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The
NTA Wildlife Conservation Committee
By John Janelli As professional taxidermists, one of our utmost concerns should be to keep our clients out in the field hunting and fishing whenever possible. Even if we only derive a part time income, we can not maintain our industry without maintaining our rights to utilize the wild resources of our states, nation and the rest of the world. Not having the exorbitant resources to engage expensive lobbyists for the NTA, we can do the next best thing. That is to align ourselves with the organizations who are in fact on the front lines and in every circle of litigation where our rights as taxidermists and hunters are threatened. This single urgency alone should convince any taxidermist to join and support the NTA. It certainly convinced NTA president Bill Haynes to establish and circulate the finest team of committee people ever assembled when recently for the first time in history, the NTA had to procure a state permit in order to give a trophy preparation seminar at a major retail outlet. The seminar was canceled not due to the unexpected spoiled specimens, but do to the fact we could not 'import' any wild life parts to continue with the work at hand. CWD regulations had begun to take effect on the ways we not only conduct or taxidermy businesses, but the way we used to educate the public as well. Through the incredible efforts of Conservation Committee member John Jackson, the NTA has the representation we need to voice our concerns to the issues that threaten our very existence. As you know, Mr. Jackson is the tireless dynamo behind Conservation Force. By supporting both Conservation Force and the CWD Alliance financially and through endorsements, we continue to reap the beneficial rewards of actually having our own lobbyists where they do the most good. For example, just name the issue or crisis and Mr. Jackson is either going are returning from making absolutely sure that our profession has ample representation where it means the most. He has immeasurably responded to our needs from every corner of the globe. The CWD Alliance has placed the NTA with literally every other pro-hunting organization to increase awareness and prioritize the need for education about this deadly disease. Carol Rutkowski of NTA's official sponsor, Coppersmith Brokerage Co. is no one to be at odds with when it comes to defending the rights of world wide taxidermists. Our livelihood depends on our clients, Carol's livelihood depends on taxidermists, it's that simple. When Carol sees an opportunity to stand up for our industry, my phone usually rings with a tentative date and time to be some place to tell some one what we need and why we need it. Her energy to exert maximum accomplishments for taxidermists in boundless. I only hope I can keep up with these two impeccable NTA work horses. The war chest for all this is the Conservation Fund. Through it, the NTA converts dollars into ammo to keep our 'soldiers' in action. The single most important thing we can do is to help make sure the war chest is always well endowed. Consider the cost of sending one NTA rep into just one meeting, hearing or session where our future as taxidermists is at stake. The tab can exceed several thousand dollars. Yet Conservation Force makes more trips like that each and every month that are enough to drain the wealthiest of coffers. My commitment to you, the members is, as chairman of the NTA Conservation Committee is help keep the war chest as full as possible. To be where ever it is necessary to observe and report the issues that need our concern. This is the same commitment that the NTA was founded upon. How ironic that our founder, Charlie Haynes and our President Bill Haynes, both endorsed the same priorities. Urgent Alerts Crisis Over Trophies in Transit Favorably Resolved The Office of Law Enforcement has issued a Chief’s Directive clarifying its permitting requirements for trophies that transit intermediate countries. Simultaneously the USF&WS released trophies that had been “seized” or were being “detained” in nearly every port of embarkation in the USA. Tons of other trophies waiting resolution of the issue are now on their way to happy hunters. The problem was resolved after four months of work and worry. Read on, because it is important to understand when to get import and/or re-export permits from transited intermediate countries. On August 31 the port of Chicago started seizing CITES listed hunting trophies that had passed through, transited, South Africa because the transit period of time was not “immediate”. Because the transit was not considered “immediate” the USF&WS required a re-export permit from CITES authorities of South Africa. That in turn would require the shipment to be opened and inspected and the re-export permit verified before departure. The delay would actually be increased, as would expenses. The industry and African authorities were surprised and bewildered by the new USF&WS requirement that threatened the importation of trophies from Botswana, Mozambique, Zambia, Zimbabwe and perhaps other countries. The South Africa CITES Authority said it was unnecessary, served no purpose and would add problems and delay. Adding to the normal delay necessary to change cargo carriers in South Africa, a regulation from another U.S. agency was the cause of the delay. Because of U.S. Department of Agriculture (USDA-APHIS) requirements, the wood parts of the containers and crates for the trophies had to be fumigated before entering the USA. Though the fumigation occurred under South Africa’s Customs control without the shipments ever clearing customs/without official entry, the South Africa passage (transit) did not conform with the new UFS&WS regulations that the transit be “immediate”. The problem grew worse. What started in Chicago in late August spread to most other ports in a period of weeks. Other enforcement officers joined forces behind the Chicago interpretation. We then learned of a guidance being circulated within the enforcement division reinforcing the new “immediate” requirement that spelled doom for the safari industry of Southern Africa. Freight forwarders and trophy brokerage firms on both sides of the Atlantic were frantic as tons and tons of trophies backed up. By late October we had a full understanding of the problem and had completed a comprehensive review of that aspect of the CITES in-transit Article that has always exempted in-transit shipments from permitting. The new USF&WS regulation had added a condition that the passage through an intermediate country be immediate, while the CITES “Exemption” Article only required it to remain in Customs Control. After consulting all the respective experts and authorities, Conservation Force filed a formal petition with the USF&WS Director and Secretary of Interior to have the USF&WS revise its new regulation and to suspend its enforcement in the interim. The petition was in behalf of Conservation Force, South Africa and Mochaba, which is one of the largest if not the largest and most responsible trophy shipping agents. Though they were not parties in the petition, Coppersmith, Inc. helped identify the problem and helped avoid unnecessary seizures. Due to their help, a lot of seizures were avoided during the months of uncertainty when the problem seemed to worsen and the USF&WS seemed unresponsive to the petition. There was sensitive intragovernmental communications between South Africa and USF&WS CITES authorities as well as the CITES Secretariat itself behind closed doors. There were also sleepless nights at Conservation Force, at Mochaba, and some hunters’ homes. Conservation Force began drafting a suit for declaratory and injunctive relief that it did not have to file, but at least two hunters had to file petitions for remission for return of their seized trophies. In late December the crisis resolved when the USF&WS “clarified the intent of the regs so it does not happen again.” It sent a clarification to all inspectors “recognizing the realities associated with some of those shipments.” The so-called Office of Law Enforcement Guidance issued by the USF&WS is in the form of a Chief’s Directive. After giving the history it states, “Guidance: Imports of non-living specimens destined for the United States that have been shipped through an intermediary country and remained in Customs Control will be cleared for import into the United States, provided no other violations exist,” signed by the Chief, Office of Law Enforcement. The explanation with the Chief’s Directive is important. It states that “[t]he primary intent of the new regulation is to prevent the misuse of the in-transit exemption, particularly when delays could be used to deliberately circumvent permitting requirements of an intermediary country. However, we have recognized that some shipments transiting intermediary countries experience delays that are beyond the exporter/importer’s control.” In the case of South Africa, the South African authorities knew well of the delay and had long approved of it before the U.S. seizures began. Moreover, the delay was made necessary by a U.S. regulation requiring fumigation of the packaging before import. The regulation remains in effect so travelers and shippers must be aware. The “shipment must remain under Customs Control while in the intermediary country” (not new regulation) and must “stay only for the time needed to immediately transfer the specimen to the mode of transportation used to continue to the final destination.” In short, we solved the problem arising from the necessary delay in South Africa, but only there and for the purpose of fumigation. For example, two argali trophies were detained by the Inspector in Chicago and were re-exported in lieu of seizure because the hunter left them in bond while he stayed over for two days in an intermediary country. He could not get a re-export permit from the intermediate country, though he tried, because the trophies never officially entered the country. So it is over, but it is not. The overall magnitude of this crisis demonstrates the vulnerability of safari hunting and conservation dependent upon the hunting. The USF&WS emphasizes it is going to be monitoring in-transit delays closely. We too will be monitoring. Conservation Force has once again served one of its purposes, but a special debt of gratitude is due the USF&WS for recognizing the realities associated with the shipments. When the new regulation conflicted with reality, they could have taken an uncompromising stance which is what at one point they appeared to have done. The Chief Directive for CITES In-Transit Shipments is posted on Conservation Force’s Updates & Alerts page of its website at http://www.conservationforce.org/news.html. Two Important Legal Actions Although the above in-transit crisis was resolved short of going to court, it is time to litigate other important matters. It has been years in coming, but now it is time to resort to the last resort. The pending litigation discussed below is unprecedented and will be the most important in international hunting history. It will have worldwide impact. Counting the two polar bear suits, Conservation Force will launch no less than six suits against the USF&WS. On January 6, 2009 Conservation Force and its allied partners filed a 60-day notice of intent to sue to the Secretary of Interior, Director of Wildlife and the Regional Solicitor for the Pacific Southwest Region. That notice arises from the USF&WS’s seizures and forfeitures of trophy shipments because of mere technical and clerical mistakes. After seizure the USF&WS has maintained that the trophy is “contraband” therefore the hunter’s innocence or lack of personal fault is no defense. Hunters have had to forfeit their valuable trophies regardless of the price of the hunts and their service to conservation. In 2001 Congress passed a law to protect citizens from abusive seizures/forfeitures from government agencies. That was the Civil Asset Forfeiture Reform Act, 18 USC 983. The USF&WS, its Office of Law Enforcement and the Solicitors of the Department of Interior have repeatedly refused to honor the new legislation. Instead, they have maintained that the statutory protection intended for “innocent owners” is not applicable to wildlife seizures because they are “contraband”. In taking trophies they repeatedly cite court cases that predate the reform of the law. To the contrary, the law defining “contraband” doesn’t include trophies at all. We are of a far different view as we have seen hunters lose everything from argali to elephant trophies. Consequently, Conservation Force has been waiting on the right case to arise to take to court for the benefit of everyone. We now have that case. Unless the USF&WS favorably responds to the notice, we will be filing a petition for declaratory and injunctive relief in Federal District Court to resolve the law and end the abusive regulatory practices once and for all. The case chosen is one where an airline lost the shipment documents including the CITES export permit on a leopard trophy. The airline explained the situation and the export country issued a replacement export permit. There is a special CITES Resolution that provides for a replacement permit in such circumstances, but, as usual, the USF&WS did not honor it. Of course, it was not the hunter’s fault at all and the forfeiture of the trophy was an excessive penalty for a mishap that was absolutely harmless. A petition for remission and then a petition for reconsideration was filed on the basis of the innocent owner defense, the CITES Resolution that expressly provides for replacement export permits in the inevitable cases of permit loss. The petition also rested on the excessive penalty or proportionality argument. It was denied in full by the Assistant Solicitor on the basis that the leopard trophy was “contraband”. Who could be more innocent than a hunter waiting at home when paperwork is lost by the transporting airline when there is no dispute about the legality and identity of the trophy? The case will establish once and for all if the innocent owner defense applies to hunting trophies. It will decide if lawfully taken hunting trophies are “contraband” simply because of clerical and technical errors and mishaps, expirations, etc. It will decide the applicability of the U.S. Constitution’s due process clause to the property rights of hunters in their trophies. That is an important standalone issue by itself. It will determine the applicability of the “excessive” fines clause of the U.S. Constitution to the forfeitures that have been taking place at an increasing rate when the penalty is disproportionate to the harm done. I repeat, the errors are after the fact and do not harm anyone. We have confirmed that over the last several years the number of seizures and forfeitures have skyrocketed and little consideration is being given to the innocence of the hunter/owner and no consideration is being given to the proportionality or excessiveness of the forfeiture to the technical offense that has done no harm. The Law Enforcement Office and the Solicitors treat trophy trade as “unfavored” trade instead of “conservation hunting”. In most instances the hunting is favored by CITES and other authorities by quotas of the Parties at CoPs, non-detriment determinations, and even enhancement findings. The Solicitors that should provide relief instead act as enforcement reinforcement. They turn a deaf ear because the trophies are, they claim, contraband. It is long past time that we all join forces to do this through Conservation Force. We need your financial support to do it. Believe me, your trophy may be next if you have not lost one or more invaluable trophies already. The hunters pay the bills of conservation in the developing nations, but are treated like criminals at home upon the importation of their trophies. Enough is enough. It is growing far worse. There is no choice but to seek the help of the courts, but to succeed we must have your support. The second notice involves the failure of the USF&WS to issue import permits and/or even to downlist foreign species, rather than the treatment of hunters’ trophies at time of import as in the above leopard case. This is not one suit, it is a multiplicity of suits that will have to remain confidential until each is filed. This is the year that the property interests hunters have in their trophies will be determined as a matter of law. It is directly in issue in both of the polar bear cases Conservation Force has filed (appeal in 9th Circuit for Spring 2008 trophies and suit in D.C. to invalidate listing). It will be directly in issue in suits filed for not timely downlisting different species and for failure to grant various enhancement permits. Ultimately the suit will decide everything from the import of black rhino to China argali. On January 13, 2009 Conservation Force filed a 60-day notice of intent to sue on behalf of itself and those it represents, including seven (7) other specific organizations. This notice involves far more than the fair treatment of hunters when there is a permitting irregularity. It involves the failure of the USF&WS to issue permits at all when the species are listed as “endangered” and also the failure of the USF&WS to downlist foreign species when it is in their conservation interest to do so. These suits are long overdue challenges of the USF&WS’s permitting and downlisting practices under the Endangered Species Act (ESA). We dare not make public at this time anything more than the notice to sue until the suits are filed. The Re: to the notice reads “Obstruction of Foreign Programs/Failure to Issue Enhancement Permits.” The notice reads as follows: Dear Secretary Kempthorne and Director Hall, This is a 60-day notice of intent to sue under the Endangered Species Act. It is for the illegal practice of not issuing trophy import permits for “endangered” listed species under the “enhancement” provisions of the ESA. That practice is contrary to published FWS regulations and violates the mandatory obligation to “cooperate” with the conservation efforts of foreign nations. The USF&WS has a history of listing foreign game species over the objection of foreign nations without rational consideration of the efficacy or the negative impact on the conservation efforts of the foreign nation, then not exercising its authority to support and encourage conservation programs through the issuance of trophy import permits that would “enhance” the survival of the listed species in the wild. For example, two such species are the Suleiman markhor taken in the Targhor Project in Pakistan and wood bison taken in the Yukon, Canada. Import permits applications for both of those have languished within the USF&WS for the length of the present Administration. The knowing obstruction of some of the foremost sustainable use projects in the world and the indifference to permit applicants’ “due process” and property rights continues to be unconscionable and illegal. Those are just two examples. The prior Administration was ready to correct these illegal practices, but this Administration has delayed and denied that reform. We know and understand that the USF&WS and DOI have recommended the enhancement practice and would have adopted it but for the failure of this Administration to accept the recommendations. That leaves us no alternative but to sue. This is also notice for the failure of the USF&WS to make a timely 90-day determination on the petition to downlist the Yukon wood bison and a 12-month finding on the petition to downlist the Suleiman markhor in Pakistan.... We incorporate by reference herein all the prior pleas, requests, comments by Conservation Force and those it represents and diplomatic protest by foreign nations. This is final notice. In short, the Administration reneged. These suits will once and for all determine the applicability of the concept of sustainable use to the conservation and recovery of listed species. They will determine if hunters can be a force for the conservation of game animals that they care more about than does any other segment of society. They will determine the rights and fair treatment of hunters themselves as well as their conservation interests. I must humbly apologize to those hunters whose trophies have rotted while waiting for the promised reform within the USF&WS. The promises are over. But for the misleading promises, we would have taken action before. Now we have no choice. Late as it is, it is now or never. We
need your support. Send your tax-deductible contribution to Conservation
Force at P.O. Box 278, Metairie, LA 70004-0278.
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