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No polar bear population is currently listed under the ESA, though readers may be confused about that, given the difficulty they have had with trophy importation. Those problems have arisen from the species listing under the Marine Mammal Protection Act, not the ESA. If any population becomes listed as "endangered" under the ESA, then trophies of those will not be importable under the 32-year-old practices of the USF&WS. Of course, we have been working to change that too.
The petition demands the separate review of the status of each of the 20 currently recognized polar bear populations of the world. It incorrectly alleges that at least seven of the 20 populations are declining or of unknown number. The petition is also full of legal traps for the USF&WS. It alleges each of the recognized 20 polar bear populations meets the "distinct population segment" criteria under the ESA, and asserts that each must be individually and comprehensively considered separately for listing. The ESA provides that a species is "threatened" if it is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." The petition argues that the "foreseeable future" reasonably means 100 years and that every separate one of the 20 populations independently is a "significant part of its range." Both points, "foreseeable future" and "significant portions of range," are fertile legal issues today.
The primary cause of the threat to polar bear is alleged to be "global warming." The petition alleges that greenhouse gases will raise Arctic temperatures by 13.6º F over the next 100 years, which will in turn cause summer sea ice to decline by 50 to. 100 percent. This speculative projected loss of habitat (melting away) and its effect on polar bear prey animals will cause "severe endangerment and likely extinction in the wild by the end of the century." The extreme projections of an Arctic ice meltdown are over 40 pages of the petition, which is the largest assertion. An additional 60 pages are directed to six other classes of threat, beginning with 1.) oil and gas exploration, 2.) hunting, 3.) contaminants, 4.) disease, 5.) predation and 6.) scientific research and collecting, in that order. Imagine, even scientific collecting is alleged to be a threat!
The petition is based on extreme projections and assumptions, not the best scientific evidence and not present conditions. In our studied view, no population in the world is likely to be found "threatened," much less "endangered" in the foreseeable future. Though the Marine Mammal Protection Act has express provisions partially exempting Native Alaskans, the ESA does not.
The allegations against hunting fall into two categories: First, the Center for Biological Diversity alleges that quotas should be set more conservatively in light of the projected deterioration of habitat and prey. Second, they allege that the January 2005 increase in hunting quotas in Nunavut from 403 bears to 518 bears, just over 25 percent, is threatening the bear in itself. These allegations are only one page of the petition, but are supported by a 15-page Appendix on "The Impacts of Hunting." In our view, there is no substance to these misleading allegations whatsoever. The extreme projections of changes in habitat and prey base are so distant in time as to hardly be relevant to current quotas. There is no evidence that quotas will not be adaptively adjusted if and when necessary under existing regulatory mechanisms. There is undisputed, longstanding evidence that the hunting quotas generate social, economic and even biological conservation benefits that enhance the survival of polar bear. In short, the hunting provides a net benefit, which means the bear will be worse off if they are listed. The ESA generally does not provide benefits for recovery of foreign species as it does for domestic species. The new quotas are still historically low and more selective than in past decades. They also have less biological impact because of targeting male bears. There is reason to believe that the bear population in Nunavut is increasing as the local people and authorities believe. The shift from native to tourist hunting with the concomitant decrease in female harvest over a decade ago should have caused an increase in the number of bears. It is no surprise. The hunting conservation strategy has caused the increase, as expected. The Inuits have every reason to complain as they get overrun by females and cubs, as the population responds to the successful decade-old management strategy. It is only right that the quota be increased to keep up with the successful, projectable increase in bear.
The petition singles out the alleged "over harvest" in the McClintock Channel that led to its closure, but that too is misleading. A mistaken overestimate of that population’s numbers resulted in a mistaken quota, which has already been adaptively adjusted. The underlying problem is solved and the consequences of the mistake were not as great as they otherwise would have been had most of the harvest not been males which, biologically speaking, are minimally relevant to the rate of reproduction according to the IUCN Polar Bear Specialist Group and other experts.
The question remains: What effect will the listing petition have on Conservation Force’s petition to permit importation of trophies of Gulf of Boothia polar bear? The Center for Biological Diversity specifically attacks hunting in the Gulf of Boothia, but its allegations are wholly incorrect. It alleges that the population is only 900, that the population is "stable" but that the quality of that population estimate is "poor," and that the recent increase in the quota from 41 bears to 74, a 33 percent increase, can’t be justified. It concludes that "over hunting is now likely impacting this population." The problem with these assertions is that they are all based upon an outdated population estimate from more than a decade ago. Conservation Force’s petition to permit trophy imports from the Gulf of Boothia is based upon a newer, top-quality estimate of 1,500 bears not 900.
The Center for Biological Diversity is a relatively small environmental organization that takes credit for having added 225 species to the ESA list. Its web address, where a copy of the petition can be found, is: www.biologicaldiversity.org. In January, an Arizona jury awarded a $600,000 judgment against the Center for Biological Diversity for defaming an Arizona landowner by making false, unfair, libelous and defamatory statements about his grazing allotment.
We will follow this challenge closely and coordinate our efforts with the Canadian Wildlife Service, Northwest Territory provincial authorities and Nunavut interests. We need contributions to meet this new challenge and to see through our petition to approve Gulf of Boothia polar bear trophy imports.
We are at the threshold of an unprecedented expansion of the ESA footprint on our lives. The petition to list the polar bear may truly be a doorway into the Pandora’s Box of the ESA. The ESA may come to have a far greater impact on the average U.S. citizen than it ever has because of the many links between global warming and our everyday lives. Everything that the U.S. Government does or permits to be done that may effect “Greenhouse gases” may have to be subjected to a “Section 7 Consultation” to determine its indirect impact on the Arctic and Antarctic species that become listed. Before a coal mine or oil well drilling permit, is issued anywhere in the U.S.A., there may have to be a laborious Section 7 Consultation, mitigation and related litigation. Be forewarned that all activities that may contribute to global warming, not just the primary cause, are subject to regulation under the existing judicial interpretation of the ESA.
There are mountains of building evidence that global warming is real, that it is causing an enormous meltdown of the Arctic and Antarctic and that the melting is accelerating. It is frightening because of its potential effects if it continues. The polar bear listing petition is forcing a determination from the best available information under one of America’s most demanding national laws. The problem is about more than importing bear trophies, it may soon be about the vehicles in our driveways, the electric lighting in our homes and hundreds of carbon dioxide producing activities that determine the quality of our lives.
From our review, polar bears have only been measurably impacted to date at the southern border of their range, i.e., in the Western Hudson Bay. That separate population of bear is documented to have decreased and experts believe that decrease is due to the arctic meltdown. The bear numbers have decreased, their body weight has decreased, and their rate of reproduction has lowered. They can’t feed as long as before because the feeding grounds melt sooner or no long exist at all, and the prey population is declining and not as accessible.
An important issue is whether Arctic warming has reached a theorized critical point at which it precipitously accelerates much like a fire starting. Those of us trying to save tourist hunting in the Artic north have to contend with these theories and concerns, but the reader should by now realize that more than trophy imports is at stake.
The 170 page petition to list the polar bear summarizes the global warming debate. Conservation Force will furnish it and other related documents at costs upon request. A new must read source is The Weather Makers, by Tom Flannery, published by Grove/Atlantic. Twelve pages of that book can be found in the March issue of Playboy Magazine, What’s Going On Here? Of course, I hesitate to cite Playboy Magazine but it is so readily available and the article could not explain the issue better. It’s subtitles are telling- The Last of The Polar Bear, Disappearing Ice, and Mass Extinction. It’s time to understand the issue because growing reactions to the warming trend are real. The public and government reactions will effect you even if the melting ice does not. It’s now unavoidably in our face because of the listing petition. Activist environmental groups have been fast to capitalize and react with the developing scientific evidence, but it is more than activist spin. It is real. As I write this, Canada’s environmental agency has issued a report that the winter of 2005-2006 was the warmest on record.
The Polar Bear
Crisis Is Growing - 03/23/2006
The US Fish
and Wildlife Service has found that listing polar bear "throughout
its range may be warranted" (71 FR 6745, February 8, 2006.) The
Service has initiated a status review to make the determination.
Comments must be received on or before April 10, 2006. This is
serious and the window to file opposition comments is small.
The effort to list the polar bear as threatened or endangered on the
Endangered Species list commenced when the Service received a
petition from the Center for Biological Diversity dated February 16,
2005. That petition reported threats to the bear from climate change
and sea ice change, oil and gas development, contaminants, hunting
and poaching. It also claimed that existing regulatory mechanisms
are inadequate to protect the bear and its habitat. We reported this
to you in an earlier bulletin (April 2005), and we began tracking
the listing effort.
On July 5, 2005, the Natural Resources Defense Council and Greenpeace, Inc. joined in that petition list and submitted new information to be considered. Then the Service received new information from the petitioners on December 27, 2005. Also on December 15, 2005, the petitioners filed a suit in Federal Court in Northern California to compel the Service to make the required 90-day finding on their petition to list.
The notice is entitled "Notice of 90-day petition finding and initiation of status review." The services states "[w]e find that the petition presents substantial scientific or commercial information indicating that the petitioned action of listing the polar bear may be warranted. We, therefore, are initiating a status review of the polar bear to determine if listing under the Act is warranted... We must receive your comments on or before April 10, 2006."
Don't be confused by the fact that the Service claims to have twelve months from December 27, 2005 to make its determination. The court may not agree that the time limits commenced again on December 27th when the petitioners submitted additional information. Moreover, the comment period itself is scheduled to close on April 10th regardless of when the Service will publish its decision. April 10th is the narrow window to oppose the listing.
It remains to be seen whether or not the Court will allow the Service to restart the clock on the date that it received the supplemented information from the petitioners on December 27th, ten months after the initial petition and also after the suit was filed. Regardless, the Service has now made the positive finding that listing "may be warranted" and the limited comment period of 60 days is running out.
The Sevice has specifically called for comments on polar bear throughout the bear's entire range because all bears are being considered for listing. It specifically asks for information on the effects of climate change and sea ice change on the distribution and abundance of polar bears and their principal prey over the short - and long - term. It also requested information on the effects of other "potential threat factors" including oil and gas development, contaminants, hunting, poaching and changes in the principal prey for polar bear. The Service wants information on all conservation measures including "hunting conservation programs" and "government conservation programs which benefit polar bears." It also calls for information that qualifies any populations as "distinct population segments," which means they should and can be treated seperately for listing or not listing purposes.
Conservation Force is scrambling to deal with this because once any population of polar bear is listed it is extremely unlikely that US hunters will ever again be able to import trophies from that segment of the population. Also, Conservation Force's own pending petition to establish the import of polar bear from the Gulf of Boothia region is caught up and being delayed until this is resolved.
We need your help to consult with innumberable experts to file authoritative, responsive, factual and timely comments. The consequences may be forever. Please send your tax-deductible contribution to Conservation at P.O. Box 278, Metairie, LA 70004-9821.
If you wish to file
your own opposition comment, it must be received by the Service on
or befoer April 10th by postal mail addressed to: Supervisor, US
Fish and Wildlife Service, Marine Mammals Management Office, 1011
East Tudor Road, Anchorage, AK 99503; or by email addressed to:
AK_Polarbear@fws.gov. If you comment by email, your comment must
include "Attn: Polar Bears" as the subject. Don't forget to include
your name and address in your email, as anonymous comments are not
considered.
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On December 15, 2006 the Center for Biological Diversity, Natural Resources Defense Council and Greenpeace filed a suit against the Secretary of Interior and US Fish and Wildlife Service to force the Service to take action on the Center’s petition to list all polar bear on the US Endangered Species List. The Center for Biological Diversity filed the polar bear petition that it is trying to enforce on February 16, 2005. The Service has failed to act on that petition within a 90-day period. In the absence of a suit, the Service has taken up to 10 years to make its findings. The suit will certainly prevent that. The underlying petition for listing primarily rests on an alleged potential threat to the bear’s habitat due to projections of global warming. Secondarily, the original petition to list claims that the threat was exacerbated by the recent increase in hunting quotas. (See April 2005 World Conservation Force Bulletin for an analysis of that petition).
The suit has been filed in the US District Court for the Northern District of California (San Francisco) and is Case No. C 05 5191 EMC. The protectionists are requesting the court "to order the Secretary to comply by a date certain with the ESA’s mandatory, non-discretionary ‘90-day finding deadline’ for processing citizen petitions to list species." This is not yet a suit to compel the listing. That would be premature. It is a suit to compel the completion of the first stage in which the Service determines whether or not the petition may warrant further review. Though the 12-page lawsuit repeats many of the allegations in the Center’s petition to list, that is not to be decided at this time. For example, it cites the IUCN Polar Bear Specialists Group’s recent recommendation that the bear should be classified higher as "Vulnerable". In fact, the bear has arguably not been legitimately upgraded to "Vulnerable" on the Red List because world climate change is not an IUCN criterion for listing. This ultimately will be of some importance because another Federal Court recently overturned a decision by the Service not to list a plant species when the Service did not explain why it did not follow the lead of the IUCN on its Red List of that species. On the other hand, the Service may enter into a settlement judgment with binding dates for both the 90-day and 12-month determinations.
The protectionist also claim that the Service can’t timely make its required 12-month finding on the Center’s petition to list because that period is almost up as well. This suit may be amended on the anniversary date of the filing of the listing petition in February 2006. Then it will be a lawsuit to compel the decision by the Service whether or not the listing is warranted, not just a more preliminary finding now in issue that it "may" be warranted. This case may stay in the San Francisco Court and the court may follow the listing petition until it is ultimately decided fully and definitively. Readers should not be fooled by the apparent limited goal of this initial lawsuit. The suit can be amended again and again to encompass each stage of the listing process until the case is concluded.
That’s exactly what was done in an identical listing suite filed by the Center for Biological Diversity in Arizona when the Service did not act within 90 days on a petition filed by the Center to list the Northern Mexican Gartersnake. The court in that case recently (January 4th) entered a consent judgment fixing dates for publication of both the 90-day and the 12-month findings, Center for Biological Diversity v. Norton, CV-05-341-TUC-CKJ,D.ARIZ.
The three organizations picked the Northern District of California as a forum for the litigation and have asked that it be assigned to San Francisco rather than Sacramento. That court is popularly thought to be one of the most liberal. This is the same court in which the Center for Biological Diversity recently filed its suit against the Service for permitting the continued hunting of newly ESA-listed scimitar horned oryx, dama gazelle and addax. Conservation Force is searching for one or more pro bono attorneys in the San Francisco area who are admitted to that Federal District Court to assist us in tracking the cases and perhaps intervening because of its anticipated long-term importance.
Polar bear hunting is at risk and will remain so for some time to come. If the polar bear is listed as "endangered", then it will not be importable, just like Canadian Wood Bison, Pakistan Markhor, Namibian Cheetah, China Argali and other "endangered" game are not importable. If it is listed as "threatened" rather than "endangered", then trophies should still be importable because of provision 9-C-"2" of the Endangered Species Act (the "Dingel Amendment"), that generally allows trophy imports of "threatened" listed species that are already protected on Appendix II of CITES, as is the polar bear. Perhaps a more serious threat to continued US importation of trophies is the Marine Mammal Protection Act (MMPA). Though the MMPA was amended in the middle 90’s to permit importation of polar bear trophies, Senator John Kerry added conditions to that reform legislation that are now being brought into play through pressure from the antis.
Though not a party to the suit, Humane Society of the United States (HSUS) has also been pressuring the Service to end polar bear hunting. In November 2005, HSUS posted a paper entitled Hitting Polar Bears When They Are Down. The posting urges readers to "Take Action! Tell the Polar Bear Project of the US Fish and Wildlife Service to stop allowing the import of polar bear trophies into the United States." It harps on the fact that the Polar Bear Specialist Group "recommended that the IUCN reclassify polar bears as vulnerable and add the species to the Red List of threatened species." (Note, unlike the above lawsuit, the IUCN reclassification is represented by HSUS to only be a recommendation, not a fact.)
Wayne Pacelle, President and CEO of HSUS, is quoted in the release stating that "Polar bear are in trouble, as a consequence of global warming. The last thing they need is to be chased down and killed in their arctic environments by individuals seeking trophies." "While the United States prohibits trophy hunting of polar bears, it does allow American hunters to kill a polar bear in Canada and import the body or pelt back to the United States. The United States needs to close that loophole in the MMPA if it is serious about protecting this vulnerable species," he said.
Just as we expected, the affiliated Humane Society International (HIS), wrote the US Fish and Wildlife Service and has asked it to review trophy import approvals, particularly in areas where quotas are being increased. (This no doubt has further held up Conservation Force’s petition to allow the importation of polar bear trophies from the Gulf of Boothia). These old enemies of all hunting are wasting no time attempting to close polar bear imports at every opportunity. They have used the recent proposed increase in quotas to challenge trophy imports, as well as US global warming policy. The antis have been corresponding with the Service, asking the officials there "to review import approvals for Nunavut’s polar bear populations." They report that the US Fish and Wildlife Service has responded back stating that "The Service is looking carefully at the situation to determine the best and most expeditious course of action to meet our responsibilities under the [Marine Manual Protection Act]." HIS states that it "continues to urge the US Fish and Wildlife Service to formally review it’s approval for import of those stocks affected by the quota increase – we firmly believe the law requires the US Fish and Wildlife Service to rescind the import approvals, as the best available science does not support a quota increase."
Readers should know that the proposed increase of quota for the Baffin Bay population has since been decreased by the Inuit’s and the proposed increase in quota in the Gulf of Boothia is based upon a state-of-the-art scientific survey that showed the population to be far greater than thought.
This flap about Inuit participation in the quota-setting process is contrary to the Participatory Principle that stakeholder participation is desirable for sound and sustainable management. Once again, the antis just seem to be making more noise than we are.
Conservation Force needs help and support to meet this growing litigation challenge. Please send tax deductible contributions to Conservation Force PO 278, Metairie, LA 70004. (Yes, we are back in Metairie.)