Letter to Greg Sheehan, U.S. Fish & Wildlife Service - Defend Endangered Species Protections

Letter

Dear Acting Director Sheehan,

I am writing to follow up on my letter to your agency dated June 27, 2016, as well as to express my concerns with what appears to be another example of "pay-to-play" taking place with regard to the enhancement permits issued by the Fish & Wildlife Service (FWS). I am appreciative of the good work the agency does to preserve species and interpret the Endangered Species Act (ESA) in a meaningful way. However, I remain concerned that FWS is failing to achieve many of the aims and ideals of the ESA by maintaining the pay-to-play loophole in its issuance of enhancement permits.

My original letter requested that FWS end the practice of pay-to-play, provide a list of countries and entities involved in this practice, and maintain current records regarding the issuance of enhancement permits. More than one year has passed since this initial letter, and FWS has not fulfilled either of the two first requests. As for the last request, it is my understanding that no systematic database for such permitting exists, although I hope your agency has implemented such a database after follow-up inquiries from my staff.

It is also clear that, despite my letter over one year ago, this loophole is still in effect. For example, it has come to my attention that Feld Entertainment, Inc., the parent company of the Ringling Bros. and Barnum & Bailey Circus, recently applied for a FWS permit to export members of three species that are protected by the ESA (one leopard, six lions and eight tigers) from the U.S. to Europe, apparently for circus exhibitions.

As you know, Congress intended the Endangered Species Act to protect species through strict prohibitions, including a ban on exports. The law allows for a narrow exception to this prohibition of permits in the event the transfers would "enhance the propagation or survival of the affected species." However, when Congress enacted this exception, it put in place myriad safeguards, underscoring that it intended to "limit substantially the number of exemptions." The Supreme Court has likewise recognized that permits are only to be granted "in extremely narrow circumstances." The law is clear that permits for these exempted activities should only be granted if the otherwise prohibited activity would itself be of benefit to the species.

It deeply concerns me that FWS is continuing its practice of allowing applicants seeking these permits to violate the ESA so long as they make a monetary contribution to entities, often unvetted and foreign, that simply purport to have a conservation mission that constitutes a benefit to the species. FWS's apparent reasoning is that a donation to charity justifies an action that harms a species. Yet, such a justification has not been documented or supported by FWS. Moreover, FWS has previously acknowledged that it does not vet these foreign entities receiving the funds, and thatit has issued thousands of these permits under this arrangement in recent years. To be clear, Congress never authorized an interpretation of this sort. I remain concerned that this loophole created by FWS through executive fiat undermines the agency's progress to date in protecting animals entitled to protection under the ESA, as well as ongoing and future efforts.

Feld Entertainment's most recent application for a permit of this kind -- and FWS's subsequent granting of this permit -- illustrates the issues inherent in FWS's current practice. In this application, Ringling primarily sought to justify the permit based upon funding that it previously donated, much of it years ago. The application also stated that Ringling has "$20,000.00 earmarked in the 2017 budget" for an Indian-based conservation organization. It is my understanding that there was no grant proposal, agreement, or plan included for the earmarked funds. The Director of the recipient organization merely stated that it would be used for equipment -- including, among other things, t-shirts with Feld's logo. Regardless, even if this donation is made, it has nothing to do with exhibiting tigers, lions, and leopards in a European circus.The ESA, the clarifying statements of its original drafters, and subsequent Supreme Court decisions all make clear that exemption permits are to be granted for the sole purpose of directly aiding in the conservation of the implicated species -- for example, transporting a particular animal to another country in order to perform life-saving medical work for that animal or species. The loose interpretation of direct conservation efforts made by FWS in the case of Feld's application illustrates an ongoing pattern and cause for concern.

In short, FWS's practice of issuing permits to export endangered animals to circuses and roadside zoos in exchange for nominal cash donations is an incorrect interpretation of the ESA's allowance for enhancement permits, and directly contradicts the spirit and intent of the ESA. With that said, I renew my request for the agency to, in writing, provide me a list of countries and entities involved in its enhancement permit program, as well as a commitment to ending pay-to-play exemptions. Thank you for your attention to this matter. Please direct your response to Alana Byrd of my Washington, DC office.


Sincerely,
Brendan F. Boyle

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