Polar Bear Trophy Ban not Unbearable: D.C. Cir.

Polar bear trophies are still verboten after an opinion by the D.C. Circuit this past Tuesday upheld a federal Fish and Wildlife Service ban on importing items like polar bear rugs.

This opinion comes on the heels of the D.C. Circuit's ruling in March which upheld a 2008 decision to keep polar bears as a "threatened" species under the U.S. Endangered Species Act, reports Natural Resources Defense Council.

If you promised your spouse a new pair of real polar bear slippers after a trip to Canada, you may want to reconsider.

Polar Bear Trophies

The current status of the polar bear, according to the U.S. Fish and Wildlife Service, is “threatened”, which entitles it to certain protections from hunting as well as prohibitions on importing pieces of its body.

The laws at issue with polar bear hunting (and maybe wearing) enthusiasts are under the Marine Mammal Protection Act (MMPA) and Endangered Species Act, the former stating that there is a “moratorium on the taking and importation of marine mammals and marine mammal products.”

The Safari Club, a club that wants polar bear trophies so bad they can taste it, argues that these laws don’t apply to polar bears because they have not been designated as “depleted” species.

“Depleted” Species?

The conflict between “depleted” and “threatened” might be a puzzler, but the Safari Club hadn’t anticipated the D.C. Circuit whipping out the Congressional notes stating that animals on the endangered species list “should be considered depleted.”

Pretty hard to argue Congressional intent against their actual words about the MMPA, but even a history buff like Justice Scalia has stated that legislative history is “more likely to confuse than to clarify.”

The D.C. Circuit is willing to take Congress at their word and assume that the more global intent of the MMPA would serve to protect “threatened” marine animals and not serve them up to hunters.

What Polar Bear Stuff Can I Get?

It is mostly illegal to hunt polar bears in the U.S. under the MMPA, but you can still hunt them in Canada, so long as you don’t bring back any trophies. There is a seemingly large exemption under 16 U.S.C. § 1371(b) allowing Indian, Aleut, or Eskimo tribe members to take polar bears in order to:

• Eat them.
• Make jewelry and handicrafts.
• Make clothing and bedding.

These crafts can be sold by exempt groups to Americans in the U.S., making the following a way to subvert the polar bear trophy ban:

1. Go to Canada.
2. Ask an Aleut member to transport polar bear(s).
3. Once in America, have Aleut staff make polar bear pajamas to sell legally.

Lovely.

Related Resources:

• Court Ruling Prohibits Polar Bear Trophies From Being Imported (Outdoor Life)
• There’s No Right to Import Endangered Species Trophies (FindLaw’s D.C. Circuit Blog)
• Alaskans Sold Walrus Tusks, Polar Bear Hides (FindLaw’s Blotter)
• Grizzly Opinion: Bears to Keep Endangered Species Protection (FindLaw’s U.S. 9th Circuit Blog)