(Below is the Notice of Intent to Sue in its entirety. The Notice was filed September 30, 2008.)

RE: Sixty-day Notice of Intent to Sue over the ESA polar bear
listing and related trophy importation regulations


Dear Secretary Kempthorne and Director Hall,

This is a notice of intent to sue to set aside the ESA listing of the polar bear, Final Rule, 73 FR 28212, May 15, 2008, and dependent trophy import regulations. The notice is on behalf of Conservation Force, its supporters, allied organizations, those individuals that took licensed, regulated hunts of polar bear in the spring of 2008 and both U.S. and Canadian stakeholders adversely impacted. That includes but is not limited to the Inuvialuit Game Council, Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, Canada North Outfitting, American Expeditions, Inc., Webb Outfitting Nunavut, Ltd., Steve Hornady, Roger Oerter, Mark Beeler, Tony Casagrande, Tim Decker, Chris Hanks, William Keene, Allyn Ladd, Everett Madson, Bradley Pritz, Kevin Reid, Robert Remillard, Ron Kreider, Jeff Sevor, Ted Stallings, Larry Steiner, Darwin Vander Esch, Tim Walters, Louie Nigiyok, and Nathaniel and Martha Kalluk (Nanuk Outfitting, Ltd.). The threatened listing and related trophy import regulation is contrary to law and regulations, including the ESA, APA and USF&WS’s own operating regulations and guidelines. The Final Rule is a violation of law, arbitrary, capricious and irrational.

Both Congress and the USF&WS have recognized that Canada’s polar bear are the largest population and the best managed in the world. Those populations are stable and increasing. The revenue and incentives generated by U.S. hunters are a critical component of that foreign nation’s conservation program and the hunting has been recognized by IUCN as “conservation hunting.” The listing obstructs that program without any corresponding benefit, as foreign species don’t benefit as domestic species do from listing. The listing triggers a prohibition within the Marine Mammal Protection Act (MMPA) prohibiting trophy importation, as does the new and dependent regulatory import ban of the USF&WS. This fact was an afterthought not taken into consideration in the listing determination.

The same number of bear will be on quota and taken in Canada, but the value of those bear, conservation revenue and incentives have been greatly lessened by the cavalier listing of our foreign neighbor’s species. In effect, the listing is an economic sanction against Canada and its political subdivisions when our Canadian neighbor and its people have done nothing wrong.

The listing and related special regulations are invalid for ignoring the express listing criteria for foreign species, particularly not taking Canada’s programs (“conservation practices”) into account in the listing determination and not providing a reasoned decision about this issue at all.
The suit may include the following issues of law and fact about the listing of the bear in Canada:

1. The USF&WS had a mandatory nondiscretionary duty and obligation to “take into account” the conservation practices in Nunavut and the Northwest Territories of Canada. The final rule failed to adequately and properly “take into account” Canada and Nunavut’s conservation programs. To the contrary, it recognized the benefits of Canada’s conservation practices but erroneously said that could not be considered as a factor in the listing determination. The trophy importation prohibition was the last, if considered at all, not the first consideration as it should have been. The criteria relied upon in the listing should have been considered “after” Canada’s program. The final rule erroneously states that “the effect of the listing (on Canada)…is not one of the listing factors,” page 28242. In fact, until the final rule, the USF&WS was itself suggesting that trophy imports might still be permitted. The decision to ban imports was arrived at late in the process after the determination to list was made, not taken “into account” in the initial listing determination. It was an afterthought. The listing completely obstructs Canada and Nunavut’s conservation programs and was made over their objections. No published consideration was duly given to their conservation programs as such. To the contrary, the USF&WS recognized Canada’s program benefits then erroneously stated that the negative impact or consequences of the listing to that program could not be considered. The listing obstructs Canada’s programs (Nunavut and Northwest Territories) and will have a negative impact on the conservation of the bear long into the future without any corresponding benefit. The Secretary contradictorily treated the trophy import ban as the only benefit from listing in his press conference, when the listing is a detriment. The Memorandum of Understanding with Environment Canada for shared populations is not binding, is unfunded and limited to shared populations only. The list is a net loss.

Had the range nation’s programs been duly considered, particularly in light of the unreliable projections upon which the listing was based, the bear in Canada should not have been listed and/or the listing is premature. The related rule discourages rather than “encourages” the conservation of the bear contrary to express ESA provisions. Congress never intended to punish other nations for U.S. greenhouse gases.

2. The listing was not based upon the best available scientific information. There were multiple irregularities during the listing process that invalidate the listing and dependent special regulations, particularly in light of the negative impact to the range nation. The listing was not objectively made. Instead it rests upon unsound and speculative projections and opinions beyond the state of the art. The Secretary commanded the USGS to support his proposal, not to critically analyze it, and then erroneously relied and represented that biased material as the consensus position when it was not. The USGS’s speculative and untestable projections are far worse than the alleged consensus expert opinion. Secondary speculation was generated rather than primary and original sources impartially evaluated. The listing decision does not rest upon information truly “available,” much less the “best…data available.” From the get-go this listing was pre-decided. The authors also admitted a willingness to lump and list separate populations prematurely as a matter of mere convenience – again in derogation of the duty to consider range nation programs (Canada). Contrary to the Petition Management Guidance, USF&WS, July 1996, page 9 III, you “listed a species that now appears to be secure on the basis of an uncertain future threat,” instead of substantial “findings…rooted in the here-and-now of a (the) species’ status.” It is also contrary to the Service’s policy that information relied upon be “impartially evaluated,” “reliable,” and “credible,” Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy on Information Standards Under the Endangered Species Act, July 1, 1994.

3. The listing should have been on a smaller scale, 61 FR 722, Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, February 7, 1996. The worldwide listing was contrary to the ESA regulations, particularly had Canada’s range nation programs been taken into account and been encouraged, as the ESA requires. Most if not all of Canada and Nunavut’s polar bear should not have been listed because they are distinct populations not likely to be at risk in the foreseeable future. There was little or no region-by-region analysis of Canada and Nunavut’s bear populations as distinct populations, just a generalized and erroneous conclusion not to treat any population as a distinct population segment, particularly those in Canada. All populations were unscientifically lumped together as one, contrary to the differing projections. All populations were listed even though 11 of the 19 regions were not included in the future projections. Canada’s program has been unnecessarily harmed. The listing is protested, not celebrated.

4. The listing was beyond the likely, reliably foreseeable future. The arbitrary selection of three biological life spans erroneously enters into the realm of the unknown. Then five (5) years were added to the 45 (50 total). The USF&WS chose age and life expectancy of the bear rather than a time period that is reliable and foreseeable. Fifty-year projections about arctic wind, sea currents, arctic temperatures, arctic cloud cover, summer ice coverage, seals, solar cycles and adaptation are beyond the state of the art and too flimsy a basis to obstruct Canada’s programs. It is too slender a reed of speculation about five decades in the future instead of “here and now” data to comply with good sense and the Service’s own guidelines. The listing is arbitrarily based upon life expectancy of bear rather than foreseeability and likelihood. Fifty years is beyond the future that is in fact predictable in timing and magnitude, much less “likely.”

5. Though it may be convenient, the listing of Canada’s bear is premature, particularly if their program had been taken in account. The range of the polar bear likely to become endangered in the foreseeable future has been overstated and is not sufficient to warrant listing the whole world population. The decision is unsoundly based upon an erroneous assumption that the loss of summer ice threatens the bear when bear are known to survive without summer ice and have in the past. That blind assumption is not rational. Though some of the bear may be “threatened” in 45 years, a sufficient number will not be for the bear to really be threatened “with extinction” then or now.

All these issues were raised in comments by Conservation Force, Nunavut and/or Canada. Contrary to the APA, these issues were not duly addressed in the final rule and dependent/related trophy importation ban. The final rule listing the bear and dependent import regulations are invalid until these issues are considered and properly addressed. The Canadian polar bear should not have been listed.


Sincerely,
John J. Jackson, III
Pro-bono legal counsel