Markhor Imports

The USF&WS has just recognized and rewarded the world-class markhor program in Pakistan by issuing the first markhor trophy import permit in 15 years. The permit was issued on October 11 and received by Conservation Force, which handled it, on October 20, 2007. The proud hunter is Wayne Lau, who took the male flare-horned markhor (Capra falconeri falconeri) from the Gaharet Markhor Conservancy in Pakistan in March, 2006.


It is a male flare-horned markhor, not the straight-horned subspecies that the USF&WS lists as “endangered”. It is the first markhor of any kind to be imported into the United States since all markhor were listed on Appendix I of CITES at COP8 in Kyoto, Japan in 1992, 15 years ago. It is also the first new U.S. import of any game trophy listed on Appendix I of CITES since 1996 when the USF&WS began permitting import of Botswana elephant hunting trophies – 11 years ago.
The hunter, Wayne Lau, explains that the permit is the culmination of more than two years of planning and hard work with Conservation Force. “I purposefully selected the markhor and made the hunt first for the conservation of the species and secondarily for the satisfaction of the hunt. Somebody had to do it. This is another instance where hunting is an indispensable tool for the conservation of a species. This initiative with Conservation Force has added the missing element so badly needed for the program to work and grow: U.S. hunters are the most important market, but have been unwilling to hunt unless they could bring their trophies home. We’ve now laid the groundwork for others to follow; for licensed, regulated hunting to fulfill its role as a true force for conservation in a case in which the need is exceptionally great.”


Phil Ripepi, President of the Conklin Foundation, a leading sportsmen’s conservation organization, expressed great elation. “The markhor is the logo of the Conklin Foundation, so we could not be more pleased. The markhor conservation program in Pakistan is cited by the Convention on Biodiversity as the example of ‘best practices’ in its Addis Ababa Guidelines and Principles for Sustainable Use. It is one of the greatest game animals in the world. With import permits, hunting can finally perform its proven role.”


Dennis Campbell, President of Grand Slam/OVIS, another prominent sportsmen’s conservation organization is equally elated. “Grand Slam/OVIS and the Conklin Foundation have both supported Conservation Force’s efforts since CITES COP12 when the CITES Parties increased the markhor hunting quota from 6 to 12 to expand the successful Torghor Project in Pakistan to other tribal areas in full recognition of the conservation success. The real beneficiaries of the USF&WS are the markhor themselves as well as the local Gaharet people who will ultimately determine the fate of the markhor. Who wants a cow that you can’t milk?”


“We are so proud of the role that Conservation Force has played in completing this part of the conservation circle for markhor,” said John J. Jackson III, the attorney for Conservation Force that filed and processed the permit application through appeal and approval. “It’s been a long, hard road. One of our founding board members, Dr. Bart O’Gara, helped conceptualize the markhor conservation strategy in the 80s when he was with the U.S. Extension Service. I’ve been working on it since 1992 when it was listed on Appendix I. No one envisioned it would stop trophy importation. Later, CITES adopted a quota to facilitate trophy trade.”


Jackson went on to state, “Credit is due to the USF&WS for their wisdom in granting the permit in the reconsideration/appeal process. In effect, they are rewarding all those instrumental in conserving the markhor for their strategy and work, and for setting a positive example for others. Credit is especially due Shikar Safari Club for its years of direct support of the program in Pakistan, including funding the formal education of some of the top wildlife leaders in Pakistan. No one has invested more over the years. WWF and the IUCN have also played pivotal advisory roles that may now come to fruition.”


The hunt itself has recently been described by Wayne Lau in Chasing the Hunter’s Dream by Jeffrey and Sherol Engol and James Swan (Harper Collins, 2007) which is available at Amazon.com and through all other major booksellers.


For more information, contact John J. Jackson III at jjw-no@att.net or by phone at 504-837-1233.

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

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

 

Polar Bear Listed as Threatened

 

Conservation Force, its allies and Canadian partners were stunned to learn that all of the polar bear in the world – every population – were listed as “threatened”.  On the afternoon of May 14th we listened telephonically in disbelief to the Secretary of Interior Dirk Kempthorne deliver his press release.  He said it had been a “difficult decision”.  The ESA was America’s most “inflexible law” and did not permit the Service to consider the “adverse consequences” of the listing.  The listing would stop the import of all hunting trophies because it triggers a provision in the Marine Mammal Protection Act, but nothing else would change.  Nothing else would change because the MMPA is stricter than the ESA and the other activities have already been approved under the MMPA.  In our view, one more time a foreign species has been listed to the detriment of a foreign nation’s people and conservation program without any concomitant benefits.

 

            The “consensus” view about climate change and the future projections for polar bear were the “best available science”.  (In the actual rule this was explained to be synthesis reports of a large number of experts such as the IPCC and ACIA.)  That view is that sea ice is vital to the bear, the sea is melting and computer modeling projects that it is likely to continue melting.  The loss of sea ice habitat threatens all bear in the foreseeable future with endangerment even though the current bear population is approximately “25,000”.  By mid-century the bear is projected to lose 30 or more percent of its sea ice habitat and is likely to become in danger of extinction within 45 years.  “It was a difficult decision but I believe that it is the only decision I could make,” the Secretary said.

 

            He also said “While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting.”  He announced that he was taking regulatory action to make certain the ESA “isn’t abused to make global warming policies.”  The subtitle of his press release was the “Rule will allow continuation of vital energy production in Alaska.”  “Listing the polar bear as threatened can reduce available losses of polar bear (U.S. hunters in Canada, I suppose), but it should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources.  That would be a wholly inappropriate use of the ESA law.  The ESA is not the right tool to set U.S. climate policy.”  Kempthorne then quoted a recent statement by President Bush, “There is a right way and wrong way to approach reducing greenhouse gas emissions.  The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution.  Discussions with such far-reaching impact should not be left tounelected regulators and judges but should be debated openly and made by the elected representatives of the people they affect.”  (Emphasis added.)

 

            The Secretary followed this with a list of four steps soon to be taken “to make sure the ESA is not misused to regulate global climate change.”  First, the USF&WS is issuing a special rule (4(d) rule) stating that “if an activity is permissible under the stricter standards of the MMPA, it is also permissible under the ESA with respect to the polar bear.  (Incidentally, the MMPA has a specific provision allowing subsistence hunting by Alaskans, so that will continue, but treats ESA “threatened” listed species as “depleted”, so trophy imports from Canada are prohibited.)  Second, the Director of USF&WS would “issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility or resource development project or government action.”  Third, “[t]he Department will issue a Solicitor’s opinion further clarifying these points.”  Fourth, “[t]he Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.”  (Emphasis added.)

 

            I listened for over one-half hour as Conservation Force’s staff printed out the 383-page final decision in another room that was being released simultaneously with the telephonic press conference.  I felt like an elephant had run me through.  Not from just the loss of an uncommonly hard-fought battle, but genuine fear came over me.  Fear that U.S. hunters would never know the polar bear again, and anxiety that – all the work aside – we had missed the target.  Within an hour I had another fright.  The Assistant Director of USF&WS and the top solicitor called on the phone.  They said the Final Rule would be published the next day, May 15th, and would be effective immediately because of the Court Order that it be made effective by that date.  The permitting office was returning all permit applications by mail and revoking all permits that had been issued but not yet used! 

 

Approximately 60 U.S. hunters took bear this Spring (March, April, May) at a cost exceeding 1.5 million dollars.  None of them had yet been able to import their trophy because of the unusually time-consuming import permit application process.  According to the Assistant Director, there was nothing left to do for those hunters unless the Marine Mammal Protection Act is amended in the future.  It was all over.

 

            I prevailed upon them that just days before the federal judge that ordered that the Final Rule be made effective immediately upon publication agreed to reconsider her Order.  The trial court that was forcing the late Final Rule had reinstated Conservation Force’s motion to intervene in the suit, granted the intervention to represent the interest of those hunters with outstanding permits and ordered briefs on the fair notice issue.  The court ordered the government defendants to respond to the issue within 10 days, gave the plaintiffs (Center for Biological Diversity, Greenpeace, Natural Resources Defense Counsel) 10 days to brief the issue if they choose to, and Conservation Force as the intervenor 5 days after that to reply to those briefs.  In sum, the date the Final Rule was to be made effective was not yet conclusive or final.  It was being reconsidered by the court.  Specifically, the court had agreed to reconsider its Order to permit import of those trophies taken up to the date of the court’s Order, 28 April, compelling the USF&WS to make a Final Rule by May 15th.  The court had mistakenly said April 17th, but we were able to get it to correct that error in still another motion that changed the deadline date to 28 April.

 

            Conservation Force, as an intervenor, had also filed a motion with the trial court to stay the court’s Order which eliminated the minimum 30 day or more date of effectiveness after publication until we could appeal, but the court declined that stay request.  At that point we decided not to take an emergency appeal until after the judge reconsidered the effective date.  Thereafter, we may be able to appeal on behalf of any hunters that are still affected, but will have protected the property interests and rights of the others.

 

            On the afternoon of the 14th of May, we went back and forth with this information over a period of several hours and finally prevailed upon the USF&WS to “await any final decision on this (the) case before taking further action on any pending permits,” - one small success in the trenches.  The USF&WS is holding all pending permits in limbo and those with permits dare not import their trophies until the court rules because the effective date as of this moment is the 15th of May.  Imports after the 15th are illegal at the time of this writing.  Everyone must await the pending reconsideration.

 

            The Service had asked the court to give it until the end of June to publish the final determination, which coincidentally would have been enough time to grant most if not all of the outstanding trophy permit applications.  It argued that the bear’s current status was not dire and that the petroleum drilling, hunting, etc. was already found not to be risks of concern.  The court would have none of it.  We at Conservation Force also called and asked the chief trial counsel for the plaintiffs if they would consent to an extension of time for the limited purpose of importation of the already dead trophies, but the plaintiff would not consent.  You can judge their objection for yourself.  What did our Canadian friends or the U.S. hunters do wrong other than participate in the foremost polar bear conservation and management program in history at a time when the bear population is at an all-time high of more than 25,000?  Moreover, it is unprecedented for a species to be listed on projections when its present population has not significantly declined.  Who would have thought the bear was going to be listed based upon 45-year projections when such projections are not reliable beyond 10 years maximum?  How could the projections by the best available information when the scientific process calls for testing of hypotheses, not just inventing them?  Why would the permit applicants be deprived of reasonable notice when they themselves had to publish 30-day notice to the public in the permitting application process? 

Peer Review of Rule

 

            According to the Service, one of the peer reviewers (expert outside scientist consulted by the Service) “expressed concern that the proposed rule was flawed, biased, and incomplete, that it would do nothing to address the underlying issues associated with global warming and that a listing would be detrimental to the Inuit of the Arctic.”  We fully agree with those enumerated objections.  We think the bear have been listed prematurely over the range nation’s objections without corresponding benefits, and without taking into account Canada’s programs.  One more time a foreign species has been harmed by its listing without balancing benefits.

 

            The response to one of the generalized comments by the peer reviewers merits direct quotation:

 

Comment PR3:  Harvest programs in Canada provide conservation benefits for polar bears and are therefore important to maintain.  In addition, economic benefits from subsistence hunting and sport hunting occur.

 

Our response:  We recognize the important contribution to conservation that scientifically based sustainable use programs can have.  We further recognize the past significant benefits to polar bear management in Canada that have accrued as a result of the 1994 amendments to the MMPA that allow U.S. citizens who legally sport-harvest a polar bear from an MMPA-approved population in Canada to bring their trophies back into the United States.  In addition, income from fees collected for trophies imported into the United States are directed by statute to support polar bear research and conservation programs that have resulted in conservation benefits to polar bears in the Chukchi Sea region.

 

We recognize that hunting provides direct economic benefits to local native communities that derive income from supporting and guiding hunters, and also to people who conduct sport hunting programs for U.S. citizens.  However these benefits cannot be and have not been factored into our listing decision for the polar bear. 

 

We note that, under the MMPA, the polar bear will be considered a “depleted” species on the effective date of this listing.  As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research.  Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.  Neither the Act nor the MMPA restricts take beyond the United States and the high seas, so otherwise legal take in Canada is not affected by the threatened listing.

 

             In the final pages of the listing the Service provides the following insight into trophy importation: 

 “Regarding ongoing importation of sport-hunted polar bear trophies from Canada, under sections 101(a)(3)(B) and 102(b) of the MMPA, it is unlawful to import into the United States any marine mammal that has been designated as a depleted species or stock unless the importation is for the purpose of scientific research or enhancement of the survival or recovery of the species.  Under the MMPA, the polar bear will be a depleted species or recovery of the species.  Under sections 102(b) and 101(a)(3)(B) of the MMPA therefore, as a depleted species, polar bears and their parts cannot be imported into the United States except for scientific research or enhancement.  Therefore, sport-hunted polar bear trophies from Canada cannot be imported after the effective date of this listing rule.  Nothing in the special rule for polar bears published in today’s Federal Register affects these provisions under the MMPA.”

 

 Permit me to add that it is a very serious criminal offense to attempt to import your bear with or without a permit at this time.  Just don’t do it!  We still have a 4-point strategy to get your bear in and your children’s as well.

 

Interim Final Rule

 

             The Service simultaneously published a special rule, 73 FR 28306 (May 15, 2008).  It allows continued subsistence uses of bear in Alaska because that take and use is exempt under both the ESA and MMPA.  It is limited to Alaskan natives.  The special rule states “Under…the MMPA, it is unlawful to import…an individual taken from a species or population stock designated as depleted….The statutory provisions of the MMPA allow fewer types of activities than does the ESA for threatened species, and the MMPA’s standards are generally stricter.…Section 9(c)(2) of the ESA sets out an exemption to the general import prohibition for threatened, Appendix II wildlife…(which) would typically apply to the import of sport hunted trophies…However, persons importing sport-hunted trophy polar bears that were taken in Canada will not be able to use this exemption…(because) [u]nder the MMPA…the polar bear are ‘depleted’ species as of the effective date of their listing as threatened…under the ESA….”  It goes on to state that the ESA cannot “override the more restrictive provisions of the MMPA.”  It should be noted that reform legislation to carry the ESA exemption for trophies over to the MPMA would once again permit import of trophies from Canada.  The Rule also points out that depleted species (those listed as threatened under the ESA) also are not eligible for public display permits.

New Litigation Claims

 

             The three plaintiffs served a 60-day notice of intent to sue on the government and also a motion to amend their suit to make multiple new claims on the date of publication of the final rule, 15 May.  They claim all the bear should have been listed as endangered or alternatively, some of the populations are distinct populations and those should have been listed as endangered.  They challenge the continued petroleum drilling, greenhouse gases, subsistence uses and harvests, and generally challenge the government’s tack that the ESA is not to be used to regulate the underlying causes of ice melt and climate change.  The court will now decide.  Moreover, the Service can’t go back on its findings that the best available scientific information supports the listing at this time.  All due respect to President Bush, unelected regulators and courts will decide the impact of the listing upon the American public as they already have upon our Canadian friends.

 

            It is imperative that all those that took bear this Spring contact Conservation Force at 504-837-1233, jjw-no@att.net.  We need information from each hunter to help the whole.  Do not delay.  We have a 4-part strategy and need the information for all four parts.  That strategy includes the pending litigation and possible appeal.  Next we will seek special legislation to permit the importation of the trophies snared in the application process at the time of the listing and reform of the MMPA to give back to Canada the conservation program they have been deprived of due to the listing.  Finally, we have a legal team reviewing every aspect of the listing and alternative types of permits for importation.  We need help now.  Please make a tax-deductible contribution to Conservation Force at 32430 S. I-10 Service Rd. W., Suite 200, Metairie, LA  70001-6911.