Polar Bears

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Brief Summary of Laws Affecting Polar Bears
Sarah Morgan (2007)

 

Polar bears are the largest land carnivores in North America. In the wild, they are only found in the Arctic, in the United States, Russia, Greenland, Canada, and Norway. The worldwide population is estimated to be around 22,000-27,000 individuals.

There exist several threats that risk leading to the eradication of polar bears by the year 2100. The most important of these threats are climate change, oil spills, loss and disturbance of habitat through development and tourism, pollution, hunting and self-defense killing, cannibalism, and capture of polar bears for public display in zoos. Laws have been created to help counter these threats at all levels of government in the five Arctic states.

Of these threats, climate change is the most important. With the current melting trends, the polar bear’s habitat is quickly disappearing. Consequently, the polar bear is having difficulty finding suitable areas to make its den and finding food. Oils spills are also a problem given that polar bears swim in the arctic waters. When in contact with the oil, polar bears often ingest the oil when licking to clean themselves, subsequently becoming sick and sometimes dying.  Development in the north also leads to loss of habitat and increases marine traffic, another hazard for the swimming polar bear. Pollutants from our cars and industry can also lead to severe health problems and even death of the polar bear.

Hunting and self-defense killing is the second most important threat to polar bears. Generally, polar bears are killed for food; their body part are also used to make pelts, clothing, and handicrafts. Although polar bear cannibalism is not very common, it does happen and remains a notable factor in polar bear population decline. Tourism in the arctic may affect polar bears by disrupting and destroying their habitat and capturing polar bears for public display, inevitably leads to reducing the population of wild polar bears.

The legal framework surrounding polar bears is extremely complex. Climate change is a worldwide problem. Generally, different countries have adopted tools such as regulations reducing vehicle emissions and international agreements, such as the Kyoto Protocol . Oil and other development are regulated by creating standards for construction of oil rigs and tankers and establishing protocols for cleanup in case of oil spills. Also, as a means to prevent development, several countries have created parks. Pollution is a problem of global scope and its regulation is very difficult. It is typically regulated at the international level through agreements and treaties.   Hunting can be legal or not (poaching). Most states only permit native people to hunt polar bears, but Canada is the only Arctic state that allows non-native people to hunt polar bears. Killing a polar bear in self-defense is permissible when one’s life or another’s is threatened.

Hunting is regulated by enacting such laws that, for example, set quotas on how many polar bears can be hunted, and restrict the hunt to bears of a certain age or sex. On the other hand, it is not possible to control cannibalism by use of legislation. Governments have sought to diminish the impact of tourism in the Arctic on polar bears by limiting where tourists can go, what they can do, and by providing tourist with guidelines of how they should act should they encounter a polar bear. Finally, legislation governing the capture of polar bears for public display generally limits who can take the polar bear, how many polar bears can be taken, and the quality of life of the polar bear once in captivity.

The principal threat to the survival of polar bears is climate change. With climate change, the polar bear’s environment is changing drastically, and the question remains whether polar bears will be able to adapt. It is certain that a change is needed in the current legislative regime as it is certainly not the most efficient means of managing one of the world’s most unique and majestic animals.

 

Overview of the Laws Affecting Polar Bears
Sarah Morgan (2007)

Polar bears are the largest land carnivores in North America, with Kodiaks being the largest land carnivores in the world. In the wild, polar bears are found in the Arctic, in the United States, Russia, Greenland, Canada, and Norway. In Canada, their range is limited to the provinces of Ontario, Quebec and Manitoba and the territories of Yukon, Northwest Territories and Nunavut while in the United States the polar bears are limited to Alaska. The worldwide population is estimated to be around 22,000-27,000 with individuals distributed in about 19 subpopulations. It was important to divide polar bears in such subpopulations from a management perspective as it simplifies communication and jurisdictional issues.

There exist several threats that risk leading to the extinction of polar bears by 2100. The most important of these threats being climate change, oil and other development, pollution, hunting and self-defense killing, intraspecific predation, tourism in the Arctic, and capture for public display. Legislation has been enacted to counter these threats at the state, federal and international level in the five Arctic states: Greenland, Norway, the United States, Canada and Russia.                                                                                                                                                                               

Of these threats, climate change is the most important. With the current melting trends, ice packs are fragmenting and distancing themselves in the open ocean rendering it more difficult for polar bears to travel between them and leading to polar bears drowning. Also, it has been suggested that such fragmentation may lead to isolating populations which could have negative genetic repercussions on the polar bear populations. Finally, with climate change, polar bears are dying of starvation and having difficulty reproducing.

Hunting and self-defense killing is the second most important threat. Polar bears are killed for a variety of purposes. Natives typically kill the polar bear to use it for food, clothing, and handicrafts, but also to sell its pelt which can bring lots of money. Non-natives hunt the polar bear for the thrill and then proudly display its pelt and head piece in their lofts or elsewhere as a trophy. Intraspecific predation is a phenomenon whereby an animal kills the same member of its species. For example, a polar bear hunts another polar bear. Although this is not very common, it does happen and remains a notable factor in polar bear population decline.

Tourism in the arctic may affect polar bears by disrupting and destroying their habitat.  Additionally, capture for public display, where polar bears are captured and transferred to zoos and ecological parks, is important because it removes a polar bear from its environment reducing the wild polar bear population. On the other side, it provides the animal with a home in a regulated and controlled environment where death is more limited to disease or natural causes.  

Oil and gas development affects polar bears in a variety of ways by polluting the ocean with hydrocarbons, reducing and disturbing their habitat with associated infrastructure and increased maritime traffic. Pollution both from remote and proximate sources may lead to severe health problems and even death of the polar bear.

Despite the recognition of these various threats, the legal framework surrounding polar bears is extremely complex. On one hand we have five countries, Canada, Norway, Greenland, Russia and the United States which all have different state and federal laws that are all enforced to varying degrees, if at all. On the other hand, we have a series of international agreements, albeit mostly soft-law, which some countries are signatory while others are not.

Climate change is a worldwide problem. At the state level, the strategy has been to adopt mostly non-enforceable initiatives and programs. At the international level, the Kyoto Protocol was adopted in order to help in guiding the world towards curbing carbon dioxide emissions.

With respect to oil spills and pollution, the United States adopted the Oil Pollution Act that removed the liability limit for oil spills and made it a requirement that tankers, which transport oil to the United States, have double hull construction. This led to changes at the international level, and today, all oil tankers are required to have double hull construction. To prevent against development of land in the arctic, the governments at state and federal levels have created parks. In these, conduct is regulated to disturb as little as possible polar bears residing therein.

Pollution is inherently difficult to detect and regulate because of several factors: Not only are the effects and interactions of pollutants largely unknown, but pollutants travel great distances and therefore their origin is not always quite certain. Moreover, the industries creating the pollution are rich and will oppose regulations. Some examples of methods to regulate pollutants are: phasing out of coal powered plants, regulation of industry operation time and adoption of international agreements banning the creation and use of harmful chemicals.

Hunting can be legal or not (poaching). Most states restrict the hunting of polar bears to natives however Canada is the only Arctic state that allows non-natives to hunt polar bears with certain restrictions.   Essentially, a non-native hunter must be accompanied by a native guide to hunt the polar bear, and they may only hunt in a designated area. While poaching is an identifiable problem, no information exists on the number of polar bears being killed via these means. Self-defense killing on the other hand is allowed generally when one's life or another’s is threatened. Means to regulate hunting typically involve setting quotas, restricting the hunt to bears of a certain age or sex and, at the international level, controlling export and import.

Obviously, it is not possible to control intraspecific predation by use of legislation. Tourism and its effect on polar bears, however, can be regulated.  Governments have sought to diminish the impact of tourism in the Arctic on polar bears by limiting where tourists can go, what they can do, and by providing tourist with guidelines of how they should act should they encounter a polar bear.  Finally, legislation governing the capture of polar bears for public display generally limits who can take the polar bear, how many polar bears can be taken, and the quality of life of the polar bear experiences once in captivity.

The issues surrounding the conservation and management of polar bears are complex. Significantly, the principal concern is climate change. With climate change, the polar bear’s environment is changing drastically, and the question remains whether polar bears will be able to adapt or not.   Polar bears are very specific to their environment by their structure, their hunting methods, food source and their reproduction. For example, a polar bear’s white fur enables it to camouflage with snow and ice while hunting and denning and its multiple fatty layers insulates it from the cold air and water. Can such an animal so specific to its habitat survive climate change? It is clear that although a legislative framework exists, it is largely inadequate. An important step would be in creating a more uniform framework among the arctic states. However, uniform and effective enforcement would also be required, perhaps by creating a transnational polar bear enforcement organization. It is certain that a change is needed as the current legislative framework is certainly not the most efficient means of managing one of the world’s most unique and majestic animals.

 

Related articles

Biological Summary of Polar Bears

A Survey of Agreements and Federal Legislation Protecting Polar Bears in the United States , 1 Journal of Animal Law 73 (2006), by Jamie WoolseyroThroughout the past few decades, international concern for polar bear welfare has increased dramatically. The multinational agreements forged for their conservation require significant policing, cooperation, and understanding of the complex ecological and economic considerations surrounding these predators. Woolsey’s article explores the international agreements and measures designed to save both the bears and their critical habitat.

What About the Polar Bears? The Future of the Polar Bears as Predicted by a Survey of Success under the Endangered Species Act , Laura Navarro, 19 Vill. Envtl. L.J. 169 (2008). The proposed listing of polar bears raises questions about what that listing might mean for the polar bears as a species, and how successful conservation efforts will or can be. This Comment explores these and other questions implicated by the proposed listing of polar bears as an endangered species under the Act.

 A Survey of Agreements and Federal Legislation Protecting Polar Bears in the United States,  1 Journal of Animal Law 73 (2005). Throughout the past few decades, international concern for polar bear welfare has increased dramatically. The multinational agreements forged for their conservation require significant policing, cooperation, and understanding of the complex ecological and economic considerations surrounding these predators. Woolsey’s article explores the international agreements and measures designed to save both the bears and their critical habitat.

Related cases

In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation-MDL No.1993 United States Court of Appeals, District of Columbia Circuit, --- F.3d ----, 2013 WL 2991027 (D.C. Cir. 2013). Hunters and hunting organizations sued the Secretary of Interior, the Director of the U.S. Fish and Wildlife Service, and the Service itself after the Service listed the polar bear as a threatened species under the Endangered Species Act (ESA) and barred the importation of polar bear trophies under the Marine Mammal Protection Act (MMPA). On appeal, the appeals court affirmed the lower court’s decision to grant the defendants' motion of summary judgment.

In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 627 F.Supp.2d 16 (D.D.C.,2009). Plaintiffs Safari Club International and Safari Club International Foundation brought this action under the APA challenging the FWS's legal determination that the listing of the Polar Bear as "threatened" under the Endangered Species Act was a final agency action. At issue here is defendants' Motion for Judgment on the Pleadings on the grounds that plaintiffs fail to challenge a final agency action as required for judicial review under the APA.

Center for Biological Diversity v. Kempthorne, Slip Copy, 2008 WL 4543043 (N.D.Cal.). In an action alleging multiple violations of the ESA, the APA, and NEPA pursuant to Defendants’ final rule designating the polar bear as threatened, Defendants Kempthorne and the United States Fish and Wildlife Service brought a motion to transfer the case to the United States District Court for the District of Columbia.

Center for Biological Diversity v. Kempthorne, 2008 WL 1902703 (N.D.Cal. 2008). Plaintiff Center for Biological Diversity (CBD) seeks to compel Defendants to perform their mandatory duty under the Endangered Species Act (ESA) to publish a final listing determination for the polar bear. Plaintiffs have filed a summary judgment motion seeking an injunction and declaratory judgment to this effect.

Center for Biological Diversity v. Kempthorne, 2008 WL 4542947 (N.D.Cal.). Plaintiffs brought various claims against Defendants relating to Defendants’ final rule designating the polar bear as a threatened species under the Endangered Species Act (ESA), and Defendants’ promulgation of a special rule under section 4(d) of the ESA, allowing certain activities with respect to the polar bear that might otherwise be prohibited.

Related laws

Polar Bears Declared "Threatened." Sec. Kempthorne issued a press release  May 14, 2008 listing the polar bear as a threatened species under the ESA. This announcement follows the agency's protracted consideration process that was at issue in litigation. ( Click here to read the case).

In 2006, the house passed a bill ( H.R. 4075 ) that puts into effect the 2000 treaty between the U.S. and Russia that sets quotas on polar bear hunting by native populations and creates a bilateral commission to analyze how best to sustain the polar bear habitat. These provisions were added to the MMPA in December 2007. Marine Mammal Protection Act Amendments for polar bears .

Multilateral Conservation of Polar Bears Agreement done at Oslo November 15, 1973

Table of Contents for the current version of the Marine Mammal Protection Act (MMPA)

 

Related Links

Web Center Resources:

MMPA/Dolphin Topic Page

Non-Web Center Resources:

Click here to read the USFWS's proposed rule to list the polar bear as Threatened throughout its range.

Polar Bear Specialist Group of the IUCN Species Survival Commission - http://pbsg.npolar.no/en/index.html

 

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