Federal Judge Rejects Fund for Animals Lawsuit Over Hunting of Threatened Animals

On July 31, 2003 U.S. District Court Judge Gladys Kessler dismissed a lawsuit brought two years ago by the Fund for Animals aimed at stopping the importation of threatened sheep from abroad.

The case centered around Argali sheep which the U.S. Fish and Wildlife Service classifies as endangered in every country except Mongolia, where it is listed as threatened. Since it is listed only as threatened rather than endangered, hunters in the United States have been travelling to Mongolia to hunt the animals and the U.S. Fish and Wildlife Service has been issuing permits allowing hunters to import the carcasses of the animals they kill back into the United States.

The Fund for Animals sued the U.S. Fish and Wildlife Service arguing that this practice was a violation of the Endangered Species Act. The lawsuit claimed that the USFWS was violating its own rules by allowing a proposed rule for dealing with the import of argali to stay in effect for a decade, and that the argali sheep should be listed as endangered rather than threatened.

As Michael Markarian said in a Fund press release in April 2002,

It is unconscionable that hundreds of animals in this imperiled species have been killed simply so wealthy American trophy hunters can add more heads to their collections. The USFWS has acted illegally and irresponsibly by granting hundreds of import permits, by not soliciting public comment, and by leaving this proposed rule in limbo while the argali population continues to decline.

If the lawsuit had been successful it could potentially have affected other international game hunts, but Judge Gladys Kessler ruled that the Fund and other plaintiffs lacked standing to bring the lawsuit. In addition Kessler ruled that even if they had standing, the Fund and other groups failed to demonstrate they would likely succeed on the merits of their case saying that the plaintiffs,

. . . failed to meet their burden of demonstrating that those choices, which can only be made by the governments of Kyrgyzstan, Mongolia and Tajikistan, have been or will be made in such a manner as to reduce the sport hunting and killing of argali.

In fact there is evidence that when the United States previously banned imports from Tajikistan, the government did not limit sport hunting, and the killing of argali continued by virtue of non-U.S> citizens and increased poaching.


Anti-hunters dealt legal setback. New York Post, August 10, 2003.

Hunt and protect? Amanda Onion, ABCNews.Com, May 7, 2003.

SCI wins major victory for hunters. Arizona Outdoorsman, August 7, 2003.

Court Rules in Favor of Imperiled Argali Sheep. Press Release, Fund for Animals, April 4, 2002.

Maryland Governor Signs Sunday Hunting Law

Maryland Governor Robert Ehrlich signed a bill in late April that will allow hunting on two Sundays during the state’s next deer season. Under the new law, hunting will be allowed on private land in several rural counties on the first Sunday in November for bow hunting and on the first Sunday after the firearms season opens (Nov. 2 and Nov. 30 respectively this year.)

The bill had been passed in March by a vote of 87-41 in Maryland’s House and 33-11 in the state Senate. A similar bill was approved in 2002 but vetoed by then-Maryland Gov. Paris Glendening.

The Baltimore Sun quotes former Maryland delegate Michael Weir, who had tried to gain approval for SUnday hunting during his 28 years in office, as saying that the increasing size of the deer herd and the attendant problems explained the turnaround,

You have more people being hurt in car accidents with deer, and people are tired of deer eating their bushes and causing crop damage. Bambi’s lost a few friends over the years.

Bambi still has friends at the Fund for Animals, however, which was outraged that Ehrlich signed the bill after saying during the election that he opposed Sunday hunting. Fund for Animals president Michael Markarian said in a press release,

Sunday hunting threatens public safety, harms wildlife, and is bad for the economy. Governor Ehrlich stated during his campaign last year that he opposed Sunday hunting. He has flip-flopped on this issue, he has eviscerated a 30–year Maryland tradition, and he has gouged Maryland taxpayers in the process.

The state Department of Natural Resources supported the bill saying that allowing Sunday hunting is an important tool in controlling the size of Maryland’s deer population which is estimated at 250,000.


Sunday deer-hunt bill in Ehrlich’s hands. Candus Thomson, The Baltimore Sun, April 8, 2003.

Sunday deer hunt needs only Ehrlich signature. Associated Press, April 12, 2003.

Ehrlich signs Sunday hunting law. Candus Thomson, The Baltimore Sun, April 23, 2003.

Sunday hunting easy to defend. Gene Mueller, Washington Times, April 30, 2003.

Fund for Animals Condemns Gov. Ehrlich for Lifting 300-Year Ban on Sunday Hunting, Gouging Taxpayers. Press Release, Fund for Animals, April 22, 2003.

Md. Assembly Passes Bill Allowing Sunday Deer Hunting. Associated Press April 8, 2003.

Fund for Animals Files Lawsuit Over Hunting in Wildlife Refuges

According to ABCNews.Com, The Fund for Animal has filed a lawsuit against the Interior Department asking the department to ban hunters from 39 areas in federal wildlife refuges that have recently begun to allow hunting.

The lawsuit alleges that the decision to open up the 39 areas in the refuges has been made “without analyzing or disclosing the potential direct, indirect and cumulative environment impacts.” Hunting is currently allowed in more than half of the 540 federal wildlife refuges according to ABC News.

Fund for Animals president Michael Markarian told ABC,

We believe it is obscene that refuges should be turned into killing fields. There’s plenty of public land in this country where hunters can hunt. Unfortunately there’s a lot of political pressure to allow hunting on refuges.

U.S. Fish and Wildlife spokesman Mitch Snow derided the lawsuit saying,

It’s completely historically inaccurate and intellectually dishonest. The refuges were never created to be sanctuaries where no hunting would be allowed. Ever since the inception of the refuge system, hunting has been allowed, largely because hunting is good for conservation — hunters contribute enormously to conservation. Without hunting, we couldn’t do what we do.

Another Fish and Wildlife spokesman, Nicholas Throckmorton, noted that the federal duck stamp program — initiated in 1934 — has raised $622 million since its creation in 1934 (though it needs to be noted that while hunters must buy a federal duck stamp before hunting waterfowl, nonhunters can also purchase the stamp).


Conservation Group Cries Foul Over Growing Hunting in Wildlife Refuges. Dean Schabner, ABCNews.Com, March 18, 2003.

Court Orders Halt to Makah Whale Hunt

In a case likely to end up in the Supreme Court, a three judge panel of the 9th Circuit Court of Appeals halted a planned Makah whale hunt. The panel ruled that the National Marine Fisheries Service had failed to provide an adequate environmental assessment in allowing the whale hunt to go forward.

The Fund for Animals and the Humane Society of the United States had sued the NMFS to overturn a lower court’s ruling allowing the hunt to go forward. Fund for Animals president Michael Markarian told the Seattle Post-Intelligencer that he was,

. . . elated that the court has put a stop to this illegal and inhumane whale hunt. This court decision upholds the MMPA, which is a sweeping conservation measure to protect marine mammals in the U.S.

This victory, however, is likely to be short lived. The Makah intend to appeal the decision to the full 9th Circuit Court and to the Supreme Court if necessary.

And they are likely to succeed. There’s a reason the 9th Circuit Court of Appeals is overwhelmingly the most overturned circuit court in the nation — because it consistently issues rulings like this that completely ignore its own and the Supreme Court’s established precedents.

As Bob Anderson, professor of law at the University of Washington, told The Post-Intelligencer,

It [the decision] is an unprecedented break with how every other court has analyzed general statutes and treaty rights. It seems flatly wrong on the Indian-law component of the analysis. They are definitely stretching to find federal regulatory authority to limit treaty rights when the Supreme Court has said that you have to find clear evidence that Congress intended to do so.

And, as Anderson points out, Congress made the Makah case for it in 1994 when it amended the Marine Mammal Protection Act to read, among other things, that “nothing in this act . . . alters or is intended to alter any treaty between the U.S. and one or more Indian tribes.”

Only the 9th Circuit Court would infer from that that Congress meant to limit the Makah’s treaty rights.


Court stops Makah whale hunt. Paul Shukovsky, Seattle Post-Intelligencer, December 21, 2002.

Court stops Makah whale hunt. Fund for Animals, Press Release, December 20, 2002.

In Defense of Animals/Fund for Animals Claim Victory that Wasn't

At the In Defense of Animals web site, IDA reprints a list of “Animal Rights Victories in 1999” that was compiled by Michael Markarian of The Fund for Animals. Not surprisingly, one of the “victories” on the list never actually happened. Midway through the list is this item,

The NIH banned the use of mice in monoclonal antibody production, saving the lives of up to one million mice per year, and admitting that animals feel “pain, distress, or discomfort.”

The only problem is that the NIH did not ban the use of mice to produce monoclonal antibodies and the reason it decided against a ban goes to the heart of the debate over animal research.

What’s a monoclonal antibody? It is a method of mass producing specific antibodies. Researchers take tumor cells that will reproduce forever if given the proper nutrients and fuse those with cells that produce specific antibodies. The result is called a hybridoma which is then cloned to produce large numbers of cells that will produce specific antibodies.

The ability to produce monoclonal antibodies is a direct result of years of animal research and animals are essential for the first phase of the process, the creation of a hybridoma. Typically, a hybridoma is created by immunizing an animal (almost always a mouse), and then obtaining immune cells from the animal’s spleen. These cells then get fused with the tumorous cancer cell so that they can reproduce indefinitely.

Nobody suggests that there is an animal alternative to this process. Regardless of how they are later cultivated, monoclonal antibodies require the use of an animal during the initial phase.

But cultivation of these cells is another story. Researchers are able to growth monoclonal antibodies either in vivo or in vitro.

The in vivo model involves injecting animals (again, almost always mice) with hybridomas. The hybridomas reproduce and produce a fluid called ascites on the animal’s abdomen. The fluid contains a large number of monoclonal antibodies that can then be harvested for further study.

The in vitro model involves culturing the hybridomas in one or another culturing medium. Note that this also involves the use of animals (though not whole animals), with the most popular method of culturing being using fetal bovine serum.

In 1997, the American Anti-Vivisection Society petitioned the National Institutes of Health to prohibit researchers receiving NIH grants from using the whole mouse method to produce monoclonal antibodies. Since in vitro methods were available to produce the antibodies, AAVS argued, animals were suffering needlessly.

Contrary to what IDA apparently believes, the NIH rejected an outright ban. Instead, after commissioning a study of the issue from the National Research Council, it issued a policy that for NIH grants in vitro methods of monoclonal antibody production should be the preferred method of production.

Using whole mice to produce monoclonal antibodies is still allowable under NIH, however, it in vitro methods are not suitable for one reason or another.

The National Research Council that looked into the issue found that there is a continued scientific need to produce monoclonal antibodies in mice. According to its 1999 report (which is available here),

There are several reasons why the mouse method of producing mAb cannot be abandoned: some cell lines do not adapt well to tissue-culture conditions; in applications where several different mouse mAb at high concentrations are required for injection into mice, the in vitro method can be inefficient; rat cell lines usually do not efficiently generate mAb in rats and adapt poorly to tissue-culture conditions but do produce mAb in immunocompromised mice; downstream purification or concentration from in vitro systems can lead to protein denaturation and decreased antibody activity; tissue-culture methods can yield mAb that do not reflect the normal modification of proteins with sugars, and this abnormality might influence binding capacity and other critical biologic functions of mAb; contamination of valuable cell lines with fungi or bacteria requires prompt passage through a mouse to save the cell line; and inability of some cell lines that do adapt to tissue-culture conditions to maintain adequate production of mAb poses a serious problem. For these reasons, the committee concludes that there is a scientific necessity to permit the continuation of the mouse ascites method of producing mAb. However, note that over time, as in vitro methods improve, the need for the mouse ascites method will decrease.

Maybe someday there will be no need to use mice to mass produce monoclonal antibodies, but that day is not yet upon us.

At the time the NIH changed its policy, the American Anti-Vivisection Society estimated that about 90 percent of monoclonal antibody production done as part of NIH grants would move to in vitro models, with the other 10 percent still being performed in vivo. So far, this writer is unaware of any research on just how much the new policy affected the landscape of monoclonal antibody production.

But, one thing that did not happen was an outright ban of antibody production in mice as In Defense of Animals and The Fund for Animals claimed.


Animal Rights Victories in 1999, Compiled by Michael Markarian of The Fund for Animals For the 2000 Summit for Animals. In Defense of Animals, 2000.

Animal protection group precipitates historic policy change at NIH. Press Release, American Anti-Vivisection Society, December 22, 1999.

Monoclonal Antibody Production. National Research Council, 1999.

Fund for Animals Tries to Score Points After Arkansas Shooting

In their campaign to stop hunting,
the Fund for Animals took a swipe at hunters following the tragic shooting
at a school in Jonesboro, Arkansas which left several people dead.

According to Michael Markarian,
director of campaigns for the Fund for Animals,

These children were
taught by their families to hide in tree stands or behind duck blinds,
to lure animals with calls or scents, and to shoot from ambush. They used
these exact same skills, dressed in camouflage, on the day they lured
their classmates and teachers outside with a fire alarm and shot them
from ambush.

The Fund for Animals never explains
why, if hunting causes children to be violent to other children, so few
children who hunt engage in such horrible acts of violence or why violence
predominates in urban areas where youths have little opportunity to
hunt. We would also be amiss if we didn’t note that since most animal
rights terrorists convicted of violent crimes are vegetarians, it would
logically follow that abstaining from meat leads people to a life of violence
as well.

The Fund for Animals has a 30-page
report on the horrors of children learning about hunting in their schools.