On June 2, 2011, the US Fish & Wildlife Service (USF&WS) published in the Federal Register a 90-day finding on the petition to reclassify the Torghar Hills population of straight-horned markhor, or Suleiman markhor (Capra falconeri jerdoni or C.f. megaceros), from endangered to threatened under the US Endangered Species Act.
In the Federal Register Notice, 76 FR 31903 (June 2, 2011), and in its cover letter to interested parties, the USF&WS credits the petitioners:
This 90-day finding is in response to a petition from John Jackson of Conservation Force dated August 17, 2010, submitted on behalf of Dallas Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/Ovis, Wild Sheep Foundation, Jerry Brenner, Steve Hornady, Alan Sackman and Barbara Lee Sackman, requesting we downlist the Torghar Hills population of the Suleiman markhor, in the Balochistan Province of Pakistan, from endangered to threatened under the Act. A copy of this 90-day finding is attached and can also be found on our website at http://www.fws.gov/policy/library/2011/2011-13671.pdf or http://www.regulations.gov.
Readers can also find the cover letter and Notice on Conservation Force’s website at http://www.conservationforce.org/news.html. The Federal Register Notice indicates that it is a review of the “entire subspecies,” not just those in the Torghar Hills. The Notice states that “the straight-horned markhor and the Kabul markhor were considered by many authorities to be the single subspecies C.f. megaceros (straight-horned markhor). These subspecies currently remain listed as separate entities under the Act (ESA). We are requesting information…on the taxonomy of both subspecies to determine if these constitute a single subspecies.” Clearly the Agency intends to explore and calls for comments on the “[G]enectics and taxonomy of Capra falconeri jerdoni and C.f. megaceros to determine if these two subspecies constitute a single subspecies.”
Some information in the 90-day finding is useful to know for all purposes. The Agency notice insightfully points out the treatment of comments. “Please note that comments merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as…the Act directs that determinations as to whether any species is an endangered or threatened species must be made ‘solely on the basis of the best scientific and commercial data available.’” It also asks commenters to “[p]lease include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.” This appears to discourage sign-on letters of opinion but not comments from those with first-hand experience and particular documentation supporting that experience and viewpoint. Examples might be contributions paid above the price of the hunt, documentation of the willingness to pay more for an importable trophy and desirable conservation practices that were personally witnessed.
The Notice defines the differences between the 90-day finding and the 12-month finding that has been put out for comment. “It is important to note that the ‘substantial information’ standard for a 90-day finding is in contrast to the Act’s ‘best scientific and commercial data’ standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough review of the status of the species…,” i.e. the 12-month determination. The comment period for that status determination is open now and will end August 1, 2011.
The Notice describes previous federal actions. On March 4, 1999, the Agency received a petition from Sardar Naseer A. Tareen on behalf of the Society for Torghar Environmental Protection and the IUCN’s Central Asia Sustainable Use Specialist Group to reclassify the Suleiman markhor in the Torghar Hills region of the Balochistan Province, Pakistan, from endangered to threatened. On September 23, 1999 (64 FR 51499), the Agency published a positive 90-day finding and opened a comment period that closed on January 21, 2000. To quote the Notice, “A 12-month finding was never completed.” Conservation Force’s review of all published listing/de-listing schedules has revealed that the Agency never scheduled the completion of a 12-month finding on that petition, so it was never to be done despite representations to the conservation authorities and experts concerned. Though the Agency has yet to produce the Administrative Record on that petition in two lawsuits filed by Conservation Force, it claims that more than six years have passed so there is no enforceable right of action to legally compel that otherwise mandatory 12-month determination. That unresolved legal issue has stalled the first markhor lawsuit filed by Conservation Force on behalf of itself who filed the petition and others. That is why Conservation Force and other organizations and recent import permit applicants filed the second petition to reclassify that population of markhor approximately 10 months ago. Though it has taken 11 years to get back to the 90-day finding stage of 2000, the markhor’s status and the worldwide recognition of the underlying, hunting-based program has continued to improve. Today the markhor is positioned for reclassification even better than it was when the first petition was filed in 1999.
The USF&WS recognized that “[t]his population now represents the highest concentration of markhor in the world…and may represent one of the last remaining strongholds for the subspecies…(and) the most important population for the subspecies’ survival.” It also recognized that the “most likely cause of this population growth is the virtual complete cessation of poaching in the Torghar area accomplished by the TCP.”
The Torghar Hills population of straight-horned markhor is protected by a private conservation program, the Torghar Conservation Project (TCP). In 1986, the TCP was instituted and run informally by the local Tribal ruling family. The goals of the TCP were to conserve local populations of the Suleiman markhor and the Afghan urial (Ovis orientalis cycloceros) and improve the economic condition of local tribesmen. To accomplish this, the local tribesmen refrain from hunting in exchange for employment as salaried game guards to prevent poaching in the Torghar Hills and assist in wildlife surveys. Game guard salaries and other costs of the TCP are covered by fees paid by foreign hunters to hunt a small, controlled number of markhor and urial for trophy. In 1994, an officially registered nongovernmental organization, the Society for Torghar Environmental Protection (STEP), was formed to administer the TCP…. Since the TCP was instituted in 1986, the markhor population in the Torghar Hills has been growing steadily from the brink of extinction to a thriving population and is considered “viable” for both population and genetic processes. Based on the substantial population growth, researchers have concluded that the markhor have responded well to the management and protection provided by the TCP and the program has been a successful tool in conserving the markhor of the Torghar Hills.
The Notice cites facts from Conservation Force’s petition that were amply supported with documents and exhibits.
In the early 1980s the markhor population in the Torghar Hills was thought to be at very low levels, perhaps fewer than 100 individuals…. Since the TCP was established and poaching essentially eliminated, the population of markhor in the Torghar Hills has increased. In 1994, Johnson (1997, pg. 12) estimated the Torghar Hills population of markhor to be 695. Later surveys estimated the population to be 1,298 in 1997; 1,684 in 1999; 2,541 in 2005; and 3,158 in 2008 (Frisina, et al. 1997, p.6; Arshad and Khan 2009, p.9)…. [T]he laws of Pakistan, regulations on hunting imposed by the TCP, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) quota and nondetriment determination are more than adequate to protect the straight-horned markhor…. [T]he listing as an endangered species under the Act prevents hunters from bringing trophies home to the United States, creates a disincentive for American hunters to participate in the TCP, and reduces the number of hunts and keeps the price of hunting permits artificially low.
It has been a long road since the first petition in 1999. It has taken two petitions, at least three notices of intent to sue, two suits which are both still open and a third suit prepared but not filed. This is definitely a broken system. We expect it may take two more Notices and two more suits for the 12- and 24-month rules.
Hopefully the Agency will make the 12-month finding (positive or negative) shortly after the comment period ends on August 1. On August 17 the mandatory date to make a determination within 12 months will be exceeded. Then we will serve still another 60-day notice of intent to sue and follow up with suit if and only if necessary. Unfortunately, the conservation program and champions of the markhor, the local people, have been deprived of millions of dollars in revenue while the two petitions languished.