On February 9th, Conservation Force filed an unprecedented suit against the unprecedented listing of the polar bear, case number 1:09-cv-00245 before Judge Emmett G. Sullivan in the United States District Court for the District of Columbia. The suit is 59 pages long and contains 238 paragraphs. It has taken months of work to draft and file, but raises issues that genuinely should overturn the listing of Canada’s bear. We think it can be a winner. The suit can be found on Conservation Force’s website at http://www.conservationforce.org/pdf/polar_bear_suit_PDF.pdf.
The suit is quite different than the many smaller suits that have been filed and consolidated before Judge Sullivan in the District of Columbia. It only challenges the listing of the Canadian polar bear and its subpopulations within Canada. The theme throughout is the conservation of the bear itself and the conservation system that was the foremost in the world before the listing destroyed it. Contrast that conservation theme with the environmental concerns that the listing and special rule make no pretense to correct. It is a suit by the Inuits and other stakeholders, who are the true stewards of the bear, and we make that claim clear throughout the suit.
It is ironic that the conservation of the bear has been of little or no concern and that the USF&WS actually stated that the “efficacy” of the listing and Canada’s conservation program were “not factors to be considered” in the listing determination. How could anyone let that go unchallenged? This issue is up front in Conservation Force’s suit and makes the case the most important in international hunting history.
Understand, the importance of this case reaches far beyond the polar bear. The very concept of sustainable use and hunting as a rightful form of sustainable use and/or conservation is on trial. If the USF&WS can dismantle the Canadian conservation program that is acknowledged to be the best in the world by listing the bear over the objections of Canada and Nunavut while simultaneously acknowledging that the listing will not benefit the foreign bear populations or even curb global warming, something is wrong – hence our challenge on constitutional grounds. Even the ESA itself has an express provision that when listing foreign species the conservation programs of the foreign country must be taken into account but, true to past illegal practices, the USF&WS wholly ignored it. No, it did worse. It said it would not be considered.
Conservation Force is the only party to challenge the constitutionality of the irrational listing, perhaps because of our emphasis on the inefficacy and simultaneous harm to the bear arising from the listing. How can the USF&WS state that the efficacy of the listing is not a condition when it destroys the foremost program in the world half a century before forecasted declines? It is not rational. It violates the substantive “due process” clause. As an irrational act, it is not a legitimate reason to deprive American hunters of protected property interest. It screams to be challenged by those hunters deprived of their property and by the true stakeholders and stewards, the Inuits who have had their most valuable natural resource devalued to practically zero.
The Canadian plaintiffs that have joined with Conservation Force in the suit are the Inuvialuit Game Council (representing the whole of the Western Arctic, including the communities of Aklavik, Ulukhaktok (Holman), Inuvik, Paulatuk, Tuktoyaktuk and Sachs Harbour), Arviat Hunters and Trappers Organization, Resolute Bay Hunters and Trappers Organization, Louie Nigiyok d/b/a Arctic Hills Tour Company, Nanuk Outfitting, Ltd., Canada North Outfitting, Inc., Ameri-Cana Expeditions, Inc., Webb Outfitting Nunavut, Ltd., Henik Lake Adventures, Ltd., and Joseph Verni d/b/a Natura Sport. More Inuits are expected to join before the deadline for amending the suit. This is really their suit, and we are proud to represent these good people. We included them because they are the real stakeholders and stewards that live with the bear.
Dallas Safari Club, Houston Safari Club and the African Safari Club of Florida have also joined in the suit as plaintiffs to ensure the conservation concerns and representation of US hunters. Twenty of the US hunters have been individually named as plaintiffs to ensure that the property interests of hunters are constitutionally protected. The hunters range from an 80-year old grandmother hunting on Mother’s Day to a military officer hunting while on leave from Iraq.
The bad news is that there are dozens of lawyers on the other side being paid $400 per hour or more (as reflected in recent attorney fee awards in related environmental cases). It took up to 25 or more e-mails every day for a month just to finish the preliminary scheduling order for the cases consolidated together in the D.C. Court. The case has hardly begun but is already requiring four hours a day of work. The administrative record is beyond compare. There are three records. Just the index to the one produced so far is more than 1,300 pages indexing hundreds of thousands of pages. One official told me on the side that it is already the biggest ESA case in history.
We here at Conservation Force are “married” to this suit for the next few years and handling it on a pro bono basis. We have already done that the past three years and produced the most comprehensive comments and number of expert reports. This will be the challenge of our lives, but it is time to fight or get out. It is not just a suit over the polar bear. We need operational support from everyone.