problem-solving in conservation biology and wildlife management (gibbs/problem-solving in...

CHAPTER 31

Conservation Law:Should the PolarBear be Listed as aThreatened Species?

Thane Joyal

Administrative rule-making is arguably the most important mechanism affectingresource protection in many parts of the world with functional legal systems. Thisis where the ‘‘rubber meets the road,’’ so to speak, in terms of how laws are inter-preted and translated into mandates for action on the ground. Understanding theprocess by which the public – as individual citizens, conservation professionals, orlobbyists – can influence the making of rules that affect biodiversity is the first stepin becoming an effective participant in the process.

To encourage public participation, the process itself is fairly straightforward. Inthe United States, for example, the formal procedures for rule-making in the federalAdministrative Procedure Act are simple and easy to follow. However, the complextensions between and within stakeholders in any administrative rule-making makesthe process a vital and important forum for clarifying and resolving policy issues.Changes in listings under the Federal Endangered Species Act are a good example ofregulations that involve diverse stakeholders in critical decision-making.

The purpose of this exercise is to introduce you to the basic procedures andtensions of the rulemaking process associated with a significant law protectingbiodiversity. We focus on administrative rule-making under the US AdministrativeProcedure Act (5 USC sec. 500 et seq.) Note that the procedures outlined here aresimilar to those in related contexts around the world and the skills gained aregenerally quite transferable. As arcane as rule-making may seem, it is at the heartof the process by which laws are implemented. Any practicing conservation profes-sional will encounter and likely even participate in the rule-making process at somepoint in their career.

Objectives

. To understand the procedures for rulemaking in the US Administrative ProcedureAct

Gibbs / Problem-Solving in Conservation Biology 9781405152877_4_031 Final Proof page 296 11.10.2007 2:23pm Compositor Name: pananthi

Problem-Solving in Conservation Biology and Wildlife Management: Exercises for Class, Field, and LaboratoryJames P. Gibbs, Malcolm L. Hunter, and Eleanor J. Sterling© 2008 James P. Gibbs, Malcolm L. Hunter, Jr., and Eleanor J. Sterling ISBN: 978-1-405-15287-7

. To identify the parts of a proposed rule as published in the Federal Register

. To quickly review and understand the context of a proposed rule

. To identify key issues and appropriately comment on a proposed rule

. To engage in policy discussions concerning a proposed rule.

Procedures

Overview

You will read the January 9, 2007 rule entitled Endangered and Threatened Wildlifeand Plants: 12-Month Petition Finding and Proposed Rule to List the Polar Bear ( Ursusmaritimus) as Threatened Throughout its Range at 72 F.R. 1064. This document isavailable at this book’s website (see page ix). You will be given a particular issueto focus on within the rule. You will be asked to prepare a short worksheet on therule before class and in the next class, you will be divided into small groups toconduct a simulated administrative ‘‘hearing’’ on the proposed rule. After eachperson has presented comments, Hearing Officers from each team will caucus andpresent a recommendation for each subject area within the rule, and an overallrecommendation on the rule.

Group Assignments

You will be divided into groups of 5 to 7 students. One individual must be thehearing officer who will prepare the hearing officer worksheet. Anyone who is not ahearing officer is a ‘‘commenter.’’ Commenters will select a particular topic (or set oftopics) from those listed below:

Topic areas

. Distribution and movement

. Food habits

. Ice habitat relationships

. Current population status and trends

. Effect on prey

. Access to, and alteration of denning status

. Oil and gas exploration, development and production

. Harvest management by nation: Russia, Canada, Greenland, Norway, UnitedStates

. Polar bear – human interactions

. International agreements

. Mechanisms regulating sea ice recession

. Other natural or manmade factors affecting polar bear survival

. Available conservation methods.

You will review the proposed rule and complete the worksheet (Box 31.1) outside class.

Presenting Comments

To conduct this as a class exercise, the Hearing Officer should convene the hearingfollowing the review period, explain the procedures, and open the hearing for

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Box 31.1 Rule-making Practicum Worksheet for Commenters

What is the name of this proposed rule?

What is the deadline for comments?

What prompted the USFWS to initiate this rule-making?

What are the potential outcomes of this rule-making?

What are the procedures for commenting on this rule-making?

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comment. Hearing Officers are responsible for maintaining order within theirgroups. Each commenter will typically be given no more than five minutes tospeak on their issue and each is required to speak for at least three minutes (time-frames can be adjusted based on class size and available time). Hearing Officerswill take notes on the issues presented and the substance of the comments. Theworksheet overleaf (Box 31.2) will help you to prepare your comments.

Caucus and Presentation to the Director

Following the receipt of comments, Hearing Officers will caucus together for nomore than ten minutes to discuss the comments on the rule. Your objective is toform a recommendation to present to the Director of the US Fish and WildlifeService, a role typically played by the instructor. Hearing Officers should be pre-pared to explain to the Director the major areas of public concern about the rule; anyalternative actions recommended by the public; and the recommendations of theHearing Officers as to each category of issues raised by the public. One or morecommenters will be selected to present their recommendation to the Director.

Framing the Issues

While Hearing Officers are reviewing comments, remaining individuals will bedivided into 5 groups and asked to review the conclusion of the proposed rule asto each of the factors considered as bases for the listing decision:

. Factor A Present or threatened destruction, modification, or curtailment of thespecies’ habitat or range (pp.1071–1081)

. Factor B Overutilization for commercial, recreational, scientific or educationalpurposes (pp.1081–1085)

. Factor C Disease and predation (pp.1085–1086)

. Factor D Inadequacy of existing regulatory mechanisms (pp.1086–1091)

. Factor E Other natural or manmade factors affecting the polar bear’s continuedexistence.

You will review the rule and select a spokesperson to present the group’s summary of(i) the USFWS considerations in evaluating the Factor; and (ii) the USFWS decisionwith respect to that Factor.

Final Presentations

To ensure that the entire class has a common understanding of this complex rule,before the Hearing Officers present their findings and recommendations, spokes-persons for the Factor Groups should explain the USFWS decision as to each factorand the considerations involved in arriving at that decision. After these presenta-tions, the instructor should answer any questions students have about the existingrule. When a common understanding has been reached, the Hearing Officers shouldpresent their findings and recommendations to the Director, who will keep a list ofissue categories and recommendations on the board for discussion at the conclusionof the presentation. The Director should then evaluate the recommendations, andindicate his or her decision on the proposed rule.

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Box 31.2 Comment Worksheet

What is your interest in this rule?

What are your qualifications to comment on this rule?

Are you commenting in favor of or in opposition to this rule?

Description of issue:

Comment on issue:

Recommended changes, if any:

Supporting data, if any:

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If Conducting Exercise as an Individual Student Assignment

In the event that this exercise is assigned not as a discussion and class-levelsimulation but as an in-depth project for students to complete individually, eachstudent should undertake the exercise by completing the worksheet shown below(Box 31.3).

The proposal is based on the best information that the U.S. Fish and WildlifeService staff has gathered concerning the subject matter, and has been approved bythe Director of the Service. In the final analysis, the Director will need to decidewhat action to take: Should the polar bear be listed as threatened, as recommendedin the proposal? What other actions might the Director take? The USFWS staffbase the proposal on the 5 factors listed here:

. Factor A Present or threatened destruction, modification, or curtailment of thespecies’ habitat or range (pp.1071–1081)

. Factor B Overutilization for commercial, recreational, scientific or educationalpurposes (pp.1081–1085)

. Factor C Disease and predation (pp.1085–1086)

. Factor D Inadequacy of existing regulatory mechanisms (pp.1086–1091)

. Factor E Other natural manmade factors affecting the polar bear’s continuedexistence.

For each factor:

1 Identify the principal elements of the USFWS’s decision-making2 Evaluate the strengths and weaknesses of the arguments and data presented by the

USFWS3 Identify issues that are likely to be the subject of public comment.

Box 31.3 Worksheet for Non-participatory Exercise

What is the name of this proposed rule?

What is the law applicable to this proposal?

What will be the next step in the process?

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Summarize your input by preparing a briefing paper for the Director of the USFish and Wildlife Service, including the foregoing information. Based on yourindependent assessment of the likely public response to this proposal, should thisproposal become a final rule?

Expected Products

. To have read and understand the proposed rule

. Preparation and presentation of a 1–2 paragraph summary of key issues or preparea briefing paper (as appropriate to a class- or individual-based exercise)

. Responses in a form indicated by your instructor to the Discussion questionsbelow.

Discussion

1 In this complex rule-making, the US Fish and Wildlife Service will likely receivecomments from individuals from many backgrounds and with varying levels ofexpertise. Based on your particular interest or expertise, what is your evaluationof the proposal?

2 If you were a US Fish and Wildlife Service staff person, how would you advise theAgency to evaluate the comments it receives?

3 Do the applicable laws clarify or cloud the policy decisions facing the agencies?4 How do international laws and treaties affect the Agency’s decision-making?5 If you conducted this as a class exercise, you should evaluate your role and the

hearing officer’s decision either orally or in writing. Was it realistic? Why andwhy not? How did the exercise affect your understanding of the rulemakingprocess?

Making It Happen

Although reading the legal notices and scanning the Federal Register for proposedrules of potential significance to readers is hardly the stuff of high drama andscintillation, there are many more engaging ways to keep abreast of current admin-istrative actions raising conservation issues. Most United States administrative agen-cies have efficient, up-to-date websites that contain information and press releasesabout important initiatives. For example, for current issues involving endangeredspecies, you should check the US Fish and Wildlife’s endangered species webpage(see Further Resources). Reading current topical periodicals, attending scholarlymeetings, and corresponding with colleagues is another way to learn about theseissues. Public involvement is the critical step in the administrative process, eitherby attending a public information session or hearing, submitting comments on aproposed rule. You may wish to go a step further by informing others about theproposal, or participating in an established environmental group that engages in

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advocacy. Writing letters to the editor of your local newspaper about issues ofconcern, speaking to local groups, or simply circulating a proposal to individualsyou believe to have expertise in the subject matter may all be effective in shiftingthe public policy debate on an issue. Remember, the most important step is tobecome informed. The second most important step is to meet all applicable dead-lines for commenting if you decide to participate actively in the rule-making process.Note that many commentators believe that conservation professionals have anethical obligation to participate in these important matters.

Further Resources

The proposed rule upon which this exercise is based is authorized by the UnitedStates Endangered Species Act, 16 USC 460, et seq., on the web at http://www.fws.gov/endangered/esaall.pdf (also see its implementing regulations at 50CFR Part 402) and it should be consulted for the larger context of this exercise.

An useful summary of polar bear biology and population status is provided bySchleibe et al. (2006) in the ‘‘Range-wide Status Review of the Polar Bear (Ursusmaritimus),’’ available at http://alaska.fws.gov/fisheries/mmm/polarbear/pdf/Polar_Bear_%20Status_Assessment.pdf

A good short introduction to the listing process under the Endangered SpeciesAct and the issues raised by this proposed rule can be found in the CongressionalResearch Service Report for Congress, Polar Bear Listing As Endangered Species,at: www.opencrs.com/rpts/RS22582_20070125.pdf

Current issues involving endangered species are highlighted at the US Fish andWildlife’s endangered species webpage: www.fws.gov/endangered/.

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