Federal Court Criticizes Fish and Wildlife Service for “Selling” Export Permit To Yerkes In Violation of Endangered Species Act

On September 14, 2016, the federal district court in D.C. issued a final ruling in our case on behalf of the New England Anti-Vivisection Society (NEAVS) and its coalition of sanctuaries, chimp experts, and individuals challenging the decision by the Fish and Wildlife Service (FWS) to allow Yerkes Research Center to export seven endangered chimpanzees to an unaccredited zoo in England.  Although the Court ruled that the Plaintiffs lacked Article III standing to pursue the case, the Court included some harsh criticism of the FWS’s “pay to play” approach to issuing permits under the Endangered Species Act (ESA) by which it allows entities to engage in otherwise strictly prohibited activities with endangered species in exchange for a promise to contribute money to a conservation organization.  The Court explained that “the plain language” of the ESA, which authorizes the agency to permit such activities where needed to “enhance the survival” of the species does not permit such an approach, and that “the FWS’s broad interpretation appears to thwart the dynamic of environmental protection that Congress plainly intended when it mandated that no export of endangered species be allowed . . . unless the agency permits such export pursuant to certified specified circumstances.”   The Court further stated that “Plaintiffs have ably made the persuasive argument that, far from viewing Section 10(a) as a limit on the circumstances in which the permitting of activities that impact endangered species can occur, FWS now apparently views that provision as a green light to launch a permit-exchanged program wherein the agency brokers deals between, on the one hand, anyone who wishes to access endangered species in a manner prohibited by the ESA and has sufficient funds to finance that desire, and on the other, the agency’s own favored, species-related recipients of funds and other services.”  The Court further emphasized that “[t]his Court considers doubtful FWS’s insistence that, when Congress penned Section 10(a) it intended to authorize the agency to ‘sell’ its permits in this fashion . . .” While we disagree with the Court’s ruling on standing, we hope that the Court’s strong critique of the FWS’s approach will persuade the Service to reconsider the unlawful “pay to play” system.  There is also time for Yerkes to reconsider the fate of the seven chimpanzees, especially since a number of U.S. sanctuaries have made clear that they are willing to accept these animals who have already suffered so much and deserve a far better fate than being shipped overseas to an unaccredited zoo in England.      

A copy of NEAVS’ press release about the case can be found here