In late November, Conservation Force filed its third suit in support of the Suleiman markhor conservation strategy in the Torghar region of Pakistan. This 24-page suit is simple. The defendants, USF&WS and Department of Interior, failed to make a timely 12-month finding on the downlisting petition we filed on August 17, 2010. They also failed to respond to the notice of intent to sue. They also failed to respond at all to our efforts to reach an agreement on a compromise date to make the mandatory 12-month finding. The legal deadline and our efforts to amicably resolve their violation of the law were completely ignored. The USF&WS claimed that we waited too long to sue to enforce the first downlisting petition. They have missed the deadline again, but we will not make the same mistake.
The USF&WS made a positive 90-day finding on June 2, 2011 when it also noticed a comment period (76 F.R. 31903). That comment period ended August 1, 2011. There were no substantive comments opposing the downlisting. The foremost authorities in the world filed comments supporting the downlisting. For example, the IUCN Caprinae Specialist Group wrote that the Torghar Project “is a very rare example of ‘conservation hunting’ of mountain ungulates in Asia that actually lives up to its name. It is supported by the local population, based on scientific principles, including regular surveys of the population, and has provided tangible benefits for conservation of markhor, urial and their habitat.” Similarly, Michael Frisina, Ph.D., the principal ex-patriot scientist on the project since 1997 agreed. “[S]cientific monitoring has been ongoing and the success of the sustainable use hunting program being the major factor in bringing the population back from the brink of extinction is well documented in peer reviewed publications….Thanks to the sustainable use hunting program, the population is currently the largest straight-horned markhor population in existence.”
This is the second petition to downlist these markhor that the defendants have neglected. This petition was filed when, upon being sued for failure to process the 1999 petition, defendants raised the legal defense that suit to compel that 12-month downlisting finding was time barred because of the passage of more than six years. The downlisting petitioners in the 1999 downlisting petition did not join in the current downlisting petition to avoid the perception that the second was merely an amendment to the first petition. But they have joined in the suit to enforce the second downlisting petition. This petition was filed because of Defendants’ representation that the first was unenforceable due to the suit being time barred. The plaintiffs in Markhor III are Conservation Force, Steve Hornady, Barbara Lee Sackman, Alan Sackman, Jerry Brenner, Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/OVIS, Wild Sheep Foundation, Naseer Tareen and the Society for Torghar Environmental Protection (STEP).
The Markhor III suit also includes a claim that the USF&WS has failed to make a five-year listing status determination. That is a wholly separate ESA obligation to review the status of all listed species at least once every five years. This is also a mandatory requirement, not a matter the USF&WS can neglect at their discretion. This claim was in Markhor I but dismissed by the court when USF&WS argued that it needed specific notice of the particular section of the ESA alleged to be violated 60 days before suit.
