Report in Opposition to the Saving America’s Endangered Species (SAVES) Act

H.R. 2603                                    Rep. Louie Gohmert

AN ACT to amend the Endangered Species Act of 1973 to provide that nonnative species in the United States shall not be treated as endangered species or threatened species for purposes of that Act.

Saving America’s Endangered Species Act

THIS LEGISLATION IS OPPOSED

SUMMARY OF PROPOSED LAW

H.R. 2603, entitled “Saving America’s Endangered Species Act” or the “SAVES Act”, seeks to amend section 13 of the Endangered Species Act (ESA) of 1973[1] (Pub. L. 93–205, § 13, Dec. 28, 1973) to provide that “species in the United States that are not native to the United States” “shall not be treated as endangered species or threatened species for purposes of that Act.”[2] Approximately 2,300 species are listed as endangered or threatened under the ESA. More than 600 listed species (including elephants, tigers, chimpanzees, cheetahs, mountain gorillas, and giant pandas) have a natural geographic distribution that is not within any part of the United States.[3]  If the Act passes, those over 600 species will no longer be protected by the ESA in the United States.

This report discusses the reasons why the Act should not be enacted into law, including, that its reach is vaguely stated, its rationale is unsupportable, it would negatively impact efforts to protect threatened and endangered species across the globe, and it carries the risk of significant unintended consequences.

THE ENDANGERED SPECIES ACT

The ESA protects (i) endangered and threatened species that have a habitat or range in the United States, and (ii) endangered or threatened species that have a natural geographic distribution outside of the United States. (This report uses the term “foreign species” to refer to wildlife whose natural geographic distribution is not within any part of the United States, including our waters. The term “foreign species” is not used in the ESA, but is used by the U.S. Fish & Wildlife Service and the National Oceanic and Atmospheric Administration.[4]) The ESA’s prohibitions regarding endangered and threatened species apply only to persons subject to the jurisdiction of the U.S.[5] In general, those countries where foreign species have their natural geographic distribution enact their own laws protecting such species. With respect to foreign species, the U.S. Fish and Wildlife Service (“Service”), the agency responsible for determining which animals are placed on the endangered and threatened lists, must give consideration to any species identified by a foreign nation as being in danger of extinction.[6] Hence, in addition to protecting endangered and threatened species native to the U.S., the ESA is a means by which the United States meets its responsibilities under international treaties to protect endangered and threatened species across the globe.[7]

The ESA includes numerous restrictions concerning endangered and threatened species listed by the Service, whether or not they have a natural geographic distribution in the United States. For example, it is unlawful to import or export any such species into or from the United States.[8] It is unlawful to possess or transport in interstate or foreign commerce any such species that was unlawfully hunted, trapped, shot, killed, collected, or otherwise taken.[9] It is unlawful to sell or offer for sale in interstate or foreign commerce any such species.[10] These prohibitions apply to both animals that are alive and animals that are dead, and include whole animals and their body parts (such as ivory from elephant tusks[11]). The ESA regulations provide the Secretary of the Interior with the discretion to make exceptions to the prohibitions;[12] for example, regulations allow endangered foreign species that are bred in captivity in the United States to be shipped in interstate commerce provided certain conditions are met.[13]

The ESA was enacted in 1973 by large bipartisan margins—390 to 12 in the House and 92 to 0 in the Senate. The impetus for the ESA was the “modern extinction crisis,”[14] and specifically, foreign species and species with international range such as leopards and whales.[15]

The ESA is still supported by a majority of the public: a 2015 poll of 600 registered voters shows that approximately 90% support the ESA[16] and a 2016 poll of approximately 1,000 registered voters shows that 70% oppose “(e)liminating protections for some at-risk wildlife species such as the gray wolf or the greater sage grouse so that they cannot be protected by the Endangered Species Act.”[17]

In addition to enjoying support from registered voters in both major parties, the ESA in practice has been effective at protecting at-risk species. The ESA has saved several animal species from the brink of extinction, including the bald eagle, the American alligator, the peregrine falcon, and the brown pelican.[18] Without the ESA’s protections, 227 species would have gone extinct.[19]

THE SAVES ACT’S REACH IS VAGUELY STATED, THEREFORE IT IS UNCLEAR WHAT SPECIES IT IS SUPPOSED TO COVER

The SAVES Act refers to “species in the United States that are not native to the United States.” It’s unclear which wild animals that phrase refers to. One reading is that the Act is referring to all foreign species in or entering into the U.S.[20] This report assumes that is the what the Act intends to cover because that is the plainest reading.

But the Act may be referring to captive-bred species whose natural geographic distribution is not in any part of the United States because, as discussed in the next section, the memorandum explaining the SAVES Act to the House of Representatives Natural Resources Committee from the Committee Chair (the “Mark-up Memo”) focuses on the Service’s Captive Bred Wildlife Program. Or the Act could be referring to wild animals that that have been introduced into areas in the United States that have not historically been part of their native range, such as mute swans and Quaker parrots, because the term “non-native species” often refers to such animals.[21] Or it could be referring to animals that have migratory paths through the United States and/or spend only a portion of the year in the United States.[22]

THE RATIONALE FOR THE SAVES ACT IS MISTAKEN

We respectfully submit that the Mark-up Memo contains several errors that bear highlighting because they appear to underlie the rationale for the Act.[23] The primary purpose of this report is to identify how the Act will affect the ESA and potentially endanger wildlife that is on the brink of extinction.[24]

First, the Mark-Up Memo suggests that the Service regulates all foreign species through the Captive Bred Wildlife Program (“CBW”)[25] and that the CBW is the only means by which the ESA regulates foreign species.[26] Specifically, the Mark-up Memo says, “Nonnative endangered species are regulated by the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA) through the captive bred wildlife (CBW) program.” And the Mark-up Memo cites three letters from constituent organizations that appear to be complaining solely about problems in the CBW permitting process: the Zoological Association of America,[27] the Parrot Fund,[28] and the Zoo of the Acadania.[29] The Mark-up Memo does not discuss other ways in which foreign species are regulated under the ESA.

This suggestion that only captive-bred species would be affected is incorrect. The ESA reaches beyond captive-bred animals and covers, for example, the importation of living or dead, whole or parts of foreign species into the United States (for example, as discussed in greater detail below, the importation and interstate trade of African elephant ivory and pangolin skins, the importation of reptiles for the pet trade, the importation of hunting trophies, and the treatment of chimpanzees by laboratories). Many of the largest bird and wildlife conservation groups in the United States oppose bills that would undermine the ESA, such as the SAVES Act.[30]

The complaint about the burdensome CBW permitting process is less about problems inherent in the ESA and more about the “present implementation of the ESA” and the regulatory burden imposed by the Service under the CBW program. Any problems with the CBW permitting process would be better addressed by the U.S. Fish and Wildlife Service through amendments to its regulations or changes in its processes—not eliminating the ESA’s protections of foreign species entirely.[31]

Second, the Mark-up Memo opines that the SAVES Act would not increase the likelihood of international wildlife trafficking due to the protections of Convention on International Trade in Endangered Species of Flora and Fauna (“CITES”).[32] This statement implies that CITES prohibits the importation of foreign species into the United States—it does not. CITES is an international treaty designed to prevent species from becoming endangered or extinct as a result of international trade.[33] Under CITES, countries collaborate to regulate the international trade of wildlife and ensure that this trade does not negatively affect the survival of wild populations.[34]

CITES provides a framework for countries to enact their own national laws; it does not replace national laws.[35] CITES does not confer any actual authority on Service inspectors and agents.[36] Rather, the ESA is the vehicle by which the United States meets its international responsibilities to treaties and conventions, including CITES.[37]

Third, the Mark-up Memo states that the SAVES Act is necessary to eliminate the “duplicative requirement” for CBW permits.[38] The “duplicative requirement” seems to be referring again to CITES, though it is not clear. The Parrot Fund’s letter to the bill sponsor says that the SAVES Act “cleans up duplicate regulations: CITES, a major international conservation treaty with 183 parties, will continue to regulate international movement and protection of endangered species. There is no need for another US law to regulate species not native to the United States.”[39] As explained above, CITES does not independently regulate the foreign and interstate commerce of endangered foreign species in the United States and, as discussed further below, there is significant need for the continued protection of foreign species by the ESA.

Fourth, proponents of legislation to limit the ESA argue generally that reform is necessary because the ESA is ineffective. The Chairman of the Natural Resources Committee has stated that the ESA “doesn’t work” and that “of all the government programs, it is probably the least effective, and the least efficient.”[40] This argument seems to be based on the fact that, of the 1,652 species listed as threatened or endangered, only 47, or roughly 2.8%, have been delisted.[41] However, this is not an appropriate metric for evaluating the effectiveness of the ESA. The ESA is only 44 years old. It takes decades for a species to recover from the brink of extinction.[42] For example, the Bald Eagle took 40 years of conservation efforts to be taken off the ESA list.[43] Almost half of all listed species have received protection under the ESA for less than 20 years.[44] And species de-listings “increased significantly” under the previous administration.[45] While the number of species that have achieved recovered status may seem low, the protections of the ESA have undoubtedly prevented further depletion of endangered species that could have resulted in extinction.

THE SAVES ACT MAY COMPLICATE WORLDWIDE EFFORT TO PROTECT WILDLIFE

The core principle of the SAVES Act would be to provide different protections to animals based on their country of origin. The sale of elephant parts in Thailand illustrates how this arrangement could complicate worldwide efforts to protect endangered and threatened wildlife.

Until recently, Thailand’s wildlife laws covered domestic and foreign species under two different laws (the Draught Animal Act of 1939 and the Wild Animal Reservation and Protection Act of 1992, respectively); the penalties relating to domestic Asian elephants were significantly higher than those related to foreign African elephants.[46] As a result, Thailand was flooded with ivory from African elephants because, unlike the law governing domestic elephants, the law governing foreign elephants failed to act as an effective deterrent.[47] In 2015, Thailand approved the Elephant Ivory Act, which criminalized the sale of African elephant ivory and regulated any ivory trade in or passing through Thailand.[48] The result was a huge decrease in the amount of ivory openly for sale in Thai markets.[49]

This cautionary tale bears scrutiny when it comes to considering a change in how the United States protects endangered and threatened elephant species both here and abroad. African elephant populations have been reduced by more than two thirds in the past 30 years,[50] and are in danger of becoming extinct largely due to poaching for the ivory trade.[51] In 2016, the U.S. Fish and Wildlife Service implemented a regulation, promulgated under the ESA, banning most domestic trade of African elephant ivory.[52] Now illegal trade in elephant ivory is decreasing in the United States.[53]

If the SAVES Act passes and the ESA no longer applies to foreign species, the ESA’s near ban on domestic trading of African elephant ivory would no longer be applicable. Although the African Elephant Conservation Act[54] will still ban most imports of African elephant ivory, no federal law or regulation will ban domestic trade in African elephant ivory, unless and until Congress passes a separate law.[55] It is safe to assume, then, that the illegal ivory trade (including imports of illegal ivory) will resume in force because it is not possible for consumers to tell the difference between ivory imported when it was legal to do so and ivory that was imported illegally.

This is a consequence that must be taken seriously because the United States is among the world’s largest consumers of wildlife, both legal and illegal, and a significant consumer and trader of illegal ivory. By effectively controlling illegal ivory trade at home and assisting elephant range states and consumer countries around the world, the United States has had a significant impact on elephant conservation. That likely will change with passage of the SAVES Act.

THE SAVES ACT WOULD BE A WINDFALL FOR THE WILDLIFFE TRAFFICKING BLACK MARKET 

As summarized in section 2 above, the ESA prohibits certain activities with respect to endangered and threatened foreign species including import, export, take, commercial activity, interstate commerce, and foreign commerce. The ESA is necessary because the United States is a destination country for the sale of endangered and threatened foreign species. Even when wildlife species are captured or killed overseas, they—or their body parts—often end up back in the United States to be sold.[56] This was illustrated by Operation Crash, a nationwide wildlife trafficking investigation involving the undercover work of more than 140 U.S. law enforcement officers.[57] The investigation yielded in excess of 50 arrests, more than 35 convictions, the seizure of elephant tusks and rhino horns worth tens of millions of dollars, and combined prison sentences of more than 36 years—all within U.S. borders.”[58]

The economic impact of illegal wildlife trafficking is unknown, but various sources estimate that it is worth $7.6 to $25 billion per year.[59] The lucrative industry has attracted professional criminal groups involved in drug trafficking, human trafficking, and terrorism.[60] The effects have been devastating. For example, “nearly the entire black rhino population has disappeared since the middle of the 20th century.”[61]

According to Daniel Rohlf, a professor at Lewis & Clark Law School in Oregon who specializes in biodiversity issues, “Without [ESA] barriers in the U.S. market, a lot of species around the world would be in more trouble than they are now.”[62] The following are some examples that illustrate the gravity of the problem:

African Lions

African lions face extinction by 2050.[63] Worldwide, the U.S. is the biggest importer of lion trophies.[64] In 2015, 405 lion trophies were imported into the United States.[65]

Two subspecies of lions are listed under the ESA.[66] Panthera leo leo (the Barbary lion) is listed as endangered and the Panthera leo melanochaita (the Cape lion) is listed as threatened. The Service allows the importation of Cape lion trophies into the United States if it has issued an import permit in accordance with the ESA regulations.[67] The Service will allow the import of a Cape lion trophy (such as a lion head) from “countries that have well-managed hunting programs that are contributing to conservation of lions in the wild.”[68] Currently, the Service has determined that four countries meet this standard and three more are under review.[69] Permit applications take 45 to 60 days for review for “approved countries” and longer for countries that are under review.[70]

If the SAVES Act passes and African lions are no longer protected as threatened or endangered species under the ESA, then the Service will no longer have the ability to prohibit the importation of the endangered Barbary lion and restrict the importation of the Cape lion. As a result, the importation of lions into the United States will likely increase, contributing to lions’ threat of extinction.

Pangolins

Pangolins, a scaly mammal prized for their meat and skin, are among the most commonly poached wild animal in the world.[71] Worldwide, almost one million were illegally poached over a decade.[72] The United States is the “dominant player” in the global pangolin trade.[73] Between 2004 and 2013, over 26,000 pangolin products were imported into the United States.[74] Because of the threat of extinction, as of January 2, 2017, pangolins are listed under Appendix 1 of CITES.[75] The United States was one of the chief advocates for protecting pangolins under Appendix 1.[76]

Currently, only one of the eight species of pangolin is protected by the ESA. As of March 2016, the Service has been considering whether to add the remaining seven species act to its list of protected endangered and threatened species. If the SAVES Act is passed, the one pangolin currently protected by the ESA will lose its protection under that law, and the Service will not be able to protect the other seven species under the ESA, despite having advocated for their protection under CITES.

Exotic Reptiles

The United States is among the world’s largest consumers of reptiles for the pet industry.[77] Endangered wild reptiles are frequently smuggled from Latin America to the United States to be sold in the pet trade threatening their populations’ sustainability in their home countries.[78] From 2005 to 2014, pursuant to its authority under the ESA, the Service denied 13,325 shipments of wildlife from Latin America;[79] such shipments contained 54,886 live animals, 620,014 specimens, and 3 million pounds of wildlife and wildlife products.[80] Over 50 percent of these shipments contained at least one animal protected by CITES.[81] But many species of reptiles that are in danger of extinction are not yet covered by CITES.[82] And the pet trade has caused over 20 species of reptile to go extinct almost as soon as they have been discovered.[83]

If the SAVES Act passes, the Service’s ability to prevent the import of endangered reptiles will be significantly impaired.[84] And as a result, American consumers may unknowingly contribute to the extinction of reptile species.

The above examples are only a small sampling of the consequences the SAVES Act could have.

THE SAVES ACT COULD HAVE FURTHER UNINTENDED CONSEQUENCES

The SAVES Act could have consequences that may not be readily apparent. The treatment of chimpanzees is an example.

In 1990, the U.S. Fish and Wildlife Service listed wild chimpanzees as endangered but kept captive chimps listed as threatened.[85] No other species has had this split status between wild and captive.[86] The U.S. Fish and Wildlife Service eliminated the distinction in 2015, when it issued a final rule that classified all chimpanzees, both wild and captive, as endangered under the ESA.[87] As a result, anyone working with captive chimps in the United States has to obtain a permit from the U.S. Fish and Wildlife Service.[88] Organizations that wanted to continue working with chimpanzees had to show that the work “enhances the survival of the species and benefits chimps in the wild.”[89]

As of 2017, approximately 600 chimpanzees remain at research facilities in the United States.[90] This is in part because, although biomedical studies on chimps are no longer allowed, there has been little effort or analysis to determine what should now be done with these captive chimpanzees.[91] “Retiring” all of these chimps to sanctuaries is both costly and complicated.[92] James Anderson, the Deputy Director of the National Institutes of Health in Bethesda, Maryland, thinks that a 10-year time frame for retiring all of these chimps is realistic.[93]

If the SAVES Act becomes law, chimpanzees would no longer be shielded from invasive experiments by the ESA.[94] There is a great deal of public support against experimenting on chimpanzees[95] (and non-human primates generally, considering the outcry after the use of monkeys in Volkswagen emissions tests[96]) and this potential consequence must be part of the discussion of the SAVES Act.

SUMMARY

This report identifies just some examples of foreign wildlife that desperately need the protection provided by the ESA. If the SAVES Act passes, endangered and threatened foreign species in other countries would re-enter the U.S. market in various forms and create a boon for wildlife traffickers and trophy hunters.[97]

Taking away ESA protections from non-native species would severely impact the United States’ ability to contribute to the worldwide effort to prevent threatened and endangered species from becoming extinct and would be a dereliction of our duty under CITES.

For the reasons explained above, H.R. Bill No. 2603 is opposed.

Animal Law Committee
Lori Barrett-Peterson, Chair

February 2018