Credit Where Credit Due: I must give credit to the fine attorneys who have been helping with the demanding polar bear litigation. Michael A. Oropallo and Ellen K. Eagen of Hiscock & Barclay, LLP of 300 South State Street, Syracuse, New York have been invaluable. Richard Joseph Finn of Burnham Brown, 1901 Harrison Street, 11th Floor, Oakland, California has been the primary California representative of Conservation Force. All services have been pro bono, i.e. without charge. These attorneys have to feed their families and pay for their staff and office overhead, while the litigation continues to be a demanding fast-track undertaking.
At this point in time, the single most immediate and most likely means of establishing the import of the approximately 60 trophies from hunts this Spring that cost approximately 1.75 million dollars is the intervention these attorneys joined together to file. As this bulletin goes to press, that intervention has been granted and the trial judge has agreed to reconsider the effective date of the polar bear listing for the limited purpose of permitting importation of all or part of the polar bear taken this past Spring before the May 15th listing date. The briefs are all in and those imports are awaiting the decision of the Oakland Judge that ordered that the listing be given immediate effect. The plaintiffs have no specific objection to the importation of the trophies. The defendants (Department of the Interior and USF&WS) object that it is too much trouble to issue the permits now, but agree that but for the Judge’s order they may have permitted all the trophies taken this season to be imported. Conservation Force had the last say in its reply brief and pointed out that the Service has no reason to complain of the extra work, for its conduct violated the discretionary listing deadlines, not the innocent hunters who themselves were compromised. The hunters were led to believe that trophy imports might continue and would not have even taken their hunts had the bear been listed timely within the time delays.
Without the help of Michael, Ellen and Richard, no intervention would have been timely filed and the Judge in the best and only position to correct the error would not have had the opportunity. Without that intervention there would also be no right of appeal should the Oakland trial Judge err again. The Service can do nothing beyond what the court ordered and that court can do no more than what the pleadings (intervention and motion for reconsideration) have put in issue.
More Polar Bear Bad News: Polar bear trophy imports are prohibited in the final listing rule. The rule states that “under the MMPA (Marine Mammal Protection Act) the polar bear will be considered a ‘depleted’ species on the effective date of the listing…(and)…[a]s a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species…” 73 FR 28212 at 28236, Peer Review Comment No.3. This is misleading. Enhancement has never been found for a trophy.
The enhancement provision was added to the MMPA in 1988. The regulations adopted by the national Marine Fisheries Service/NOAA to implement it are very express. Section 216.41 entitled Permits for scientific research and enhancement, states “[o]nly living marine mammals and marine mammal parts necessary for enhancement of the survival, recovery or propagation of the affected species or stock may be taken, imported, exported, or otherwise affected under the authority of an enhancement permit….” Legal counsel for the Marine Mammal Commission has advised us that lethal take and import of hunting trophies of lethally taken marine mammals are not considered enhancement. Unlike the ESA, the MMC takes a prohibitive view towards lethal take.
That said, Conservation Force has been undertaking an exhaustive review of the “enhancement” provision of the MMPA for the purpose of filing test import permits and/or a suit for declaratory judgment. We have tentatively selected the population of the Gulf of Boothia for the test import permit under enhancement. All those who have taken a bear in the Gulf of Boothia should contact us at firstname.lastname@example.org. There was a substantial increase in that population at the last survey – so many that some offtake might benefit that dense population. It is located in the belt of Arctic that is not expected to melt in the next 50 years.
Conservation Force had filed a petition to permit the importation of trophies from that area, and the draft publication for approval was in the signature chain when the petition to list was filed. That put a hold on approval. – John J. Jackson, III.