Markhor Suit Eventful: Some interesting developments have emerged from the markhor suit. You’ll recall this suit is intended to both downlist the Suleiman markhor from the US Endangered Species List and to compel the US Fish & Wildlife Service to process trophy import permit applications from the Torghar Hills region of Pakistan. The government filed a motion to dismiss on every ground possible. It had the gall to claim the suit is time barred because it has been more than six years since the 12-month deadline to make a downlisting determination. It has actually been nine years since the statutory deadline for them to reach a determination. In short, it has taken them so long that they can now do the required 12-month determination whenever they get around to it. Of course, if they prevail on that part of the multi-part suit, we will file a new petition to downlist this population of the markhor and sue promptly upon each deadline (90-day, 12-month and final 12-month).
The government has also suggested in its Motion to Dismiss that the STEP (Society of Torghar Environmental Protection) program, the petitioner for the downlisting, and more permit applicants should be in the litigation. It implied that the two representative permit applicants included were not enough. Consequently, we have amended the suit and added Barbara and Alan Sackman, who took their markhor in 2008, Naseer Tareen and STEP. It was Tareen who filed the petition to downlist the markhor as Head of the IUCN Sustainable Use Specialist Group of Asia and STEP. The amended petition has been posted to Conservation Force’s web site at http://www.conservationforce.org/ under Updates & Alerts. We have also likewise amended the wood bison suit and posted that on Conservation Force’s web site as well.
The government also alleged that Conservation Force was trying to get the Court to force a “programmatic change” in the International Section of the USF&WS, which they say is more appropriate for Congress. We’ve denied doing that but also amended the suit to state even more specifically that this suit is for delisting this one distinct population and processing those specific permits and class of permits that are not being processed or that are being discouraged.
The Motion to Dismiss also asserts that there is absolutely no protected property interest in hunting trophy importation. The Justice Department claims that Congress alone controls international commerce and trade and has prohibited import of listed species. It also claims that the International Section of the USF&WS has absolute discretion for which there is no legal basis to sue. These are important issues, and we have spent hundreds of hours working on them. If we don’t prevail, it indeed will be time for Congress to speak to the issues.
The Suleiman markhor of the STEP program is a unique case in which the USF&WS has admitted – published in the Federal Register – that the population is a distinct population that has in fact greatly improved because of the hunting program and that the hunting has “significantly enhanced” its survival. Consequently, we are in the position of arguing that the USF&WS has a duty to “recover the species,” “cooperate” with and “encourage” the foreign program. We also argue that the net impact of its neglect has harmed the program and species. The International Section not only neglected those obligations, they are now fighting us all the way. We will have an update next month.
Zambia and Tanzania Notices of Intent to Sue: Conservation Force has filed the necessary 60-day notices of intent to sue the USF&WS for the Service’s failure to timely process elephant trophy import permits from Zambia and Tanzania. These were two different notices separately filed.
The notice for Zambia was sent to the Secretary of Interior and Acting Director of USF&WS on May 29th. The notice letter complains that the International Affairs Section does not process and won’t advise applicants of the status of their permits, bewildering both permit applicants and Zambia’s wildlife authorities. The Division of Management Authority (DMA) of International Affairs now claims it will not issue permits for any elephant taken before it approves them, which itself is illegal. Illegal or not, it also means that permit applicants and foreign wildlife authorities go wanting for corrective or compliance action for as long as the permits go unprocessed. In effect, it shuts down the intended conservation effort indefinitely and punishes the pioneering permit applicants. In the case of Zambia, it has been going on for years. On top of that, the Service has sent several wholly different questionnaires to Zambia, sort of “moving the target,” when they find time for this “low priority” work. Each year, they want something else, and the years tick by without permits.
As for Tanzania, this country has the second largest elephant population in the world (it soon may overtake Botswana) and is one of the countries in the elephant lawsuit yours truly filed and resolved favorably in the early 1990s. Conservation Force, through fundraisers like the Gala Dinner and programs like the Robin Hurt Foundation, puts up to $500,000 per year into Tanzania and its community-based programs. For the second consecutive year, the Division of Scientific Authority (DSA) of International Affairs is not issuing import permits on a timely basis. Last year, it was due to International Affairs misplacing a reply letter. This year, it is just a “low priority” until late September or October, after most of the season is over. Hunters are considering canceling their safaris despite every assurance we give them that there should not be a problem. Some permits are being treated as “abandoned” when it is the Division of Scientific Authority that is at fault and the whole process adopted.
We filed a petition to change this practice as well as a notice of intent to sue on May 26, 2009. This conduct on the part of the Service is in direct conflict with the written stipulation International Affairs signed and agreed to at the dismissal of the elephant suit before the judge, who is now the chief judge in the District of Columbia (SCI, et al v. Babbitt, et al, 91-2523, Chief Judge R.C. Lamberth). That suit was dismissed voluntarily without prejudice, based upon the stipulation that the Service is now wholly ignoring.
The Code of Federal Regulations also provides that permit applications will be processed “as quickly as possible” and that they “shall be” processed. It is also contrary to express CITES Resolutions recommending that an export nation’s non-detriment determination be accepted, as they are in the best position to make such findings and have the greatest reason to care for the species. We know of permits going back to April that are not being processed because the DSA has elected to make a biological determination so that it can determine that the purpose of the import is not detrimental, instead of accepting the biological findings of the exporting country or the biological fact that a harvest of less than two percent of the population limited to adult males is highly unlikely to be detrimental. The elephant has been downlisted on IUCN’s Red List from “threatened” to “vulnerable.”
This is all malfeasance that breaches the stipulation and it is time to do something about it.
Litigation: Following our latest efforts to hold USF&WS accountable for its actions, a number of petty competitors have claimed that Conservation Force is litigious. The reality is that we waited and hoped and believed for so long a period that now the main claim on the markhor may be time barred for exceeding six years from the original occurrence. All the while, the markhor and people of the Torghar Hills have been harmed by the delay and their resource devalued.
I am guided by advice I received many years ago from California State Senator Bill Richardson. We were hunting together for elk on Bill and Ingrid Poole’s Sun Ranch in Montana before it was sold. Bill had just completed a video on why we hunt that was in circulation among the California Chapters of SCI. Ingrid sat us down alone in a room together, and for an hour Bill Richardson dictated a list of how to save hunting. This is part of what he said:
“Are you afraid of conflict and confrontation? Through confrontation the antis persuade hunting leaders and regulators to compromise piecemeal to eliminate conflict in the hope the stress will go away. Then they come back again and again. If you are afraid of conflict, do something else. We don’t need you. Really.”
I thought it meant that one has to control his or her natural anxiety over stressful confrontations and that I could do it. The Service’s Motion to Dismiss on the markhor suit because of waiting too long suggests that Bill Richardson was right. It is time to fight for what is right. – John J. Jackson, III.
