The Federal District Court in Oakland, California, denied Conservation Force’s Request for Reconsideration of its Order that the listing of the polar bear be made effective immediately. On July 11, it denied the request on the grounds that it had already considered and weighted polar bear hunters’ interests when it made its original decision and the hunters this Spring had “assumed the risk” for they knew the bear was “likely” to be listed from the point in time the USF&WS proposed the listing.
In three separate briefs the Secretary of Interior and USF&WS opposed allowing the trophy imports. The Justice Department did admit in their brief that the Secretary would have been inclined to give the Spring hunters sufficient time to import their trophies had the Court not ordered that the listing be made effective immediately. We were unsuccessful in persuading the Court that it could fashion a remedy to allow the trophies to be imported as surely as it had created the problem by denying the delays after notice is published that are customary, appropriate and separately protected by statute and the US Constitutional right to “due process” and “property.”
We had hoped to get the trial judge to correct her own error. We have at least been successful in building a record and fortifying our standing to appeal her initial decision that caused the problem. We will now appeal, as well as step up our efforts in Congress. The service will no doubt send out denials to all the applicants and permit cancellations to those with permits that did not have time to use them. That will include virtually every hunter in the Spring of 2008.
We have also been compiling the expenditures on the hunts this Spring of the trophies that can’t be imported. One thing is evident: The costs are more than we had initially estimated. Thus far, the costs of the hunts range from $42,000 to $68,000 when airfare, tips, special gear, hotels, permits, etc. are included. Those who have not sent in their tabulation need to do so. When a mid-range average is made between the high and low figures received to date, the total loss is $3,360,000(60 estimated hunters at $56,000 average expenses).
We fervently regret that the USF&WS itself did not appeal the Judge’s Order that the Final Rule be made effective immediately and that it chose to oppose the reconsideration. The appellate case is unprecedented and should prove interesting. It will provide guidance in the future as other animals are listed, as surely they will be. We hope the appellate court will rank the Constitutional property rights of the hunters over the mere statutory rules under the ESA and also follow the rules of equity. So far in this instance, animal rights have exceeded human rights. Both are protected, but we believe the Constitution is a higher law.
In the meantime, the Oakland trial Judge has resolved that she will retain jurisdiction over the polar bear case and all polar bear listing related cases will probably be transferred and consolidated in that court, as the rules provide for courts where a matter is first filed.
Enhancement Permits Filed
Still on the subject of polar bear, on July 10, Conservation Force filed six test permits to import polar bear trophies under the “enhancement” permit provisions of the Marine Mammal Protection Act (MMPA). No such permit has ever been granted for import of a sport-hunted trophy, but it is the only possible kind of permit after the listing, according to the USF&WS.
In three instances, the USF&WS has made it clear that polar bear trophy importation is now only possible with an “enhancement” permit under the MMPA. This is an entirely different kind of “enhancement” than under the ESA. The ESA itself exempts trophies of “threatened” listed species protected on Appendix II of CITES, like the polar bear. It is the MMPA that presents the problem for listed bear.
In the Final Rule listing all polar bear, the Special Rule the USF&WS issued simultaneously and in a recent written solicitor’s opinion on polar bear trophy importation, it is suggested that enhancement permits may be granted. Congress created a MMPA “special exception” in 1988 for enhancement permits, but neither the USF&WS nor NOAA have adopted regulations expressly covering trophy imports of marine mammals. The Marine Mammal Commission (MMC) must be consulted during the permitting process and has let it be known that it disapproves of import of lethally-taken polar bear trophies. Not surprisingly, they also opposed the import of polar bear trophies under the 1994 Congressional Amendment which provided for the import of polar bear for the past decade. It remains to be seen how the USF&WS will treat these six test applications. We may end up in court on these as well.
We selected six polar bear taken in the Gulf of Boothia for the test import permits. The USF&WS was on the verge of approving imports from that region when the listing petition was filed. The bear population there has increased and may be too dense for its own good. The bear harvest there has been less than the quota and the hunting there is part of the conservation strategy. It is also an area the USGS Reports conclude is a geographic belt of the Arctic that is not expected to lose its Summer ice in the next 45 years.
These permits will be a major undertaking and will be published in the Federal Register and open to comment. We have been preparing them behind the scene for months. The trophies have already been taken and were considered “conservation hunting” by the IUCN at the time the hunts occurred.