DATELINE: WASHINGTON, DC, News Analysis, The Argali Case: Court, Hears
Mongolia's Appeal
(posted April 2003)
(Editor Note: All material contained in this section is provided by
famed wildlife and hunting attorney John J. Jackson, III with whom The
Hunting Report has formed a strategic alliance. The purpose of the
alliance is to educate the hunting community as well as proadvocacy of
hunting rights opportunities. More broadly, the alliance will also seek
to open up new hunting opportunities worldwide and ward off attacks on
currently available opportunities.)
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DATELINE: WASHINGTON, DC
News Analysis
The Argali Case: Court
Hears Mongolia's Appeal
You may recall that the trial judge in the Federal District Court for
the District of Columbia did not allow Mongolia's Natural Resources
Department to intervene in the Argali case. The antis raised every
conceivable issue to prevent Mongolia from participating. Their wild
assertions and Red Herrings made a lot of work for Conservation Force.
They succeeded in persuading the trial judge to deny the Mongolian
motion to join in the suit, even though the trial judge let absolutely
everyone else join in the case. We filed an appeal on behalf of
Mongolia. When you take on a responsibility, itis necessary to see it
through regardless of the cost and burden.
Conservation Force also represents the Foundation for North American
Wild Sheep; Grand Slam/OVIS; Raul Valdez, Ph.D.; Bart O'Gara, Ph.D.;
James Teer, Ph.D.; and some individual conservation-minded Argali
hunters - Ron Bartels, Douglas C. Stromberg, Ben Seale, Clark S. Ullom
and Lee G. Lipscomb. Conservation Force also represents itself. Many
others have wanted to join the suit and/or have supported the overall
Argali effort.
The antis have never before filed a suit to directly prohibit the
importation of hunting trophies. The antis did intervene in both the
1991 Elephant and 1992 Argali suits. (Yours truly, John J. Jackson, III,
was the trial counsel for hunting interest in those cases too.) They
have also influenced the trophy import practices of the US Fish &
Wildlife Service (USFW&S) through formal "notices of intent to sue"
involving permitting of everything from polar bear to cheetah. Because
this Argali case is the first real suit to directly stop the importation
of hunting trophies, it is the first occasion for a country like
Mongolia to intervene as a defendant to protect its own wildlife
management program.
We appealed the trial courts denial to the federal appellate court for
the District of Columbia because of the important principle involved. We
compiled an Appendix of the trial court's records, and briefs were filed
by both sides. On Friday, February 21, we made the oral argument before
a three-judge panel of the Appellate Court. Mongolia and the hunting
world's interest were represented by yours truly, John J. Jackson, III,
of Conservation Force. The Fund for Animals and other antis were
represented by Howard Crystal of the law firm Meyer and Glitzenstein.
That firm has long represented anti-hunting interests.
I opened by telling the court that I was the pro bono counsel for the
greatest wild sheep conservation organizations in the world and in the
history of the world - organizations that have no equal in wild sheep
conservation. Then I argued that Mongolia should be allowed to
participate in litigation that so directly impacts its own sovereign
resource. It is the sovereign owner of the Argali and its own
conservation program is what is at stake. No one has greater or more
direct interest than that. All the other lesser interests were allowed
to intervene, but the trial judge excluded the party with the greatest
interest!
I also argued that the Endangered Species Act (ESA) expressly provides
that the USF&WS shall "take into account" the conservation program of
the foreign nation in the listing process and shall "encourage" the
"conservation programs" of foreign nations. The trial judge (at the
coaxing of the antis) has undermined that Congressional intent by
excluding Mongolia as a participant in the suit involving Mongolia's own
wild sheep that, of course, are largely dependent upon Mongolia for
their survival. Mongolia should be a participant. We want it to care
about, and for, its own resources. We do not undiplomatically want to
send the wrong message that the ESA is simply an internal, domestic
concern of the USA, because it is not. Also, the other interveners need
Mongolia's insight. We need Mongolia to help decipher the administrative
record that has collected over a decade, much of which is in the
Mongolian language. Who can advise us better than Mongolia what its
documents in the administrative record mean? It was error for the trial
court to send a message that Mongolia's participation is unwanted and
their interest is of no concern under the ESA. The unreasoned trial
court decision "undermines" the operation of the Endangered Species Act
and discourages Mongolia from even caring.
The oral argument on behalf of Mongolia was a serious responsibility,
and it went well. The attorney for the Antis, Howard Crystal, argued
that Mongolia's interest had to be supported by proof such as sworn
affidavits. One judge remarked that the burden was on the antis
challenging the standing of the intervener and that our statement in the
appeal brief that Mongolia's interest is "self-evident and speaks for
itself without further proof" is true. After all, Mongolia's Natural
Resources Department is the managing authority most responsible for the
survival of the sheep. Another judge remarked that "ownership" is the
epitome of interest.
Howard Crystal argued that the US Justice Department already represented
Mongolia's interest adequately, to which I replied that there are and
continue to be numerous conflicts between the USF&WS and Mongolia's
Natural Resource Department that make their positions antagonistic. For
example, we take the position that it was illegal for the USF&WS to even
propose the listing of Mongolia's Argali as "endangered"; therefore, it
cannot be the basis for a legitimate endangered listing Final Rule that
the antis have asked the trial court to order. One of the claims of the
Antis is to compel the "endangered" listing that the USF&WS has
proposed. The USF&WS was proposing the endangered listing of Mongolia's
argali, and Mongolia was opposed to that proposed rule. The very
proposal was a conflict with Mongolia's interest, i.e., a conflict of
interest. The Justice Department cannot represent two conflicting
interests.
Howard Crystal argued that the same lawyer (yours truly) represented the
other interveners and Mongolia; therefore, there is no need to name
Mongolia as well. I replied that Mongolia's interest was the greatest,
thus it should come first. Mongolia's full participation was needed to
understand the administrative record and to "encourage" Argali
conservation as Congress intended. No one can stand in Mongolia's shoes.
Nor is anyone else obligated to conserve and protect its Argali, as
Mongolia's Natural Resources Department is under its own laws.
One of the three judges of the panel of the Appellate court asked what
effect the Mongolian appeal would have on the pending case before the
trial court if Mongolia was successful in its appeal. The argali case in
the trial court is nearly finished because all the briefs were filed by
everyone in early February. If Mongolia is added at this late date, we
do not intend to file any additional brief on behalf of Mongolia that
would delay the trial court decision. We told the Appellate panel that
the suit has already had too great a "chilling effect" on the hunting
program to prolong the case any longer than necessary. Mongolia's argali
conservation program is wholly dependent upon the revenue and incentives
arising from the hunting that itself is dependent upon the ability of US
hunters to import their trophies, which is what is at issue. The suit
will determine the revenue, and thus the operating capacity of the
Natural Resources Department of the Ministry. It imperils the very
survival of Mongolia's argali. If permitted to intervene, Mongolia will
participate in any appeal of the trial court decision and will help us
interpret the administrative record if and when the case is appealed.
However, the lower trial court's briefing does not have to be reopened
and delayed. We did not seek a stay order of the trial court proceeding
by the appellate court until the appeal was concluded. We deliberately
appealed in such a way that it would not delay the case, yet would
establish the important principle that the affected foreign nation can
participate in litigation of this kind.
Conservation Force continues its pro bono legal services to the hunting
and conservation world. Yours truly is the only unpaid attorney in the
case. We filed most of the motions in the case, including Mongolia's
appeal, and we represent the greatest wild sheep-specific conservation
organizations in the world. It is an honor and a privilege. We will keep
you advised of developments in both levels of the Argali litigation.
If you would like to receive a transcript of the oral arguments before
the three-judge panel, contact Conservation Force assistant Karen at
504-837-1233; or at jjw-no1@att.net.
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DATELINE: BRITISH COLUMBIA
News Analysis
Antis Grizzly Claims
Are Called "Unfounded"
The long awaited Final Report of the Independent Grizzly Bear Scientific
Review Panel has cleared Grizzly bear hunting in British Columbia,
Canada. The 90-page report entitled Management Of Grizzly Bears In
British Columbia: A Review By An Independent Scientific Panel was
submitted by the six-member panel On March 6 to the British Columbia
Minister of Water, Land and Air Protection.
The report states that "[o]verall, the Panel concludes that current
protective measures, combined with some additional measures listed in
the recommendations section of this report, offer a robust conservation
strategy for grizzly bears. Our confidence in this conservation strategy
is enhanced by the recognition that the British Columbia government has
access to a group of engaged and qualified professionals that are
committed to the long-term conservation of grizzly bears. Accordingly,
we do not see any justification for imposition of a ban on imports of
bears (e.g., by the European Union) that are legally harvested in
British Columbia."
"The panel's evaluation of grizzly bear harvests did not reveal any
compelling evidence of over-harvest in the province as a whole or in any
GBPUs (Grizzly Bear Population Units)." Moreover, the Panel found the
Ministry's population estimates of 14,000 to be reasonable. The
anti-hunters' estimates were wholly rebuffed. "[W]e take issue with the
critics who continue to endorse estimates of about 6,000 bears (or even
4,000), based on long-defunct data (unreliable 1972 guesstimates of
5,000 - 8,000), claiming that . . . (they) are just as likely as the
newer estimates." "Although these low estimates - which have been widely
cited in the public media - make an appealing argument for those
concerned about over-hunting of bears and inherent uncertainties in bear
management, they do little more than unfairly muddle the picture. If
these old estimates had been higher than current estimates, it is likely
that they would have faded from memory, which should be the situation in
any case."
The government of British Columbia imposed a three-year moratorium on
grizzly bear hunting in February 2001. It announced that during the
hunting moratorium an independent panel of bear experts would be
appointed to review the province's grizzly harvest management strategy.
The composition of the panel was based on recommendations from the
International Association for Bear Research and Management (IBA). No
panelist was employed by the government agencies in British Columbia and
none were financially linked to such agencies. This past July, the newly
elected British Columbia government lifted the hunting moratorium (it
was closed that one Spring), but supported the continuation of the
independent review panel.
The Scientific Review Group of the European Union was also brought into
the picture when it recommended the banning of import of grizzly bear
trophies from British Columbia into European Union member countries. It
subsequently made a favorable finding, but some European Union member
countries have been awaiting the promised Panel Report. Moreover, the
Canadian Wildlife Service was challenged to stop issuing CITIES trophy
export permits. The Canadian Wildlife Service refused but promised to
re-evaluate when the Panel review was complete. Consequently, the
Ministry of British Columbia, the CITIES Authorities of the Canadian
Wildlife Service, the European Union's Scientific Review Group and
others have all been awaiting this Final Report from the Panel.
The Report is not all good news. The panel, as expected, made a number
of expert "recommendations". Many areas have been closed and will remain
closed to grizzly hunting. The panel "recommends" closure in additional
areas. It also recommends lowering the quota from six percent of the
population in each grizzly unit to five percent to reduce the risk of
the "inherent" uncertainty of population estimates and unknown,
non-hunter-caused mortality. That one percent reduction at "the upper
end of the scale, (i.e., from six percent to five percent)" has the
bottom line effect of reducing by 17 percent the number of bears that
can be taken. Hence, it causes a 17 percent reduction in hunting
opportunity.
The Panel recommends greater restrictions on human access to wild lands
and that this be made part of the grizzly planning and management
program. "Management of access is a major issue across North America.
Efforts to manage access in British Columbia will benefit many species
of wildlife as well as grizzly bears. Increased forest access can cause
an increase in human-grizzly encounters and a reduction in habitat
effectiveness in the vicinity of active roads and trails." "[T]he
collective work on this topic lends strength to the fundamental
conclusion that access generally displaces grizzly bears." "Hunting
conducted under properly managed game management principles rarely poses
a threat to bear populations; chronic habitat changes and increased
human access, however, can have serious deleterious effects. One such
effect is increased mortality as a consequence of increased road
development and access."
The panel also recommended the creation of a greater number of protected
areas (no hunting) to ensure a closed "Grizzly Bear Management Area
within each bioclimatic region of the province." "Refuges that are
closed to hunting, where bears occur at near carrying capacity, can be
important sources of emigrants that can buffer over-harvesting in
surrounding areas," the Panel reasoned.
These non-hunting sanctuaries are in addition to the 4.5 million
hectares of national and provincial parks. Hunting is not allowed in the
national parks and not allowed in some provincial parks. Hunting is also
not allowed when grizzly populations are less than "fifty percent of
their habitat capability", i.e., carrying capacity of the habitat. There
are 11 of those units. Additionally, grizzly bear units that are
isolated from other units and have a population estimate of less than
100 bears are closed due to their "inherent vulnerability." Hunting has
already been closed indefinitely in 24 percent, and temporarily in
another 13 percent of the grizzly's historic range, 37 percent of the
total. At present, a total of 82 management units (45 percent) have been
closed to grizzly bear hunting while 101 remain open.
Grizzly bears have been eliminated from 11 percent of their historical
range in British Columbia, which means they continue to exist in 89
percent of their historical range. The bears are really secure in
British Columbia because 95 percent of all forest land is
government-owned.
The European Union should learn a lesson here about the Environmental
Investigation Agency (EIA) and the way it uses subterfuge and unreliable
statistics to push its points. The EIA was the prime mover in the
closure of grizzly hunting in BC and the imposition of an import ban by
the EU. More broadly, anyone in the hunting community who is still
apathetic about the anti-hunting movement worldwide should also take a
lesson here.
The Chair of the Grizzly Bear Scientific Panel is quoted by the Ministry
as saying, "We are pleased that the province has accepted our
recommendations to further improve a bear harvest management system that
is arguably already one of the best in North America." Despite the
recommended 17 percent reduction in quotas in each management unit,
closure of more areas to hunting and new restrictions on access, we at
Conservation Force do not expect the anti-hunters to go away. Nor is
grizzly bear survival assured by these recommended refinements, because
hunting never threatened the bear in the first place. The Panel Report
can be viewed at http://wlapwww.gov.bc.ca/wld/ (Click on "Grizzly Bear
Conservation Strategy"). - John J. Jackson, III.
