Paying to Play


Paying to Play: Why Commercialization Cannot Pass for Conservation

By Tara Lewis, Managing Editor

“If you love something set it free; then, when it has a bit of a head start, open fire.”[1]

– Stephen Colbert 

Commenting on the Dallas Safari Club’s auction of a permit from the Namibian government to shoot a rare black rhino, Stephen Colbert identifies, although facetiously, the spurious “conservation” interests of big game hunting organizations.[2] The hunting permit sold for a cool 350,000 U.S. dollars under the theory that the money would go towards a program to conserve black rhinos, a critically endangered species.[3] The rationale, promoted by nonprofit groups like Dallas Safari Club and Safari Club International, whose members pay large sums of money to hunt and import endangered species trophies, is that by killing off larger male individuals younger individuals will have a better chance to breed and enlarge the gene pool.[4] Of course hunters are also interested in the largest and oldest individuals because they make the best trophies.[5]

Endangered animals would be worthless to hunters if they could not obtain an import permit — without it trophy hunters would not be able to import their expensive prizes into the United States. Between 2008 and 2013, over 60,000 trophies were imported into the United States alone, making it the largest importer of mammal trophies in the world, by far.[6] Indeed, the trade in exotic wildlife is second only to the trade in illegal drugs and is estimated to be worth anywhere between $50-150 billion.[7] Although it is illegal to import endangered species under the Endangered Species Act (ESA), the Fish and Wildlife Service (FWS) has facilitated trophy hunts by granting import permits under a narrow exception in the Act. Permit exceptions under the ESA were intended to be invoked only in exceptional circumstances, but the FWS has interpreted the Act to allow import permits to hunters and exhibitionists willing to pledge donations as little as $500 to foreign conservation organizations.[8] This “pay-to-play” policy reduces endangered species import permits to a commodity to be purchased by the highest bidder and is at odds with the core purpose and plain language of the ESA.

International and U.S. policymakers have long valued the conservation of endangered and threatened species. In 1975, the Convention on International Trade in Flora and Fauna (CITES) entered into force to protect wildlife from harmful international trade. Under CITES, an import permit for an endangered species may only be issued if a Scientific Authority of the State of import has advised that the import will be for purposes which are not detrimental to the survival of the species involved and the recipient of a living specimen is suitably equipped to house and care for it.[9] Additionally, a Management Authority of the State of import must be satisfied that the specimen is not to be used for primarily commercial purposes.[10]

The ESA domestically implements CITES, and strictly prohibits the importation to or exportation from the United States of endangered species, as well as the “taking” of any such species within the United States or within its territorial sea.[11] Section 10 allows a narrow exception to this general prohibition however, and the FWS is permitted to grant “enhancement permits” for otherwise prohibited imports and exports if it finds the import will “enhance the propagation or survival” of the affected species.[12] The FWS may only grant an import permit under Section 10 if it finds the exception “will be consistent with the purposes and policy set forth in Section 2 of this Act.”[13] Section 2 requires all federal departments and agencies to “utilize their authorities in furtherance of the purposes of [the] Act by carrying out programs for the conservation of endangered species . . . and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat . . .”[14] The United States Supreme Court has recognized the powerful conservation mandates of the Act and has emphasized the “conscious congressional design to give endangered species priority over the ‘primary missions’ of federal agencies.”[15]

The legislative history of the ESA is not silent as to the scope of the Section 10 exception and highlights its limited nature. The Committee on Merchant Marine and Fisheries explained that,

Any such activities to encourage propagation or survival may take place in captivity, in a controlled habitat or even in an uncontrolled habitat so long as this is found to provide the most practicable and realistic opportunity to encourage the development of the species concerned. They might even, in extraordinary circumstances; include the power to cull excess members of a species where the carrying capacity of its environment is in danger of being overwhelmed.[16]

Proponents of the enhancement exemption in Congress explained that it was needed for critical biological research, such as when “a species is destroying its habitat or where the species is diseased.”[17] The Supreme Court in T.V.A. v. Hill found that the legislative history of the Act clearly reflected Congressional intent for permits and exemptions to be granted only “in extremely narrow circumstances,” and that the conservation of endangered and threatened species must take primacy over all else, “whatever the cost.”[18] The statute itself defines “conservation” as,

all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include . . . all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.[19]

In drafting the section 10 permit exemptions, the legislative history explicitly states, “the effect of this subsection is to limit substantially the number of exemptions that may be granted under the act.”[20]

Trophy hunters have been able to obtain enhancement permits[21] by making donations to foreign wildlife conservation organizations that claim to use the money to enhance the propagation and survival of the hunted species, thereby fulfilling the ESA’s statutory mandate. While it may seem illogical to conserve an endangered species by killing it, hunters argue that their donations provide much needed financial support to underfunded conservation groups that have an interest in keeping endangered animals alive to attract more hunters, and more donations.[22] Essentially the FWS has allowed hunters to pay for a permit, which does not propagate the survival of a species, but rather propagates the game hunting industry.

The FWS attempted to codify this “pay-to-play”[23] policy in 2003, when it published a draft policy in the Federal Register.[24] The FWS had previously made the requisite finding of enhancement to the survival of the species based on conservation education, believing that public display inspired conservation efforts and compassion for imperiled species.[25] Alarmingly, a growing body of research indicated the opposite – that captive animals only encouraged further commercialization and exploitation.[26] Scientists pressed that there “exist[ed] no behavioral research demonstrating an association between viewing animals in a captive setting and either knowledge about the animal or intention to take action to conserve the animal in the wild.”[27] Faced with this reality, but also pressure from trophy hunting organizations and exhibitors, the FWS proposed in the draft policy that enhancement would instead be found in “support of a substantive conservation program for that species in the range country with a positive benefit for the species and/or its habitat.”[28] Under the proposed program chosen, the applicant would only have to provide “sufficient information for [the FWS] to reasonably conclude that a conservation program has been established in the range country for the species that is likely to provide a net benefit to the conservation of the species if the import of such species or its parts or products is allowed into the United States.”[29] However, range countries would “retain ultimate responsibility and authority for implementing conservation measures for their resident species.”[30]

Comments inevitably flooded in from conservationists, scientists, lawyers, not-for-profit organizations, and private citizens criticizing this dramatic departure from previous policy and pointing to the strict prohibitions of the Act. The FWS had “historically interpreted the enhancement standard for foreign endangered species fairly narrowly,” which “resulted in routine denial of applications for the import of foreign species listed as endangered if the import would cause the killing of any individual in the wild.”[31] This interpretation aligned with congressional intent to limit exemptions to truly exceptional circumstances. Many comments expressed concern that the proposed policy would cause countries to hold endangered species captive in order to solicit “donations” from hunters in exchange for a guaranteed kill, lessening the need to protect critical habitat. Leading conservation researchers explained,

We are greatly concerned that a precedent is being set that will have profound implications for elephants in Africa. There are now dozens of small public and private reserves in southern Africa, which have been “stocked” with elephant calves . . . This is not conservation of elephants in their natural habitats nor is it a situation of a natural elephant populations outgrowing its park or reserve. As far as we can surmise it is more like keeping and breeding elephants for the purpose of selling them.[32]

359 scientists, including E.O. Wilson and Jane Goodall, explained, “A growing body of evidence, accumulated across many countries and taxa, indicates that legal harvest and trade can lead to increased poaching and illegal trade. . . ‘Once species are viewed primarily as items of legal trade, the primary concerns in free capitalistic economies commonly become maximizing short-term profits, rather than ensuring long-term sustainability.’ ”[33] Many commenters pointed out that the role of the FWS is not to “broker an international exotic animal trade” and the purpose of the ESA is not to ease the exploitation of endangered species, but rather to ensure conservation[34] and species recovery.[35]

The FWS ultimately did not finalize the Draft Policy, likely due to the immense concern and criticism expressed during the public comment period. However, it quietly implements a similar policy today on a case-by-case basis. In People for the Ethical Treatment of Animals v. United States Fish and Wildlife Service,[36] a non-profit organization brought suit against the FWS and claimed the agency had implemented a “Pay-to-Policy” since 2011.[37] The lawsuit sought to invalidate the import permit issued to Corey Knowlton, winner of the Dallas Safari Club’s black rhino auction, who indeed tracked down and shot the critically endangered animal.[38] In Knowlton’s permit application to the FWS, his attorney argued,

The DSC conservation auction has generated approximately twice what it would have produced in revenue in a Namibian national auction. That revenue is critically important if not necessary to the conservation of Namibia’s black rhino and rhino conservation strategy. It is also essential that conservation hunting of surplus bulls be established as a regular and continuous source of revenue on a reliable basis.[39]

Considering that the black rhino is a critically endangered species, it is ironic to refer to any individual as “surplus,” and the permit reads more like a transaction; the bargain of a life for prize money. But, lives do not run cheap, and the permit explicitly promises a contribution of $350,000 to the Game Products Trust Fund in Namibia in exchange for the import of the rhino’s mounted body, skull, and horn.[40] Nothing more about the “conservation” organization or program is specified, other than it will “implement the Black Rhino Conservation Strategy for Namibia” and “allocate[] funds” according to the priorities of its Board.[41] Although the FWS noted in the application that the black rhinoceros is “categorized as Critically Endangered in the IUCN Red List of Threatened Species,” the agency nonetheless made the required finding of enhancement to the survival of the species to issue the permit.[42]

The FWS strikes similar deals regularly. On May 8, 2013 the FWS granted 15 export permits to Hawthorn Corporation, a traveling circus, which uses endangered tigers in its shows.[43] In addition to obtaining over 95 permits from the FWS over several years for its use of the tigers in traveling exhibitions, the circus has accumulated over $272,500 in penalties for animal welfare violations and has had its license suspended twice for failure to meet basic animal care standards.[44] Hawthorn was able to secure the permits by making a contribution to “Project Tiger,” a conservation organization in India.[45]

In 2014, the FWS approved the re-issuance of permits to the Tarzan Zerbini Circus in order to re-export and re-import two Asian elephants born in the wild for “purposes of enhancement to the species.”[46] In exchange for the permits, the circus donated $500 to a U.S. based elephant conservation program.[47]

Currently pending in D.C. federal court, conservationists have challenged the export of seven chimpanzees, previously used for laboratory experiments, to an unaccredited zoo in England.[48] FWS granted the permit after the laboratory agreed to make a donation to the Population & Sustainability Network, a non-profit organization whose mission primarily focuses on women’s reproductive rights, but claims to engage in education programs designed to inhibit disease spreading between humans and animals.[49] The list goes on, and some sources cite that the FWS has allowed as many as 1300 endangered animals to be imported or exported on the basis of contributions to unverified conservation organizations in the last year alone.[50]

When the FWS grants a permit for an otherwise prohibited act under the ESA, in exchange for a donation to a conservation organization, it does so in direct contravention of the purpose of the Act. In interpreting any statutory mandate, an agency “must give effect to the unambiguously expressed intent of Congress,”[51] and few statutes are clearer than the ESA. As Chief Justice Burger expressed in T.V.A. v. Hill, “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute.”[52] The FWS is mandated by Congress to recover species until they no longer need protection under the act, and thus cannot allow the killing of species except in extraordinary circumstances expressed in the legislative history.[53] Invocation of the exemption was only intended for necessary captive breeding programs and rare instances of habitat destruction and disease.[54] Trophy hunting and training tigers to jump through hoops on the side of the road simply does not pass muster under the ESA’s stringent standards and in no way present extraordinary circumstances that require the permitting of such activities.

The problem with the FWS’s current interpretation is that it uses the act of financial donations to a conservation organization as the act that enhances the survival of the affected species.[55] But the permit is not sought in order to make a donation to a conservation group – something that does not require an ESA permit. Rather, it is sought for the killing, exhibiting, or otherwise exploitation of an animal, and under the ESA, the FWS may only permit “any act otherwise prohibited by section 1538[56] of this title for scientific purposes or to enhance the propagation or survival of the affected species.”[57] The permitted act is the act that must enhance the survival of the affected species, not a completely separate act which serves as an unrelated justification. Thus, to be in compliance with the ESA, the FWS must determine whether the act of importing a dead rhino or importing an elephant to perform tricks on a tiny stool enhances the propagation or survival of the species in order to grant a permit under section 10.

These activities are antithetical to the spirit and letter of the Act itself, as they exploit species for their commercial value and further increase their demand. Congress has found that the second largest threat to endangered species is hunting.[58] Trophy hunting fuels the destruction of endangered species by making it profitable for countries to sell dead animals, as opposed to investing in activities such as photography and ecotourism which increase the value of living animals and habitat conservation. As the International Fund for Animal Welfare has stated, “Everyday experience has told us that promoting the trade in wildlife will lead to their over exploitation.”[59] As demand increases and permits flow freely, species in the wild dwindle.

Allowing permits for live importation additionally fuels the illicit trade in exotic animals and leads to species destruction. Between 2005 and 2011, an estimated 22,218 great apes were presumed dead and lost as a result of illegal trafficking, and even the most conservative estimates indicate that wild populations suffer serious losses.[60] The apes are traded to pet collectors, zoos, circuses, and breeding centers which sell to entertainment industries that offer “wildlife experiences” (i.e. photos with tourists where the animal is often drugged or surgically altered to minimize risk).[61] These types of activities are do not enhance the survival of the species, but rather lead to their removal from the wild in order to earn a profit from their use.

Under the ESA, the FWS has been tasked by Congress to conserve endangered and threatened species, and thus increase their numbers;[62] yet the FWS has simultaneously allowed big game hunters and traveling exhibitionists to kill and capture endangered species for entertainment, legally. Permitting select deaths is inapposite to this mandate. Corey Knowlten himself acknowledged that but for the import permit granted to him by the FWS, he would not be able to hunt the endangered rhino.[63] A policy of killing and taking wild individuals of an endangered species under the guise of “conservation” seems illogical because perhaps it is just that – illogical and unjustified. It fails to account for the growing market in endangered species parts, which will expand as poachers are incentivized to kill more animals to pass off as legally hunted.[64] It fails to take account of public perception, which will change to believe that endangered species are worth more money dead than alive and reduces endangered species to a commercial commodity. Lastly, it fails to account for the plain language and purpose of the ESA, laid out in no uncertain terms – i.e., that the permitted activity itself will “enhance the propagation or survival” of the species as a whole. The FWS cannot continue to grant permits to wolves in sheep’s clothing, or else we will all suffer the consequences of explaining to future generations why the world is devoid of both wolves and perhaps even one day sheep.[65]

[1] The Colbert Report, The Word – Philanthropy, Comedy Central (Oct. 24, 2013).

[2] Id.

[3] Ed Lavandera, Winner of black rhino hunting auction: My $350,000 will help to save the species, CNN (Jan. 17, 2004),

[4] Id.

[5] The Humane Society of the United States, Comment Letter on Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act (Oct. 16, 2003) (on file with author); Animal Protection Institute, Comment Letter on Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act (Oct. 16, 2003) (on file with author) [hereinafter “HSUS Comment Letter”].

[6] CITES Trade Database, CITES (2015), The next largest importers are China and Spain, with nearly 8,000 and 3,000 trophies imported, respectively. Id.

[7] UNEP (2004),

[8] Id.

[9] Convention on International Trade in Endangered Species of Wild Fauna and Flora art. III(3)(a)-(b), March 3rd, 1973, 993 U.N.T.S. 243 [hereinafter CITES].

[10] Id. at art. III(3)(c). The finding that the species will not be used for commercial purposes is only relevant to species listed under Appendix-I, which includes leopards, tigers, rhinos, elephants, and chimpanzees.

[11] Id. at § 1538 (a)(1)(A); § 1538 (a)(1)(B). To “take” a species is to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. § 1532(19).

[12] Endangered Species Act, 16 U.S.C. § 1538(a)(1) (“Except as provided in sections (6)(g)(2) and 10 of this Act, with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this Act it is unlawful for any person subject to the jurisdiction of the United States to import any such species into, or export any such species from the United States . . .”); § 1539 (a)(1)(A) (“The Secretary may permit . . . any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species . . .”) [hereinafter “ESA”].

[13] Id. § 10(d)(3).

[14] Id. § 1536(a)(2).

[15] Tennessee Valley Authority v. Hill, 437 U.S. 153, 153 (1978)(emphasis added).

[16] H.R. 37, H. Rep. No. 412, 93d Cong., 1st Sess. 17 (July 27, 1973), reprinted in “A Legislative

History of the Endangered Species Act of 1973,” 97th Cong., 2d Sess. (Feb. 1982) at 156 (emphasis added) [hereinafter “ESA Legislative History”].

[17] Id. at 396.

[18] Id.

[19] ESA, supra note 11, § 1532(1)(3) (emphasis added).

[20] ESA Legislative History, supra note 15.

[21] Section 10 permits are often referred to as “enhancement permits” because they may only be issued if the FWS makes a finding that an otherwise prohibited act will “enhance the propagation or survival of the affected species.” See ESA, supra note 11, § 1539(a)(1)(A).

[22] See Lavandera, supra note 3.

[23] “Pay-to-play” refers to the policy of granting a permit based on a donation to a conservation organization. Essentially, it is a policy of “paying” for the permit without any independent finding as to the ultimate enhancement or survival of the species.

[24] Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act, 68 Fed. Reg. 49512 (proposed Aug. 18, 2003). [hereinafter “Draft Policy”].

[25] Animal Protection Institute, Comment Letter on Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act (October 16, 2003) (on filed with author).

[26] Id. (citing to The Modern Ark (1997)); Lori Marino, et. al., Do Zoos and Aquariums Promote Change in Visitors? A Critical Evaluation of the American Zoo and Aquarium Study, 18 Society and Animals 126 (2010),

[27] Dr. Jane Goodall & Dr. Georget Schaller, Comment Letter on Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act (March 4, 2004) (on file with author)[hereinafter Scientists’ Comment Letter]. This letter contained the opinions and research of 359 professional scientists.

[28] Draft Policy, supra note 23, at 49512.

[29] Id. at 49518.

[30] Id. at 49513.

[31] Id. at 49514.

[32] Meyer & Glitzenstein, Comment Letter on Draft Policy for Enhancement-of-Survival Permits For Foreign Species Listed Under the Endangered Species Act (Oct. 17, 2003) (on file with author).

[33] Scientists’ Comment Letter, supra note 26.

[34] Conservation expands far beyond “maintaining species in numbers sufficient for significant harvest by humans.” Kent H. Redford, et. al., What Does It Mean to Successfully Conserve a (Vertebrate) Species? 61 BioScience 1 (2011),

[35] HSUS Comment Letter, supra note 5.

[36] People for the Ethical Treatment of Animals v. United States Fish and Wildlife Service, 130 F.Supp.3d 999 (E.D. Va. 2015). The case was ultimately dismissed for lack of standing and not decided on the merits. Id. at 1002.

[37] Complaint at 6, People for the Ethical Treatment of Animals, Inc. v. U.S. Fish and Wildlife Service, 130 F.Supp.3d 999 (E.D. Va. 2015) (Civil Action. 1:15-cv-00600) [hereinafter “PETA Complaint”].

[38] Texas hunter bags his rhino on controversial hunt in Namibia, CNN (May 21, 2015),

[39] Department of the Interior U.S. Fish and Wildlife Service (2015), (emphasis added).

[40] Id.

[41] Id.

[42] Id.

[43] Id. at 10; 78 Fed. Reg. 56922.

[44] Court Tosses PETA Suit Over Federal Permits, Courthouse News Service (July 23, 2014),;

[45] PETA Complaint, supra note 37, at 10.

[46] 79 Fed. Reg. 24445.

[47] PETA Complaint, supra note 37 at 10.

[48] Complaint at 1, New England Anti-Vivisection Soc. v. U.S. Fish and Wildlife Serv., Civ. No. 16-00149 (KBJ) (D.D.C. July 8, 2016) [hereinafter “NEAVS Complaint”].

[49] Id. at 13.

[50] A legal loophole allowed the trading of 1300 endangered animals last year, Business Insider (Jun. 27, 2016), (“In the last five years, the vast majority of the estimated 1,375 endangered species permits granted by the Fish & Wildlife Service involved financial pledges to charity, according to agency documents reviewed by Reuters. For a $2,000 pledge, the Fish & Wildlife Service permitted two threatened leopard cubs to be sent from a roadside zoo to a small animal park. After a $5,000 pledge, the agency approved the transfer of 10 endangered South African penguins to a Florida theme park. An application now under final consideration would permit a South Carolina safari park operator to send 18 endangered tigers to Mexico to participate in a multimillion-dollar movie – for a $10,000 donation to charity.”).

[51] Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).

[52] T.V.A., 437 U.S. at 184 (emphasis added).

[53] ESA, supra note 15, § 1532.

[54] ESA Legislative History, supra note 16.

[55] In order to receive a § 10 permit the applicant must make a showing to the FWS that the act will “enhance the propagation or survival of the affected species, including but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j) of this section . . . ). 16 U.S.C. § 1539 (1)(A)(Permits).

[56] The act of importing or exporting an endangered species is strictly prohibited under this section. See ESA supra note 11, § 1538 (Prohibited Acts).

[57] ESA, supra note 11, at § 1539(a)(1)(A) (Permits) (emphasis added).

[58] T.V.A. v. Hill, 437 U.S. at 179.

[59] Intenational Fund for Animal Welfare, Comment Letter on Draft Policy for Enhancement-of-Survival Permits for Foreign Species Listed Under the Endangered Species Act (Oct. 15, 2003) (on file with author).

[60] David Stiles, et al., Stolen Apes – The Illicit Trade in Chimpanzees, Gorillas, Bonobos and Orangutans, United Nations Env’t Programme (2013) at 5, 40 available at [hereinafter “UNEP Report”].

[61] Id. at 40.

[62] ESA, supra note 15, § 1532(3) “Conserve” under the ESA means to use all methods and procedures to bring endangered and threatened species to a point where “the measures provided pursuant to this chapter are no longer necessary.” Id. Thus, their populations are recovered and they are no longer at risk of extinction. See also Janice Goldman-Carter, Federal Conservation of Threatened Species: By Administrative Discretion or Legislative Standard?, 11 B.C. Envtl. Aff. L. Rev. 63 (1983), vol11/iss1/4.

[63] Jason Morris & Ed Lavandera, Potential black rhino hunter still waiting for permit, CNN (Jan. 4, 2015),

[64] Scientists’ Comment Letter, supra note 27.

[65] The red wolf is critically endangered, and several species of sheep are currently vulnerable according to the IUCN Red List. The IUCN Red List of Threatened Species (2016),