On August 17, Conservation Force filed a new petition to downlist the straight-horned Suleiman markhor of the Torghar Hills, Pakistan. The petitioners are Conservation Force, Shikar Safari Club International (Shikar), Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/OVIS, Wild Sheep Foundation and individuals Jerry Brenner, Steve Hornady, Alan Sackman and Barbara Lee Sackman.
This particular population is listed as “endangered” on the ESA. The petition is to downlist it to “threatened.” Though CITES has created a conservative quota for trophy trade of the species, its ESA listing as “endangered” has prevented trophy imports. Two successive Administrations (Clinton and Bush, Jr.) promised trophy imports, but neither acted. Unfortunately the original petition to downlist filed by Naseer Tareen and the Torghar Project in 2000 languished while USF&WS’ International Affairs Program attempted to get Executive Office authority to issue import permits. When we filed suit to compel the mandatory 12-month finding, the Government raised the defense that the time had lapsed to file a civil action (six years). Our cross motions over whether or not the original 2000 downlisting petition is any longer enforceable have been pending for months. Rather than chance the outcome of that litigation, we independently filed a new petition to downlist. The population climbed from less than 100 (1985) to over 3,100. That is the greatest population of markhor of any kind in the world.
The sustainable use tourist hunting program in Pakistan is one of the most sophisticated and renowned in the world. It owes its existence to the world’s leading wildlife conservation organizations that have used tourist trophy hunting as the ultimate tool for the conservation of markhor. It has been engineered by WWF-Pakistan (“the largest non-government conservation organization in the country”), the IUCN’s Sustainable Use Specialist Group who are specialists in sustainable use, IUCN-Pakistan (“IUCN-Pakistan is the largest of any country program of IUCN”), the United Nations Development Program/GEF, and crucial local institutions. Those conservation NGOs and international entities have helped design and adopt both national and regional legislation applying the very best, state-of-the-art concepts. The Convention on Biodiversity cites the markhor program in Pakistan as the single best example of “best practices” of sustainable use. CITES regales it and has increased the quotas from 6 to 12 in recognition of all that it stands for.
The logic of the program’s success is rather simple: “The animals sought by hunters are exclusively older males with the largest horns. Hunting those animals means leaving the female and younger males at peace, therefore not interfering in the reproduction cycles. The growth rate is thus undisturbed.” The TCP responsibly regulates the number of markhor that may be taken annually by establishing a “sustainable trophy harvest number,” then actually allowing a much lower number of permits to be sold.
Tribal groups from at least seven other mountain ranges in Balochistan have expressed an interest in establishing similar programmes.”
In the past, the International Affairs Program section of USF&WS has recognized this “successful community-based management program.”
[T]he Torghar Hills region of Pakistan has a successful community-based management program that has significantly enhanced the conservation of local markhor populations[.] Allowing a limited number of U.S. hunters an opportunity to import trophies taken from this population could provide a significant increase in funds available for conservation and would provide a nexus to encourage continuation and expansion of the project into other areas.
68 F.R. 49515 (Aug. 18, 2003) Emphasis added.
At this point, one major hurdle stands in the way of the straight-horned markhor’s reaching its full potential: its listing as “endangered” in the United States, the world’s largest conservation hunting market. This listing creates a legal web that makes importation of these trophies unnecessarily complex and, to date, impossible. The Service has acknowledged this fact:
In some situations, listing under the ESA may provide few, if any, additional benefits and may complicate the implementation of conservation initiatives under other international authorities, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora[.]
68 F.R. 49513 (Aug. 18, 2003)
As long as the markhor remains listed as “endangered,” the only way for an American hunter to import his or her lawfully taken markhor trophy is through the granting of an enhancement permit, via 16 U.S.C. §1539(a)(1). Although the Service has stated its intent to issue such permits, it has not. As the Service has stated:
[O]ne of the few available means for encouraging the conservation of foreign endangered species is through our decisions about whether to issue import permits. . . . However, this permitting authority is not being fully used even though it is internationally recognized as one of the most effective conservation tools employed by CITES and other multilateral international agreements. . . . The traditional, narrow approach to enhancement findings for actions that would result in the killing or removing from the wild of a foreign endangered species has precluded the use of the import permit as a proactive tool and incentive for foreign species conservation.
Id. at 49513-14
The inability to bring their hunting trophies home creates an obvious disincentive for American hunters to participate in the Torghar Conservation Project, the TCP. This decreased participation both reduces the number of hunts and keeps the price (revenue) of hunting permits artificially low. By its own admission, the Service has acknowledged that its listing of the markhor has hampered the progress of the programs, and has expressly named the TCP as a program that could and would benefit if U.S. hunters were allowed to import their trophies. This is apparent from the fact that other species of markhor, which are importable into the United States, command much higher hunting permit prices.
It is important to recognize the model, reward the participants, and cooperate with the existing program. Otherwise, the program cannot reach its potential and is a perverse or negative model, i.e., a disincentive to all. “Why bother, the U.S. won’t let the trophies be imported.”
The downlisting would recognize the program, act as an incentive that would motivate others to restore the species, and increase the revenue for the markhor’s enhanced conservation. The IUCN Policy on Sustainable Use provides that “Sustainable use is an important conservation tool because it provides people with incentives in the form of social and economic benefits.” The Addis Ababa Principles and Guidelines of the Convention of Biological Diversity practical principle calls for “supportive policies…at all levels of governance…to enable a ‘pathway’ to be developed which allows…sustainable use of a resource to proceed from collection or harvest through to final use without unnecessary impediment.” Principle 3 advises the identification and avoidance of “unnecessary regulations.” They “should be identified and removed or mitigated.”
Congress has long recognized these principles under its guidance on administration of the ESA. Congress, during the ESA amendments of 1982 provided that the ESA should not obstruct trophy imports of “endangered” species which “should” be allowed in such instances when the import assists with the species.
“[T]he Secretary has listed some foreign species as endangered throughout their entire range without considering whether their population status varies from country to country.” There may be nations where a combination of a healthy population and effective management programs permit the sport hunting of such species without adversely affecting its status. The failure to recognize this may result in the foreign nations being denied much-needed revenues derived from license fees that are used to fund their wildlife conservation and management programs. If the Secretary is in receipt of biological information from a foreign nation with respect to a resident game species listed as “endangered,” he should evaluate the status of such species within the country in question. The evaluation should consider the effectiveness of management programs such as artificial propagation, and whether these programs permit sport hunting of listed species in nations where it otherwise might be detrimental to the species. The evaluation should also determine whether the specific country in question has a management program for the species, whether the species’ population can sustain a sport hunting harvest, and whether the sport hunting enhances the survival of the species. If the Secretary determines that sport hunting in such country will assist in the conservation of a listed species, he should issue appropriate regulations to facilitate the import of sport-hunted trophies of such specimens. The above-mentioned criteria should be taken into account in future listings of game species as well.” (Senate Report No. 97-418. Emphasis added.)
The principal goal of the administration of the ESA is to return listed species to a point at which protection under the Act is no longer required. In the case of foreign species, the USF&WS is limited in the effective steps it can take. The issuance of import permits would contribute to the long-term survival of this species and its permanent elimination from its “endangered” listing. Since the Service has a policy against the issuance of permits for trophies of endangered species, it should downlist the markhor of Pakistan.
The Service has recently recognized that the listing of foreign species is of limited benefit and much less benefit than domestic species listing. The Service recognized that an ESA listing “may have potential conservation detriment for some species” and that “[c]ertainly, the United States should endeavor, when possible, to recognize the conservation programs of foreign countries, when based on sound science.” “Since the Service cannot develop recovery plans for foreign species, priorities…must by necessity take into account the conservation programs of other countries….” The Service recognized that “with regard to foreign game species, fees from trophy hunters can, in some cases, provide economic incentives for landowners to maintain healthy populations of game animals.” “A large percentage of international hunters are Americans who might invest in the hunting program if the species…import was permitted.” Final Listing Priority Guidance for Fiscal Years 1998 and 1999, 63 F.R. 891, May 8, 1998 citing comment made by Conservation Force.
The petition to downlist can be found on Conservation Force’s website at http://www.conservationforce.org/news.html.