It has been colder this year in the Arctic, especially in Southern Beaufort Sea where the bear were reported to be fat, and in Western Hudson Bay, which had the coldest summer in recorded history. So much for weather forecasting. All the while, Conservation Force’s three lawsuits moved forward. Now there will be a fourth.
In August, I orally argued the appeal before the Ninth Circuit Court of Appeals that was sitting in Anchorage, Alaska. That is the appeal to overturn the Oakland Judge’s order that the listing be given immediate effect, which trapped 40 to 60 trophies in Canada. The counsel for the Center for Biological Diversity argued that the hunters “assumed the risk of the listing,” thus had no entitlement. The Department of Interior/USF&WS counsel opposed the appeal on every possible procedural ground with a plea that it was too great a burden on the Service to now issue and reissue import permits.
The three-judge panel did not seem to display any sympathy for the hunters’ personal losses. In September, the panel denied the appeal wholly on technical, procedural grounds without ever addressing the underlying merits. In short, the panel held that the hunters had no right to appeal because their intervention was only pending but not granted at the time of the trial court’s order. The appeal of the trial court’s order dismissing the intervention, the order reconsidering and granting the intervention too narrowly, and the final denial of Conservation Force’s motion to reconsider were all held to be procedurally premature. Without ever reaching the merits, the appeal panel held that the case was not ripe for appeal until there is a final judgment in the entire polar bear case. That may be years from now because the underlying polar bear case was transferred to the District of Columbia and is the principle case in the multi-district litigation. The USF&WS’s threshold procedural arguments prevailed. We will probably abandon that appeal rather than seek writs to the US Supreme Court. The out-of-pocket expenses have been very high.
As I write this, Conservation Force’s growing legal staff is on the verge of initiating an entirely new proceeding for release of those trophies already taken. That is a mandamus, instead of waiting years to appeal when the matter is too stale. A mandamus is an extraordinary supervisory proceeding that does not have to wait for a final judgment. This will be the fourth separate legal avenue taken by Conservation Force and will be filed with the Ninth Circuit Court of Appeals instead of a motion for rehearing.
Conservation Force’s suit in the D.C. District Court challenging the listing itself is moving forward. The suit was consolidated with all the others and ordered to be jointly briefed with the State of Alaska, SCI/SCIF, the California Cattlemen’s Association and NAACP (yes, strange bedfellows). We are to file a joint summary judgment brief and also separate briefs for issues that are not shared on 20 October.
Because of the extensive number of plaintiffs in Conservation Force’s suit and its more than 1,000 pages of substantive comments opposing the listing, it has been given permission to file a slightly larger separate supplemental brief as well. We successfully fought for that extra brief space over several hearings. On the other hand, our efforts to eliminate all the interventions by anti-hunting organizations were all denied. The trial judge has granted permissive intervention to any and all those that requested it, such as HSUS. They too must file their briefs together jointly as one. The schedule of all the cross briefs, replies, and so on are set through the summer of 2010, at which time the court will schedule staggered spaced for all oral arguments on all the separate cases.
Conservation Force’s third case is the suit over the USF&WS denial of our attempted import permit applications under the “enhancement” section of the MMPA. That case has been consolidated with all the other trophy import cases and, over our objections, the antis and environmentalists have all been allowed to permissively intervene. Although it is now before the same Judge and is on the same schedule as the other import-related cases, it is to be separately briefed, i.e. a standalone brief. Our opening brief for summary judgment in that case is due 20 November, 2009.
