All of the trophy import permit applications for polar bear taken in the spring of 2008 have been returned to the applicants unapproved. The cover letter from the USF&WS states that the import applications can be resubmitted if and when Congress amends the MMPA to once again allow importation of polar bear trophies.
Conservation Force has lodged its appeal in the Federal 9th Circuit Court of Appeals to challenge the Oakland federal trial judge’s order making the listing “effective immediately” and also her denial of our motion to reconsider and “fix” her error. The brief is due in November, and we hope for a decision by spring, one year after the bear were taken. Although the USF&WS admits it would likely have permitted the imports if the court had not ordered the listing to be made effective immediately, it is fighting us all the way and opposed Conservation Force’s motion to reconsider. Its position is that it is too late and burdensome now that everything has been published. Unfortunately, the USF&WS did not itself choose to seek reconsideration of the court’s order or to appeal the judge’s order. It remains to be seen if the USF&WS ends up defending the trial court’s order that the final rule be made “effective immediately” when they were the underlying cause of that remedial action by the court.
Second, Conservation Force has filed seven permits to import bear from the Gulf of Boothia under the “enhancement” permit provisions for depleted marine mammals of the Marine Mammal Protection Act. Those permit applications will determine if any of the bear already taken, or taken in the future, can be imported with “enhancement permits.” No such permits have ever been applied for. These are pioneering permits to see if it can be done.
Third, Conservation Force has decided to directly challenge the ESA listing that has triggered the “depleted” provisions of the Marine Mammal Protection Act, i.e. the listing decision itself. We have sent the required 60-day notice of intent to sue and expect to file suit in the District of Columbia Federal District Court in November. The State of Alaska and SCI have filed separate suits already. Our respective suits should complement and support each other in most respects. That said, Conservation Force’s suit will be more narrowly focused on the listing of Canada’s bear (Nunavut and Northwest Territories) and the obstruction of that country’s conservation programs and negative impact on its people and the bear. Every error we allege in the listing process is emphatically more grievous in the case of Canada because of the obstruction of its conservation program and distinct bear populations within Canada that are not projected to lose summer ice in three bear generations (45-50 years). In short, the USF&WS had a legal and moral duty to “take into account” Canada’s program, but instead erroneously concluded that it was prohibited from considering Canada’s program and that such a consideration was not part of the listing criteria. We feel this is an important stand-alone issue in its own right. It will be the first time the requirement to “take into account” foreign programs will be directly before any court. It is too bad the USF&WS chose to disregard the “take into account” requirement in the ESA and has made it an issue for the court to decide. To us it seems reprehensible to list another nation’s species over their express objection, knowing that the ESA will obstruct their program (in this case, the best in the world serving the largest population of bear) knowing that the listing does not provide benefits for foreign species as it does for domestic species that are listed.
