SPEAKERS CONTENTS INSERTS
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POLAR BEAR TROPHIES IMPORTATION
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
H. J. RES. 59
To disapprove a rule affecting polar bear trophies from Canada under the 1994 amendments to the Marine Mammal Protection Act issued by the United States Fish and Wildlife Service of the Department of the Interior
Page 2 PREV PAGE TOP OF DOCAPRIL 30, 1997WASHINGTON, DC
Serial No. 10518
Printed for the use of the Committee on Resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
Page 3 PREV PAGE TOP OF DOCWILLIAM M. (MAC) THORNBERRY, Texas
JOHN SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
ROBERT F. SMITH, Oregon
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
Page 4 PREV PAGE TOP OF DOCMAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
RON KIND, Wisconsin
LLOYD DOGGETT, Texas
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
C O N T E N T S
Hearing held April 30, 1997
Text of H. J. Res. 59
Statement of Members:
Cunningham, Hon. Randy ''Duke'', a U.S. Representative from California
Miller, Hon. George, a U.S. Representative from California
Page 5 PREV PAGE TOP OF DOCNorwood, Hon. Charlie, a U.S. Representative from Georgia
Peterson, Hon. Collin, a U.S. Representative from Minnesota
Young, Hon. Don, a U.S. Representative from Alaska; and Chairman, Committee on Resources
Statement of Witnesses:
Akeeagok, David, Grise Fiord, Northwest Territories, Canada
Gosliner, Mike, Marine Mammal Commission
Hofman, Dr. Robert J., Marine Mammal Commission
Jones, Dr. J.Y., Dublin, GA
Jones, Marshall, Assistant Director for International Affairs, U.S. Fish and Wildlife Service, DOI
Morrill, Dr. William, Safari Club International, Herndon, VA
Reynolds, Dr. John E., III, Chairman, Marine Mammal Commission
Rose, Dr. Naomi, Marine Mammal Scientist, Humane Society of the United States
Rowland, J. Roy, former Congressman, Dublin, GA
Stansell, Ken, USFWS, Department of the Interior
Young, Michael, USFWS, Department of the Interior
Additional material supplied:
Page 6 PREV PAGE TOP OF DOCTesta, J.W., Ph.D.: Importation of Polar Bear Trophies From Canada Under the 1994 Amendments to the Marine Mammal Protection Act (report)
Bass, Hon. Charles F.: Letters to
Dort S. Bigg dated:
October 19, 1995
February 24, 1997
Hon. Don Young dated April 25, 1997
Bigg, Dort S., to:
Hon. Charles Bass dated
September 21, 1995
February 7, 1997
March 18, 1997
April 4, 1997
Kearney, Kathy: Memorandum of October 31, 1995, to John Jackson on importation of polar bear hunting trophies
Jones, Marshall: Letter of May 8, 1996, to Dort S. Bigg
Rose, Naomi A., Ph.D.: Letter of November 6, 1995, to Director, Fish and Wildlife Service on proposed rule
POLAR BEAR TROPHIES FROM CANADA
WEDNESDAY, APRIL 30, 1997
Page 7 PREV PAGE TOP OF DOCHouse of Representatives,
Committee on Resources,
The Committee met, pursuant to call, at 11:00 a.m., in room 1324, Longworth House Office Building, Hon. Don Young (Chairman of the Committee) presiding.
STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE FROM ALASKA; AND CHAIRMAN, COMMITTEE ON RESOURCES
The CHAIRMAN. Today we will hear testimony on H.J. Resolution 59, a resolution I introduced with Charlie Norwood, Collin Peterson, Ron Paul and Saxby Chambliss.
The purpose of this resolution is quite simple: to disapprove the Department of Interior's final rule on the importation of certain polar bear trophies.
Since coming to Congress, I have been involved with the Marine Mammal Protection Act of 1972. Over the years, I have worked hard to improve the law, and we were successful in enacting a number of positive changes in 1994. One of those provisions gave the Secretary of the Interior the authority to issue permits to Americans to import legally taken polar bear trophies from Canada both before and after 1994.
Our intent in passing this provision was clear: we wanted to make it easier for hunters to import polar bear trophies into the United States as long as that activity did not adversely affect Canadian polar bear populations. There are about 13,120 polar bears in the Northwest Territories of Canada. According to scientific experts, this population is growing by three to five percent each year. Since the annual quota for sport hunting was 132 animals in 1996, this harvest rate has little if any effect on any of Canada's polar bear populations. What this activity is doing, however, is providing thousands of dollars to the Canadian Eskimos, allowing them to maintain their cultural heritage.
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On July 17, 1995, 15 months after the enactment of the 1994 amendments, the Department of the Interior issued a proposed rule allowing all pre1994 polar bear trophies to enter the United States. This was a correct interpretation of the 1994 amendments.
We must not lose sight of the fact that these are dead bears. I mean long dead. While we cannot wish them back to life, we can attain benefits to finance conservation programs of Alaska and Russia polar bear research populations by collecting a $1000 fee for each bear that is imported into this country that has been long dead.
Furthermore, the 1994 amendments authorize the Secretary to make a determination on whether an import permit should be issued based on these criteria. The Canadian management program is based on scientifically sound principles that ensure the sustainability of the polar bear population. The management plan is consistent with international agreements. And the issuance of a permit is notwill not contribute to illegal trade in other bear parts.
On February 17, 1997, after years of delay, the Department of Interior issued its final rule. In a move that would make any world class gymnast blush, the Department did a complete reversal without even the benefit of a trampoline, and announced it would now limit the importation of both new and old polar bear trophies to only five of the 12 identified populations in the Canadian Northwest Territories.
While no rational explanation was provided, it is clear that in a mad rush to avoid litigation the Department has ignored both the scientific data and the Congressional intent contained in the 1994 MMPA amendments.
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The bottom line in this debate is the specific criteria outlined in the 1994 amendments have been satisfied. Canada has a growing population of polar bears. Sound conservation programs exist in the Northwest Territories, and a limited number of polar bear trophies will not undermine the sustainability of these populations. Even the Marine Mammal Commission, no fan of the polar bear provision, believes the Department has erred in not allowing the importation of polar bear trophies from additional populations.
I look forward to hearing from my distinguished witnesses. I want to know why it took nearly three years to reach the wrong conclusion, why the Department is holding Canada to a higher standard than Congress intended in 1994 and when the Department intends to decide on the seven other polar bear populations.
[Correspondence may be found at end of hearing.]
The CHAIRMAN. Are there any other opening statements? Mr. Norwood.
STATEMENT OF HON. CHARLIE NORWOOD, A U.S. REPRESENTATIVE FROM GEORGIA
Mr. NORWOOD. Thank you very much, Chairman Young, and members of the Committee for inviting me here this morning to be part of the Resource Committee's hearing on the Fish and Wildlife Service interpretation of the 1994 Marine Mammal Protection Act.
Page 10 PREV PAGE TOP OF DOC Two of today's panelists hail from the 10th District of Georgia. Congressman Roy Rowland represented part of the current 10th District in Washington for 12 years. While in Congress, Dr. Rowland emerged as a bipartisan leader on a wide range of issues including health care reform, the environment, budget deficit reduction and transportation. Dr. Rowland is currently the director of the Georgia Medicaid program, and I would like to welcome Dr. Rowland.
And continuing with my statement, Mr. Chairman, with the second panelist seated I would like to welcome the second Georgian, if I may.
The CHAIRMAN. You can welcome all of Georgia. You have got great people in that great State. You don't have many turkeys, you know.
Mr. NORWOOD. Some folks can't kill them.
If the Marine Mammal Protection Act of 1994 was supposed to facilitate the import of legally harvested polar bears, why are we here this morning, Mr. Chairman? I do not want to impose on your generosity for the time that you have given me today, but I will sum up simply by saying that the intent of Congress was that the Secretary may issue a permit for the importation of polar bear parts, other than internal organs, taken in sport hunts in Canada, including polar bears taken prior to the date of the enactment of the Marine Mammal Protection Act amendments of 1994.
I justI want some questions answered here today and hope that we will get them. And it is simply this, were these bears legally harvested. It is my understanding that they were and each applicant for import certainly must have proven that.
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Is the importation of these bears consistent with the conventional international trade of endangered species of which the United States is a partner? I understand it is and that each applicant must produce the proper permit to prove that.
Does Canada have a sound professional management plan in place for polar bears? I understand that Congress determined it does when it commended this act in 1994.
Will the native villagers benefit from the sport hunting of these polar bears? I understand that they benefit enormously and they will hear much testimonywe will hear much testimony today supporting this.
And finally and perhaps most importantly, will there be any negative impact on the current population of polar bears in Canada? I understand that the opposite is true here, that part of the $1000 permit fee is used for polar bear conservation.
Mr. Chairman, thank you very much again for holding this hearing and allowing me to testify. I look forward to hearing the testimonies of our witnesses. To me it is just basic common sense to allow the importation of these polar bear trophies. And I believe it should be allowed without any additional delay.
The CHAIRMAN. I thank the gentleman. Any other opening statements?
Mr. VENTO. Mr. Chairman, I would like to welcome my colleague from Minnesota. He is from the temporary 6th Great Lake of Western Minnesota, so I am pleased to see him here and his work on the Congress is well known. Thank you.
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The CHAIRMAN. Any other opening statements? If not, I will recognize Mr. Peterson, because he is the seat member, and then Dr. Rowland, who is not seated but fondly remembered.
STATEMENT OF HON. COLLIN PETERSON, A U.S. REPRESENTATIVE FROM MINNESOTA
Mr. PETERSON. Thank you, Mr. Chairman. I want to thank you and the other members for the opportunity to speak here today. As I think you are aware, there are approximately 400 polar bears that were legally harvested under Canada's polar bear management program and are currently in storage in Canada because they have not been able to be imported into the United States. Many of these animals belong to my constituents, and they are very frustrated, they thought this had been fixed.
Congress amended the Marine Mammal Protection Act of '94 to allow the importation of these legally harvested trophies. The language of this amendment specifically refers to the imports of bears harvested prior to the amendment's adoption and it said the Secretaryand I quote, ''the Secretary may issue a permit for the importation of polar bear parts taken in sport hunts in Canada, including polar bears taken but not imported prior to the date of the enactment of the Marine Mammal Protection Act amendments of 1994, to an applicant which submits with its permit application proof that the polar bear was legally harvested in Canada by the applicant.''
Now I think what is in question is some report language that accompanied this legislation that said it is the Committee's intent that all conditions outlined by this amendment concerning the importation of polar bear trophies taken prior to the adoption of this amendment have to be met.
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We think the correct interpretation of the requirements mandated by this language is that permit applicants must prove that they had the proper international permit, the animal was properly tagged and it can be proven that the animal was legally harvested.
The Department of Interior interpreted the language originally this way when they issued their proposed rule July 17, 1995, which as you pointed out, was almost 15 months after the enactment of the bill. And under this proposed rule, all polar bears harvested before the date of the final rule were grandfathered in and could be imported into the United States if it could be proven that they had not already been imported, that the specimen is sport hunter trophy, that the bear was legally harvested and that it was consistent with CITES.
However, the final rule published on February 18, 1997, made significant changes in this grandfather clause. In regard to previously taken polar bears, the final rule only allowed for the importation of polar bears from populations deemed to be currently sustainable. And as a result, the majority of the bears that have been previously taken are still in freezers up in Canada and my constituents and a lot of your constituents are paying storage fees and are very unhappy.
According to a review of the Administrative record of the Department of Interior on this rulemaking, in my opinion no new biological or scientific evidence was uncovered which warranted a change in the grandfather clause. Rather I think the Department reacted to advice from the Solicitor's Office regarding fears of a lawsuit from anti-hunting organizations if the grandfather clause remained as proposed. My question is why didn't the Solicitor's Office offer this interpretation when it reviewed the proposed rule in 1995? Wildlife management decisions should be made on the basis of sound scientific data and not on the basis of threats or fears of retaliatory lawsuits.
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And the change in this grandfather clause ignores one of the primary motives that Congress had in amending the Marine Mammal Protection Act of '94, which was to allow the importation of these bears. In addition, the issue of the grandfather clause was further complicated by the long time it took the Department to act on the direction of Congress. And this 15-month delay between the passage of the act, the proposed rule and the 20-month wait, does not conform with the intent and the expectation of Congress.
I had a long discussion with former Congressman Jack Fields, who is the author of this, and he does not think that this rule is in conformance with what he thought he was trying to accomplish.
This has also been pointed out, these bears are dead. This is not going to have any negative effect on anything at this point and the money, the $1000 permit fee, is going toward polar bear conservation.
In closing, preventing the importation of these bears doesn't make any sense. It ignores the intent of Congress. It would have no negative impact on current polar bear population and denies a valuable source of funds for polar bear conservation. Accordingly, I think the Department should issue new regulations grandfathering all these bears and move in the direction that we originally intended.
Thank you very much and I would be happy to answer any questions.
The CHAIRMAN. Thank you, Congressman. Congressman Rowland.
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STATEMENT OF J. ROY ROWLAND, FORMER CONGRESSMAN, DUBLIN, GEORGIA
Mr. ROWLAND. Thank you very much, Mr. Chairman and members of the Committee. I appreciate the opportunity to be here today, and especially to visit with many of you who are longtime friends. I don't envy you the task that you have in governing our country, but I commend you, every Member of Congress, for shouldering that responsibility. And I want to thank my good friend and my Congressman Charlie Norwood for introducing me today.
One of the issues that I dealt with while a Member of the House is before you today. Dr. J.Y. Jones, a close personal friend and medical colleague, and also one of my constituents, approached me with the surprising information that a person from the United States could go to Canada and hunt polar bears legally under the auspices of their hunting program but could not legally bring their trophy home.
I have the utmost regard for J.Y. He is an excellent physician and surgeon with the highest personal ethics. He is greatly respected by the people in the community where we live and he gives generously of his time and resources and has done a total of 14 medical missionary trips to Honduras and Jamaica. After receiving additional information from him, including the fact that he personally had a polar bear trophy in Canada he couldn't bring home, I agreed to look into the matter and get back with him on the feasibility of amending the Marine Mammal Protection Act to allow such import.
It appeared to me that such a restriction was unwarranted in view of the fact that our neighbor Canada is perfectly capable of managing their own wildlife resources without our interference.
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I discussed the import ban informally with my friend Gerry Studds, then Chairman of the House Merchant Marine and Fisheries Committee, and he expressed an interest in changing the law to allow import of polar bear trophies under certain conditions. He told me that he would have his staff research the law and prepare a proposal that might remove this restriction. Other interested Members of Congress specifically wanted to allow importation of polar bears already stored in Canada that had been legally taken. Also, those bears already harvested could have no effect on the polar bear population, so it made good sense to allow their importation if they had been legally taken.
The opportunity to make this change in the law came shortly thereafter as the reauthorization of the original Marine Mammal Protection Act came up for consideration. I talked with Congressman Studds on several occasions and our staff people worked together on the amendments. Other Members of Congress gave input and advice concerning the pending legislation, and an effort was mounted to include the needed language. The actual legislation was finalized in early 1994.
The record is clear that the Merchant Marines and Fisheries Committee was indeed successful in resolving the issue and subsequently recommended to the full House of Representatives that legally harvested polar bear trophies from Canada be permitted importation into United States by our citizens who had hunted there in the past or would do so in the future. After the House and Senate resolved their differences, the legislation was passed by both houses of Congress and it was signed into law by President Clinton on April 30, 1994, which is incidentally exactly three years ago today.
Page 17 PREV PAGE TOP OF DOC Now I have learned still today, despite the interval of three years, not a single polar bear trophy has been imported under the amended law. What is even more mind boggling is that a simple bipartisan mandate of the Congress has been expanded far beyond its original intent, I am told, to include 30 pages of rules, a complicated application process, and provisions attached that even the name of the individual hunter applying for an import permit must be published in the Federal Register. I am also surprised that polar bears already stored in Canada, legally harvested in years past and specifically approved by Congress for import, have been held up indefinitely by a broad and bewildering array of polar bear subpopulation evaluations.
I have been asked to testify as to what the intent of Congress was in 1994 on this issue. I believe that Congress expected the issuance of polar bear import permits to begin immediately. I know that I did. After five months of inaction on the new amendment, I joined a group of concerned Congressmen who sent a letter to Secretary Babbitt of the Interior Department urging him to use the authority granted him to develop interim regulations for polar bear imports so that waiting sportsmen could proceed with the importation without further delay. We recommended that if he believed a more detailed regulatory process be necessary, he could undertake that proceeding thereafter. Instead, the United State Fish and Wildlife Service developed these voluminous and dilatory regulations we have today.
In summary, it was never the intent of Congress, based on my knowledge, that we attempt to micromanage the Canadian polar bear conservation system or to force Canada into new international agreements, but that we simply allow U.S. hunters to apply for and receive a permit to import their trophy if a few simple criteria were met, the most key of which being that the bear was legally taken in Canada and not illegally imported already. The regulations appear to go far beyond Congressional intent. They are yet another example of the tendency toward over-regulation in many levels of the Federal bureaucracy.
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I urge the members of the Committee to do what is necessary to carry out the will of Congress as passed in 1994, and I thank you, Mr. Chairman.
[Statement of J. Roy Rowland may be found at end of hearing.]
The CHAIRMAN. Thank you, Doctor. First, I agree with you 100 percent because I am one of the few people who have been on the Fishery Committee for the last 25 years and now we took it to this Committee. It was a bipartisan effort. Everybody agreed to it, including the Administration. And now we find out that we have people that think that they are God and can tell the Congress to go fly a kite. And that is why we are going to vote on this before the House and find out whether they are God or not. It is wrong when they go against the intent, including the report language. These bears are dead. It is the government of Canada that does recognize it. And what we tried to do in this business, by the way, was to improve the polar bear population.
I think we will hear testimony later on that this increased the value of the polar bear. It has protected the young. It has protected the sows. It has really, in fact, been harvesting the old boars, which are much more valuable. And that was the intent of the Congress. No way would Gerry Studds support something that wasn't that. And to have now an agency saying this is incorrect, I want to thank you for your memory. That is one reason I think that the institution should have a longer term instead of shorter term, so they do have some knowledge of what was the intent and what people thought they were doing and what does happen at a later date.
Collin, I am going to ask a question. If you can, how do you think that the polar bear populations are affected by prohibiting the importation of these bears?
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Mr. PETERSON. I don't think it has a negative effect, because if we would allow the importation, the fees would be paid and that money would go to conservation. It is going to have no negative effect in terms of harvest, because no one is questioning that we are going to have to have rules going forward and that there is going to have to be a management plan in place and that we are going to have to make sure that the rules are such that we are doing the right kind of conservation. But these dead bears have been taken and it is not going to have any impact one way or the other on conservation other than negative because we don't have the money.
The CHAIRMAN. Under the present rule as being proposed by I don't know who, is there any conservation in that regulation that you can see?
Mr. PETERSON. Not that I can see.
The CHAIRMAN. That is what my interpretation is, there is none whatsoever. And if I remember correctly, Dr. Rowland, is it not true that we had testimony from our scientists, the Marine Mammal Commission, and the Canadian scientists that were meeting their goal was to promote and actually improve the polar bear population? That was testified to this Committee, is that correct?
Mr. ROWLAND. My recollection, that is exactly correct.
The CHAIRMAN. I thank the gentlemen. The gentlemanMr. Vento.
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Mr. VENTO. Well, thank you, Mr. Chairman. I understand that there is some controversy now. I was reading ahead to the other testimony and, just to understand the intent of this particular rule change, the intent here is just to knock out this rule. And then what would we be left with then?
The CHAIRMAN. What would be left is a rule that follows the intent of Congress. They have to come back
Mr. VENTO. I think the thing is that they had proposed a rule in '95. This law passed in '94. They proposed a rule in '95 and then they came up with this final rule in February or March.
The CHAIRMAN. Which is a reversal of the original rule.
Mr. VENTO. So we knock it out with this. Then what do you put in its place?
The CHAIRMAN. Nothing until they issue another rule with the intent of Congress. The have to follow Congress.
Mr. VENTO. It would be an indication that we disagree with it.
The CHAIRMAN. There might be ain fact, I may issue a citation of contempt of Congress, because they are not following our lead in what the Congress passed. They do not have that authority. You should accept that.
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Mr. VENTO. I am simply asking what the effect would be of knocking out the rule. That is whatand so you are saying
The CHAIRMAN. They have to come back with a rule.
Mr. VENTO. They would have to come back, but I mean the
The CHAIRMAN. The intent
Mr. VENTO. The issue is that there isyou will see in the next testimony that there is an issue here about the retroactivity, in other words, dealing with the grandfather. That is one issue. And then there is another issue perspectively. So what is the message we are sending here? The intent is obviously we want to grandfather importation of bear trophies that had been harvested between '94 and '97, is that the intent? You want to grandfather those in because the rule wasn't out and folks were operating on the basis
The CHAIRMAN. And prior, as long as they are legally taken.
Mr. VENTO. Well, whatever. That is one of the intents, but then perspectively is it the intent not to deal with theand they, incidentally, talk about 14 areas in Canada, not 13but is it the intent then to comply with or to then live with thethey are saying you can hunt in five areas out of the 14 or six areas out of the 14. Is the message that you want to send that you wantthat perspectively that their interpretation of where the hunting can be permitted is inappropriate or not?
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The CHAIRMAN. It is my intent that we made an agreement with Canada. Canada defines scientifically which areas are appropriately being hunted. We have now an agency within the United States saying without scientific information that you cannot hunt in certain areas.
Mr. VENTO. Basically, then, there are two issues, in other words. There is the issue of the grandfather for whatever reason
The CHAIRMAN. That is right.
Mr. VENTO.those trophies are there. Then there is the second issue, as I see this, of whether or notwhat our relationship is with the Canadian permits to hunt for trophies. They are permitting them in, apparently, all 14 areas or something of this nature and/or 13 of the 14, and we are saying that it should be restricted to five.
The CHAIRMAN. Yes, without scientific information, nothing to back it up.
Mr. VENTO. OK.
The CHAIRMAN. So what we are doing, we are imposing our will against the Canadian government, and I don't think that is what we should be doing in the case where we have reached these agreements.
Page 23 PREV PAGE TOP OF DOC Mr. VENTO. Well, I am just trying to understand what the issues were, Mr. Chairman. I am just learning about this, but I would just point out on page two of the testimony, and, you know, maybe Collin or our friend RoyI am sorry I didn't welcome you. I want to recognize our long friendship and work.
But they point out the Service was required to determine under the 1994 amendments in consultation with the Marine Mammal Commission that these requirements were met in order to allow polar bear trophy imports. As part of these requirements, the Service is required to conclude the Canada sport hunting program is consistent with the purposes of the 1973 agreement on the conservation of bears and is based on scientifically sound quotas to ensure, the key word, the sustainability of effective population stock. Although these requirements were simply stated in the 1994 amendments, they are complex and involve multiple issues.
So I am justI mean, this is obviously a different requirement that they are reading the '94 law in a way that is inconsistent. So we will have to try to iron it out, and I understand that, Mr. Chairman, further that this isapparently the Solicitor, Mr. Leshy, from Interior interpreted or was responsible for being consulted, or someone in his office, with regard to this issue.
So I do think that, you know, since what you are really doing is knocking out the rule here, there is nothing being put in its place and I think we better get back to look at whether the law and what the law requires, because in fact if that interpretation is correct by a court, they could put in a rule and effect they want and they may apparently be challenged.
The CHAIRMAN. That may be true, but they cannot, regardless of what they think they will be challenged about, go against the will of Congress. If they in fact implement a rule that we have directed them to do so and then they are taken to court, we will win. I mean, this ideaevery time I hear one of my agency say oh, we might have to go to court, sothey hide under the table. Any time the Sierra Club or Friends of the Earth or Friends of the Animal group threaten a lawsuit, they go hide under the table.
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Mr. VENTO. Well, Mr. Chairman
The CHAIRMAN. And we told themthis Congress told them what to do.
Mr. VENTO. Well, I think that it may be the law of unintended consequence that you didn't intend or Mr. Studds didn't or Mr. Fields didn't, but if this particular type of change did occur, I think we can rationally look at it and make a determination. And what I am suggesting to you is that maybe the answer is not so much in dealing with the rule but fundamentally looking at the law to see if there is a basis for what their action is.
The CHAIRMAN. We will look at that. We don't believe it. I had my lawyers look at it. We don't think there is any rationale. Listen to what you just said about if they are difficult, was it, and it is complex. I mean that is pure gobbly goop. That is all it is, just gobbly goop. It is a way to delay the
Mr. VENTO. It is a complex and involved multiple issue.
The CHAIRMAN. Multiple issues. They don't define the multiple issues. They do not give us any scientific information. They do not consider Canada at all, and that was not the intent of the legislation.
Mr. VENTO. I think the witnesses adequately answered the questions.
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The CHAIRMAN. All right.
Mr. VENTO. Mr. Peterson or Mr. Rowland?
Mr. PETERSON. I associate myself with the Chairman's remarks.
The CHAIRMAN. The gentleman from Georgia. Excuse me, in all due respects I have to recognize members of the Committee first.
Mr. NORWOOD. Sure.
The CHAIRMAN. The gentleman from California.
Mr. CALVERT. I have no comment, Mr. Chairman.
The CHAIRMAN. The gentleman from
Mr. WALTER JONES. I have nothing.
The CHAIRMAN. OK, the gentleman from Georgia.
Mr. NORWOOD. Just very briefly, Mr. Chairman. I do thank these witnesses. And I was not in Congress when this was passed, but it clearly seems to everyone I can talk to that the Department did not write rules and regulations, and both of our Members here just said that they did not write rules and regulations according to the will of Congress. In fact, as we get on into this hearing a little bit, a lot of the thoughts from the USFWS, you will find that had they used a little better data, for example some data as well as Canada might have used, they may too have come up with a different decision. So I thank you gentlemen very much for being here. And thank you, Mr. Chairman.
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The CHAIRMAN. The gentleman from Hawaii. You were here, I believe, were you not?
Mr. ABERCROMBIE. I beg your pardon?
The CHAIRMAN. You were on the Committee when this passed.
Mr. ABERCROMBIE. Yes. Mr. Chairman, is the next witness to come up Mr. Jones to address the
The CHAIRMAN. Yes.
Mr. ABERCROMBIE. [continuing]process of
The CHAIRMAN. Yes.
Mr. ABERCROMBIE. I will withhold questions until that time.
The CHAIRMAN. All right, thank you, gentlemen. I appreciate you being here. Have a good flight, Doctor.
Mr. ROWLAND. Thank you.
The CHAIRMAN. The next witness is Mr. Marshall Jones, Assistant Director of International Affairs, U.S. Fish and Wildlife Service, Department of Interior. He is accompanied by Mr. Ken Stansell and Mr. Michael Young. Dr. John E. Reynolds, III, Chairman of Marine Mammal Commission, is accompanied by Mr. Mike Gosliner and Dr. Robert Hofman. Mr. Jones.
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STATEMENT OF MARSHALL JONES, ASSISTANT DIRECTOR FOR INTERNATIONAL AFFAIRS, U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY KEN STANSELL AND MICHAEL YOUNG
Mr. MARSHALL JONES. Thank you, Mr. Chairman. We appreciate your giving us this opportunity to testify before you today on House Joint Resolution 59, which would disapprove our recent regulations for the import of polar bear trophies from Canada.
As you mentioned, Mr. Chairman, I have with me Mr. Kenneth B. Stansell, who is the Chief of our CITES Management Authority, and Mr. Michael Young from the Department of Interior's Solicitor's Office, as well as members of Mr. Stansell's staff who prepared the rule.
Mr. Chairman, the development of these regulations over the past three years has involved some of the most controversial and difficult issues that I have had to deal with in 20 years in the Fish and Wildlife Service.
Recognizing, Mr. Chairman, your views that the intent of Congress was clear, unfortunately the record which was compiled, the comments that we received during the comment period and our own review of the legislation indicated to us that we had to make findings not only involving future polar bears which might be taken in Canada, but also the bears that were already taken and that were sitting in storage. Our goal, Mr. Chairman, was to import, to allow the import of as many polar bears as meet the requirements of the law.
Before I address some of the problems, Mr. Chairman, I would like to emphasize some of the positive aspects of this rule. First of all, Mr. Chairman, we determined that five of Canada's 12 polar bear populations fully meet the criteria that were contained in the law and the 1994 amendments, and we have approved them for import. The first 16 permit applications have now been approved and another 45 permit applications are now in the review process. So that within the next few weeks, Mr. Chairman, we believe that we will have approved 50 to 60 polar bear trophy imports.
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Mr. Chairman, I have the first tag which would be applied to the first permit, and we are anxious for the day when this tag is put on a trophy that is brought into the United States. And that is followed by as many trophies as will meet the requirements of the law.
Also, Mr. Chairman, we were able to approve these applications, I believe, because of our decision to address each of Canada's polar bear populations separately. We believe that this approach was fully justified by the amendments to the law and the Marine Mammal Act itself. If we had chosen the alternative approach, to look at Canada on an all or none basis, Mr. Chairman, we were concerned that our decision would have had to be that because some areas of Canada didn't meet the criteria, all of Canada would have failed to meet the criteria and we wouldn't have been able to allow import of any trophies on that basis. We avoided that outcome, Mr. Chairman, by using the population by population approach.
I would also point out, Mr. Chairman, that we did not disapprove any populations. We approved some. We deferred others until we receive additional scientific data. No polar bear population has the door closed to import, although some people wanted us to disapprove some of those. We did not take that step. We have left the door open, and as soon as we can get new information which indicates they qualify under the criteria, we are prepared to approve them.
Mr. Chairman, we have received new information from Canada and are now working on a proposal to make new findings regarding two additional areas in Canada in addition to the five which have already been approved.
Now, Mr. Chairman, let me briefly address the major concern which has been raised about the regulations, our decision that all trophy imports must meet the criteria in the 1994 amendments regardless of when they were taken. We originally proposed a blanket finding which would have allowed import of all trophies taken before the 1994 amendments. However, the Marine Mammal Commission and other commenters clearly demonstrated that this approach was not legally defensible based on the specific requirements in the law and in the House Committee report which accompanied it. Thus in our final rule, we were obligated to apply the same criteria to all trophies, regardless of where they were taken.
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Finally, Mr. Chairman, let me say in closing that we recognize that some are disappointed with our final rule and believe it was too restrictive. On the other hand, Mr. Chairman, I think this morning you will also hear from some who believe the rule was too permissive. Overall we believe that we have accurately and fairly implemented the '94 amendments in a way which supports Canada's polar bear management program, which we acknowledge is the best in the world, as well as the traditional hunting rights of Canada's native people and the legitimate desires of sport hunters.
For these reasons, Mr. Chairman, if House Joint Resolution 59 is enacted and the regulation is disapproved, we do not believe that under the existing provisions of the law we would be able to prepare a new final rule which is substantially different from the existing regulations. On the other hand, Mr. Chairman, we are prepared to work closely with you, with sport hunters and with Canada to facilitate the approval of all populations which meet the requirements of the law, to make those decisions promptly and to open as many doors as we can to the import of polar bear trophies.
Thank you, Mr. Chairman. I am prepared to answer any questions which you may have.
[Statement of Marshall Jones may be found at end of hearing.]
The CHAIRMAN. Dr. John Reynolds.
STATEMENT OF DR. JOHN E. REYNOLDS, III, CHAIRMAN, MARINE MAMMAL COMMISSION, MIKE GOSLINER AND DR. ROBERT J. HOFMAN
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Dr. REYNOLDS. Mr. Chairman and members of the Committee, thank you for inviting the Marine Mammal Commission to testify on House Joint Resolution 59. I am accompanied today by Michael Gosliner, the Commission's General Counsel, and Robert Hofman, the Commission's Scientific Program Director.
The Marine Mammal Protection Act amendments of 1994 authorized the Department of the Interior to issue permits for importing polar bear trophies taken legally by applicants in sport hunts in Canada provided that certain findings are made. The statute places responsibility for making these findings on Interior and ascribes a consultative role to the Commission. The Commission commented on each finding required under the amendments. We did so to meet our responsibility to see that the Marine Mammal Protection Act is faithfully implemented as enacted. The Act clearly provides for authorizing the hunting of polar bears and other marine mammals and the importation of trophies in certain circumstances. And our statutory responsibility is to see that all applicable conditions are met before such taking or importation is allowed. We believe the final rule reflects the statutory criteria.
My oral statement will be confined to the finding that Canada's sport hunting program is based on scientifically sound quotas, ensuring the maintenance of the affected population stock at a sustainable level. Although the Service suggested in its proposed rule that this, as well as other findings, were not applicable to those trophies taken by U.S. hunters in Canada prior to the enactment of the amendments, a plain reading of the statute and the accompanying statement of legislative intent indicate otherwise. Our comments therefore questioned the basis upon which the Service proposed differential treatment of trophies taken before and after enactment of the amendments.
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With respect to the finding of scientific soundness as it relates to pre-amendment trophies, the Commission noted that the nature of the required findings suggested that historical data be used and recommended that, at a minimum, the findings be based on present day quotas and management practices for each population.
The other key question for the Service to resolve was whether the findings of scientific soundness were to be made for the individual polar bear management units in Canada, a single Canadian population, or for some other division of the populations. The Commission generally supported the use of management units as being appropriate and recommended that the final rule link the management units to the Marine Mammal Protection Act's definition of population stock.
The Service published its final rule in February, making affirmative findings for five of the 12 management units used by Canada when the rule was proposed. The Commission believes that the final rule better reflects the statutory requirements and that the final rule is a considerable improvement over the original proposal. In the Commission's view, the Service, based on the record before it at that time, could not have sustained affirmative findings for any of the other seven management units.
With final rules now in effect, there are three options on how to proceed. First, amend the rule based on revised interpretations of the statute. Second, amend the Act to establish different requirements, or third, work within the existing regulatory framework to consider additional data as they are developed. The Commission recommends the third option, i.e. working within the existing regulatory framework.
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This option enables the Service to consider new information and proposed revisions to the regulations as warranted. As described in Commission publications, this is something that is described as adaptive management, where you continually take in new data and revise your regulations.
Shortly after publication of the final rule, the Commission obtained the most recent information on the status of Canadian polar bear populations and changes to Canada's management program. To assist in its review of this information, the Commission contracted with J. Ward Testa, Ph.D., a population biologist and biometrician. Dr. Testa's report, appended to my full statement, takes into account comments from the Commission, its Committee of Scientific Advisors, and outside reviewers.
The report concluded that the Canadian polar bear program is consistent with generally accepted principles of sound resource management, that the methods and models used by Canada to set polar bear quotas are conceptually sound, and that available data supported Canada's realignment of the Queen Elizabeth Islands, Parry Channel and Baffin Bay management units into five management units.
Using the criteria adopted by the Fish and Wildlife Service in the final rule, the report also examined whether polar bears from other management units might now qualify for import permits under the Act. It concluded that two of the revised management units, Lancaster Sound and Norwegian Bay, appear to meet the necessary criteria. Based on a review of the report, the Commission, in consultation with its Committee of Scientific Advisors, has recommended that the Service, if it concurs with our analysis, initiate a rulemaking to make affirmative findings for these two additional management units.
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As for the remaining six management units, the Commission believes that there are problems that Canada still needs to resolve. We are well aware that some groups believe that the rule did not go far enough to allow imports of pre-amendment trophies or polar bears taken in other management units and that other groups felt that the Service's rule was too permissive. We believe that the Service's final rule accurately and appropriately implemented the plain language of the amendment.
And I also would be happy to answer any questions you may have.
[Statement of Dr. John E. Reynolds, III may be found at end of hearing.]
The CHAIRMAN. All right, thank you. Mr. Jones, you mentioned you approved five of the 12 populations. Does the government of Canada believe all 12 populations have satisfied the criteria of the act?
Mr. MARSHALL JONES. Mr. Chairman, I don't think the government of Canada has given us a direct comment or an evaluation.
The CHAIRMAN. How did you base it?
Mr. MARSHALL JONES. We used data.
The CHAIRMAN. If they didn't give you a comment, what data did you use?
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Mr. MARSHALL JONES. Mr. Chairman, we used data that was provided by Canada. We had to do the evaluation. They provided the data.
The CHAIRMAN. OK, now, in 1994 the government of Canada has communicated to the Committee and the United States that sport hunting of polar bears does not adversely affect the sustainability of the country's polar bear population and does not have a detrimental effect on maintaining these populations throughout their range. That was 1994. Now you just said they have the best system in the world.
Mr. MARSHALL JONES. Yes, sir.
The CHAIRMAN. What criteriawhat did you base your finding on?
Mr. MARSHALL JONES. Mr. Chairman, we based our finding on the criteria that were contained in the law, and particularly one of the criteria which was the most difficult, the criteria that there must be scientifically based quotas which will provide for a sustainable population.
The CHAIRMAN. OK, and whatlet us say Canada comes down with a quota all the rest of the regions of two bears or three bears or four bears per region.
Mr. MARSHALL JONES. Mr. Chairman, if there were an enforced quota for each of the populations in Canada, then most likely we would have been able to approve all of the populations.
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The CHAIRMAN. But would you make a definition of enforced quota? What would be your idea of an enforced quota? Would it be two or three or five or ten or 15 or 20?
Mr. MARSHALL JONES. Mr. Chairman, Canada has the scientific basis to set their quotas, and we wouldn't try to tell them what those quotas should be.
The CHAIRMAN. Without being argumentative, then, how can you deny the rest of the regions if they set the criteria. They submitted it to you, and yet you denied it. What basiswho told you to do this?
Mr. MARSHALL JONES. Mr. Chairman, there are provinces in Canada which don't have enforced quotas. The government of the Northwest Territories has what we think is a superb system. It involves quotas and it involves checking and it involves a scientific basis. Some of the other provinces, however, Mr. Chairman, either have quotas which are guaranteed and are not adjusted no matter what happens or don't have quotas at all.
The CHAIRMAN. OK, the Marine Mammal Commission believes that the Lancaster population should be approved. Why is there disagreement?
Mr. MARSHALL JONES. Mr. Chairman, we don't have a disagreement.
The CHAIRMAN. Then why isn't it approved?
Page 36 PREV PAGE TOP OF DOC Mr. MARSHALL JONES. We received the information too late to include it in the final rule which we published.
The CHAIRMAN. OK, now my last statement. The thing that probably concerns me most, I sat in this Committee. We worked this out. We had the agreement. The Administration signed the bill. And you are sitting there and telling me you are going to work with everybody involved and you are going to do it in an expedited manner. Why should I believe you?
Mr. MARSHALL JONES. Mr. Chairman
The CHAIRMAN. 1994, what year iswhat day is today? Three years ago. What makes me think that you are going to do anything better?
Mr. MARSHALL JONES. Mr. Chairman, the issue that we had to deal with, as I mentioned, were very difficult. And understanding that your belief was that the intent of Congress was clear, when we read the law and when we looked at the criteria, we found that it required a lot of judgments on our part.
The CHAIRMAN. Did the Solicitor tell you that you were going to be sued if you issued regulations as you proposed originally?
Mr. MARSHALL JONES. No, sir. Mr. Chairman, we discussed the possibility that we could be sued. No one told us that we would.
Page 37 PREV PAGE TOP OF DOC The CHAIRMAN. By who?
Mr. MARSHALL JONES. By those who were unhappywould be unhappy with the regulations.
The CHAIRMAN. But whybut you have a responsibility as an agency to implement the act of Congress. That is your responsibility, is it not?
Mr. MARSHALL JONES. Yes, sir, it is.
The CHAIRMAN. Then why do you run when someone threatens to sue you?
Mr. MARSHALL JONES. Mr. Chairman, we don't run.
The CHAIRMAN. You write a regulation that is contrary to what the Congress intended to do.
Mr. MARSHALL JONES. Mr. Chairman, we hope that these regulations are not contrary to the intent of Congress. We didn't believe they were. We believe that we implemented the law, but we had to address all the issues that were raised on the record.
The CHAIRMAN. My time is about up. What defense do you have, including your lawyers, about the bears, and how many are there that have been deadwhy cannot we import those bears if they are legally taken under Canadian law, receive the moneys that we would receive from them, put it into polar bear research? Who insists upon not allowing those dead bears in? I can understand the future bears, but I cannot for the life of me understand a bunch of dead bears laying away in the closet, and who is going to sue you over a dead bear? I would love to take that case, by the way. And I am not a lawyer and I would win it. Some of you lawyers don't believe it. I would win that hands down. Who is going to sue you?
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Mr. MARSHALL JONES. Mr. Chairman, it is probably better that I not speculate about who might sue us.
The CHAIRMAN. I would like to know, because someone told you or someone told Katie McGinty or someone told Bruce Babbitt that you are going to be sued. Now who threatened to sue you?
Mr. MARSHALL JONES. We have no formal threats of litigation.
The CHAIRMAN. Then why do you worry about it?
Mr. MARSHALL JONES. Mr. Chairman, we are allowing the import of bears already taken from all the populations which in our judgment meet the criteria of the law, and we will allow the import of further bears from every other population which meets the criteria in the law.
The CHAIRMAN. But what I am suggesting is what is the objection of a bear that was legally taken. Why not allow that bear to be taken by that hunter, bring into the United States, pay the $1000 fine, fee, whatever you want to do, pay it? Why not? I mean, what is the rationale for not doing that?
Mr. MARSHALL JONES. Mr. Chairman, personally I agree. What you have said makes perfect common sense. Mr. Chairman, however it is not what we believe the law requires. We have to make these judgments about the criteria and whether it came from a population which
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The CHAIRMAN. My time is up, but one last one. Where does it say in the law, lawyeryou are getting paid for this. Where does it say in the law that you can be sued by allowing the importation of pre-killed 1994 bears?
Mr. MARSHALL JONES. Mr. Chairman, it says nowhere in the law.
The CHAIRMAN. Well, then you said the law wouldn't allow you to do it.
Mr. MARSHALL JONES. Mr. Chairman, I say that our duty was to implement the law and apply the criteria that were in it, and it was our judgmentMr. Chairman, we made a proposal based on the way we wanted to read the law.
The CHAIRMAN. It wouldn't change that.
Mr. MARSHALL JONES. We made a final rule based on what our final judgment, this is what the law really says with all of its requirements.
The CHAIRMAN. Where does it say that you cannot import those bears, Mr. Lawyer?
Mr. MARSHALL JONES. Mr. Chairman, it says that they
The CHAIRMAN. I am talking to youryou have got legal counsel there. You are paying them enough. Where does it sayin fact, the original proposal of the rule said you could and would allow the importation of pre-killed 1994 bear, every one of them. Now where and who suggested the change and on what grounds?
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Mr. MARSHALL JONES. Mr. Chairman, let me ask Mr. Young from our solicitor's office to
The CHAIRMAN. That is what I am saying. Where did it come from?
Mr. YOUNG. Thank you, Mr. Chairman. To answer your substantive question, the reason the Fish and Wildlife Service found that it could not allow importation of non-approved populations, even for the pre-amendment bears, is because one of the criteria that we have to find before issuing permits says that Canada has a sport hunting program based on scientifically sound quotas, ensuring the maintenance of the affected population stock to a sustainable level
The CHAIRMAN. OK, stop right there. You are telling me if the species is sustainable and the Canadian government verifies that, all right, that the bear kill prior to 1994 effects the sustainable yield of the bear population?
Mr. YOUNG. Mr. Chairman, that is not the particular criteria that we had to find here.
The CHAIRMAN. Well, I amagain, I am trying to get back to what grounds are you worried about allowing those 1994 pre-killed bears into the United States?
Mr. YOUNG. We basically were not in a position to say that for the shared populations, Baffin Bay, Davis Strait and others, certainly South Hudson Bay and Foxe Basin, they are shared stocks.
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The CHAIRMAN. What difference does it make? This bear is dead. He doesn't evenI mean, this bear is no longer existing. It is a hide. It is a nothing. It is $1000 for polar bear research.
Mr. YOUNG. Mr. Chairman, that distinction was not made on the face of the statute.
Mr. ABERCROMBIE. Mr. Chairman
The CHAIRMAN. Boy, I will tell you, this is like dealing with the doughboy. Yes, sir.
Mr. ABERCROMBIE. Mr. Chairman, inasmuch as your time is up, would you like some help?
The CHAIRMAN. Yes, would you likeyes, Mr. Neil.
Mr. ABERCROMBIE. Thank you. Gentlemen, I think you have gotten yourself into a bind here. You are not really answering the Chairman's question, or maybe you are and that is part of our difficulty. Your assignment was not to try and find ways that this couldn't be done. Your assignment really was to see how this could be implemented. Now I can see how you could answer the Chairman saying well, how does a dead bear affect this adversely. You could say well, that bear was alive, it could have been part of a procreation process, that this dead bear and all the other dead bears were part of a process which was antithetical to the aims of the legislation and apparently antithetical to the Canadian management program, because by killing these bears you were preventing reproduction and so on and so forth.
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But all the testimony that I see is to the exact opposite. There is an increase in the number of bears. Now maybe not in every region. Again, I can understand how you would dopossibly do regions and some may be sustaining themselves and reproducing maybe in excess in some regions and not in others, but you also testified that the Canadian planI don't know the word was excellent or what it was, but it was the finest plan.
If there is no showing that the population is being reduced, if there is no showing that the Canadian management plan is not adequate to the task at hand, and if the management plan is consistent with international agreements and it doesn't contribute to any illegal trade, then at least on the question of those bears which are already taken, it seems to me the importation should have proceeded at pace.
Now if the counsel could answer that question. I am unable to understand from the answer you gave why there is no importation if the points that I just raised are factual and a reasonable summation of the situation.
Mr. YOUNG. Thank you. I will attempt to give a more complete answer. Essentially taking the examples of the populations I have mentioned, South Hudson and Davis Strait and Foxe Basin, those populations are shared between the Northwest Territories and the provinces of Ontario and Quebec as well as Labrador. The situation we faced was the fact that there are no enforceable quotas in either of those provinces. It is true the Northwest Territories has a managed program based on a scientific basis on quotas, but the population in its entirety does not. We felt that did not meet the requisite criteria as a prerequisite to issue permits.
Page 43 PREV PAGE TOP OF DOC Mr. ABERCROMBIE. OK, stop there. Then what you are saying is the Canadian management program is not scientifically sound and does not establish either quotas or other criteria that would allow for the importation of bears. You are saying the Canadian program is not adequate, but you are relying on, if I understand your testimony correctly, their submission of data to you.
Mr. MARSHALL JONES. Mr. Abercrombie, if I could answer your question.
Mr. ABERCROMBIE. Please.
Mr. MARSHALL JONES. And it might be helpful to take a specific example. Baffin Bay, we have a map here, Mr. Abercrombie and Mr. Chairman
Mr. ABERCROMBIE. I can see it in part.
Mr. MARSHALL JONES. [continuing]which shows the 14 existing new polar bear management areas.
[The map may be found at end of hearing.]
Mr. MARSHALL JONES. Baffin Bay is one of the areas which we did not yet approve. The population in the Baffin Bay area right now is judged by the data provided by Canada to be declining. And we have indications that there is concern within Canada about that population, not because of things happening in Canada, but because that population is shared with Greenland where there are no quotas right now.
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So, Mr. Chairman, that is an example of an area where there is substantial hunting, where there are many bears that have been taken in the past but because the law, finally, makes no distinction about when the bear was takenthe law requires that we make the same finding whether the bear was taken in the past and is already dead or whether the bear is going to be taken next year. We still have to make the same finding, Mr. Chairman.
Mr. ABERCROMBIE. All right, you say that, but believe it or not, I spent some time reading theology and you are making a theological statement there. If someone wants to sue you on that basis, I mean, that is part of your job. Let them go ahead and sue, but that really is a theologicalthis is Aquinas and Erasmus arguing and meanwhile there are poor people outside the church. That to meyou alreadyit doesn't make sense. You have already set up the criteria with respect to sustainability of the polar bear population inis it five of the 12 or eight of theI have forgotten.
Mr. MARSHALL JONES. I beg your pardon?
Mr. ABERCROMBIE. You have already set up criteria, is it five of the 12 or eight of the
Mr. MARSHALL JONES. Five of the 12 have been approved so far.
Mr. ABERCROMBIE. Five of the 12, so you just move ahead in that. And as far asand what I meant by theology is that dead bears, maybe that is true, but to reach back in effect to me is ex post facto. Then don't allow them to come in from Baffin Bay. You have already said that the way you are going to implement this is to do it region by region, right? Then just move ahead and do it and let the dead bears come in. That would save yourself a lot of grief. If somebody doesn't like that, let them sue you or something. That is what we have gotyou have got lawyers that are paid seven days a week to deal with that. You have to haveand I am very jealous.
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I will tell you I am jealous of legislative prerogative. I realize that these days everything wants to move to the executive. We want the kingeverybody has to bow to the king. That is one of the reasons I am allowing the commoner to sue the king. I think that is democracy, but the legislature, for good or for ill, we are all in this body here, the members sitting at this table here, are here because we are elected by our constituents. And we are here to try and do the job. And I have been on the winning side and the losing side of legislative issues, as has the Chairman and every Member here. But I certainly expect, having given my best effort, that the legislative intent is going to be obeyed absent some ruling to the contrary by competent authority.
Now I don't think it is the business ofand I have been supportive of the Department of the Interior and Fish and Wildlife in every way that I possibly can be, because I think you have a tough job and a national question, national standards to maintain over and above regional considerations. And that is not always easy to do.
But in this particular instance it seems to me you have done the job clearly adequately, but now you are getting into the minutia, virtually theological in nature, of differentiation that may be of concern to theologians, but has the practical consequence of actually undermining the legislative intent, at leastat the very least with the question of those bears that have already been taken and in those areas where you have already made a determination that you think you understand what the sustainable population criteria has to be and that bears can be taken there.
Now if somebody wants to argue about Baffin Bay and perhaps one or two other areas that you have in mind, that is a separate issue that shouldn't prevent you from having the bears come in from the other areas where there is a sustainable population. Isn't that a reasonable position?
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Mr. MARSHALL JONES. Sir, what you have said and what the Chairman said previously, I told you, I agree makes common sense, but it also is contrary to the specific language of the law which tells us regardless of when the bear was taken, whether it is already dead, whether it has been taken in a future year
Mr. ABERCROMBIE. Well, then
Mr. MARSHALL JONES. [continuing]still have to make the same
Mr. ABERCROMBIE. Well, OK, I disagree with that. I think we should move ahead in some otherjust let me finish this. If that was the case, because of the length of time, I don't think it is fair. And I think over this timeI guess this was passed when you were Chair, before Mr. Miller became Ranking Member.
The CHAIRMAN. No, no, Mr. Studds was the Chair.
Mr. ABERCROMBIE. Excuse me, Mr. Studds was Chair. This is not a partisan issue here in this Committee, at least I think I can state that for the record. Because of the length of time that passed, I think you should have informed whoever was Chair of the Committee that the legislative intent was being undermined by your interpretation of the language of the bill as written and that it was going to be very difficult for you to implement the legislative intent because of the language, whether by default or design. To come to the Committee at this stage and say the language as written prevented us from doing what you sought to get done, OK, that is our fault if that happened. But it is up to you as the implementorsand this is a well-established legislative process, legislative standard.
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Legislators are not supposed to write rules and regulations. If we did that we would be here 365 days and nights a year and you would be writing legislation as long as your arm. We are to establish the policies and the intentions, and it is your job to put in the rules and regulations. If you think in good faith that the language put forward and the legislative intent inherent in that language disenables you from establishing rules and regulations which will carry out that intent, it is up to you to get back to the Committee and let them know that, not go three years and then come up and say well, this is the only way we can do it, it is too bad you guys didn't do a good legislative
The CHAIRMAN. The gentleman is absolutely correct. The thing that irritates me most, youmaybe not you personally, but the agency, both agencies, supported the language as we wrote the bill. You supported it and said it would work. It was our intent to import those dead bears and to improve the stock of the remaining bears. And we have done part of that thanks to Canada and the Eskimo people in Canada. But this is ridiculous. I mean, I have yet to hear anybody justify not allowing the dead bears in. This has got to be the dumbest thing I have ever heard in my life, that you are going to punish the Canadian people, disrespect the Congress, because you won't import dead bears that no longer can do anything. I mean, I say this is why we have a real problem with government today, is you.
Mrs. CUBIN. Thank you, Mr. Chairman. I appreciate that you agree with the common sense stated by Mr. Abercrombie and the Chairman. And God forbid we ever use common sense in government, I guess.
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You made a statement, Mr. Jones, and I wrote it down and I am anxious to see the transcript of this hearing, because I wondered when you said it if it was a Freudian slip. You said we based the final rule on what we wanted the law to say. And I just couldn't help but think that that must be a Freudian slip because we are running into that a lot.
Yesterday we had a hearing on the process, the procedure before declaring the Escalantebefore the President declared Escalante a national monument, and their testimony yesterday was that there was a leak to the press nine days before the declaration was made and that they did adequate communicating with members of the delegation from Utah and all the people in Utah in those nine days to make that good policy.
The thought came to meI couldn't get that out of my mind last night, because we are talking about different things. It seems that theunder Mr. RashidI am talking about him maybe more than I am you right now, at least in my assessment of that, that maybe it appeared you guys didn't think we were going to be here another two years and so you couldyou didn't have to implement the things that we wanted to be done. And I am not asking for verification or denial or anything. These are just, you know, thoughts that have come to me because of all of these problems we have faced. It is not just this rule. It is many rules throughout the entire Interior Department.
And I think that, judging from what I see, the problem lies more in the Interior Department than it does in Agriculture, than it does in most of the other departments. I don't understand that exactly, but I thought, you know, the three branches of government were established for a good reason. And Mr. Abercrombie referred to this. The Legislative Branch is to pass the laws. The Judicial Branch is to interpret the laws, and the Executive Branch is to administer the laws. But when the Executive Branch doesn't use common sense, as you say you didn't, or chooses to ignore the legislative intent, then they are constitutionally violating their role, which is to enforce the law.
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And I think we have towe, the Congress, the Republicans, the Administration, we have got to start talking to each other about the same thing, about our role, and we have got to start developing some trust with one another, because we are going to be working together for a long time. And these are serious issues and these are about our country and our people. I guess I have rambled on long enough.
What happens when this sort of abuse occurs is then that forces the Congress' hand to change a law that might be a good law and nobody wins, because like Mr. Abercrombie said, we should not be putting things that are in rules and regulations into law. That is too inflexible. It is too hard to get an act of Congress. We shouldn't have to do that in order to get the will of the Congress forced.
So I just ask you as far as you canI realize the whole thing isyou know, you are not the top guy on the totem pole. I know that, but please try harder.
Mr. ABERCROMBIE. Would you yield a moment?
Mrs. CUBIN. You bet.
Mr. ABERCROMBIE. In that context, I have the criteria. Can it be explained to me again why hasn't there been the importation of those bears already taken? Because I have the law right in front of me and it specifically says that that is to be one of the things that is to be done. And if the law as we wrote it was unclear, which of the five points in it do you think needs to be rewritten, and if so, how?
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Mr. MARSHALL JONES. Sir, if I could first address the issue that was raised regarding common sense. I hope the record
Mr. ABERCROMBIE. I didn't bring up common sense.
Mr. MARSHALL JONES. No, sir, I understand.
Mr. ABERCROMBIE. I took too long to do that. I was being theological.
Mr. MARSHALL JONES. Sir, I simply wanted to make the point that I hope the record shows what I intended to say and what I think I said was the proposed rule was based on the way we wanted to read the law. The final rule, we believe, is the wayis based on the way the law is really written. That was the distinction.
Mr. ABERCROMBIE. OK.
Mr. MARSHALL JONES. Now, sir, in terms of the criteria, there is one that is sort of buried in the paragraph above that talks about the hunter must show proof that the bear was legally taken. Then there are Roman numerals, one, two, three and four. And particularly for Roman numeral two, the statement that there is a sport hunting program based in scientifically sound quotas ensuring the maintenance of the affected population stock at a sustainable level, that has been the one that has been most difficult for us, because, Mr. Abercrombie, as I mentioned, for example, for Baffin Bay
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Mr. ABERCROMBIE. Yes.
Mr. MARSHALL JONES. That is a population which data from Canada clearly shows right now is declining and one which we have information that has been provided to us from Canada that indicates they are concerned, that they find that disturbing. The reason is not because of what is happening in Canada, and that is why I say again Canada's management overall is very good, but in that case of that particular population, on the Greenland side they don't have quotas.
Mr. ABERCROMBIE. Well, then why can't you just differentiate those areas and don't allow for importation fromthat would send a message to the Canadians or to anybody else.
Mr. MARSHALL JONES. Well, sir, in fact what we did was we said we cannot approve that area right now because the bears go back and forth.
Mr. ABERCROMBIE. Now why not the others? You would allow broad discretion in this law, very broad discretion. And I think you could have put it together. I am not trying to pick on you folks, but in some respectsand I was being entirely facetious when I brought up the theological argument. It is possible to make a distinction without a difference. And I think you are making distinctions here without a difference in terms of thwarting the effect of what the law is supposed to do.
At some pointyou say Canada's sport hunting program is based on a scientifically sound quotas ensuring the maintenance of sustainable population on the whole. On the whole, if I understood your testimony correctly, and I have to take you at your word in it, Canada is doing that. Is that a fair statement?
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Mr. MARSHALL JONES. On the whole, yes, sir, but we cannot say that all areas in Canada fit
Mr. ABERCROMBIE. That is not what the lawI won't go on and on with it, but that is not what the law says it has to be in all areas. And we are giving you that leeway. We are not trying to write rules and regulations for individual regions or provinces in Canada, but you have that power. You have the power to do that. All I am saying is that I think, and I willand if Mrs. Chenoweth would allow me theand Mrs. Cubin would allow me to steal into their time
The CHAIRMAN. The lady's time is up and it is Mrs. Chenoweth's time now.
Mr. ABERCROMBIE. Well, could I have 30 seconds of your time?
The CHAIRMAN. Would you restart that, please. Go ahead. Mrs. Chenoweth, will you yield to the gentleman?
Mr. ABERCROMBIE. Would you yield me 30 seconds?
Mrs. CHENOWETH. Yes, Mr. Chairman, I am happy to yield to the gentleman.
Mr. ABERCROMBIE. Thank you. You could have, and still can, I think, deal with the question of those trophies that have already been taken unless you can show they were illegally taken. And I think you could by the use of the system that you set up to regard certain areas as beingas fulfilling all of these five criteria, move forward at least in those areas with the ability for Americans to be able to take these trophies and bring them back to America. And I think that you wouldand if we need then to clear up language with respect to the rest of it, I think certainly the Chairman would be open to those suggestions. Thank you.
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The CHAIRMAN. The gentlelady.
Mrs. CHENOWETH. Thank you, and I am happyI just want to make a couple of statements, and then I am happy to yield my time back to the Chairman to dispense however he wishes.
I appreciate the brilliant questioning from the gentleman from Hawaii, but I do want to say that I find very little, a very thin nexusI don't find a nexus at all in the rationale we heard today from these witnesses. And Aquinas is a very fine work, Summa Theologica. I am not Catholic, but I recommend anybody read it. It is an outstanding work. There is no nexus here, though.
I am as amazed as anyone else in this listening audience that we could see the will of Congress thwarted by the rulemaking process, but I would like to yield back the balance of my time to the Chairman.
The CHAIRMAN. I thank the gentlelady, and I will yield to the gentleman from Georgia, Mr. Norwood.
Mr. NORWOOD. Thank you very much, Mr. Chairman. I am looking forward to this. Mr. Jones, are you an attorney?
Mr. MARSHALL JONES. No, sir, I am not. I am a biologist.
Page 54 PREV PAGE TOP OF DOC Mr. NORWOOD. Mr. Chairman, are our witnesses under oath?
The CHAIRMAN. No.
Mr. NORWOOD. Be careful, because I am very interested in your answers to some questions I want to ask you. How many polar bearI am no attorney either, so, you know, don't worry. How many polar bear trophies are now in storage in Canada?
Mr. MARSHALL JONES. Sir, we don't have a way to know that. We have inquired with Canada. They cannot give us a number. We have heard various numbers, but I am not in a position to verify how many there are.
Mr. NORWOOD. Well, will you do a best guess.
Mr. MARSHALL JONES. Probably several hundred, but I can't say beyond that.
Mr. NORWOOD. Have any of those trophies been imported from Canada since 1994?
Mr. MARSHALL JONES. No, sir, not yet.
Mr. NORWOOD. So nothing has happened since 1994 when Congress passed a law indicating, and incidentally signed by the President, indicating pretty clearly that one of the things we wanted to do was to allow our constituents who had polar bears in freezers in Canada to be able to bring them home. Would youjust between me and you, would you sort of agree that is what the 103rd Congress was trying to say?
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Mr. MARSHALL JONES. Sir, I am not sure if I want to try to comment on the underlying intent. What I can comment upon is
Mr. NORWOOD. I insist!
Mr. MARSHALL JONES. [continuing]what the law says.
Mr. NORWOOD. You have to understand the intent to write a rule or regulations. I insist you comment on what you thought Congress was trying to do.
Mr. MARSHALL JONES. Sir, we read the law on its face and we read the Committee report, and we drew our conclusions from what was on the record.
Mr. NORWOOD. All right, now we have Federal laws. I am just trying to figure this out. We have Federal laws and generally they are written by a Congress who have attorneys advising them. And what you are saying is that the lawyers in Congress didn't understand the statute they were writing, but only your attorneys could interpret the statute that we wrote, is that what you are saying?
Mr. MARSHALL JONES. No, sir.
Mr. NORWOOD. Well, tell me how is it that you say you had to write these rules and regulations because your attorneys told you X, Y, Z? You wrote these based on what your lawyers told you.
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Mr. MARSHALL JONES. Sir, we based our decision to prepare the regulations based on all the advice that we got from lawyers and others that we needed a regulatory process
The CHAIRMAN. Who are the others? Who are the others?
Mr. MARSHALL JONES. Within the agency, those that we consulted with.
The CHAIRMAN. If we have to, I will subpoena all the records of your rulemaking and find out who the others are within the agency. Who in the agency?
Mr. MARSHALL JONES. Sir, the staff who worked on it
The CHAIRMAN. And no one else
Mr. MARSHALL JONES. [continuing]myself and others.
The CHAIRMAN. No one else contributed to your decision?
Mr. MARSHALL JONES. Sir, I couldn't give you a list today of all those who were involved, but there were a number of people who were involved in the decision.
The CHAIRMAN. The gentleman is recognized for an additional five minutes.
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Mr. NORWOOD. Thank you, Mr. Chairman. You wrote and you have said that you wrote these rules based on your interpretation of the law, which you viewed as a better interpretation of the law than Congress' interpretation of the law. Now that is what you said in terms of your rules, is that right?
Mr. MARSHALL JONES. No, sir. We didn't say that ours is better. We didn't say that we had a comment on Congress' intent. We read the law. The law says that we can allow polar bear trophies into the United States if we make certain findings.
Mr. NORWOOD. OK, let us try it this way. Maybe you didn't say anything. Your actions prove to me that you believe that your attorneys interpreted the law of Congress better than the attorneys of Congress' interpretation of the law. Let us just be honest with each other. Common sense, do you suppose we are trying to get these polar bears back home? What do you think?
Mr. MARSHALL JONES. Yes, sir.
Mr. NORWOOD. Good, that is a great move in the right direction. That is what Congress and the President wanted to do when the law was passed. Now I am sympathetic with you, because I think you understand what this is all about and somebody somewhere has put pressure on you to say no, we are going to write these rules to suit, and the Chairman keeps trying to find out to suit who. Who is so important about our laws that they override Members of Congress? Who is it?
Page 58 PREV PAGE TOP OF DOC Mr. MARSHALL JONES. Sir, it was not our view that the regulations overwere overriding the intent of Congress or the views
Mr. NORWOOD. You know they were. Come on, give me a break. You know. You just said what we wanted to do. Who got to you?
Mr. MARSHALL JONES. Sir, we published a proposed rule. What I said was we published a proposed rule based on the way that
Mr. NORWOOD. Doing the opposite of what Congress wanted to do, and you know that was the opposite of what Congress wanted to do. And I am in sympathy with you, but who got to you? Who made you do that?
Mr. MARSHALL JONES. Sir, no one made us do it. We made a decision based on the whole record. I did mention we received comments from the Marine Mammal Commission. We received comments from others that pointed out to us that the law did not make a distinction between the bears that were already dead and the bears that could be taken in the future, and that we had to apply the same criteria.
Mr. NORWOOD. I presume you won't answer the question. Let me ask you this, because you said this in your testimony, that you are not prepared to change these rules. Regardless of what we do in Congress now to throw out your rules, you are going to come back with the same rules, but you will negotiate.
Mr. MARSHALL JONES. Sir, based
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Mr. NORWOOD. Now you said that and it is in the record. Basically you said it doesn't matter what we do, these are going to be the rules we are going to stay with, but you would negotiate. For whom would you negotiate?
Mr. MARSHALL JONES. Sir, I didn't use the word negotiate. What we said is
Mr. NORWOOD. It is in the record, by the way.
Mr. MARSHALL JONES. [continuing]we would work with you and with the hunters and with Canada to get the data so that we could approve as many populations as will meet the criteria under the law. And that is fully what we are prepared to do.
Mr. NORWOOD. Well, let me just for the recordMr. Chairman, we have a conservation plan for Alaska written by the Service, and I quote, ''a polar bear trophy legally killed in Canada in the past or from current approved populations may be brought into the United States by the hunter once final regulations are developed.'' Everybody, I think, that can walk and chew gum knows that is what we were trying to do.
Now lastly, if I may, just out of curiosity, if the Fish and Wildlife Service believes polar bear hunting if properly overseen can contribute to proper polar bear conservation, do you believe that?
Mr. MARSHALL JONES. I do, sir.
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Mr. NORWOOD. Good, I do, too. Why is it that this was not addressed in your polar bear conservation plan goal?
Mr. MARSHALL JONES. Sir, I am not sure that I can comment
Mr. NORWOOD. Why didn't you address the issue of hunting and how well that improves conservation in your goals you set out, in your conservation plan?
Mr. MARSHALL JONES. Sir, since I wasn't involved in the preparation of the document, I am not the best person. I don't think we have someone here today who can comment on that.
Mr. NORWOOD. I am sure your agency will be glad to give us an answer in writing.
Mr. MARSHALL JONES. Yes, sir, absolutely.
Mr. NORWOOD. Is there anybody that you know in your agency that you might be willing to categorize as anti-hunting?
Mr. MARSHALL JONES. Sir, I have no way of knowing who might be anti-hunting or pro-hunting.
Page 61 PREV PAGE TOP OF DOC Mr. NORWOOD. Can we take a survey? How do we find that out? I would know in my office if I had people that were anti-hunting.
Mr. MARSHALL JONES. Sir, that is not a criteria for employment. The Fish and Wildlife Service is in favor of sport hunting. I am personally in favor
Mr. NORWOOD. It seems to be, though, a criteria for writing rules that differ from the intent of Congress.
Mr. MARSHALL JONES. Sir, we don't
Mr. NORWOOD. We think there is something that stinks about this very bad, and the Chairman pointed it out and I want to reemphasize this isn't so much about polar bears. This truly is about freedom and it is about American's freedom. That is what this really is all about. And it is about Federal agencies who thwart their nose at Congress saying we know better so we are going to write rules regardless of what your intent in the law is.
My last question, Mr. Chairman. You have said, as I understand it, and I just want to know something about it, that you have approved five of the 12 management areas, is that correct?
Mr. MARSHALL JONES. Yes, sir, that is correct.
Mr. NORWOOD. Does that meanwhen you say approved, does that mean that approved for hunting and the deportation of the bear back into this country? Is that what that means?
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Mr. MARSHALL JONES. Not approved for hunting. That is a decision entirely of Canada, but weby approved I mean we have made the determination that those five populations meet the criteria that are established in the law and import is allowed into the United States now for bears taken in any one of those five populations.
Mr. NORWOOD. How does Canada feel about the conservation in those five areas? Surely you know. In those 12 areas, how do the Canadians feel about it?
Mr. MARSHALL JONES. Sir, I
Mr. NORWOOD. I mean, you don't want them imported back into this country in hopes that we won't go up there and hunt them. Obviously you feel the conservation efforts in those other seven management units aren't real good. How does Canada feel about it?
Mr. MARSHALL JONES. Sir, I would not presume to speak for Canada. I don't think it is fair for me to characterize. What I can say is we consulted with Canada. They provided us with their data and we used their data to make our decisions. The law asked us to make the decisions, and so we made the decision that five of the 12 areas meet the criteria. In addition, sir, we have got new information regarding additional areas, and two additional areas we are now working on a finding which
Mr. NORWOOD. State that new information for me, please.
Mr. MARSHALL JONES. Beg your pardon, sir?
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Mr. NORWOOD. State that new information that you have.
Mr. MARSHALL JONES. The new information was that they took one of their large units and divided it into smaller units, into more bite-sized chunks. And thosetwo of those smaller units, Mr. Chairman, we believe now looks very likely that they meet the criteria under the law and we are going to publish a proposed finding regarding that very soon.
Mr. NORWOOD. Did you base your data on 1993/94 data to come up with your rules and regulations?
Mr. MARSHALL JONES. Sir, we used 1993 and '94 data supplemented by additional information where it was relevant.
Mr. NORWOOD. What about the lastthe data from the last three years, what has that shown for non-approved populations?
Mr. MARSHALL JONES. Sir, the situation in each population may be a little different. And in some cases, as we discussed previously, the issue is the fact that there is a lack of quotas for control of the polar bear take in areas that are shared with either another province besides the Northwest Territories in Canada or with Greenland.
Mr. NORWOOD. Well, would new data improve our situation over five of 12?
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Mr. MARSHALL JONES. Sir
Mr. NORWOOD. I mean, your data at five of 12 management units, in my understanding, is based on 93/94. Now we are some three years later and we have new data. Will the new data give us ten out of 12, for example?
Mr. MARSHALL JONES. No, sir. We have looked at that, the new data that is available so far, and what we have been able to determine so far is that there are two additional areas which very likely will meet the criteria. And we are prepared to publish our finding that lays out the reasons for that very soon. For the other areas, sir, there still are issuesall the data that is available to us right now does not tell us that they meet the criteria under the law.
Mr. NORWOOD. One final closing comment. You have been very, very kind, Mr. Chairman. I would just like to tell you as a friend that you have written these rules based on the fact that somebody has said well, if we don't write them this way we are going to get sued. And I can almost guarantee you you are going to get sued either way, which is not your job to worry about that. You job is to implement the intent of Congress. And if you don't change these rules, you are going to get sued too, so don't worry about being sued.
And I just want you to know that I only have one polar bear from the 10th District of Georgia, but as long as I can breathe air I am coming after this situation till you change it, because you are tramping on the freedoms of Americans and Members of Congress.
Page 65 PREV PAGE TOP OF DOC And with that, Mr. Chairman, I appreciate your patience.
The CHAIRMAN. Thank you, Mr. Norwood.
Mrs. CUBIN. Mr. Chairman.
The CHAIRMAN. Yes, go ahead.
Mrs. CUBIN. Mr. Chair, may I have a point of personal privilege?
The CHAIRMAN. Yes.
Mrs. CUBIN. I would like to first tell these gentlemen that my parents taught me you never talk about someone while they are in the room, you talk to them, but I have to violate that because I don't know where we are. I don't know where this leaves us. Where are we? Three alternatives have been brought forward by the Department. One of them is that we can change the law again.
The CHAIRMAN. Which they would not sign.
Mrs. CUBIN. Oh.
The CHAIRMAN. I can just about guarantee you that. Whoever is behind this would never allow it to be signed, but go ahead.
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Mrs. CUBIN. OK, soall right, so I just want to know what are our options. I think that we have made it clear how we feel about what the intent of this is, what the intent of the legislation was. Could somebody tell me how do we get that intent implemented?
The CHAIRMAN. No one can really tell because they don't want to do it.
Mrs. CUBIN. Well
The CHAIRMAN. Go ahead and answer.
Mrs. CUBIN. How can we
The CHAIRMAN. Before you do that, just let me interrupt for a moment. Two things occurred to me. This is Monday, July 17, 1995. The notice announces proposed legal and scientific findings for the importation of polar bears, including ones taken but not imported prior to the enactment of the 1994 amendments to the Marine Mammal Protection Act. The purpose is to find that Northwest Territories and only the area in Canada currently allows sport hunting has monitored enforced sport hunting programs that ensures polar bears are legally taken consistent with the purpose of the Conservation Act scientifically, et cetera, et cetera. It says polar bears taken in the Northwest Territory prior to the amendment through the effective date of the final rule of the Service proposes they issue permits. That is your statement. You recognize that?
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Mr. MARSHALL JONES. Sir, let me ask Mr. Stansell if he recognizes that language.
The CHAIRMAN. That is yours.
Mr. MARSHALL JONES. Yes, sir.
The CHAIRMAN. Now we have a different proposal and we still haven'tand by the way, I am officially requesting all documentations, all correspondence, all input from every party involved in these regulations, including any outside influence, including other organizations. If you don't send it to me as quick as possible, you will be subpoenaed. Is that understood?
Mr. MARSHALL JONES. We will provide you
The CHAIRMAN. I mean every
Mr. MARSHALL JONES. [continuing]everything that we have.
The CHAIRMAN. Every little iota, all e-mail, all correspondence, all memos, everybody involved in this decisionmaking process. Secondly, let usI am an old teacher. Read the law. The Secretary may issue a permit for importation of polar bear parts, other than the internal organs, taken in sport hunts in Canada, including polar bears taken but not imported prior to the date of the enactment of the Marine Mammal Protection Act of 1994 to the applicant which submits with his permit application proof that the polar bear was legally harvested in Canada by the applicant. Now you are telling me the law, and you base the denial of importation on the wordsand I think it was two. Canada has a sport hunting program based on scientificly sound quotas.
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Now my old teaching tales tell me has is when and had is when. I am referring to the bears killed prior to 1994. If that word said had a sport hunting program, had a monitored program, then you could in fact say you had a reason that it can't be documented for importation of those bears. Has is prospective. Now, lawyer friend, sitting at the table making big bucks, tell me how you could base the law on any other interpretation?
Has is only to apply to the conservation units set up by Canada and in fact scientifically studied and being promoted for the continuation of the species. You can not apply has to a dead bear.
Mr. YOUNG. Mr. Chairman, first of all, if I am making big bucks, I would like somebody to show me where it says that on my pay stub.
The CHAIRMAN. If you don't, you will.
Mr. YOUNG. In answer to your question, the problem is not with the first sentence of 104(c)(5). If the statute had stopped there, we would have had full discretion to have issued permits for any legally taken sport trophy. The problem was with the subsequent language, which
The CHAIRMAN. Which language?
Mr. YOUNG. I am sorry?
Page 69 PREV PAGE TOP OF DOC The CHAIRMAN. Which language?
Mr. YOUNG. The language in the first sentence where it says the Secretary may issue a permit down to the point where it says
The CHAIRMAN. Including polar bears taken
Mr. YOUNG. [continuing]legally harvested in Canada by the applicant.
The CHAIRMAN. That is right.
Mr. YOUNG. But the subsection continues such permit shall be issued if the Secretary makes the following findings.
The CHAIRMAN. Right.
Mr. YOUNG. Which are connected with an and, each one being a mandatory criteria.
The CHAIRMAN. Now let me stress the word has and had. Has, the intent of this Congress was prospective to protect the polar bears, to help the Eskimo people and to make this thing work. It does not applythe has cannot apply to a dead animal. It has been dead prior to 1994. If you want to solve this problem with a pick, gentlemen, I am going to tell you how to solve it. You give me my so many bears that have been legally killed, applied for, and allow the importation, then we can discuss the rest of it. Because there is no legal ground for what you have done. I am not a lawyer, but I happen to be a school teacher, and you tell me whether I am wrong with the has and had. Hadif it said had, that would mean the bear has been killed, had anI would agree, but has is prospective.
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Mr. MARSHALL JONES. Sir, if I could respond to that, one of the suggestions which was made during the formal comment period was that we should look at every year from the day polar bear hunting started in Canada and go through year by year and make a finding that it was OK in 1973 from this population so trophies can come in, but in 1974 it is not and then in '75 it is OK again. For exactly the same reason, sir, that you have just outlined, we made the decision that no, it doesn't ask us to go back and look at each year. It asks us to make a judgment exactly what you are saying, how Canada is today.
The CHAIRMAN. OK, before you go on let meI am going to let you get out of here because I know you have been here a long time. Please listen to what I have to say on this. It was the intent of this Congress that if in fact the permittee applied to you, the Secretary of Interior, and Canada said this bear was legally taken, it is a dead bear. That is a fact. You could issue a permit for the importation of that bear. The intent of this legislation was to protect the bear. Again I want to stress this. You are dealing with something that is impossible. You are protecting something that is gone and will never return. If you want to protect the bear, then think of the future.
I won't even argue the five areas. I think you are wrong. I won't argue it right now. I think you are not listening to the scientific information. I think the gentleman from Georgia is absolutely correct, but if you insist on saying the Congress did not intend, show me where the law says we did not intend. And you can't. The lawyer can't show it to me. You can't show it to me. It is not in writing. And I am going to suggest respectfully you had better think about this very seriously, because like Mr. Norwood said, this is wrong. I sat on that Committee. Mr. Neil sat on that Committee and we knew what we intended. And you knew what we intended and your lawyers agreed with the bill that we passed. And I still want to know who the others are.
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Any other questions? You are excused, but you are not forgotten. And you will be on my list until you are able to sit in my officeand by the way, I suggest you set that up. You better find a solution to this problem. You are excused.
I apologize to panel two. I am going to have some fun here. Akeeagok, all rightI should be pretty good with that. I have got a lot of my Eskimo friends in Alaska who want to hunt polar bears, for those in the audience that smile and grin when someone says something. When I am done, that will happenthe Northwest Territories; Dr. William Morrill, Safari Club International; Ms. Naomi Rose, Marine Mammal Scientist, Humane Society of United States, Washington, D.C.; Mr. J.Y. Jones, Dublin, Georgia.
And, Mr. Charlie Norwood, you are welcome to introduce your friend from Georgia.
Mr. NORWOOD. My friend and constituent. Mr. Chairman and members, I would like to introduce you to Dr. J.Y. Jones, who also resides in the 10th District. He is an ophthalmologist in Dublin, Georgia. J.Y. spends a great deal of his time, Mr. Chairman, free time, doing two things, volunteering his medical expertise in third world nations, and hunting, among other species, polar bears. Most recently Dr. Jones has served as a leader in working to reform the Marine Mammal Protection Act to permit the import of locally harvested polar bear trophies from Canada. It has been four years since Dr. Jones himself legally took a polar bear in Canada, yet he has been unable to import it.
And, Mr. Chairman, I feel like that anybody that is crazy enough to hunt on ice ought to be able to bring his trophy home. So with that I would like to welcome my friend Dr. Jones. Mr. Chairman, thank you.
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The CHAIRMAN. Dr. Jones, thank you for being here. I will go in the order which I introduced you, though. The gentleman from far, far away, Northwest Territories. Dave, you are up. You are welcome. Welcome to America, and congratulations on your efforts to try to preserve the polar bear and conservation methods. Go ahead, sir.
STATEMENT OF DAVE AKEEAGOK, GRISE FIORD, NORTHWEST TERRITORIES, CANADA
Mr. AKEEAGOK. Thank you, Mr. Chairman and members of the Committee. [Inuktituk spoken] That in my language meant thank you for inviting me and giving me a chance to speak. First of all, I would like to let you know who I am. My name is David Akeeagok. I am an Inuk from Grise Fiord, which is Canada's most northern community. I am one of the Board of Directors for the Iviq Hunters and Trappers Organization, which represents the hunters and trappers interest in management of the wildlife. Also all my life I have hunted for food, which includes polar bear. Now that I live in the modern world, I also have a nine to five job at the local government.
There are two main reasons why I came here to testify. First is to let you know that sport hunting is an important part of our social, economic and cultural livelihood. Also, if I may be blunt, sir, we would like you to stay out of our business and don't tell us how to manage our wildlife. We do not desire to judge your system or tell you what to do.
We have a management system that is working very well and we are proud of. What I don't understand is why when scientists and us both work together and agree together to have a good sound management agreement with our government, now it appears your country disapproves it and are now telling us how to live our lives.
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Please, Mr. Chairman, I mean please, don't be the second culture to try and control our wildlife again. We are losing our faith and our self esteem in our culture when people from the worlds of trees and the hot sun are trying to control our lives.
We still live off the land for survival. We want to continue this for our future generations.
In our eyes sport hunting is subsistence hunting, since we do not increase quota or change current quota that is given to us by our government. In saying that, we don't use the fur for clothing as much as we used to, but now we can get non-Inuit to come up and shoot for us. They can take the worthless parts. We will keep the valuable part, which is the meat.
Also sport hunting is keeping our culture alive by a law that a non-Inuk hunter must hunt a polar bear by using traditional ways of hunting, which is dog team. And it is an important part of our culture.
It is a very important part of our community economy also because the money from the sport hunt that comes into the community is very high. Currently it is the third highest funding that comes into our community where we live in an expensive place where now that we are in the modern world everything has to be transported by plane or by an annual sealift, which when I mean everything I mean modern day food like hamburgers and that, which 50 percent is now coming in from the south. A single sport hunter brings to the community in around $20,000, and the money is shared all across the community.
Page 74 PREV PAGE TOP OF DOC Mr. Chairman, let me tell you in 1994 when you approved the law for importation of polar bears we said finally the United States of America believed and recognized our management system, which we are very proud of. But in 1997, which is now, we feel you lied to us and betrayed us, and now we feel useless and are asking ourselves what did we do wrong. And we hope to get some answers.
Mr. Chairman, Kujanamik, niliatigonaqaagavigna, which I meanwhich I just said thank you for giving me a chance to voice my concerns. And I will try to answer your concerns and concerns of others while I am here in your country. Thank you.
The CHAIRMAN. Thank you, David. And I will have a couple questions for you. Dr. William Morrill, Safari Club International.
STATEMENT OF DR. WILLIAM MORRILL, SAFARI CLUB INTERNATIONAL, HERNDON, VIRGINIA
Dr. MORRILL. Thank you, Mr. Chairman. I come before this Committee today to talk about conservation, about the best large mammal sustainable use system in the world.
Theoretical conservation was something I learned in school, but it is not the subject. Conservation on the ground in places like Kane Basin and Resolute, conservation that involves people and wildlife alike, that is what we are here to discuss, conservation that cuts through theoretical considerations and gets to the bottom line. Is it working? The answer for Canada is yes. Conservation that cuts through recognizing the elasticity of wildlife populations, but nonetheless has the foresight to be conservative and to balance that with the recognition that the resource will be used.
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I am not here today to talk about why the Canadian system won't work. I am here today to talk about that it does, maybe imperfectly, but well enough to meet the four conditions U.S. Congress put forth in the 1994 amendments to the Marine Mammal Protection Act. There is a question that has been asked by a number of people, why not most, if not all, of the polar bear areas that were open to quota imports when the Canadians provided data that supported the harvest and export as outlined in the law Congress passed.
The four conditions are the Canadians have a monitored and enforced sport hunting program consistent with the agreement on the conservation of polar bears. They meet condition number one. The Canadian polar bear hunting program is based on scientifically sound quotas, thereby meeting condition number two. The export and import are based upon existing treaties and conventions, thereby meeting condition number three. And the regulations in the final rule make the legal trade impossible, thereby meeting condition number four.
There are two additional outstanding attributes of the Canadian system. The first is adaptive management. Adaptive management is basically research while the resource is being sustainably used. Canada has perfected that, and you can see that by the discussions which have gone on so far today and I think we will get into with questions. Central to adaptive management is the need to monitor, resulting in both learning and reducing uncertainty while resulting in adaptation of management.
The second is the flexible quota system of Canada. It is an example of using management flexibility. If an over-harvest of bears occurs in one or more years, the following years quotas are reduced and vice versa. This recognizes people within the system of management in Canada.
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In summary, the Canadian system is scientifically based, rigorously monitored, strongly enforced, ecologically and politically appropriate and flexible for good conservation of the polar bear.
But, the U.S. Fish and Wildlife Service added two additional conditions, first that any subpopulation or shared population would need to have cooperative management agreements in place between various governmental agencies. And this was addressed, I think, by Congressman Jack Fields, who said prior to the passage of this and for the record, ''let me first state that it is not the intent of the language that the Secretary attempt to impose polar bear management policy or practices on Canada through the imposition of any polar bear import criteria.''
The Inuit are very proud of their management, their heritage as hunters and their ability to survive in the harshest climate in the Earth. The point that becomes even more vivid is the fact that the four conditions put forth by Congress were met.
Data was provided to the U.S. Fish and Wildlife Service in January of 1996 that would have allowed for a minimum of two more areas and in fact would have allowed under Congress' conditions for all but one of the areas to be opened. And yet Congress took thatexcuse me, Fish and Wildlife Service took selective data on December 20, 1996, even beyond that time.
Sport hunting has reduced the number of polar bears actually taken under the quota. It has provide conservation incentive to the local people living there. Canada has met the requirements that Canada placed upon importation of polar bear parts under the 1994 amendments. The U.S. Fish and Wildlife Service has, in fact, done exactly what Mr. Fields feared they would, and approved only a fraction of the areas that would have been approved if they had followed the direction given to it by Congress. There was an injustice here. The injustice is to Canada and her sustainable use program, to her people who lives in the harshest environment of the world and to the great white bear itself.
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Safari Club asks you to intervene on their behalf once again. Thank you very much.
[Statement of Dr. William Morrill may be found at end of hearing.]
The CHAIRMAN. Thank you, Doctor. Dr. Rose.
STATEMENT OF DR. NAOMI ROSE, MARINE MAMMAL SCIENTIST, HUMAN SOCIETY OF THE UNITED STATES, WASHINGTON, DC
Dr. ROSE. Good morning. I am Naomi Rose, Marine Mammal Scientist for the Humane Society of the United States. On behalf of our four and a half million members and constituents, I would like to thank you, Mr. Chairman and the members of the House Resources Committee, for inviting me here to testify on the issue of polar bear trophy imports.
While the HSUS disagrees with many elements of the Fish and Wildlife Service's final rule, we strongly agree with its decision to defer approval of trophy imports for seven of the 12 polar bear populations in Canada. Therefore, we oppose passage of House Joint Resolution 59, as we understand its purpose is to disapprove the Service's current final rule with the goal of gaining import approval for those seven populations in a new final rule.
My testimony today deals principally with our concerns regarding the scientific soundness of Canada's management program. The IUCN Polar Bear Specialist Group issued several resolutions in 1997. One affirmed the basic requirements for sound conservation practices. These include accurate information on: one, the number, location, sex and age of harvested polar bears; two, geographic boundaries of populations; three, size and sex age composition of the population; and four, rates of birth and death for the population. Canada's management program, at best, has accurate harvest information. It may have the best information available for two, three and four, but the best available information is not necessarily accurate.
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Regarding geographic boundaries, the boundaries for Canada's polar bear populations are based on the radio collaring of a relatively small number of female bears and mark-recapture studies of bears from limited accessible areas, resulting in non-random sampling biases. In most mammals, females have smaller home ranges and are more sedentary than males. It is clear that polar bear researchers still have a very limited understanding of male ranging patterns and their effect on gene flow between populations.
In addition, the geographic boundaries of the populations are continually being revised. Just this past year, Canada split Parry Channel, Baffin Bay and Queen Elizabeth Islands into Lancaster Sound, Norwegian Bay, Kane Basin, Baffin Bay and Queen Elizabeth Islands. There is reason to question the biological basis for these changing boundary designations because of the uncertainty regarding genetic exchange and the question of reliability of small biased samples. In short, the boundaries appear to be more a convenience for human managers than a manifestation of actual biological processes in the bears.
As for population estimates, sex-age composition and life history parameters, polar bear habitat makes the collection of accurate biological data extremely difficult. This is not a reflection on the data collectors. It is an inherent characteristic of the remote habitat and the species. Especially for the northern populations that have been little studied, population and life history data are poor. The Service has correctly disapproved several populations for which data are incomplete or for which Canada currently rates the population estimates as fair or poor. Based on data through the 95/96 season, these populations include Gulf of Boothia, part of Queen Elizabeth Islands, Baffin Bay, Davis Strait and Southern Hudson Bay.
Page 79 PREV PAGE TOP OF DOC There are still many unknown or poorly described aspects of polar bear life history and reproductive behavior. Much of the known life history information comes from Western Hudson Bay. This southern population, the most accessible to researchers, demonstrates higher birth rates, shorter interbirth intervals, and larger average litter sizes than other populations, all of which suggests that it is increasing relatively faster or declining less rapidly than other populations. In short, many management model assumptions come from an apparently nonrepresentative, best-case population, and using best-case assumptions can easily lead to over harvesting.
Another factor influencing the Service's disapproval of several populations is that these populations cross national and provincial boundaries and joint management agreements are not yet in place. For example, Canada and Greenland will not finalize negotiations on joint management agreements until they complete research involving their shared populations, including Parry Channel/Baffin Bay. Given the lack of implemented joint management agreements, the Service was correct in deferring approval, as these populations do not yet have monitored, enforced and demonstrably sustainable management programs.
I understand that the Safari Club and Dr. Jones, a fellow witness here, believe that the Service was in error evaluating the various polar bear populations in Canada separately rather than as a whole. I believe this is one aspect of the situation about which the HSUS might agree with them. The HSUS also believes that Canada should have been evaluated as a whole rather than as a series of management units. We base this belief on a strict legal interpretation of the language of the 1994 amendments, which refers to Canada, not subpopulations within Canada.
Page 80 PREV PAGE TOP OF DOC Yet both the Northwest Territories authorities and the Service acknowledge that Ontario does not protect pregnant females and females with cubs and Quebec's quota system is fixed and guaranteed and is not based on current scientific information. Thus, had the Service considered Canada as a whole, it would not have been able to make the first two statutory findings.
In conclusion, the HSUS believes the Service was correct to disapprove imports from seven of the 12 populations in Canada, as the management programs for these populations do not meet the statutory requirements for being scientifically sound, adequately monitored and enforced.
Thank you for your consideration of our comments. I am prepared to answer any questions you may have.
[Statement of Naomi Rose may be found at end of hearing.]
The CHAIRMAN. Dr. Jones.
STATEMENT OF DR. J.Y. JONES, DUBLIN, GEORGIA
Dr. J.Y. JONES. Mr. Chairman and members of the Committee, I am J.Y. Jones, an ophthalmologist from Georgia. I am a lifelong hunter, and I speak today on behalf of America's 80 million sportsmen and sportswomen. Thank you very much for allowing me to testify in that capacity. And thank you, Congressman Norwood, for introducing me.
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I must identify the fact that I am a devout Christian, having dedicated myself to Jesus Christ many years ago after finding no real meaning in life apart from him. I mention this to draw a significant parallel. I cannot disavow what I hold as my core beliefs, for to deny them denies who I am. In the same way, I am a hunter. I can trace my ancestry to soldiers who fought in the Revolution and the Civil War. Our menfolk were always hunters. I believe that all men are hunters in their inmost being, but in my case the opportunity to hunt at a young age cemented this innate aspect of my character into a dynamic force.
I connect this with my Christian faith to draw the parallel I mentioned. My faith in Christ is not what I do, but what I am. So it is also with my hunting avocation. As our Constitution declares that I have a right to the pursuit of happiness within the rational constraints of the law, surely this includes my right to hunt. My heritage is under siege today, and the necessity of this hearing is proof of that.
I would like to tell the story of Dr. Michael Werner. Dr. Werner was a general surgeon from Wyoming who hunted and harvested a polar bear in Canada in 1990. In 1993 he developed a type of brain tumor. He suffered through multiple brain operations, but he died in 1995. He never saw his bear imported.
Mr. Joe Cafmeyer from Michigan is now 84 years old. He has waited for 24 years to import his polar bear.
Canada's Eskimos have already benefited from the 1994 polar bear sport hunting amendments to the MMPA, though this cannot be sustained unless the rules are dramatically improved. The facts: the total harvest of polar bears has declined by about 106 bears per year since the law was changed. The value of sport hunts to the Eskimos has increased by a factor of three.
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I am here today to protest three major points. First, there is the issue of grandfathering bears that are stored in Canada. The final rule gives six excellent reasons why all these bears should be approved for import. Paradoxically, ''based on comments received and a review of the MMPA'', the Service then disapproves these bears unless they were taken from an approved population. One must ask the Service why Congress specifically included bears already stored in Canada in the amendments to the MMPA. Did they think Congress really expected hunters like Joe Cafmeyer to select the population 24 years ago that would be importable today? One couldn't do that with a 1996 hunt! The answer is obvious. Congress intended to clear up the backlog of stored bears. The Service has taken some bad advice in ignoring this relevant fact.
Second, only five of Canada's 13 polar bear populations were approved for import whether harvested in the past, present or future. These disapprovals were based on two super-criteria, neither mandated by Congress, those being that each subpopulation be either stable or increasing, and that comanagement agreements with other jurisdictions be in place. The Service consistently refers to Canada's 12 polar bear populations in the final rule.
At the February 1996 Polar Bear Technical Committee meeting in Quebec City, which I attended, this key IUCN group approved redrawing three old populations into four new populations. Only two of these new populations are shared with Greenland, where the Service has taken the unprecedented step of requiring as an import criterion an agreement between two foreign governments.
The new Lancaster Sound population is entirely within Canada and entirely within sustained yield. In some years past, Lancaster Sound has been home to the largest number of total sport hunts. While this population is mentioned, it is not considered a new population for purposes of permit issue. The Service had two representatives at that meeting in Quebec City, but this new information failed to make the final rule. Later data are included in the final rule in at least two other instances. It appears that the Service wants to approve as few polar bear import permits as possible.
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Lastly, in virtually every communication I have had with the Marine Mammal Commission, opposition was expressed to Congress going around the waiver provision built into the original law, a process which would have kept the MMC on center stage. Throughout the rulemaking, the MMC has erected barricades to obstruct importation of polar bear trophies as mandated by Congress, bringing up repeatedly legalistic, non-scientific questions that Congress by its action has already answered. I believe this obstructionism sheds light on why so much good data are ignored in the final rule. We need to remove the MMC from the decisionmaking process when it comes to polar bears.
Please consider these facts:
Congress intended for U.S. hunters to bring home polar bear trophies stored in Canada, but that process has been deliberately obstructed.
Congress intended approval of imports of all legally harvested future polar bear trophies from Canada, but the intent has been subverted.
Congress intended for the MMC to help expedite the process, but they have instead obstructed the process.
Please do something to help us. Thank you for the opportunity to comment.
[Statement of Dr. J.Y. Jones may be found at end of hearing.]
The CHAIRMAN. Thank you, Doctor. I appreciate your decoration and your enthusiasm. You have been in it a long time.
Page 84 PREV PAGE TOP OF DOC David, first let me sayis it Dave or David?
Mr. AKEEAGOK. David.
The CHAIRMAN. David. Let me first say that I am not to tell you or your government how to manage your game. This is the Administration who is trying to do it, an agency within the United States Government. That is why we are having the hearings today, to try to find out how they arrived at this decision. But one of the things you said, I think, in your testimony that is counteracted by Dr. Rose is that they claim that sport hunting is not subsistence hunting. And you said that sport hunting is subsistence hunting. Can you explain that again.
Mr. AKEEAGOK. To us sport hunting is subsistence because, for example, the government gives us in Lancaster Sound 25 bears for us to have. They give usthey say there are 25 bears for you to eat. And we take that and say OK, we will take those and then we say in a meeting, the whole community comes in and says we will set aside this many for sport hunters for them to take home to them, but we will keep the meat. So when a sport hunter comes in and shoots that bear, he leaves the meat to us, and that provides meat for us, which is subsistence hunting.
The CHAIRMAN. In reality what is happening, they are pulling the trigger. They are taking the hair, which you can't eat, and they are leaving you the meat?
Mr. AKEEAGOK. Yes.
Page 85 PREV PAGE TOP OF DOC The CHAIRMAN. That is subsistence.
Mr. AKEEAGOK. Yes, sir.
The CHAIRMAN. All right, now, another question. What if all hunters stopped coming up there, what would happen to your community?
Mr. AKEEAGOK. For now, we are relying on money, as in any other world. If sport hunting stops, one third of the economy will collapse, and those that have invested in their time to do sport hunting will not be able to function.
The CHAIRMAN. When you hunt, sport hunting or most of your quota of sport hunting, you don't hunt the sows or the cubs, do you?
Mr. AKEEAGOK. No, sir.
The CHAIRMAN. You hunt the big boars?
Mr. AKEEAGOK. Yes, sir.
The CHAIRMAN. Prior to sport hunting being allowed, did you kill sows and cubs?
Mr. AKEEAGOK. Prior to the '50's that was the case, but with the law that was agreed upon, sows and cubs were not allowed. But if a sow has no cub, we are still allowed to hunt those.
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The CHAIRMAN. Well, anyway, David, I appreciate you coming all this way, because this was our understanding, that in fact it improved the population of the polar bear and was a conservation method.
Dr. Rose, do you agree that the Inuits or the Eskimos have a right to hunt subsistence?
Dr. ROSE. The HSUS does not oppose subsistence hunting in Canada or in Alaska.
The CHAIRMAN. He just explained subsistence hunting. Do you agree with that interpretation?
Dr. ROSE. I respectfully disagree with it, because although the meat is left behind in the community, so is $20,000.
The CHAIRMAN. So what is wrong with that?
Dr. ROSE. I am notI don't think there is anything wrong with them wanting to make a living. I certainly don't think there is anything wrong with that, but
The CHAIRMAN. It is the only thing available, so what is wrong with it?
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Dr. ROSE. I have concerns about putting that much value on the animal which makesthere is pressure there. I mean, you
The CHAIRMAN. Now wait a minute now. The pressure
Dr. ROSE. There is pressure there to increase the
The CHAIRMAN. How many are they allowed to shoot?
Dr. ROSE. What is the quota?
The CHAIRMAN. Yes, what is the quota?
Dr. ROSE. It is different for each population.
The CHAIRMAN. Now wait a minute. Let us use David.
Dr. ROSE. 25.
The CHAIRMAN. OK, now where does the pressure come from? They make a decision what shall be shot and not be shot, but they put a value which is important to them, and they don't kill the sows and cubs. They kill the big boars. Now what is wrong with that principle?
Page 88 PREV PAGE TOP OF DOC Dr. ROSE. The population estimates are based, as I said in my testimony, on numbers that I consider to be not robust. And if there is such a value placed on the animal, I have grave concerns that there will be pressure on the managers to say that there are in fact more bears in a population than there really are. That has already been done. There was
The CHAIRMAN. Where?
Dr. ROSE. Inlet me get this correct. In Davis Strait there were believed to be 950 bears and the quota was 58 bears. And the model that they said used that in order to sustain 58 bears there should really be 1400 bears in that population, so they changed the number to 1400 bears. They came up with 450 bears because that was what the
The CHAIRMAN. Did they kill 450 bears?
Dr. ROSE. No, but the quota was only sustainable under their model if there were 1400 bears, and they originally thought there were only 950.
The CHAIRMAN. Let us get back to the permits. Did your group or yourself individually contact the Fish and Wildlife on this issue?
Dr. ROSE. No, sir.
The CHAIRMAN. Nobody at all talked to them?
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Dr. ROSE. No, sir.
The CHAIRMAN. Nobody communicated to them, in fact, that there was a possibility of a lawsuit?
Dr. ROSE. Not to my knowledge.
The CHAIRMAN. Not to your knowledge?
Dr. ROSE. Not to my knowledge.
The CHAIRMAN. All right, because I am going to get those documents.
Dr. ROSE. And I am the only mammal scientist at the HSUS and I would have done it if anybody.
The CHAIRMAN. I realize that, but I am going to get the documents, so the next time if there is any fingerprints
Dr. ROSE. We submitted comments, sir. We submitted comments during the public comment period.
The CHAIRMAN. Oh, comments?
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Dr. ROSE. Yes.
The CHAIRMAN. All right, you submittedthere was no contact, but you submitted comments?
Dr. ROSE. I am sorry. I thought you meant outside of the public comment process. I am sorry. I misunderstood you.
The CHAIRMAN. All right, at least we can get that part straightened out.
Dr. ROSE. We submitted three sets of comments.
The CHAIRMAN. Dr. Morrill, you are not an expert on polar bears, are you?
Dr. MORRILL. No, sir, I am not.
The CHAIRMAN. You base your testimony on?
Dr. MORRILL. I base my testimony on the fact that I have 25 years experience as a wildlife biologist, that I am familiar with sustainable use programs in three continents of the world and have overseen different projects and programs pertaining to sustainable use and wildlife management.
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The CHAIRMAN. Would you say that the testimony that the Fish and Wildlife presented today has any image of conservation?
Dr. MORRILL. I am sorry?
The CHAIRMAN. The testimony of the Fish and Wildlife, is there any image of conservation in there?
Dr. MORRILL. In what Fish and Wildlife Service was saying?
The CHAIRMAN. About the 100 bearsI am going to get back to Dr. Rose, why she objects to the 100 bears coming in. I don't understand, still don't understand that.
Dr. MORRILL. I listened toyou can make conservation out of anything. They were talking about regulation, and conservation, of course, usually fits within regulation in some form, but conservation occurs on the ground in the place where the animals are involving the people where the animals are. That is where conservation occurs. It doesn't, unfortunately, occur in Washington, D.C.
The CHAIRMAN. Dr. Rose, again, are you supporting or objecting to the importation of the dead bears?
Dr. ROSE. This may surprise you, and if you do look at our comments to the Fish and Wildlife Service, we actuallyI will be very honest with you, we just oppose the entire import provision in the MMPA. We opposed it at the time. Again, the record shows that. So we don't think any bears from Canada should be imported into the United States. So what will surprise you is to find that I do find that this final rule which says that prior bears, you know, pre-amendment bears can't come in but, you know, bears that have been approvedpopulations that have been approved can come in but populations that have not been approved can't come in, it does strike me as being somewhat illogical.
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The CHAIRMAN. It is not common sense, is it?
Dr. ROSE. I am not disagreeing with that, however I do oppose the whole permit import
The CHAIRMAN. Oh, I understand where you are coming from there, but the idea that the base says you can't import a dead bear
Dr. ROSE. Our comments stated we felt that the amendments, the language of the law, said that they did have to look at the past history, the past conservation management history. They disagreed with us. We disagree with them. I told you we didn't agree with every element in the final rule at the beginning of my testimony.
The CHAIRMAN. The gentlelady from Wyoming.
Mrs. CUBIN. I don't have any questions.
The CHAIRMAN. The gentlelady from Idaho.
Mrs. CHENOWETH. Mr. Chairman, I just have a few questions. And then I will yield back the balance of my time. Dr. Rose, you mentioned thaton page 2 at the top of your testimony that little is known about the sex differences and ranging behavior and that males range more widely than females and thaton page 3, paragraph 2, you say part of the problem here is that many contaminants from industrialized nations thousands of miles away end up in the food chain in the Arctic where the polar bear, as top predator, concentrates them in its tissue. That may, may, result in the bears experiencing decreased fertility or a diminished immune response. Are you positive? Do you have scientific information to back up this allegation in your testimony that the bears are experiencing decreased fertility and a diminished immune response?
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Dr. ROSE. The whole point of my testimony, ma'am, is that scientists are not sure about these things. I did say may, and I am very careful to use that sort of language when we don't have positive proof. Science very rarely does, but with polar bears in particular the information is particularly non-robust, in my opinion, and therefore it is the very potential for this sort of thing that causes me concern. The precautionary principle should apply.
Mrs. CHENOWETH. You go on to state that given the vulnerability of the Arctic ecosystem to environmental degradation, which I really can't seem to put together, including the potential for global warming to shrink the polar bear's habitat.
Dr. ROSE. Uh-huh.
Mrs. CHENOWETH. Now this seems to be reaching very, very far in order to justify these people not being allowed their trophy.
Dr. ROSE. All of that testimony was simply to set the stage for saying that the polar bear, and particularly because of its marginal environment, because of its harsh marginal environment and because of the threats that it is facing from, as I said, the potential of things like global warming and contaminants, organochlorines and pollutants, that this is a species that is inherently unsuited to a frivolous sport hunt.
Mrs. CHENOWETH. At the bottom of your testimony on page 5, you indicate that in spite of all the global warming and all the toxic stuff, that these industrialized nations are sending thousands of miles away to influence their food chain and their tissues and so forth, that increased sightings and encountersyou admit to increased sightings and encounters which could result in the redistribution of the population in question as a result of more bears moving into an area frequented by hunters. Now that is very, very inconsistent.
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Dr. ROSE. No, it is not, ma'am, because what I was saying was that, for instance, global warming could be forcing the population farther south. In other words, local hunters would in fact see more bears, not because there were more bears but because the bears that used to be farther north have now moved south. So the numbers are the same, but the density has increased.
Mrs. CHENOWETH. People are seeing more bears, but we know very little about it.
Dr. ROSE. I am simply offering an alternate hypothesis that the managers don't seem to be considering.
Mrs. CHENOWETH. And your final part of your testimony, which you did not offer verbally, was that Dr. Jones, who I think is one of the finest witnesses that we have ever had here, it reads Dr. Jones in his testimony viciously excoriates the Marine Mammal Commission for its conduct on this issue. Doctor, there is no way this gentleman could be vicious, no way at all. And I think that this pie in the sky non-scientific opinion is very little reason to oppose people being allowedbefore this rule came in, people being allowed to bring their trophies into America. I think that we are just seeing a personal opinion that is influencing, and I think we will find that, influencing a policy that is sadly in opposition to that which the Congress directed. I am very sad to see that. Someday we are going to have to get back to the point where we deal with realities and where we don't attack people like Dr. Jones. I hope someday while I am still here in Congress that we are dealing with facts and not opinions. Thank you, MisterMadam Chairman.
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Mrs. CUBIN. [presiding] I wanted to express my appreciation to Dr. Jones for bringing up Mr. Werner. He is from my community. I knew him all my life, and I do appreciate your bringing up his memory.
Mr. Norwood, do you have questions?
Mr. NORWOOD. Yes, ma'am, I do. And some of these are yes answers, please, for in terms of time. But first let me say, David, that in your testimony you said our country disapproves or your management system. And I want to just humbly tell you that not everyone in our country does disapprove of your management system. There are some people who do, but surely you know many of us do not, too.
Ms. Rose, I am sort of interested in your written testimony attacking my friend, Dr. Jones, too. And I have noticed that you seem to imply that he is a pawn of the Sierra Club and that he is this
Dr. ROSE. Safari Club, sir.
Mr. NORWOOD. Safari Club. And you seem to say that he is a vicious individual, and I thought I would talk about that just a minute, because, you know, I can't imagine what you are going to call me when I try to defund the Marine Mammal Commission, but probably worse than vicious. But just sofor the record, my friend, who is a hunter and a conservationist, Dr. Jones, is not just a member of the Safari Club. He is a member of the National Rifle Association and the North American Hunting Club and the Foundation for North American Wild Sheep, the Grand Slam Club, Quail Unlimited, Ducks Unlimited, National Turkey Federation, Foundation of North America Big Game, Rocky Mountain Elk Foundation, Middle Georgia Gunners Association, Georgia Forestry Commission, Georgia Outdoor Riders Association, National Wildlife Refuge Association, The Wildlife Society.
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And I would submit to you, madam, that those groups do more forpardon me, I am upset with youwith conservation in this country than perhaps the Humane Society ever thought about doing. It doesn't require a comment.
Now I want to just ask you some simple questions. Did the Humane Society find that it was in agreement with the ruling that the Wildlife Service has recently put out regarding polar bears?
Dr. ROSE. We agree with their decision to defer those seven populations. We do not agree with their findings that the Canadian sport hunt program is monitored and enforced in agreement with the International Agreement on Conservation of Polar Bears, and we don't find that it is scientifically sound.
Mr. NORWOOD. Well, would you have liked for them to have been a lot tougher?
Dr. ROSE. Absolutely, sir.
Mr. NORWOOD. So you worked hard in order to try to make sure that they did not really promulgate a rule that went along with the intent of Congress, that you and your group knew a lot more about all this than the people in this country who write the laws. And there was no excuse in us doing what Congress wanted to do when your group knew so much better. Was that the approach?
Page 97 PREV PAGE TOP OF DOC Dr. ROSE. No, sir.
Mr. NORWOOD. No?
Dr. ROSE. We submitted comments, as we are allowed to do under the democratic system, to submit public comment during the public comment period when rules and regulations are proposed. And we agreed with the Service's interpretation that Congress directed the Secretary of the Interior to make certain findings. We disagree thatwith their findings. We don't think that the four findings they made were correct, and so in fact we disagreed in that regard with the Service, and by the way, with the Marine Mammal Commission.
Mr. NORWOOD. Well, so you are saying that the Humane Society really felt that the Marine Mammal and Wildlife should have gone a lot further and totally ignored the law passed by Congress in 1994? That wasyou have every right to submit comments, but within your comments were you trying to push these agencies to write rules and regulations that were absolutely the opposite and went much further than Congress wanted to have happen?
Dr. ROSE. We were reading the statute on its face that said that Congress had directed the Secretary of the Interior to make certain findings. And wein other words, it was up to the Secretary to make those findings, to make those decisions. And we disagreed with those decisions that were made.
Mr. NORWOOD. Is the answer yes or no? Did you push through comment to try to get these agencies to undo what Congress wanted to have done?
Page 98 PREV PAGE TOP OF DOC Dr. ROSE. In our opinion, no, sir, we did not.
Mr. NORWOOD. There probably is a difference in opinion there. Let me ask you this. Have you ever been to the Northwest Territories of Canada to examine their polar bear management program firsthand?
Dr. ROSE. I am sorry, sir, could you repeat that, please?
Mr. NORWOOD. Have you ever been to the Northwest Territories of Canada to examine their polar bear management program firsthand?
Dr. ROSE. No, sir, but I have been in communication with the Northwest Territories.
Mr. NORWOOD. Do you know where it is based, the management program?
Dr. ROSE. In Yellowknife.
Mr. NORWOOD. In Canada?
Dr. ROSE. Yes, sir.
Mr. NORWOOD. Where is it based?
Page 99 PREV PAGE TOP OF DOC Dr. ROSE. In Yellowknife.
Mr. NORWOOD. I am asking you if
Dr. ROSE. I have been in contact with the biologists who are in the Department of Renewable Resources, the Department of Resources and Wildlife
Mr. NORWOOD. Well, the next time you call them you will probably want to know they have moved. Have you ever
Dr. ROSE. To Iqaluit, yes, sir.
Mr. NORWOOD. Have you ever attended one of the IUCN Polar Bear Specialty Group meetings?
Dr. ROSE. Again, no, sir, but I am in communication with
Mr. NORWOOD. Are you a member of that body?
Dr. ROSE. No, I am not.
Mr. NORWOOD. You mentioned in your testimony the ever-changing boundaries of the Canadian polar bear populations. Are you aware that such changes are submitted to the IUCN Polar Bear Technical Committee for review and that the scientific data must pass scrutiny of this international body, and do you know that the last time they were changed was before 1996?
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Dr. ROSE. Yes, I am aware that
Mr. NORWOOD. Are you familiar with all that?
Dr. ROSE. I am aware of how the ICUN PBSG reviews those things, yes, sir.
Mr. NORWOOD. You mentioned in your testimony that most of the scientific studies have been done on female polar bears?
Dr. ROSE. According to my review of all the research, yes, sir.
Mr. NORWOOD. I wonder why that is?
Dr. ROSE. My guess is because they are easier to approach, handle, anesthetize. They are more easy tothey are easier to find because of their ties to denning sights. I really
Mr. NORWOOD. David, is that right? Are females easier to find than males?
Mr. AKEEAGOK. No, sir. The females are harder to find than the males.
Page 101 PREV PAGE TOP OF DOC Mr. NORWOOD. That is what I would think. Are they easier to work with? I mean, are they nicer than the males?
Mr. AKEEAGOK. Pardon?
Mr. NORWOOD. Are the females nicer than the males?
Mrs. CUBIN. Yes, they are.
Mr. NORWOOD. Polar bears, David. Well, let me just help you, because the reason that we have our information on females is because the neck of an adult male polar bear is larger than the head and satellite tracking collars fall off the males pretty easily. But males, just so you will know for the future, are instead marked and recaptured by tattooing a mark on the under side of the lips rather than placing the tag around their neck. That will be of interest later on.
You say that there are relatively few polar bears tagged each year for scientific purposes. Do you know how many are tagged by the Northwest Territories each year?
Dr. ROSE. About two or three hundred a year, to my understanding.
Mr. NORWOOD. That, just so you will know for the future, is 436 bears, about 20 percent of the population.
Page 102 PREV PAGE TOP OF DOC Are you aware of a recently published article in International Bear News, February 1997, Volume 6, Number 1, page 12, in case you want to look it up, which suggests that cannibalism is five to ten times higher in non-hunted bear populations as opposed to hunted populations? Are you aware of that?
Dr. ROSE. I am not aware of that. I am aware that Dr. Ian Stirling, who is a Canadian biologist, stated that he does not believe cannibalism is a significant mortality factor in polar bears.
Mr. NORWOOD. David, do you find that when there is an abundance of bears, in particular polar bears, that there is cannibalism that goes on? In other words, the male eat their young, that kind of thing?
Mr. AKEEAGOK. Yes, sir.
Mr. WALTER JONES. J.Y., tell me about that.
Dr. J.Y. JONES. I would be glad to comment on that. It is true that cannibalism in the Canadian population is not a major problem, but I would point out that it is eminently hunted. We feel that it probably is a major problem in the Alaskan population, which is very lightly hunted, and in other polar bear populations around the world. But there is no question in the hunted Canadian population that Dr. Stirling would be addressing that it would be a minor problem. That is a hunted population.
Mr. NORWOOD. But if it were not, because we can't import bears, we would expect, perhaps, that the numbers of bears might remain somewhere around the same because of cannibalism?
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Dr. J.Y. JONES. Well, you mightI don't know that you could infer that it would go up or down because of cannibalism, but I think what you wind up with is a major population shift toward older males and fewer cubs and females. This cannibalism study that you refer to demonstrated very clearly that the victims of cannibalism were not just cubs either. There were female bears as well, and so what you wind up with is a shift toward the very population that sport hunters are after or would like to harvest, which is the adult male polar bear. Theyou require a certain number of adult male polar bears, of course, to maintain the population just for purposes of fertility and breeding, but when you have too many of them and when these old adult males are not removed from the population, you have a shift toward the older adult male and a shift away from cubs and females. It is as simple as that.
The CHAIRMAN. How much time do you want?
Mr. NORWOOD. One last final question.
The CHAIRMAN. Before you do that, I heard the lady. She said how disgusting those old males are.
Mrs. CUBIN. Excuse me, Mr. Chairman. I said and we all know how disgusting old males
The CHAIRMAN. Old males are. May I suggest respectfully some younger ones are also disgusting.
Page 104 PREV PAGE TOP OF DOC Mr. NORWOOD. Dr. Morrill, just a brief question, because I wasn't sure I heard you right in your comments. We have heard today that the Wildlife Service has approved five of the 12 management units in Canada. And I thought you said that perhaps if we would listen to the Canadians just a little bit we would find that they would in their management system have approved a great deal more than five out of 12. Did I hear that right?
Dr. MORRILL. At the Polar Bear Specialist Group in 19January of 1995excuse me, 1996, the Canadians showed that all except one population was at a sustainable level. So given what Congress had said in the four conditions, then the Canadians11 out of the 12 at thatexcuse me, 12 out of the 13 at that time, because they divided one of the areas during that particular meeting, 12 out of the 13 would have been approved.
Mr. NORWOOD. And that was some of the testimony in 1994 that we took justifying the law that was passed then.
Ms. Rose, my last question, just because I am real curious about it. I understand that the Canadian Humane Society has sued your Humane Society. What is that all about?
Dr. ROSE. I couldn't tell you, sir. I am the Marine Mammal Scientist. I am not in the executive level of the Humane Society of the United States.
Mr. NORWOOD. Well, whydid the courts find you guiltynot you personally, the Humane Society guilty in misappropriation of funds?
Page 105 PREV PAGE TOP OF DOC Dr. ROSE. I am sorry, I can't comment to that, sir.
Mr. NORWOOD. Why?
Dr. ROSE. Because I am low on the totem pole. I am just in the wildlife department. I don't
Mr. NORWOOD. Do you not know the answer?
Dr. ROSE. I do not know the answer, sir.
Mr. NORWOOD. Could you give us the name of somebody who might know the answer?
Dr. ROSE. You are free to contact Mr. Paul Irwin or Ms. Patti Forkan at the Humane Society of the United States.
Mr. NORWOOD. Were you not aware of this suit?
Dr. ROSE. Oh, I am certainly aware of it. It is mentioned in the Safari Club's publications and in other publications.
Mr. NORWOOD. And so within inside the Humane Society you all didn't talk about this we are being sued, for pity sakes, by another Humane Society or talk about the fact the courts have found us guilty for misappropriation of funds? You all didn't talk about that?
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Dr. ROSE. Do you want me to testify to office gossip or what I know for a fact?
Mr. NORWOOD. I am not really asking you did you read the summary of the court records. I am asking you was that generalized knowledge inside the Humane Society?
Dr. ROSE. I was aware of it, but I just don't know the details, sir.
Mr. NORWOOD. OK, well, I don't either. I am just curious how in the world that could have happened. There must be a difference in opinion in the Humane Society.
Dr. ROSE. You do have to contact my bosses. I really don't know.
Mr. NORWOOD. Thank you very much, Mr. Chairman.
The CHAIRMAN. The gentlelady, do you have another question?
Mrs. CUBIN. Mr. Chairman, yes, I didn't ask questions before, and I just want to make a brief statement. Philosophically Dr. Rose and I are very, very far apart, but, you know, I think that the harm that has been done here has been done by the bureaucracy and not by people interested in this issue. I think it is perfectly acceptable that people disagree on issues philosophically and respect one another for that, and I just kind of want to go on the record that way. Any wrongdoing that I see was not done on the part of the interested public. It was done on the part of our own government.
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The CHAIRMAN. Only if they were involved with the decisionmaking by the agency which had the responsibility to implement the Congressional act and intent of the law. Then I get very concerned.
Mrs. CUBIN. Mr. Chairman.
The CHAIRMAN. Yes.
Mrs. CUBIN. I would even disagree with you on that. If I had
The CHAIRMAN. I wouldn't expect you not to do anything else, but go ahead.
Mrs. CUBIN. If Iyou know, I think that as a citizen concerned about an issue I have every right to deal at every level to get my view represented. I think when I am an elected official, when I am a bureaucrat it is a whole different deal, but anyway.
The CHAIRMAN. I understand.
Mrs. CUBIN. For the record
The CHAIRMAN. I am just saying that my concern is for some reason this July of 1995 complete flip flop. I mean this is the most amazing thing I have ever seen. And the lawyer agree they wrote it. And that didn't happen overnight. Somebody workingI am going to restate it again. The lawyers in this room, the agencies in this room supported this legislation. If there was a problem when we wrote it, they should have let us know at that time. And that is what I am after. This is, like Charlie Norwood said, there is something very wrong here. And this is why our government has lost its credibility big time.
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The CHAIRMAN. And, David, again I want to thank you for being here. That bell, don't jump, that bell is for a vote. And I hope to get up to your area sometime. I had the privilege of harvesting a polar bear in 1964 before all this nonsense took place.
And we do have an abundance, Doctor, of polar bears in Alaska to the point now we have lost three persons this last year. They also like to chew on people. An abundance of them and a terrible management system. If I can ever implement a program such as David has, I am certainly going to try to encourage it, because I think it is the right way to go. It helps the local people, but more than that it manages species that really now have some serious problems.
With that, we have a vote. This hearing is adjourned.
[Whereupon, at 1:38 p.m., the Committee was adjourned; and the following was submitted for the record:]
STATEMENT OF THE HONORABLE GEORGE MILLER, A U.S. REPRESENTATIVE FROM CALIFORNIA
Mr. Young has asked our speakers to comment on whether the final rule reflects the legislative intent of the 1994 Amendments to the Marine Mammal Protection Act. Before these proceedings begin today, I would like to take a few moments to comment on the issues of intent and purpose.
We should remember that the purpose of the Marine Mammal Protection Act is to protect marine mammals and their habitat. The 1994 Amendments did not change this purpose. Any rule promulgated in accordance with the Amendments, must be consistent with the overall Act and must allow only for sustainable activities.
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The Committee Report for the 1994 Amendments is quite clear that it is our intent to insure that sport hunting of polar bears does not adversely affect the sustainability of polar bear populations throughout their range in Canada. It is not sufficient that the overall numbers of polar bears grow, each separate polar bear population must grow as well, ideally to the MMPA goal of its optimum sustainable population.
I understand that there is some debate regarding whether sport trophies taken prior to the enactment of the 1994 amendments should be subject to the same conservation provisions as are applied to sport trophies taken after 1994. Again, I want to reference the Committee Reportwhich I have been told was agreed to by Mr. Young's staff at the time, and we have no dissenting views to indicate otherwise. The Report states: ''It is the Committee's intent that all conditions outlined by this amendment concerning importation of polar bear trophies taken prior to the adoption of this amendment have to be met.''
I think we are all in agreement that agency decisions should be based upon solid scientific data and in accordance with sound, and effective, management principles. But what action is to be taken when the data is incomplete or practices are questionable? Was it the intent of Congress and the MMPA to err on the side of conservation and protection, or to err on the side of increased marine mammal takings?
Finally, I think we should remember that the MMPA Amendments of 1994 require the Secretary to consider both the Convention on International Trade in Endangered Species (CITES) as well as the 1973 Agreement on the Conservation of Polar Bears when analyzing Canada's polar bear management plans. These international agreements embody sound hunting and management practices. To take one example, the Polar Bear Agreement requires that pregnant and nursing females, as well as their cubs, be protected from hunting activities. Decisions based on principles such as these are ones we all can support.
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I look forward to hearing today's testimony and substantive discussion of the issues.
STATEMENT OF HON. RANDY ''DUKE'' CUNNINGHAM, A U.S. REPRESENTATIVE FROM CALIFORNIA
Chairman Young, Ranking Member Miller, and members of the Committee, thank you for the opportunity to speak in support of this resolution, H.J.Res. 59, disapproving the Department of Interior's Final Rule titled Importation of Polar Bear Trophies from Canada Under the 1994 Amendments to the Marine Mammal Protection Act.
Today is the third anniversary of the date that the President signed the polar bear amendments to the Marine Mammal Protection Act (MMPA). Three full years have passed, and the U.S. Fish and Wildlife Service has yet to issue its first permit.
As a fiscal conservative, I am very sensitive to wasted time and dollars. In this case too many of both have been thrown away by the agencies involved. Thousands of dollars have been lost in conservation funds that could have been generated by the issuance of permits. Thousands of dollars have been denied the Inuit people who depend on this vital resource. Thousands of sportsmen have stayed home or gone elsewhere, because of the failure by the Fish and Wildlife Service to carry out the intent of Congress.
This fiasco was a long time coming. To begin, Congress very thoroughly considered the polar bear issue in 1994. We collected information from both the U.S. Fish and Wildlife Service and the Canadian government. When the amendments were adopted in 1994, Congress concluded that the Canadian government was efficiently managing its polar bear populations. Congress provided the Secretary of the Interior tools to make sure that the shift to sport hunting as a larger component of polar bear management did not threaten the Canadian management program. We then asked the Secretary to issue permits.
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Congress certainly did not expect a three-year delay in the process. I have tried to understand what went on to create the mess by reviewing the process as it unfolded. However, that does not answer why the Clinton Administration dragged its feet despite clear motivation and direction by members of this Committee. I would like to share with you the time line to make clear that Congress did its utmost to get this new law administered:
April 30, 1994: President Clinton signed the amendments to the MMPA.
June 20, 1994: Congressmen Young and Fields wrote to the Fish and Wildlife Service asking it to expedite the process and that it should use interim regulations to issue permits.
August 24, 1994: The Fish and Wildlife Service, the Marine Mammal Commission, and the State Department met to design an approach for developing findings. The Fish and Wildlife Service had a goal of publishing regulations by January 1, 1995.
August 29, 1994: The Fish and Wildlife Service responded to Congressmen Young and Fields informing them that rules need to be developed for the permits and that findings have to be made.
September 28, 1994: 25 members of Congress joined me in a letter to the Secretary, noting that five months had passed with no action and urging him to use his existing authority to promptly issue permits.
Page 112 PREV PAGE TOP OF DOC October 27, 1994: The Fish and Wildlife Service published a notice in the Federal Register outlining the process it would follow to make the required findings and saying that it would issue regulations covering the permit procedures.
November 2, 1994: Congressman Jack Fields (R-TX), the principal author of the polar bear amendments, wrote to Assistant Secretary Frampton in response to the October 27 notice. He reminded the Assistant Secretary that in 1993, the Fish and Wildlife Service had told Congress that sport hunting was part of the Canadian management system and that it was not harmful or in conflict with the Polar Bear Convention. Congressman Fields also reminded the Fish and Wildlife Service that it was not Congress' intent to impose management practices on Canada and that Congress knew that Canada managed by subpopulation. Congressman Fields also recommended to the Fish and Wildlife Service that it should stop focusing on the past management by Canadian authorities and instead focus on the future impact that increased hunting by American hunters would have on Canadian polar bear populations.
January 3, 1995: The Fish and Wildlife Service published a proposed rule on the permit procedures.
January, 1995: The Fish and Wildlife Service sends a draft proposed finding to the Marine Mammal Commission for review.
March and April, 1995: The Fish and Wildlife Service held a series of internal meetings and prepared draft findings.
July 17, 1995: The Fish and Wildlife Service published proposed findings. The public comment period was set to end on August 31,1995, but was extended through November, 1995.
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September 7, 1995: The Fish and Wildlife Service wrote to Congressman Young, saying that it will have a rule out shortly (''this fall '') and then it will focus on the issue of Parry Channel, where most of the hunting of polar bears occurs in Canada, as a separate rulemaking.
November 9, 1995: The Marine Mammal Commission provided comments to the Fish and Wildlife Service.
July, 1996: The Fish and Wildlife Service received more data on Parry Channel populations but decided not to pull back the final rule, which they were preparing, and not to publish a new proposal since the research and data-gathering on Parry Channel was still ongoing.
August 15, 1996: Draft final rule goes out for review and approval by various offices within the Fish and Wildlife Service.
October, 1996: The Fish and Wildlife Service received more data on the Parry Channel issue. However, it decided not to act on the new data at that time because the final rule was near final publication.
January, 1997: The Fish and Wildlife Service obtained further information about the Parry Channel area from the Polar Bear Technical Committee meeting.
February 18, 1997: Final rule published, effective March 20, 1997.
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March 5, 1997: The Fish and Wildlife Service wrote to Canada asking for further information and saying it could possibly have a proposed rule on the Parry Channel area out by the end of April.
April 22, 1997: The Marine Mammal Commission filed a scientific evaluation with a positive finding on management of two of the areas into which Parry Channel had been restructured: Lancaster Sound and Norwegian Bay.
Following all of this effort, one would expect the Fish and Wildlife Service to publish a comprehensive rule meeting the criteria set forward by Congress. Unfortunately, the Fish and Wildlife Service has put forward a rule that is incomplete. Its final rule contains no provisions allowing for the import of grandfathered polar-bear trophies from before 1994. In fact, the Fish and Wildlife Service has determined that only five of Canada's twelve polar bear populations are stable. In addition, according to the Service's own data, there is little, if any, hunting of these populations.
However, the Fish and Wildlife Service determined that it was unable to determine the sustainability of any the other seven polar bear populations if hunting were allowed. When Congress passed the polar bear amendments to the MMPA, we considered this issue and instructed the Fish and Wildlife Service to consider Canada capable of managing its own populations. The Fish and Wildlife Service disregarded this information and moved forward with a rule which is inconsistent with the intent of Congress.
For this reason, I would encourage my colleagues to vote for H.J.Res. 59, and direct the Fish and Wildlife Service to return to Congress a rule which is comparable with the amendments we passed in 1994. Mr. Chairman thank you for this time.
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[Additional material submitted for the record follows.]
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