On May 15, 2008, the Service published a rule listing the polar bear as a threatened species under the ESA.See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008). In the same rule, the Service also determined that the listing had the effect of designating the polar bear as "depleted" under the MMPA and that MMPA sections 101(a)(3)(B) and 102(b)(3) thus barred continued importation of sport-hunted polar bear trophies under that statute.
The Safari Club now appeals the district court's grant of summary judgment on the importation issue, raising both statutory and procedural challenges. Several conservation groups, including the Humane Society of the United States, have intervened on behalf of the Service. On one of the issues regarding bears taken before the designation as depleted, according to the Safari Club, this provision applies only to mammals taken from species that had alreadybeen designated as depleted at the time they were taken. The Appeals Court said, "The district court disagreed, as do we. See In re Polar Bear Endangered Species Act Listing, 818 F. Supp. 2d at 256 & n.11. The provision refers not to mammals taken from species the Secretary had designated as depleted but instead mammals taken from species the Secretary has so designated. If Congress intended section 102(b)(3) to apply only to mammals taken after the species became depleted, it would have replaced the verb 'has' with 'had.'" The Appeals Court noted further, "Reinforcing this conclusion, other provisions of section 102(b) are expressly limited by the phrase 'at the time of taking.'"
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