Center for Biological Diversity
Threatens New Suit
On May 16, 2013, the Center for Biological Diversity (CBD) sent a 60-day notice of intent to sue the Department of Interior and US Fish & Wildlife Service (USFWS) for failing to take mandatory, non-discretionary steps required by the Endangered Species Act (ESA).
First, the CBD asserts that USFWS has failed to initiate the required five-year Status Review since the listing in 2008. The status of listed species should be reviewed every five years. Moreover, the CBD sets forth pages of citations to the effect that climate change, bear habitat and the status of the bear are worsening. It argues that the bear should have been listed as “endangered” in the first place but that the required five-year review will demonstrate it is endangered today. Regardless, the review is a mandatory requirement.
Second, the CBD’s notice of suit claims that the USFWS has failed to complete a Recovery Plan, though it grants the USFWS has been working on such a plan, which, it argues, in itself demonstrates such a plan is warranted. (Of course, a recovery plan and designation of critical habitat do not extend to populations of bear beyond US borders but does cover shared populations.)
The irony is the Administration recently proposed the Appendix I listing of the bear at CITES CoP16 to please the protectionist groups. Now CBD is using USFWS’ own arguments for CITES uplisting against the USFWS’ position that the bear should not be listed as “endangered” under the ESA. The nine-page Notice of Intent to Sue for Failure to Issue Polar Bear Status Review and Recovery Plan is full of citations arising during the CITES uplisting campaign of the USFWS.
Another irony is the CBD’s claim that the commercial harvest of polar bear for skins and parts has become a growing threat and in itself warrants listing the bear as endangered for “overutilization.” Of course, the conversion to and growth in commercial trade is a response to the ESA listing of the bear as threatened. That listing triggered the provisions of the Marine Mammal Protection Act, which prohibited trophy trade. The “threatened” listing has reduced the value of the bear and stimulated less lucrative, alternative trade. The CBD’s 2005 petition to list the bear is the cause of the rise in alternative trade and the devaluation of the species. That said, the CITES Parties at CoP16 determined that none of the trade warranted uplisting on CITES.
The CBD complains that the USFWS adopted special regulations that exclude remedial measures to control the climate change that endangers the bear. It points out that if the bear was reviewed and uplisted as endangered, the special regulations protecting industry rather than the bear would fall along with the threatened listing and would not protect the CO2-producing industries any longer. To the contrary, it claims, “Plans for Arctic development, including both oil and gas drilling and shipping, have crystallized and demonstrated risks even beyond those originally anticipated.”
There is no doubt that the CBD wants to change the course of everyone’s life, not just the people of the Arctic North. The polar bear and the Arctic people are just “sacrificial lambs.”
Joint Plaintiffs’ Suit Challenging
the Polar Bear Listing
The courts have shown no interest in overturning the polar bear listing decision or the special rule prohibiting import of trophies. The reception to the litigation has been like a breakwall. On June 30, 2011, Judge Sullivan of the District Court for the District of Columbia denied all challenges to the threatened listing. On March 1, 2013, the Court of Appeals upheld the listing. On April 29, a rehearing was denied.
We are now preparing a writ to the US Supreme Court on a very select few issues that must be filed before July 29, 2013.
We stand convinced that the “threatened” listing was premature and that the negative effect on Canada’s program and the net impact of the listing should have been the primary concern. In all but exceptional circumstances, agencies today can pretty much do what they want. When the courts fail, it calls for Congressional fixes.
Polar Bear Enhancement Permits
On May 9, 2013, Conservation Force orally argued the appeal of the denied enhancement permits for certain populations of polar bear. The argument went well, even better than expected, yet you could tell that the panel of three judges did not want to overrule the Agency. We expect a decision shortly that may remand the permit denials to the US Fish & Wildlife Service (USFWS) to do the permit processing again. The Panel was certainly trying to find reason not to reverse USFWS’ denials; so, we just have to wait and see.
Win or lose, enhancement permits for select populations is the future. We are pioneering that future if there is to be any. If we can import “critically endangered” black rhino under real threat, perhaps in time a permit application will ring true for import of polar bear on a bear-by-bear basis.