U.S. GOVERNMENT PRINTING OFFICE

41–402cc WASHINGTON : 1997

POLAR BEAR TROPHIES IMPORTATION

HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

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

APRIL 30, 1997—WASHINGTON, DC

Serial No. 105–18

Printed for the use of the Committee on Resources

(
(II)

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

WILLIAM 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-BARCELO ́ , Puerto

Rico

MAURICE 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
(III)

C O N T E N T S

Page

Hearing held April 30, 1997 ................................................................................... 1

Text of H. J. Res. 59 ................................................................................................ 52

Statement of Members:

Cunningham, Hon. Randy ‘‘Duke’’, a U.S. Representative from California 49

Miller, Hon. George, a U.S. Representative from California ........................ 49

Norwood, Hon. Charlie, a U.S. Representative from Georgia ....................... 2

Peterson, Hon. Collin, a U.S. Representative from Minnesota ..................... 3

Young, Hon. Don, a U.S. Representative from Alaska; and Chairman,

Committee on Resources .............................................................................. 1

Statement of Witnesses:

Akeeagok, David, Grise Fiord, Northwest Territories, Canada .................... 32

Gosliner, Mike, Marine Mammal Commission ............................................... 13

Hofman, Dr. Robert J., Marine Mammal Commission .................................. 13

Jones, Dr. J.Y., Dublin, GA ............................................................................. 37

Prepared statement ................................................................................... 115

Jones, Marshall, Assistant Director for International Affairs, U.S. Fish

and Wildlife Service, DOI ............................................................................. 11

Prepared statement ................................................................................... 56

Morrill, Dr. William, Safari Club International, Herndon, VA .................... 33

Prepared statement ................................................................................... 81

Reynolds, Dr. John E., III, Chairman, Marine Mammal Commission ......... 13

Prepared statement ................................................................................... 61

Rose, Dr. Naomi, Marine Mammal Scientist, Humane Society of the

United States ................................................................................................ 35

Prepared statement ................................................................................... 101

Rowland, J. Roy, former Congressman, Dublin, GA ...................................... 5

Prepared statement ................................................................................... 54

Stansell, Ken, USFWS, Department of the Interior ...................................... 11

Young, Michael, USFWS, Department of the Interior .................................. 11

Additional material supplied:

Testa, J.W., Ph.D.: Importation of Polar Bear Trophies From Canada

Under the 1994 Amendments to the Marine Mammal Protection Act

(report) ........................................................................................................... 69

Communications submitted:

Bass, Hon. Charles F.: Letters to—

Dort S. Bigg dated:

October 19, 1995 ................................................................................. 136

February 24, 1997 .............................................................................. 133

Hon. Don Young dated April 25, 1997 ..................................................... 125

Bigg, Dort S., to:

Hon. Charles Bass dated

September 21, 1995 ............................................................................ 134

February 7, 1997 ................................................................................ 131

March 18, 1997 ................................................................................... 129

April 4, 1997 ....................................................................................... 126

Kearney, Kathy: Memorandum of October 31, 1995, to John Jackson

on importation of polar bear hunting trophies ........................................... 93

Jones, Marshall: Letter of May 8, 1996, to Dort S. Bigg ............................... 137

Rose, Naomi A., Ph.D.: Letter of November 6, 1995, to Director, Fish

and Wildlife Service on proposed rule ......................................................... 109
(1)

POLAR BEAR TROPHIES FROM CANADA

WEDNESDAY, APRIL 30, 1997

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Washington, D.C.

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.

On July 17, 1995, 15 months after the enactment of the 1994

amendments, the Department of the Interior issued a proposed rule

allowing all pre–1994 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
2

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 not—will 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.

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.

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.
3

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 just—I 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.

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 testimony—we 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.

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
4

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 Secretary—and 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.

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.

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
5

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.

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.
6

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.

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.
7

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.

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?

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.
8

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 gentleman—Mr.

Vento.

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 a—in 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.

Mr. VENTO. I am simply asking what the effect would be of

knocking out the rule. That is what—and 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 is—you 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 the—and they, incidentally, talk about 14 areas in Canada, not 13—but is it the intent then to comply with or to then live with the—they 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 want—that perspectively that their interpretation of where the hunting can be permitted is inappropriate or not?

The CHAIRMAN. It is my intent that we made an agreement with

Canada. Canada defines scientifically which areas are appro-
9

priately 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 not—what 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.

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 Roy—I 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 just—I 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 is—apparently 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 idea—every time I hear one of my agency say oh, we

might have to go to court, so—they 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.
10

Mr. VENTO. Well, Mr. Chairman——

The CHAIRMAN. And we told them—this 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.

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.

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.
11

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.

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.

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 Mam-
12

mal 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.

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.
13

STATEMENT OF DR. JOHN E. REYNOLDS, III, CHAIRMAN, MARINE MAMMAL COMMISSION, MIKE GOSLINER AND DR. ROBERT J. HOFMAN

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.

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.
14

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.

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.

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?
15

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?

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 criteria—what 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 what—let 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.

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 basis—who 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?
16

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 is—what 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.

The CHAIRMAN. By who?

Mr. MARSHALL JONES. By those who were unhappy—would be

unhappy with the regulations.

The CHAIRMAN. But why—but 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 dead—why 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?

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?
17

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——

The CHAIRMAN. My time is up, but one last one. Where does it

say in the law, lawyer—you 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 judgment—Mr. 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 your—you have got legal counsel

there. You are paying them enough. Where does it say—in 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?

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,
18

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 am—again, 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.

The CHAIRMAN. What difference does it make? This bear is dead.

He doesn’t even—I 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 like—yes, 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.

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 do—possibly 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 plan—I 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
19

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.

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.

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 taken—the 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 theological—this is Aquinas and Erasmus arguing

and meanwhile there are poor people outside the church. That to

me—you already—it doesn’t make sense. You have already set up

the criteria with respect to sustainability of the polar bear population in—is it five of the 12 or eight of the—I 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 as—and what I meant by theology is that dead

bears, maybe that is true, but to reach back in effect to me is ex
20

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 got—you have got lawyers that are paid

seven days a week to deal with that. You have to have—and I am

very jealous.

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 king—everybody 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 of—and 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 least—at 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?

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 other—just 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 time—I guess this was passed when you were

Chair, before Mr. Miller became Ranking Member.

The CHAIRMAN. No, no, Mr. Studds was the Chair.
21

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 implementors—

and this is a well-established legislative process, legislative standard.

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, you—maybe 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.

The gentlelady.

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.

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 Escalante—before 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
22

delegation from Utah and all the people in Utah in those nine days

to make that good policy.

The thought came to me—I couldn’t get that out of my mind last

night, because we are talking about different things. It seems that

the—under Mr. Rashid—I 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 could—you 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.

And I think we have to—we, 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 can—I realize the whole thing is—

you 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?

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.
23

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 way—is 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——

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 from—that 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 respects—and 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 point—you 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?

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 law—I 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 will—and if Mrs. Chenoweth
24

would allow me the—and 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 being—as 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 would—and 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.

The CHAIRMAN. The gentlelady.

Mrs. CHENOWETH. Thank you, and I am happy—I 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

nexus—I 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.

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

bear—I 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?
25

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 you—just between

me and you, would you sort of agree that is what the 103rd Congress was trying to say?

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.

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.

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
26

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?

Mr. MARSHALL JONES. Sir, it was not our view that the regulations over—were 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——

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 record—Mr. 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
27

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.

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.

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 mean—when 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?

Mr. MARSHALL JONES. Not approved for hunting. That is a decision entirely of Canada, but we—by 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.
28

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?

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 those—two 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 last—the 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?

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 issues—all 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
29

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.

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.

Mrs. CUBIN. OK, so—all 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?

Mr. MARSHALL JONES. Sir, let me ask Mr. Stansell if he recognizes that language.

The CHAIRMAN. That is yours.

Mr. MARSHALL JONES. Yes, sir.
30

The CHAIRMAN. Now we have a different proposal and we still

haven’t—and 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 us—I 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 words—and I think it was two. Canada has a sport hunting

program based on scientificly sound quotas.

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?

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.
31

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 apply—the 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. Had—if it said had, that would mean

the bear has been killed, had an—I would agree, but has is prospective.

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 me—I 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.

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 office—

and 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 right—I 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
32

something. When I am done, that will happen—the 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.

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.

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
33

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.

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

mean—which 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.

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. Con-
34

gress 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.

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

that—excuse 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
35

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.

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.

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
36

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.

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.

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
37

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.

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.

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
38

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.

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.

David, first let me say—is 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 Admin-
39

istration 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 us—they 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.

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.

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?
40

Dr. ROSE. I am not—I 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?

Dr. ROSE. I have concerns about putting that much value on the

animal which makes—there 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?

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. In—let 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?

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——
41

Dr. ROSE. We submitted comments, sir. We submitted comments

during the public comment period.

The CHAIRMAN. Oh, comments?

Dr. ROSE. Yes.

The CHAIRMAN. All right, you submitted—there 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.

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 bears—I 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 to—you 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 actually—I 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, preamendment bears can’t come in but, you know, bears that have

been approved—populations 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.

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——
42

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 that—on 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 that—on 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?

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 encounters—you 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.

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
43

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 allowed—before 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, Mister—Madam Chairman.

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 so—for 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
44

Commission, Georgia Outdoor Riders Association, National Wildlife

Refuge Association, The Wildlife Society.

And I would submit to you, madam, that those groups do more

for—pardon me, I am upset with you—with 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?

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 that—with 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 was—you 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 we—in 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?

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?
45

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?

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?

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 to—they 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.

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
46

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.

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?

Dr. J.Y. JONES. Well, you might—I 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. The—you 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.
47

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.

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 19—January

of 1995—excuse 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 Canadians—11 out of the

12 at that—excuse 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, why—did the courts find you guilty—not

you personally, the Humane Society guilty in misappropriation of

funds?

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?

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?
48

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.

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 I—you 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 working—I 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. 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.
49

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.

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 Report—which 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.

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.
50

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.

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.

•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.

•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.
51

•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.

•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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