On November 1, Conservation Force filed its appellate court memorandum trying to overturn the dismissal of its suit to overturn the denial of the enhancement permit applications, the Markhor II case. Though the proposed downlisting would make permits unnecessary for trophies taken from the Torghar population, we are not taking any risk until the downlisting in response to our petition to downlist is a Final Rule. In the same vein, Conservation Force has agreed to enter into non-binding mediation in the Appellate Court. The negotiations are confidential under the mediation agreement so can’t be disclosed, but the negotiations were off to a promising start in early December.
The trial court never reached the merits of the permit denial case because it dismissed the Markhor II case on procedural and jurisdictional grounds that were threshold issues. If the appeal is successful, then the case would be sent back to the district trial court to address the reasons the permits were denied. Those denials occurred after USFWS’s Division of Management Authority made a finding that the hunting did not “enhance” the survival or recovery of the species. The Division of Scientific Authority made a positive finding that the taking was not detrimental, but the Division of Management Authority must also make an “enhancement” finding for imports of an ESA endangered listed species. Unlike the Wood Bison case in which the district court reached the merits and overturned the denials, the district court dismissed the markhor permits case for unrelated reasons, never reaching that point. It is Conservation Force’s position that the Division of Management Authority’s negative finding contradicts the science-based, positive fact-findings of the Division of Scientific Authority and also contradicts the positive findings in the USFWS’s downlisting proposal that has just been revised. We have been alleging and making an issue of the DMA making invalid findings to avoid the wrath and controversy of the antis and protectionists. The object of our efforts is to prevent invalid scientific findings from happening again and, of course, fulfilling the recovery goals of the ESA.