. Fish and Wildlife Service, the federal agency responsible for implementing the ESA, which permits the conduct New Jersey has now prohibited.

The Board of Directors of Americans for Medical Progress (AMP)[1], met for their annual business meeting on September 25, 2015 in Washington, D.C. I attended the meeting as one of the Directors. AMP’s mission is to “protect society’s investment in research by nurturing public understanding of and support for the humane, necessary and valuable use of animals in medicine,” which has become increasingly important with the increasing prevalence of misinformation distributed by animal rights extremists, and activists intent on banning the use of animals in biomedical research.

AMP provides accurate and incisive information to foster a balanced public debate on the animal research issue, ensuring that among the voices heard are those whose lives have been touched by research and those who work in the field.

Despite those laudable goals, the public’s concern about, and disapproval of, the use of animals in research has been continuously growing.

As I mentioned to the Board, I believe that if the public became aware that the animal rights’ movement is actually more harmful than helpful to animals owned and cared for by humans, public sentiment would shift back toward support of biomedical research that saves the lives of animals and humans alike.

On September 27, 2015, an article in the New York Times, described that very concern. In Protecting Apes Could Backfire author Peter D. Walsh described the plight of researchers developing vaccines to protect chimpanzees and other nonhuman primates against Ebola virus and other infectious diseases.  The research has been effectively terminated, because safety and efficacy studies required for approval can no longer be performed on captive chimpanzees without permits and approvals that research institutions have not yet applied for, presumably out of fear of retribution from activists.

As Walsh explained:

Captive trials like ours could be permitted under the new endangered species listing [adding captive chimpanzees to that list], which took effect on Sept. 14. But invasive procedures (drawing blood, for instance, or administering injections) now require a permit from the Fish and Wildlife Service. These permits will be issued only for research that benefits chimpanzees in the wild.

Not a single research facility has applied for a permit so far. Whether any will is still unclear. One reason may be that it would be sure to attract the vocal opposition of those opposed to biomedical research on chimpanzees.

Walsh appeals to the research community and officials to develop more creative mechanisms to permit such research.

My concern is more universal.

Biomedical research, as previously described, benefits both humans and animals. Limiting research to the benefit of only one species will diminish its value to all. While scientists continue to develop methods and techniques that minimize the need to use animals in research, such use continues to be of paramount importance to all species.

[1] AMP is a 501(c) 3 nonprofit charity supported by the nation’s top universities, private research facilities, research-related businesses, scientific and professional societies, as well as by foundation grants and contributions by individuals.

For the second time in the past few years, a federal court has awarded attorneys’ fees to a defendant accused of violating the ESA, “when the plaintiff’s claims are frivolous, unreasonable, or without foundation, or when the plaintiff has continued to litigate after they have clearly become so.” Wildearth Guardians v. Kirkpatrick, et al., No. 12-118 (D.N.M. Sept. 11, 2015) (order awarding attorneys’ fees).

In Wildearth Guardians the Plaintiff brought this lawsuit against the Interim Director of the New Mexico Department of Game and sue and the New Mexico State Game Commission, both sued in their official capacity under the Endangered Species Act, alleging that they had “committed illegal “takes” of the Mexican gray wolf in violation of a special rule protecting that population.”

“The Guardians sought declarations that the Defendants had violated the . . .provisions by authorizing trapping within occupied wolf range without first exercising due care to avoid taking a gray wolf, as well as injunctions requiring Defendants to exercise due care in the future.”

Because neither Defendant had the authority to grant the relief sought on their own (promulgate regulations), the court dismissed the claims for lack of standing, and then found that the Guardians’ “claims against [the Chairman] became frivolous when another party pointed out, and the Guardians’ agreed, their claims against him could not meet the redressability requirement for Article III standing.”

The court awarded “the Chairman’s reasonable attorney’s fees in the amount of $173,999.07.”

In another ESA in which the court ruled that the defendant was entitled to attorney’s fees, Plaintiffs, the Humane Society of the United States and other animal-rights groups paid defendant Feld Entertainment, Inc. (FEI) a combined $15.75 million to settle allegations by the company that the groups and their lawyers bribed a former circus employee to make up allegations that Feld abused Asian elephants in its circus[1]. See Animal Rights Groups Pay Circus Producer Millions To Settle Suit 

Following the FEI case (which was based on allegations by a witness, the court found had been unlawfully paid for his testimony, that FEI had committed a “takes” by use of restraints of its elephants) there was speculation that such large award/settlement amounts may dissuade activists from bringing similar lawsuits.

That clearly has not happened, probably largely in part, due to the substantial revenue streams these groups cultivate from such activities. But perhaps it will give some would-be plaintiff’s reason to pause and consider the ramifications of frivolous complaints before filing.

[1] The total fees awarded resulted from a settlement of two cases, one in which ASPCA settled for $9.3 million in cash, and another in which HSUS, et al., settled for $15.75 million dollars.