For the first time since the United States protected lions under the Endangered Species Act (“ESA”) in 2016, the Fish and Wildlife Service (“FWS”) has issued a permit to allow an American sport hunter to bring back parts of a lion he killed on a trophy hunt in Tanzania.
Before 2016, lions were not protected by the ESA, so sport hunters could bring lion trophies back to the United States without a permit. While the timing may have been coincidental, in January 2016, months after the 2015 high-profile incident in which a Minnesota dentist killed Cecil the lion during a trophy hunt, however, FWS extended ESA protection to lions. The sub-species of lions found in central and West Africa was listed as endangered and the sub-species found in southern and East Africa (including Tanzania) was listed as threatened. The threatened sub-species, Panthera leo melancochaita, has larger numbers and is considered less vulnerable than the endangered sub-species, Panthera leo leo.
When a species (or sub-species) is listed as “endangered” under the ESA, certain activities with regard to that species are prohibited without a permit from FWS. Those include import/export, “take” (which includes harm, hunting, shooting, killing, trapping, capturing, etc.), transport in interstate commerce, and sale or offer for sale in interstate commerce. 16 U.S.C. § 1538(a). While these prohibitions only expressly apply to species listed as “endangered,” as opposed to “threatened,” the ESA also provides that the Secretary of the Interior may by regulation extend some or all of those prohibitions to any species listed as threatened. That is what the Secretary of the Interior did with Panthera leo melancochaita – issuing a specific regulation, 50 C.F.R. § 17.40(r), which applies all of the “endangered” prohibitions to the “threatened” populations of lions, and requires a threatened species import permit for the import of all specimens, which includes sport trophies.
To obtain a threatened species import permit, the applicant must demonstrate that the permit is for a defined set of purposes: (1) scientific purpose; (2) the enhancement of propagation or survival of the species; (3) economic hardship; (4) zoological purposes; (5) educational purposes; or (6) incidental taking. 50 C.F.R. § 17.32. It might seem counter-intuitive, but FWS anticipates granting permits to allow the import of sport hunted lion trophies on the basis that sport hunting of the threatened species could “enhance the propagation or survival” of the species hunted. On a FWS webpage, (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html), the agency advises trophy hunters: “In your permit application, we are looking for information demonstrating how your import will help improve the status of lions in the wild.” For example, the hunting license or trophy fees paid could be used by the safari outfitter, guide, land owner, etc., in a way that provides a conservation benefit to the species hunted (e.g., habitat improvement efforts, anti-poaching efforts, etc.).
Applications to import hunted lion trophies will now be reviewed on a case by case basis. FWS has a webpage devoted to advice regarding import of hunted lions that includes a list of factors the agency will consider when evaluating permit applications. It also includes a link to the IUCN Species Survival Commission document entitled “Guiding Principles on Trophy Hunting as a Tool for Creating Conservation Incentives.” That document sets out guidance about how trophy hunting can “creat[e] incentives for the conservation of species and their habitats” and, according to FWS, “provides useful principles, which, considered in conjunction with our permit issuance criteria, aid the Service when making findings and determinations regarding import of hunted animals.” (https://www.fws.gov/international/permits/by-activity/sport-hunted-trophies-lions.html). This suggests that sport hunters who wish to apply for a permit to import lion trophies should review the IUCN document and incorporate its guidance into the hunter’s application.