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Court Should Hold Feds Accountable for Questionable ESA Listing

Written By John J. Jackson III, Conservation Force Chairman & President
(posted November 2013)
 

Editor’s Note: Over the years, you have heard from me on many of the issues affected by the listing of polar bear to the Endangered Species Act (ESA). Here, I share with you a description of some salient issues identified by fellow attorney Reed Hopper, the most notable of which is the need for transparency and accountability by our government decision makers. This was written before the Supreme Court denied our petition, but Hopper’s points are no less valid.

Asking tough questions of government officials is often unpopular these days. Whether the subject is domestic spying, global warming, the war on terror, or agency abuse of power, questioning decision-makers has come to be viewed by many as unseemly or even downright unpatriotic.

But we should never allow “accountability” to become a bad word. Accountability is essential to protect us from arbitrary governmental actions, provide transparency, and ensure trust in public institutions.

And the best way to hold officials accountable is to ask questions. Hard questions. Even unpopular questions.

Accountability is the goal of a lawsuit that the US Supreme Court has been asked to take up — challenging the federal government’s decision to list the polar bear as a threatened species under the Endangered Species Act.

Polar bears are a beautiful and iconic species, revered worldwide. This very fact is no doubt the reason why the US Fish and Wildlife Service flouted the law in listing the species in the first place.

Under the ESA, an animal may be designated as “threatened” only if it is on the brink of extinction in the foreseeable future. Yet we know the following about the polar bear:

• Polar bear populations are not declining overall; in fact, there are more polar bears today – as many as 25,000 — than any time in recorded history.
• Polar bears continue to utilize their historic geographical range, one of the largest habitats in the world.
• Polar bears do not face any sudden or calamitous threat.
• Polar bears are not rare, or on the brink of extinction, or critically imperiled.
• Any changes in polar bear populations are likely to be gradual over many years, and no long-term projections can be made with certainty.
• Fourteen of the world’s 19 polar bear populations are stable, increasing, or yet to be determined.
• And ironically, according to the US Secretary of the Interior, the listing will provide no protections against what the agency contends is the primary threat to polar bears — melting sea ice.

Some may question this data, but the government does not. These are the facts as recited by the Fish and Wildlife Service in defending its decision to list polar bears as a threatened species. But the agency has never expressly answered the hard question: How do these facts support an ESA listing when they demonstrate that the species is actually thriving?

Holding the agency accountable — demanding answers about its decision-making — is doubly important in this case, because the polar bear listing is a first. Never before has a healthy species been added to the Endangered Species Act’s “threatened” list.

Instead of demonstrating an actual decline in polar bear numbers, regulators hypothesized about future global warming trends and changes in habitat that might — or might not — happen, decades in the future.

This approach — substituting conjecture for concrete facts — could vastly expand governmental power and contract individual freedom. If species can be added to the ESA list even though they aren’t currently threatened, based on speculative projections about the distant future, there could be no limit to the number of new listings. There are tens of thousands of species on earth, and almost all face some future risks. This is significant because listing a species gives the federal government virtually complete regulatory control over species habitat on both public and private property. These habitats can cover thousands of square miles, as with the polar bear, resulting in restrictions on land use that affect jobs, energy, housing, transportation, and food production.

Already the polar bear listing has triggered environmentalist challenges to oil and gas exploration in Alaska’s Chukchi and Beaufort Seas. Lawsuits in the Lower 48 could follow. Activists could challenge industrial activity on the grounds that the ESA listing says polar bears might be harmed — at some point in the future — because of carbon dioxide emissions.

Federal officials may be able to articulate a proper basis for listing the polar bear, but they have not done so yet; instead, they offer only admittedly uncertain judgments about what might transpire many years from now.

Unfortunately, the lower courts have given a pass to the listing, and allowed the feds to start practicing “regulation by speculation.”

If there’s going to be accountability for this new approach to ESA policymaking, the Supreme Court will have to provide it. The court should step in and demand that officials justify their questionable listing decision and the precedent it sets for a dramatic expansion in federal regulatory power.

Reed Hopper is a principal attorney with the Pacific Legal Foundation (www.pacificlegal.org) and represents the Congress of Racial Equality in challenging the listing decision, along with Safari Club International and Conservation Force.



Conservation Force 2014
2014
January Firestorm Email Attacks by Media and Antis
January CIC Milan 61st General Assembly/Crime Summit
January USFWS Re-Notices Proposed ESA Downlisting of Markhor
January Markhor Import Permit Appeal
January Hunter Proud Foundation & Osprey Filming Company
January Intervention in Latest Three Amigos Suit
February Antis’ Antics Have Perverse Negative Effect on Rhino Conservation
March Speech Upon Receiving the Houston Safari Club International Hunter of the Year Award
March Hunting: A Great Debate
April Illegal Wildlife Trade and Poaching
April Conservation Force Solves Liberia Trophy Import Problems
April Elephant Hair and Skin Bracelets Importable
April Conservation Force First Quarter 2014 Report
May USFWS Implements Catastrophic Suspension of Elephant Imports from Tanzania and Zimbabwe
May Letter to USFWS from Robin Hurt
June First Formal Action on Elephant Import Suspension Taken by Conservation Force
July Import Permits Issued for Sulaiman Markhor of Torghar Project
July Trophy Definition to Again Include Worked, Manufactured or Handicraft Items
July Comments Opposing Zimbabwe Elephant Trophy Import Suspension
July USFWS Produces Letter of Inquiry to Tanzania on Elephant Populations
August Status of Elephant Import Suspensions for Zimbabwe and Tanzania
August The True Status of White Rhino Populations
August Win the Wild, A Fictionalized Account of How South Africa Reclaimed Its Wildlife Heritage
September Final Zim Finding: Most and Best Available Information Ignored
October Dateline: Africa: Facts About Elephant Enhancement in Tanzania
October Tanzania: Elephant Up, Poaching Down
October CIC Caprinae Atlas of the World Available in USA
October Memorial Donation
October What Listings the Protectionists Want at the Next CITES CoP
November Founding Conservation Force Board Member Donald Lindsay Passes
November Dateline Pakistan: USFWS Special Rule Downlists All Straight-Horned Markhor to Threatened
November The Role of Trophy Hunting in the Downlisting of Straight-horned Markhor
December Conservation Force & Partners Refute Negative USFWS Enhancement Finding on Zimbabwe Elephant Trophy Imports
December USFWS Rejects Request for Reconsideration of Tanzania Permit Denials
December Revealed: USFWS “Information” that “Poaching Levels are Increasing” in Zimbabwe are Merely News Articles and Anecdotal Reports
December ESA 12-Month Finding and Proposal to List all Lion as Threatened


Conservation Force 2013
2013
January US Fish and Wildlife Service Announces 90-Day Finding on ESA Listing for African Lion
February Why Hunt Wild Cats: Arguments Previously Made By USFWS and African Nations
March World Conservation Force Bulletin Enters Its 18th Year
March Mozambique and Cameroon Hippo Trade Suspended by CITES
March Final Findings of National Survey Reports A Record Number of Big Game Hunters
March 2012 Zambia Elephant Trophy Imports Approved
March On Receiving The Peter Hathaway Capstick Hunting Heritage Award
April A CITES CoP16 Report: Key Wins, Some Losses for the Hunting Community
April What Was Truly at Stake with the Polar Bear Proposal
May USFWS Grants First Black Rhino Import Permit
May Evaluating Namibia’s Rhino Program
May Rhino Populations Grow Despite Poaching
June CIC General Assembly Adopts Recommendations for African Lion and White Rhino
June Double Quotas Not Yet Resolved in USA
June Equal Allocation of New Mexico Nonresident Licenses for Rocky Mountain and Desert Bighorn Sheep, Oryx and Ibex Challenged Again
June Wood Bison Cases Still in Court
June Black Rhino Public Education
July USFWS Denies Petitions to Remove Private, Captive Populations of Species from ESA: Scimitar-horned Oryx, Dama Gazelle and Addax Denied
July Polar Bear Litigation Developments
July Finally, All Gray Wolves Proposed for Removal from ESA
July Status of the Petition to List the Lion as Endangered: African Lion Workshop
August Court Turns Deaf Ear to Polar Bear Enhancement Permit Applicants for Gulf of Boothia
August Newly Published Monograph on Hunting & Conservation
August Family Hunts Under One License are Illegal
August Wildlife for the 21st Century, Volume IV
September Downlisting of Straight-Horned Markhor Delayed; USFWS to Issue Revised Proposed Rule to Reclassify Species Under ESA
September New Trophy Seizure Issues Arise
September New Mexico Nonresident Terk Case Revving Up
September Polar Bear Listing Now Before US Supreme Court
October US Fish & Wildlife Lists White Rhino as Threatened
October Two Articles on Black Rhino Trophy Imports
October Defense of Terk Decision Needs Support
October Two Colorado State Senators Recalled for Passage of Firearms Restrictions
October Cheetah Numbers Increasing
November US Supreme Court Denies Polar Bear Writ
November Court Should Hold Feds Accountable for Questionable ESA Listing
November Succession and Development: “What will We Do When You are Gone?
November Black Rhino Auction: A Dream Come True
December Unintended Consequences May Arise from Presidential Executive Order to Combat Wildlife Trafficking
December The Crush: Whose Ivory was Destroyed and Will It Truly Curtail Poaching?
December Climate Change Used to Reopen Wolverine Listing Proposal
December Conservation Force Wins FOIA Suit for Records Revealing Why USFWS Stalled Markhor Downlisting
December Suit Threatens Three Amigos Permitting Process; Conservation Force and Allied Organizations to Intervene


Conservation Force 2012
2012
January HSUS Threatens Conservation Force’s Asian Projects and Partners
January Markhor III Suit Filed to Compel 12-Month Downlisting Finding
January Serious Irregularities in Administrative Records and Scientific Findings
January Can You Offer for Sale or Sell an “Endangered” Listed Species Without a Permit?
February Conservation Force Partners with SAVE Valley Conservancy
February New Mexico Further Restricts Nonresident Hunting
February An Open Letter to Ranchers and Hunters of ESA Listed Exotics in The US
March Trophy Seizure Threat Reaches New High; USFWS Conduct Reaches New Low
March Some Court Success in Seizure Cases
March New Study Quantifies the Importance of Lion Hunting
March Onsite Report: The Etosha Meeting of African Lion Working Group
March Conservation Force Legal Action Update
April USF&WS Proposes New CITES Regulations
April Update on Three Amigos: Dama Gazelle, Addax and Scimitar-horned Oryx
April CF Board Members Selected To Important IUCN Posts
April Help Needed For Conservation Force Intern Program
May Wood Bison II Litigation Successfully Concluded: Court Overturns USFWS Enhancement Permit Denials
May Markhor III Suit Settled
June Dr. James Teer, Founding Member of Conservation Force, Dies
June Canadian Wood Bison Downlisted! Trophies Now Importable
July National Fish & Wildlife Conservation Congress in Canada
July Hunting for an Acceptable Image: Building Public Acceptance for Sustainable Use of Wildlife
July USFWS Considering Positions for CITES CoP16
July Antis Again Challenge “Trophy” Definition
August Promising Polar Bear Developments: Scientists Stand Corrected
August Last Brief in Markhor I Suit Filed
August Power Outages – Shortfalls
September Success! USFWS Proposes the Downlisting & Importation of Torghar Markhor Without an ESA Import Permit
October The National Survey Shows Increase in Hunters and Big Game Hunting
October South Africa’s Protected Area Act of 2003 Hurts Wildlife & Habitats
October CIC President Bernard Lozé: “Banning Lion Hunting Endangers The Survival of Lions in the Wild!”
October Update on Our Freedom of Information Act Suits
November CITES CoP16 Proposals Published: White Rhino, Polar Bear, Elephant, Pyrenean Chamois, Leopard Permits
November Remarks of Deborah Lyons, Deputy Head of Mission, at the Inuit Delegation - Polar Bear Reception at Embassy of Canada, Washington, D.C., September 20, 2012
November 3 Amigos: USFWS Makes 90-Day Finding to Review Downlisting Those Species in USA
November PH Stu Taylor Recovery Fund Established
December Worked Elephant Ivory Tusks Not Importable: US Court Holds Import Violated Four Laws and Orders Forfeiture of Zimbabwe Elephant Tusk
December Waning Status of Hunting-Based Conservation in Botswana: Latest Developments
December Bill Poole Enshrined Into the IGFA Fishing Hall of Fame


Conservation Force 2011
2011
January Court Rules No Fees Due in Permit Cases
January Delays & Revelations In Wood Bison Suit
February A Step-by-Step Guide On Who Is Responsible For What
February Billy Ray Parnell Purple Heart Program
March Wood Bison Initiative Enters Final Stage
March Lead Issue Taken to Court
March Both Markhor Cases Moving Forward
March Zambia Initiative Success
April Africa: Antis Petition Listing Of African Lion on ESA
April Success in Iran
April Scientists Recant Tipping Point Theory That Doomed the Polar Bear
April Plains Bison Listing Petition Denials
April The Osprey Filming Company
May Special Coverage On Polar Bear: Sustainable Use On Trial
June Special Coverage On Elephant Imports: Challenging The USFWS Definition of “Trophy”
July USFWS Makes Positive Markhor Finding
July New Eruption Atop Mountain of Seizures
July USFWS Enforces Validation Requirement On CITES Permits
July Pakistan Export Permits Don’t Have a Validation Section
August US District Court Denies All Challenges to Listing the Polar Bear as “Threatened”
August Permit Exclusions Eliminated for “The Three Amigos”
September Important Developments at 25th Meeting of the CITES Animals Committee
September Abusive Use of Polar Bear Drowning Misinformation
September Cheetah Import Permits Denied Again
October Special Coverage: Getting To The Root Of The Trophy Seizure Crisis – The History and Genesis Of The Problem
November District Court Denies Relief In Zambia
and Mozambique Elephant Import Suits
December Success! Zambia Elephant Import Permits Issued By USFWS
December Update on Seizure and Forfeiture Crisis


Conservation Force 2010
2010
January Special Report: Addressing The US Trophy Seizure Crisis
February Federal Court Rules Hunters’ Interests In Trophies Not Legally Protected
March CF Creates Permanent Litigation Division
March Special Report: Conservation Force Chairman Receives International Statesman Award
March Briefly Noted
April Conservation Force Institutes Industry-Commercial Services Sponsorships
April Briefly Noted
April Dr. Dale Toweill Joins Conservation Force Board of Advisors
May Special Report: Focus On CITES CoP15
June 57th CIC General Assembly: Expanding Scope, Participation & Influence
June Briefly Noted
July The Supreme Court Invalidates Overly Broad Cruelty Law In Light of the Acceptability of Hunting
August Status of Wood Bison Suits Against USFWS
September The Important Historical Role of Hunters To Both Public and Private Land Conservation
September Pakistan: New Markhor Down-listing Petition Filed
October CBD Pushes To Ban All Lead Ammo & Fish Gear
November Important New Development in Trophy Seizure Crisis
November Anticlimactic Polar Bear Court Hearing
December A Tool For Lion Hunters: The Pocket Guide To Aging Lions
December Polar Bear Listing Cases Status
December St. Petersburg Hosts 58th CIC General Assembly


Conservation Force 2009
2009
January 2008 In Review Bio-political Developments
February Crisis Over Trophies In Transit Resolved
February Two Important Legal Actions
March Lion Campaign Kicks Off In The Nick of Time
March Polar Bear Update: Law Suit Sets New Precedent On Listings
March Briefly Noted
April "Challenges and Solutions for the Conservation of Lions and Other Large Carnivores in Sub-Saharan Africa" February 17th-18th Maroua, Cameroon
May Trophy Seizures & Forfeiture Crisis: Problems and Resolutions
May Briefly Noted
June Cheetah & Black-faced Impala Permits Denied
June Briefly Noted
July National Action Plans Save Lion Initiative
July Briefly Noted
August Tanzania To Enforce Age Limits On Trophy Lions
August Three Antelope Case A Win For Conservation
August Briefly Noted
September The Unrealized Potential of Conservation Hunting
September North America: Latest Developments On Polar Bear
October Mozambique: Niassa Elephant Trophy
November Africa: Suit Filed Over Zambia Elephant Import Permits
November Arctic: USF&WS Proposes CITES Uplist Polar Bear
November Polar Bear Lawsuits Challenging the Listing Decision
December Special Report: African Lion Spared the CITES Axe, For Now
December Bill Poole: “A Lion of a Man”
December Special Report: CITES Proposals for CoP15, March 2010


Conservation Force 2008
2008
January CITES: Trophy Importation Crisis Averted For Now
January Polar Bear Developments
February Conservation News Developments
March Breaking News On Argali Draws
April Polar Bear Decision: Some Thoughts About That Continuing Delay
April CAMEROON: All About The New CAMNARES Program
May Conversation Force to Intervene
May Briefly Noted
June Polar Bear Listing: Assessing The Impact And Mapping A Way Forward
June CITES: Trophy Importation Crisis Averted For Now
August Update On Kashmir Markhor
August Polar Bear Imports: Immediate Ban Upheld
August A Word About The Bob Kern Trial
September Study Analyzes Work Of NGO’s In African Wildlife Conservation
September Tanzania: Elephant Permit Crisis Averted
September Briefly Noted
October New Efforts To Reverse The Polar Bear Listing
October USF&WS Seizing Some Utilitarian Trophy Items
November Nation-by-Nation Plans To Save African Lion
November Hunting For Truth: Why Rationalizing The Ritual Must Fail
November Briefly Noted
November USF&WS Trophy Regs Still Wreaking Havoc
November Leadership, People and Science
December USF&WS Trophy Regs Still Wreaking Havoc
December Briefly Noted


Conservation Force 2007
2007
January Largest Hunting Development in the World
January Philippe Chardonnet Elected to Conservation Force Board
January PHASA AGM: An On-Site Report
February Polar Bear and Trophy Imports Both In Jeopardy
March A Second Threat to Polar Bear Import
March Guide To Aging Lions Is Now Available
March Briefly Noted
April Understanding The Issues And Proposals
April Our Polar Bear Comment: A Report
June Namibia: Help Is Available On Seized Leopards
June Belgrade: All About The Latest CIC General Assembly
June Special Report: New Conservation DVD Is Getting Attention
June CITES Meeting: The Latest Developments
June What Do You Say To A Liberal Intellectual Who Has Never Hunted?
July What Really Happened at CITES COP14 In The Hague
August Markhor Import Denial Raises Big Questions
September White House Orders National Hunting Conference
October Reflections On 10 Years Of Conservation Force
October Bear Listing Proposal: USGS Releases Reports
November Petitions to Free Siezed Trophies Successful
November Polar Bear Crisis Heats Up
November Briefly Noted
December Important Development in Markhor Conservation
December A Commentary On The National Geographic Article About “Hunters: For Love of the Land”


Conservation Force 2006
2006
January Highlights of 2005
February Protectionist File Suit To List All Polar Bear Under the Endangered Species Act
March ESA Listing Pending Polar Bear Crisis Is Growing
April The Real Significance If Polar Bear Are Listed
May One Important Nonresident Rights Case Continues
June Comment On “Draft Norms & Standards for the Regulations of the Hunting Industry in South Africa
July Symposium May Affect The Future Of Hunting; Progress Reported On Black Faced Impala
August Assessing The Impact Of Interior Dept. Turnover
September Mozambique Elephant Trophy Import Permit Applications Denied
October BC Bear Report And “Stricter Domestic Measures:” An Analysis Of The Connections
November UK Meetings Focus On Hunting/Conservation
December Wildlife ‘Compact’ Has Downsides / Gala Tanzania Banquet / Last Nonresident Suit


Conservation Force 2005
2005
January The End of Nonresident Hunting Rights
February African Elephant Downlisted to Vulnerable
March Southwest Alaska Profile In Conservation
April The Truth About That Polar Bear Petition
May The Legally Structured Role of Hunting and Fishing in the US and Abroad
June Nonresidents Stripped of Constitutional Rights in Congress
July Black Rhino Hunting Development
August Elephant Hunting Is Fully Open In Zambia / Getting A Handle On “Sustainable Use”
September Russia: The “Real Skinny On That Hunting Closure
October Hurricane Katrina Threatens Conservation Force
October USFW&S Denies Permits For Black-Faced Impala
November First African Lion Workshops Are Successful; IUCN Polar Bear Listing Upgraded
December US Lists New Foreign Species As Endangered


Conservation Force 2004
2004
January Permits To Import Certain Endangered Species Understanding That Draft Trophy Import Policy Change
February Musings of an Old Hunter
March Giant Saltwater Crocodile Hunting May Open
April Who Said What: A Compendium Of Comments
May African Lion Targeted At CITES Meeting
June The Truth About Senator John Kerry
June Two Hunters’ Legacies
July Argali Suit Finally Finished: Positive Gains
July Case Study of a Man-Eating Lion Killing 35 People
September Cats/Canids Bill Introduced; NRA To Push Hunting; Important CITES COP 13 Developments
October Will Lion Hunting Survive? And More....
November What Really Happened At COP13
December More To Come On African Lion


Conservation Force 2003
2003
January On The Legal Front Gun Rights… Nonresident Permits… Trophy Imports
February Conservation of the African Lion: Contribution to a Status Survey
March A Reflection on Positive Developments
April DATELINE: WASHINGTON, DC, News Analysis, The Argali Case: Court, Hears Mongolia's Appeal
May Conservation News Briefs - A Special Tribute To Gunbearers
June What You Need To Know About Trophy Imports
July Insights From Wildlife Conflict Studies, A Different Perspective For Problem Solving
August How Many Hunters Are There, Really?
September The Antis’ Argali Suit Has Been Dismissed
October Update On The Argali Case
November The Political Future
December Antis Tell Court They Would Rather See Elephants Euthanized Than in a Zoo


Conservation Force 2002
2002
January The Truth About That British Columbia Grizzly Bear “Ban”
February DATELINE: WASHINGTON, DC - Cameroon Elephant Permits Denied
March SPECIAL REPORT - New USF & WS Director
April The Saga of the Saiga
May The Role And Value Of Hunting
June On The Legal Front Gun Rights… Nonresident Permits… Trophy Imports
July Special Report: The Argali Suit - Part I
August Special Report: A Preview Of COP 12
September Zimbabwe Hunting Will Continue – But Zimbabwe Needs You Now
October Understanding Trophy Hunting: A Powerful Conservation Tool
November London March to Save Hunting Breaks All Records
December Santiago, Chile - What Really Happened At CITES COP 12


Conservation Force 2001
2001
March Idaho Approves Nonresident Moose Hunting: A Practical Lesson In Our Democracy
April Special Report On Hunting Why We Do It; Its Conservation Benefits
May Antis Sue To Stop All Argali Trophy Imports
June The Very Latest On That Argali Suit
July Why We Hunt: - Two Important Perspectives
August The Animal Rights 2001 Conference - Terrorism And A Radical Agenda At A Hilton Hotel
September Legal Matters - Update On The Argali Lawsuit
October DATELINE: WASHINGTON Mongolia, Others Denied Role In Argali Lawsuit
November DATELINE: WASHINGTON, DC - European Trophy Crisis Is Narrowly Averted
December People And Predators. Can They Live Together?




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   Mountain Moose
   Shiras Moose
Mouflon Hunting (104)
Muntjac Hunting (16)
Musk Ox Hunting (54)
Nilgai Hunting (16)
Nyala Hunting (303)
   Mountain Nyala
Oribi Hunting (106)
Ox Hunting (60)
Peccary Hunting (29)
Prarie Dog Hunting (5)
Puku Hunting (95)
Reedbuck Hunting (355)
   Mountain Reedbuck
Reindeer Hunting (6)
Rhebok Hunting (72)
Rhinoceros Hunting (84)
Roan Hunting (187)
Sable Hunting (369)
Sheep Hunting (669)
   Aoudad Sheep
   Barbary Sheep
   Bighorn Sheep
   Blue Sheep
   California Big Horn Sheep
   Corsican Sheep
   Dall Sheep
   Desert Bighorn Sheep
   Feral Sheep
   Four-Horned Sheep
   Kerman Sheep
   Mouflon Sheep
   Red Sheep
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Sitatunga Hunting (112)
Springbok Hunting (406)
Steenbok Hunting (220)
Suni Hunting (39)
Tahr Hunting (149)
   Himalayan Tahr
Takin Hunting (1)
Tiang Hunting (11)
Topi Hunting (38)
Tsessebe Hunting (94)
Tur Hunting (7)
Urial Hunting (18)
Varmint Hunting (71)
Warthog Hunting (696)
Waterbuck Hunting (471)
Wildebeest Hunting (665)
   Black Wildebeest
   Blue Wildebeest
Wolf Hunting (231)
Wolverine Hunting (45)
Yak Hunting (3)
Zebra Hunting (725)
   Burchell's Zebra