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
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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.)