Justices Won’t Hear Appeal On Endangered Antelope Hunting

The U.S. Supreme Court on Monday turned down a bid by Friends of Animals to review a rule allowing the hunting of three endangered species of antelope if the animals are captive-bred, leaving in place a D.C. Circuit decision that a 2014 spending bill rider mandating the rule is constitutional.

In 2005, the FWS had listed the scimitar-horned oryx, addax and dama gazelle as endangered, but also issued a blanket exemption for some entities, including some sport hunting programs, that breed the antelope species in captivity. Environmentalists challenged the rule, and in 2009 the D.C. Circuit found the captive-bred exemption violated Section 10(c) of the Endangered Species Act. FWS then revoked the exemption, but in 2014 Congress attached a rider to an omnibus spending bill directing the service to reinstate the rule.

Friends of Animals sued the FWS and the U.S. Department of the Interior alleging that the reinstatement rule violated the ESA and the Administrative Procedure Act, and that the rider violated the U.S. Constitution. But the D.C. Circuit in June found that Congress acted “within constitutional bounds” when it passed the rider.

Friends of Animals argued that the rider was unconstitutional because it infringed upon the judicial power of Article III courts in violation of the separation of powers doctrine. The group said the rider just reversed the court’s judgment in the first case about the exemption, but theappealsruled that it was not retroactive legislation because it did not establish what the law was at an earlier time.

The court said Congress may change the precedential value of a decision by passing prospective legislation, and that’s what it did by amending the ESA’s Section 10 to allow for the promulgation of a new rule.

Friends of Animals filed its petition for certiorari with the Supreme Court on Sept. 1, and the U.S Department of the Interior declined to file a response brief. Safari Club International, advocating for hunters, stepped in and filed an opposition to the cert bid in October. On Monday, the high court revealed it wouldn’t take up the case in an order list.

In June, the D.C. Circuit panel wrote that the rider amended the applicable law and therefore passed constitutional muster. The rider directed the secretary of the interior to reissue the captive-bred exemption “without regard to any other provision of statute or regulation that applies to issuance of such rule.”

“By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by Section 9 of the act,” the panel wrote.

Although the three antelope species remain endangered and subject to certain requirements under the ESA, the panel said Congress acted within its constitutional authority in amending the scope of Section 10.

The court similarly dispatched Friends of Animals’ argument that the reinstated rule should be set aside under the APA because it violates Section 10(c) of the ESA for the reasons articulated by the D.C. Circuit in the first case.

A representative for the FWS and counsel for Friends of Animals and the Sierra Club did not respond to a request for comment after normal business hours Monday.

Friends of Animals is represented by its own Michael Ray Harris and Jennifer E. Barnes.

The government is represented by Robert H. Oakley, Andrew C. Mergen and Matthew Littleton of the U.S. Department of Justice.

Intervenor Safari Club International is represented by its own Anna M. Seidman, Douglas S. Burdin and Jeremy E. Clare.

The case is Friends of Animals v. Sally Jewell et al., case number 15-5070, in the U.S. Court of Appeals for the D.C. Circuit.

–Additional reporting by Juan Carlos Rodriguez. Editing by Katherine Rautenberg.