On October 7, 2013, the US Supreme Court denied the petition for writ of certiorari in the consolidated cases challenging the polar bear “threatened” listing. This is the end of all the polar bear cases. Nothing more can be done in the courts. It is over. The “threatened” listing on the Endangered Species Act is, for all practical purposes, forever. There is no way to change it in our lifetimes.
I can’t help but express that I have been affected by the listing (May 2008), the long fight before the listing and the loss of all the cases in all the courts. I am not a disinterested lawyer who at least has been paid for services. Yours truly and Conservation Force, like most of the hunting community, are stakeholders who suffer with the bear. I have been a self-appointed champion of the polar bear, the Canadian and Inuit management system and the great people of the Arctic North for nearly two decades. Long before that, I chaired the whole polar bear Initiative that reformed the Marine Mammal Protection Act to permit import of polar bear trophies. This is a personal loss. It breaks my heart to see polar bears, the conservation programs that support them, and the people who depend on the species all sacrificed over climate change politics.
The net harm of the listing is our first concern. The ESA does not provide benefits for foreign listed species, but it most certainly can, and has in this instance, obstructed a successful range nation program. At the least, the bear was listed prematurely and the entire population should not have been included in the listing, most particularly the distinct management units that are improving and expected to further improve. Over the past decade, more management units have increased in bear numbers than decreased, and the increase far exceeds the nominal decline. The USFWS has listed the polar bear over Canada and Nunavut’s objections and now complains at CITES that the native people have shifted to less lucrative commercial trade in skins. In fact, the ESA is the threat. The negative effect is direct, immediate and certain.
The courts have clearly favored the listing agency, USFWS, throughout the litigation. The District Court even gave the USFWS an opportunity to change its definition of “endangered” to save the Final Listing Rule rather than overturn the listing. The Appellate Court also let the Service slip by with its statement in the Final Listing Rule that the Canadian conservation program was “not a factor to be taken into account.” The Court did this late in the case when it fished out some language of the USFWS stating that it had nevertheless taken into account the benefits of the Canadian conservation program. In our motion for rehearing we pointed out there was no record of that claimed “taking into account” analyses of Canada’s program for the Court to review or judge it by. We also raised the importance that rationally-based listings not have a negative net impact on a species. The Appellate Court did not grant the motion for rehearing on that or any issue. In a sense it is good that the Appellate Court did not wholly reject our argument that the USFWS must “take into account” the foreign program. The finish of that fight is left to another day. Nevertheless, both the listing and the courts’ decisions are bad precedents. It is all foreboding.
We thank those hardy souls that Conservation Force has represented as named plaintiffs in the listing challenge. They are: African Safari Club of Florida, Ameri-Cana Expeditions, Arviat Hunters and Trappers Organization, Mark Beeler, Canada North Outfitting, Dallas Safari Club, Timothy Decker, Chris Hanks, Henik Lake Adventures, Don Hershey, Steve Hornady, Houston Safari Club, Inuvialuit Game Council, William Keene, Ron Kreider, Allyn Ladd, Ethel Leedy, Everett Madson, Nanuk Outfitting, Aaron Neilson, Louie Nigiyok (Arctic Hills Tours), Major Roger Oerter, Bradley Pritz, Kevin Reid, Robert Remillard, Resolute Bay Hunters and Trappers Organization, Jeff Sevor, Steve Smith, Ted Stallings, Larry Steiner, Darwin J. Vander Esch, Joseph Verni (Natura Sport), Tim Walters and Webb Outfitting Nunavut.