The polar bear enhancement litigation is over. Both the trial court and the appellate court deferred to the expertise of the agency, the US Fish & Wildlife Service (USFWS). Although there is a lot more we intend to do to advance “enhancement” permitting for import of polar bear under the Marine Mammal Protection Act (MMPA), there is nothing more we can do for those hunters who have taken polar bear in the Gulf of Boothia Management Unit.
The bear taken in the Gulf of Boothia before the ESA “threatened” listing will never be imported, even though it is one of the most robust populations with harvest below quota and a low quota because the bear numbers have proven to have been underestimated. The denial is in spite of the fact that the Gulf of Boothia is expected to improve in the short-term and fare best in the projected long-term climate change.
The hunters also cannot rely upon help from Congress because the Gulf was not an area approved before the listing. Conservation Force had filed a formal petition to approve that area several years before the “threatened” listing triggered the MMPA import prohibition, but the USFWS Division of Management Authority never acted on the petition, despite several internal scoldings by the Director of USFWS uncovered in the Administrative Record of the polar bear litigation. Congress will no doubt allow import of all bear that had been taken in the approved areas before the effective date of the listing ordered by the district judge. It will not include bear from areas not approved even if they should have been approved. The years of delay were inexcusable, and the reason that population was not initially approved was fully satisfied – a pending population survey to confirm the numbers was in progress.
As unjust as it is, the real objective of the litigation was to develop or pioneer import of polar bear under the enhancement provision of the MMPA, a provision that has never been used for import of hunting trophies. There is no other way left to import polar bear, but the courts did little to help compel the USFWS to define the steps. The test import permits, appeal of their denial, and the ensuing litigation is testing the way forward. SCI orally argued and lost its import case that the “threatened” listing did not override the polar bear import exemption separately on the same dates and times Conservation Force argued the enhancement permit case. The three-judge panel rendered a lengthy, reasoned decision against SCI’s case and simply deferred Conservation Force’s enhancement case to the USFWS and district court that itself had deferred to the agency in the enhancement case. These cases are over, but enhancement permits are the future and something that we will continue to pursue.
We had hoped for clarification of some of the issues in the litigation, but neither the USFWS nor the courts would oblige. It is not clear if the enhancement is limited to steps that reduce climate change or if “enhancement” can include essential management steps to contend with climate change, the cause of the listing. Although the Marine Mammal Commission (MMC) wants to exclude “conservation hunting” from the definition of “enhancement,” the USFWS rejected the MMC opinion and went beyond that point in its decision-making – it requires a “recovery plan” even for populations that are at or near capacity, thus a recovery plan is necessary.
There is nothing more we can do for the permit applicants in the litigation, but the Gulf of Boothia may still be the best test case for future applicants once Canada completes its national action planning in the next year or so. That planning will put a new light on the subject, and we will go at it again. The alternative to trophy trade is the less lucrative commercial trade of polar bear, which the USFWS took a dim view of at CITES CoP16 in its own listing proposal.