Page 1

Journal of the WILDCAT CONSERVATION LEGAL AID SOCIETY THE DEGRADATION OF WILDCAT POPULATIONS & HABITATS QUITE A YEAR AND NEW LIFE FOR PANTHERA TIGRIS: THE ST. PETERSBURG DECLARATION AND THE FUTURE OF WILD TIGERS Philip J. Nyhus & Lisa Ann Tekancic A ROAD TO DESTRUCTION IN THE SERENGETI Mindi Lasley WHY NOT THE BEST? HOW SCIENCE FAILED THE FLORIDA PANTHER Liza Gross FLORIDA PANTHER UPDATE: HOW ARE THEY DOING NOW? WildCat Conservation Legal Aid Society THE PLIGHT OF WILDCATS IN SOUTH AFRICA: DAMAGE CAUSING ANIMALS OR BYCATCH Richard Hargreaves IMPRESSIONS & PROSE: WILDCAT CONSERVATION LEGAL AID SOCIETY THE TYGER, William Blake

Winter 2010 ~ Volume IV WildCat Conservation Legal Aid Society © All Rights Reserved


Journal of the WILDCAT CONSERVATION LEGAL AID SOCIETY


The Journal of the WILDCAT CONSERVATION LEGAL AID SOCIETY is published by the WildCat Conservation Legal Aid Society, Washington, DC. Copyright Š 2010-2011 All Rights Reserved.


Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

iii

NOTA BENE The Journal of the WILDCAT CONSERVATION LEGAL AID SOCIETY (Journal) is published semi-annually by the WildCat Conservation Legal Aid Society. The Journal provides a unique forum for professionals and scholars to analyze and comment on the issues affecting wildcats around the world, reflecting the perspectives of all disciplines including law, education, medicine, science, philosophy, religion, humanities, social science, and art. Information on current topics, submission guidelines, and deadlines is available on our website at: http://www.wcclas.org/publications. The Journal is reviewed by the Board of Directors of the WildCat Conservation Legal Aid Society and by our Legal Editor. Research, commentaries, opinions, views, and content expressed and contained in the articles published in the Journal are those of the contributing authors and not of the WildCat Conservation Legal Aid Society, its Board of Directors, or staff. No compensation is paid to the authors in exchange for publication. The Journal is published in a specialty-licensed electronic format. Disseminating this feature in any manner is strictly prohibited. Disseminating the Journal in whole or part and reprinting or republishing it on the Internet or in any other form is also strictly prohibited. Queries related to reprinting and republishing articles contained in the Journal should be sent to journaleditor@wcclas.org. Soft-bound copies of the Journal are available via a yearly subscription (two consecutive volumes) for US$50.00. Subscriptions may be purchased on our website or by mailing a check to WildCat Conservation Legal Aid Society, P.O. Box 65495, Washington, DC 20035.


iv Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV


Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

FOR ALL WILDCATS

v


vi Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV


Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

vii

TABLE OF CONTENTS THE DEGRADATION OF WILDCAT POPULATIONS & HABITATS

PREFACE

ix

QUITE A YEAR AND NEW LIFE FOR PANTHERA TIGRIS: THE ST. PETERSBURG DECLARATION AND THE FUTURE OF WILD TIGERS Philip J. Nyhus and Lisa Ann Tekancic

1

A ROAD TO DESTRUCTION IN THE SERENGETI Mindi Lasley

19

WHY NOT THE BEST? HOW SCIENCE FAILED THE FLORIDA PANTHER Liza Gross

31

FLORIDA PANTHER UPDATE: HOW ARE THEY DOING NOW? WildCat Conservation Legal Aid Society

55

THE PLIGHT OF WILDCATS IN SOUTH AFRICA: DAMAGING CAUSING ANIMALS OR BYCATCH Richard Hargreaves

65

IMPRESSIONS & PROSE: WILDCAT CONSERVATION LEGAL AID SOCIETY “THE TYGER” William Blake

75


viii

Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV


Preface

ix

PREFACE “Man is the only creature who refuses to be what he is.� ALBERT CAMUS

Biopolitics. An interesting concept; social theory. Biopolitics is defined in several ways: Michel Foucault defined the term as the style of government that regulates populations through biopower, the application and impact of political power on all aspects of human life; the political application of bioethics; a political spectrum that reflects positions toward the sociopolitical consequences of the biotech revolution; political advocacy in support of or in opposition to some applications of biotechnology; public policies regarding some applications of biotechnology; and political advocacy concerned with the welfare of all forms of life and how they are moved by one another. If we apply the latter definition of biopolitics in relation to environmental policy both domestic and international, it inevitability raises questions concerning human population growth, the rate of human consumption of our natural resources, and the sustainability of all life. The Tragedy of the Commons, 1 written by Garret Hardin in 1968, provides a fundamental understanding of the degradation of our environment. His basic idea is that if a resource is held in common by use of all, then ultimately that resource will be destroyed. Freedom in common brings ruin to all. To avoid the ultimate destruction, we must change our human values and ideas of morality. Held in common means the resource is owned by no one or by a group all of whom has access to the resource. Ultimately references time; it will happen, and is closely tied to an 1

GARRET HARDIN, The Tragedy of the Commons, 162 SCIENCE 12431248 (1969).


x

Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

increase in population of those who have access to the resource. The greater number of people using a resource the faster it will be destroyed. Herschel Elliot, a professor of philosphy, outlines in his A General Statement of the Tragedy of the Commons, 2 four premises that comprise the tragedy of the commons: 1. The Earth is finite: it has a limited stock of renewable fuels, minerals, and biological resources, a limited throughput of energy from the sun, and a finite sink for processing wastes. 2. Although human activity very often does occur on privately owned lands which are not a commons, that and all other human activities take place in some larger natural commons. And that larger commons is a limited biosystem which is in a dynamic, competitive, and constantly evolving equilibrium. The equilibrium of an ecosystem can usually accommodate any activity on the part of its members as long as that activity is limited in the amount and/or is practiced only by a small population. But continuous growth in the numbers of any organism or in its exploitation of land and resources will eventually exceed the capacity of the ecosystem to sustain that organism. 3. Now for the first time on a global scale, human beings are exceeding the land and resource use which the Earth’s biosystem can sustain. 4. Certainly it is true, as Hardin noted, that individuals who seek to maximize their material consumption contribute to the ever increasing exploitation of the world’s commons. The January 2011 NATIONAL GEOGRAPHIC cover story, Population 7 Billion: How your world will change, presents some startling questions: “By 2045 global population is projected to 2

HERSCHEL ELLIOT, A General Statement of Hardin’s Tragedy of the Commons, 18 POPULATION & ENVIRONMENT (July 1997).


Preface

xi

reach nine billion. Can the planet take the strain? As we reach the milestone of seven billion people this year, it’s time to take stock. In the coming decades, despite falling birthrates, the population will continue to grow—mostly in poor countries. If the billions of people who want to boost themselves out of poverty follow the path blazed by those in wealthy countries, they too will step hard on the planet’s resources. How big will the population actually grow? What will the planet look like in 2045? The answers will depend on the decisions each of us makes.” In this issue of the Journal, a common theme throughout the articles illustrate the concepts of biopolitics and Hardin’s Tragedy of the Commons, as they all relate to the degradation of wildcat populations and their natural habitats in Asia, Africa, and North America; the present affect of over population; and our need to expand and exploit the remaining undeveloped wild lands; destroying not only the land itself but all forms of life that depend on that land and impede human expansion. In two recent articles, published in SCIENCE and PNAS, the authors explore the conservation challenges, the strain on our natural resources, and the economic consequences due to the increase in human population and activities. In the introduction to Biodiversity Conservation: Challenges Beyond 2010, 3 Michael Rands, et al., state: The continued growth of human populations and of per capita consumption have resulted in unsustainable exploitation of Earth’s biological diversity, exacerbated by climate change, ocean acidification, and other anthropogenic environmental impacts. We argue that effective conservation of biodiversity is essential for human survival and the maintenance of ecosystem processes. Despite some conservation successes (especially at local scales) and increasing public and 3

MICHAEL R. W. RANDS, ET AL., Biodiversity Conservation: Challenges Beyond 2010, 329 SCIENCE 1298-1303 (September 10, 2010).


xii Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

government interest in living sustainably, biodiversity continues to decline. Moving beyond 2010, successful conservation approaches need to be reinforced and adequately financed. In addition however, more radical changes are required that recognize biodiversity as a public good, that integrate biodiversity conservation into policies and decision frameworks for resource production and consumption, and that focus on wider institutional and societal changes to enable more effective implementation of that policy (emphasis added).

In the article, The debt of nations and the distribution of ecological impacts from human activities, 4 U. Thara Srinivasan, et al., note that “Humanity is transforming ecosystems around the globe at an unprecedented speed and scale…In many ways, humanity is already terra incognita regarding the extent of current ecological degradation and more so in predicting the future impacts of our past and ongoing actions. Indeed, our awareness of the risks of future climate catastrophes (e.g., the collapsing of ice sheets and changes in ocean circulation) is growing, although the probabilities and costs of such events are unknowable.” Is there a solution to the tragedy of the commons? Ostrom, et al., in Revisiting the Commons: Local Lessons, Global Challenges, 5 provide a simple yet complex answer: 1) restricting access; and 2) creating incentives (by assigning individual rights to, or shares of the resource) for users to invest in the resource instead of over exploiting it (emphasis added). An example of this solution is described by Jared Diamond in his book, COLLAPSE: HOW SOCIETIES CHOOSE TO FAIL OR SUCCEED, 6 in which the people of Tikopia, Japan and the New Guinea highlands saved their forests and the agrarian economy which 4

U. THARA SRINIVASAN, ET AL., The debt of nations and the distribution of ecological impacts from human activities, 105 PNAS 1768-1773 (February 5, 2008). 5 ELINOR OSTROM, ET AL., Revisiting the Commons: Local Lessons, Global Challenges, 284 Science 278-282 (April 9, 1999). 6 JARED DIAMOND, COLLAPSE: HOW SOCIETIES CHOOSE TO FAIL OR SUCCEED, (Viking 2004).


Preface

xiii

depended on the forests. All limited their population to what could be sustained by their economies. Biopolitics defined as political advocacy concerned with the welfare of all forms of life and how they are moved by one another extends not only to the human condition and our morality, mortality and consumption of natural resources but also all other forms of life that are affected by human growth and activities that we share this planet with; our future sustainability of all life forms will ultimately depend on the decisions each of us makes.

WILDCAT CONSERVATION LEGAL AID SOCIETY


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 1

QUITE A YEAR AND NEW LIFE FOR PANTHERA TIGRIS: THE ST. PETERSBURG DECLARATION AND THE FUTURE OF WILD TIGERS Philip J. Nyhus, Ph.D. † and Lisa Ann Tekancic, Esq. ††

Introduction Much was made in 2010 that it was the Year of the Tiger according to the Chinese lunar calendar. Looking back from the vantage point of the Year of the Rabbit, it is already possible to say that 2010 was really a much needed year for the tiger, a year when global concern for Panthera tigris, one of the world’s most iconic but endangered species, finally met with the attention it merited. The culmination, or at least the public face, of this concern was the signing of the St. Petersburg Declaration at the International Tiger Forum that convened from 21–24 November, 2010, in St. Petersburg, Russia. This declaration committed signatories to try to double the number of wild tigers by 2022.

Philip J. Nyhus, Ph.D., Environmental Studies Program, Colby College, Waterville, ME. Dr. Nyhus attended the Tiger Summit in St. Petersburg as a representative for the WildCat Conservation Legal Aid Society. ††

Lisa Ann Tekancic, Esq., founder and president of the WildCat Conservation Legal Aid Society, Washington, DC.


2 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

The International Tiger Forum (also referred to as the Tiger Summit) was hosted by Prime Minister Vladimir Putin of Russia, sponsored by The World Bank, and attended by high level government leaders from all 13 tiger range states, and the world’s leading conservation organizations and finance institutions. The Tiger Summit may have been the most significant meeting about tigers, and indeed possibly any single species, ever convened. In this article we describe the positive outcomes of the Tiger Summit as well as its limitations. We begin with a little perspective, briefly describing why and how tiger populations came to be in such a dire predicament and why this meeting differed from past global tiger meetings.

The Back Story Global tiger populations have been in decline for much of modern recorded history. Once widely distributed throughout southern and eastern Asia, including three Indonesian islands, tiger habitat decreased steadily and tiger mortality increased steadily over the past several hundred years. 1 The twentieth century was particularly brutal for tigers as the world’s human population grew from 1.6 billion to 6.1 billion people. 2 In Asia, forests were bisected by roads, cleared for farms, converted to plantations, encroached on by cities, dug up, drilled, and desecrated by industrial waste and toxic substances. The tiger, the ecological apex predator in these ecosystems, was toothless in the face of this onslaught by humans, their weapons, and the juggernaut 1

RONALD TILSON & PHILIP J. NYHUS, TIGERS OF THE WORLD: THE BIOLOGY, POLITICS, AND CONSERVATION OF PANTHERA TIGRIS, (Elsevier 2010). 2 POPULATION REFERENCE BUREAU, World Population Growth, 1950– 2050, available at http://www.prb.org/Educators/TeachersGuides/HumanPopulation/Popul ationGrowth.aspx. 2011.


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 3

of powerful machinery fueled by the fossils pumped from beneath the tigers’ feet. When the 1962 Year of the Tiger in the Chinese lunar calendar dawned, the world had not yet awakened to the calls of the modern conservation and environmental movements. A few early voices had, however, begun to express concern over the loss of tigers and their habitat. For example, Peter Jackson, future founding Chairman of the International Union for Conservation of Nature (IUCN) Cat Specialist Group, wrote about the decline of tigers in India and elsewhere. 3 Most tiger range states still had policies to kill tigers, with some countries paying bounties to encourage their eradication. By the next Year of the Tiger in 1974, four years after the first Earth Day, the science of modern ecology and the modern conservation movement had diffused into the realm of the tiger. George Schaller had by then published The Deer and the Tiger, 4 the first comprehensive field study of tigers. Today’s senior tiger scientists were beginning their march on tiger habitats in India and Nepal as young graduate students. Prime Minister Indira Gandhi of India made the bold and visionary decision to establish Project Tiger to save what was left of India’s tigers. 5 By the 1986 Year of the Tiger, the pace of change in Asia’s forests had accelerated, but with the exception of countries like India, many research and conservation efforts were driven primarily by international conservation organizations. A meeting held at the Minnesota Zoo in 1987 3

PETER JACKSON, Fifty Years in the Tiger World, TIGERS OF THE WORLD: THE SCIENCE, POLITICS, AND CONSERVATION OF PANTHERA TIGRIS (Ronald Tilson & Philip J. Nyhus eds., 2d ed. 2010). 4 GEORGE B. SCHALLER, THE DEER AND THE TIGER: A STUDY OF WILDLIFE IN INDIA, (University of Chicago Press 1967). 5 BELINDA WRIGHT, Will the Tiger Survive in India?, TIGERS OF THE WORLD: THE SCIENCE, POLITICS, AND CONSERVATION OF PANTHERA TIGRIS (Ronald Tilson & Philip J. Nyhus eds., 2d ed. 2010).


4 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

brought many of these Asian and international scientific experts (but not policy makers) together and they published Tigers of the World, 6 which for over a decade served as a primary resource for tiger science and conservation. By the 1998 Year of the Tiger, the tiger crisis was in full swing. Deforestation rates were high, poaching rates higher, and a growing chorus of voices expressed concern for the decline of wild tigers. 7 New organizations and funding sources were established or enhanced to address this crisis (e.g., Save the Tiger Fund). ExxonMobile funded a global conference to bring leading tiger conservation authorities and government representatives of the world’s tiger ranges states together for a Year of the Tiger meeting in Dallas, Texas. 8 During this meeting, some tiger range states submitted tiger conservation plans. Scientists were engaged, conservationists were active, donors were excited, and experts and authorities were emerging from across the tiger’s range. The public, as symbolized by the picture of a tiger on the cover of Time magazine in 1994, was increasingly aware of the plight of tigers and the loss of biodiversity in Asia. It seemed the pieces had finally come together to save the world’s largest cat.

The Road to St. Petersburg Unfortunately, these efforts were not sufficient to reverse the tigers’ decline. As the most recent Year of the 6

RONALD TILSON & ULYSSES S. SEAL, TIGERS OF THE WORLD: THE BIOLOGY, BIOPOLITICS, MANAGEMENT, AND CONSERVATION OF AN ENDANGERED SPECIES (Noyes Publications 1987). 7 JOHN SEIDENSTICKER, ET AL., RIDING THE TIGER: TIGER CONSERVATION IN HUMAN-DOMINATED LANDSCAPES, (Cambridge University Press 1999). 8 RONALD TILSON, ET AL., Securing a Future for the World's Wild Tigers, SAVE THE TIGER FUND, NATIONAL FISH AND WILDLIFE FOUNDATION (2000), available at http://sipddr.si.edu/dspace/handle/10088/6653.


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 5

Tiger dawned in February of 2010, the world added another billion people since the previous Year of the Tiger, with close to a third of the world’s total population living in countries that have or once had tigers. If tigers were threatened with extinction in the wild in 1998, they were on the brink of extinction in 2010, and at the year’s end, are steadfastly getting closer to extinction in the wild. The confidence and optimism of 1998 among tiger conservationists that more science, funding, training, awareness, and anti-poaching campaigns would save tigers was replaced with a sharper realization that something new and different was needed. Dedication and hard work may have delayed the tiger’s demise, but efforts to keep it from going extinct in the wild appeared to be failing. Many influential individuals, organizations, and consortia played a role in the evolution of the agenda for the St. Petersburg Tiger Summit. In 2008, the Smithsonian Institution, The World Bank, and the Global Environmental Facility (GEF) came together in partnership with additional organizations to initiate the Global Tiger Initiative (GTI). The GTI framework grew to include all 13 tiger range states and an ever-wider group of international organizations. Close collaboration among these organizations cemented a vision for developing a strategy to identify priority tiger habitat and to identify a road map for conservation action. 9 Prior to the Tiger Summit, a series of high level preparatory meetings were held to cement the growing collaborations and to begin to develop the agenda that would eventually culminate in the St. Petersburg Declaration. 10 These meetings were not always harmonious, shining a glaring 9

See GLOBAL TIGER INITIATIVE SECRETARIAT, The Global Tiger Recovery Program 2010-2022, (The World Bank 2011). 10 St. Petersburg Declaration, available at http://www.wcclas.org/images/forms/DeclarationTigerConservationNE GOTIATEDDRAFTJuly142010.pdf; see also Key Elements of the St. Petersburg Declaration infra pp. 17-18.


6 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

and sometimes contentious spotlight on the different policies and goals among countries with abundant wild tigers and stronger tiger conservation goals, notably India, and countries with few tigers, weak tiger conservation infrastructure, and a culture and recent history of tiger consumption, notably China. Another challenge was how to generate an Asia-wide partnership and not simply another tiger organization or collaboration. For example, a group of tiger range states, led by India, had already created the Global Tiger Forum (GTF) in 1994 to share expertise, collaborate on tiger conservation efforts, and to combat poaching of tigers for the market in East Asian medicine. 11 Further attention was focused on the problem of poaching as a primary driver of tiger loss through the work of IUCN, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the emergence of a new and diverse coalition of organizations under the umbrella of the International Tiger Coalition (ITC), an alliance of 43 organizations representing over 100 total organizations with the stated goal of bringing back wild tigers by stopping trade in tiger parts products. 12 Eventually, however, a broad consensus and platform emerged that could be supported by all tiger range states. The first major preparatory meeting occurred in April 2009, in Pattaya, Thailand that resulted in the Manifesto on Combating Wildlife Crime in Asia. 13 Soon after, at a tiger workshop in October 2009, held in Kathmandu, Nepal, tiger participants shared best practices and discussed how to scale up successful conservation efforts. In January 2010, representatives of tiger range states met again; this time in Hua Hin, Thailand. Notable outcomes of this meeting included 11

See http://www.globaltiger.org. See http://www.endtigertrade.org. 13 Manifesto on Combating Wildlife Crime in Asia, available at http://www.aseanwen.org/index.php?option=com_docman&task=doc_details&gid=9&Ite mid=60. 12


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 7

establishing the goal of doubling the world’s tiger population by 2022 and endorsing the idea of a meeting to be held in Russia. In July 2010, three months prior to the Tiger Summit in Russia, a final meeting was held in Bali. Representatives of tiger range countries discussed the development of countryspecific tiger recovery programs, called the National Tiger Recovery Priorities (NTRPs), 14 and worked on honing the text of the St. Petersburg Declaration. 15 In addition to these meetings, several global meetings and announcements just prior to the Tiger Summit were held related to biodiversity conservation which helped to frame and support a broad global commitment to biodiversity conservation. For example, numerous delegates at the Tiger Summit attended the tenth meeting of the Conference of the Parties (CoP 10) of the Convention on Biological Diversity in October 2010, held in Nagoya, Japan. Earlier in the year, the UN General Assembly declared 2010 the International Year for Biodiversity (IYB) and the decade, 2011 to 2020, as the UN Decade on Biodiversity.

Positive “Tiger Summit” Outcomes The Tiger Summit was hailed by some as an enormously significant event for tigers. But was this confidence warranted? As described above, the recent history of tiger conservation is replete with international meetings, important findings, dire speeches, and investments to solve the tiger crisis. At the 1998 Dallas meeting, for example, representatives of tiger range countries had come together to support tiger conservation. Why was the St. Petersburg meeting different? Some of the important and unique outcomes of the 2010 Tiger Summit include the following: 14

National Tiger Recovery Priorities, available at http://www.tigersummit.ru/files/GTRP-ANNEX-eng-web.pdf. 15 Supra note 9 and 10.


8 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

HIGH LEVEL GOVERNMENTAL AND INTERNATIONAL INVOLVEMENT: The role of The World Bank as a sponsor of the Tiger Summit, along with the attendance of Bank’s Director, Robert Zoellick, and other high level World Bank staff, and, even more importantly, the role of Prime Minister Vladimir Putin of Russia as host of the meeting immediately raised the stakes and the profile of the Tiger Summit. Participation by Premier Wen Jibao of China and the Prime Ministers of Bangladesh, Nepal, and Lao PDR, meant this was one of the highest-level diplomatic efforts ever focused on tigers. Individual countries had certainly placed high level political attention on tigers (e.g., Prime Minister Indira Ghandi in the early 1970s) and the world leaders had come together to declare their concern over loss of biological diversity globally and regionally (e.g., the 1992 Earth Summit in Rio) but the St. Petersburg meeting was unique in bringing together high level diplomatic contingents from every tiger range state. Leaders of the world’s largest conservation NGOs, representatives of UN and IUCN agencies, the GEF and other major donors, and even entertainers further cemented the high level political engagement at this meeting.

PREPARATION: The Tiger Summit itself was probably not as important as the process leading up to the meeting. The framework and eventually the specific wording of what would become the St. Petersburg Declaration emerged well before the first snow fell in St. Petersburg. This is in contrast to earlier international tiger meetings, such as the Dallas meeting, where preparation was carried out by letter, fax, and slow email, with the meeting serving as the venue to discuss and prepare documents. Following the Dallas meeting, some tiger range countries did publish country specific action plans, but these were typically


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 9

poorly designed, lacked political endorsement beyond wildlife agencies (if that), and lacked clear goals and timelines.

AWARENESS: While calls for saving the tiger are not new, the very real recognition expressed by numerous speakers that wild tiger populations had disappeared from most of their ranges, brought clarity to the meeting. Tiger Summit organizers, political leaders, and keynote speakers, many of whom were early leaders in tiger research, conservation, and governance, were bearing witness along with the entire world, to the very real possibility of the end of wild tiger populations. The crisis is serious enough and the scientific data and public opinion strong enough to move the world’s largest countries, conservation organizations, and financial institutions into action.

UNPRECEDENTED FINANCING COMMITMENTS: Funding in the wildlife conservation world frequently is measured in thousands or even millions of dollars. At the St. Petersburg meeting, approximately US$350 million was committed to tiger conservation. This commitment was aboveand-beyond the funds already committed by tiger range states for conservation efforts. Regardless of whether all of the committed funds will ultimately be made available for tiger conservation, it was nonetheless a breathtaking sum in comparison to recent funding available for tiger conservation programs.

DIRECT LINKAGES TO DEVELOPMENT AND INNOVATIVE FINANCING: Two important new ideas were introduced that will help to shape the future of tiger and biodiversity conservation. The first is the recognition that no matter how many resources


10 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

are devoted to tiger conservation these funds will be dwarfed by the trillions of dollars that will be invested in infrastructure development in Asia. The rapid expansion of transportation, mining, and other infrastructure development are key drivers behind habitat loss and degradation across Asia. The World Bank prepared and distributed a discussion paper, Smart Green Infrastructure in Tiger Range Countries, 16 that both identified this challenge but also offered a solution. The idea of a Smart Green Infrastructure was defined as an infrastructure development that avoids tiger habitats (e.g., avoiding designated Tiger Conservation Landscapes (TCLs)) minimizes adverse impacts on tiger habitat (e.g., providing wildlife underpasses for animals) and provides compensation for damages that do occur so that some form of mitigation may continue. 17 The potential to harness and direct the juggernaut of infrastructure development to benefit tigers and wild lands could ultimately be a significant game changer for tiger recovery in Asia. The second is the recognition that tiger conservation can and should take advantage of the growing global market for carbon. Eric Dinerstein and colleagues distributed a concept paper arguing that tropical forest and endangered species conservation would benefit from a compliance market that would be financially attractive to investors. 18 The proposed Wildlife Premium Market+REDD would add value to proposed carbon payments by valuing forested areas with wildlife, such as tigers. The Reducing Emissions from Deforestation and Forest Degradation (REDD+) program of

16

JUAN D. QUINTERO, ET AL., Smart Green Infrastructure in Tiger Range Countries: A Multi-Level Approach. Discussion Papers: Sustainable Development: East Asia and Pacific Region, (The World Bank 2010). 17 Id. 18 ERIC DINERSTEIN, ET AL., Wildlife Premium Market+REDD, (Unpublished concept document distributed at International Tiger Forum, St. Petersburg, Russia, November 2010).


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 11

the UN Environmental Program 19 is an instrument to allow wealthier countries to offset carbon emissions through a system of carbon payments to developing countries. The problem is that simply investing in carbon-rich ecosystems could lead to preservation of intact forests that retain carbon but are devoid of tigers and other large vertebrates. 20 During the Tiger Summit, Dinerstein presented an example of a carbonated tiger project underway in Nepal’s Terai Arc Landscape using payments from a German bank to support conservation of forests and tigers using high resolution imagery to measure carbon stock in standing forests. As with a green infrastructure development, the concept that global investors could pay a premium for carbon offsets that also would benefit biodiversity by funneling billions of dollars into projects that could benefit tigers is paradigm changing. Norway recently signed a US$1 billion agreement with Indonesia through the REDD+ process, providing a concrete example of just how significant carbon financing for conservation ultimately could become. While not necessarily new for conservation scientists, the roll-out of these concepts to high-level policymakers at the Tiger Summit is likely to speed the diffusion of these ideas and increase the likelihood of their eventual implementation.

RANGE STATE ENGAGEMENT: The early years of tiger conservation were dominated by non-tiger range state scientists and conservation NGOs. The momentum and leadership has shifted as many of the world’s top tiger scientists now are from tiger range states, and tiger conservation is becoming a more pronounced component of range country policies. Importantly, more tiger range state governments are beginning to have the human resources, financial capacity, and internal political will to make tiger conservation a domestic priority. Countries like Nepal, Russia, 19 20

See http://www.un-redd.org. Supra note 18.


12 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Malaysia, and now even China have established important domestic constituencies and the scientific, political, and financial will to make tiger conservation a national goal.

INDIVIDUAL COUNTRY COMMITMENTS: A major outcome of this process has been the development of the GTRP that empowers tiger range states to work together to address threats to tigers while balancing the Every needs of people and economic development. 21 participating country developed concrete and specific tiger recovery priorities, though some more specific and realistic than others, and plans to: 1) 2) 3) 4) 5) 6)

manage and protect habitat; address poaching and trade; cooperate with neighboring countries; engage with indigenous communities; generate domestic and new funding; and to promote tiger population recovery. 22

By signing the St. Petersburg Declaration, tiger range states were holding their countries, and their leaders, accountable for the success or failure of these initiatives. This does not guarantee these efforts will succeed, particularly in light of past failures, but now there are clear targets, deadlines, and some semblance of accountability. This is in sharp contrast to past meetings where conclusions typically resulted in finger pointing, vague promises, no accountability, and no meaningful commitment from governments and the global financial elite.

21 22

Surpa note 9. Id.


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 13

SCIENCE AND TECHNOLOGY: We simply know more today about tiger biology, habitat, and threats, and conservation than we did before, and this information was used effectively at the Tiger Summit. For example, embedded into virtually all the talks during the Tiger Summit were descriptions of how much habitat has been lost23 and the identification of priority Tiger Conservation Landscapes (TCLs).

Tiger Summit Criticisms and Limitations Of course, not everything that occurred at or emerged from the Tiger Summit was as positive as the press releases would suggest. Several important challenges emerged that may yet significantly constrain the potential positive impact of the Tiger Summit on tiger conservation.

POACHING AND TIGER FARMS: The orange and black striped elephant in the room at the meetings leading up to the event, and at the Tiger Summit itself was China’s perceived role in fueling international trade in tigers and tiger parts and China’s support for domestic tiger farming. Poaching of wild tigers is universally considered, along with habitat loss and degradation, as a primary threat driving the current tiger crisis. Concern over tiger poaching and tiger farms has energized numerous conservation organizations and led to the building of coalitions such as GTI. In order to continue to engage China in the St. Petersburg Declaration process, however, tiger farms were not included in the final Declaration and China’s role in trade was not 23

E. W. SANDERSON, ET AL., Setting Priorities for Tiger Conservation: 2005 - 2015, TIGERS OF THE WORLD: THE SCIENCE, POLITICS, AND CONSERVATION OF PANTHERA TIGRIS (Ronald Tilson & Philip J. Nyhus eds., 2d ed. 2010).


14 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

explicitly stated, even though it was and is a principal concern of many NGOs and some range countries delegates. Some critics of China’s policies identified this omission as a failure of the meeting, while others recognized the ultimate benefit of bringing China along as a partner rather than a defensive outsider, even if these tradeoffs resulted in a weaker resolution. One hopeful indication supporting a more optimistic view was China’s public commitment in the speech by Premier Wen Jiabao that China would support efforts to restore and to increase China’s tiger population and international cooperation to crack down on poaching and the illegal trade in tiger body parts. While some in attendance at the Tiger Summit saw this as a weak effort to mollify critics of China’s policies, it was, nonetheless, a public statement that puts China on record as supporting tiger conservation and opposing tiger poaching.

FUNDING ALLOCATION: While the level of financing committed to tiger conservation was staggering compared to prior commitments for tiger conservation, serious questions were raised about how much of this was actually new and how much was simply an accounting gimmick. For example, several large conservation NGOs committed in the range of US$50 million each at the meeting but it was unclear how much of this was simply redirecting or reframing funds already planned for existing conservation efforts in these countries. There also was initial confusion about whether World Bank funds would take the form of loans or grants. Numerous questions were raised about who ultimately would benefit from these resources. The history of major financing from sources like The World Bank and GEF is littered with stories of waste and ineffective projects. Cynics asked whether the lavish Tiger Summit itself was necessary given that these funds could be much better invested on the ground. Representatives of organizations who worked directly


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 15

with local communities and park rangers wondered aloud whether funding would actually reach many of the individuals and organizations who need it most. Notable among these critics is Steven Galster, who published an opinion piece in The New York Times on the eve of the meeting in which he stated publically his concern that more should be invested in front-line wildlife protection rather than distant organizations and global institutions. 24

SHORT ATTENTION SPANS: The high level delegates and the well orchestrated information campaigns raised awareness about tigers to unprecedented levels. However, a major concern is whether this energy can and will last long enough to make a real difference. Many competing interests continue to threaten the viability of Asia’s tiger conservation landscapes, and these threats will not disappear. With the human population increasing, rapidly growing economies, and diverse political and financial interest groups in the 13 tiger range countries, the threat to tigers will continue regardless of the political good will established at the Tiger Summit.

Concluding Thoughts: Looking Ahead to the Year of the Tiger in 2022 In the end, the success or failure of the St. Petersburg Tiger Summit will not be measured in months but in decades. If wild tiger populations go extinct, this meeting will simply be the highest profile and most expensive in a long series of failed meetings intended to fix the tiger problem. But if this meeting serves as a wake-up call for tiger range countries and the 24

STEVEN GALSTER, Tigers Need Conservation, Not Conversation, THE NEW YORK TIMES (November 21, 2010), available at http://www.nytimes.com/2010/11/22/opinion/22iht-edgalster.html.


16 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

global community to take serious steps to address the tiger conservation challenge, then we may have indeed just witnessed an historic event. The stewards of the tigers’ remaining habitats have committed to not just reducing the rate of extinction, but reversing for the first time in modern human history the downward trajectory of global wild tiger populations. Even if this meeting does not live up to its full promise to double the world’s wild tigers, it is hard to argue that up to this point we have failed in our efforts to save wild tigers. The participation and public commitment of the Tiger Summit’s delegates alone will not be sufficient to save tigers, and as Galster and others note, the real need is still on the front lines. But the St. Petersburg Declaration and the outcome of the Tiger Summit do ramp up the political and financial resources devoted to tiger conservation. Tiger poaching, forest degradation, and even China’s tiger farms are unlikely to disappear any time soon, but the unprecedented support for bold new initiatives with concrete goals certainly seems like the closest thing that has emerged in recent years as a game changer that will allow us to retain some hope of celebrating the viability of wild tiger populations in Asia’s forests in 2022.


Quite a Year and New Life for Panthera tigris: The St. Petersburg Declaration and the Future of Wild Tigers 17

KEY ELEMENTS OF THE ST. PETERSBURG DECLARATION The Heads of the Governments of tiger range states agreed to strive to double the number of wild tigers across their range by 2022 by:

1.

Doing everything possible to effectively manage, preserve, protect, and enhance habitats.

2.

Working collaboratively to eradicate poaching, smuggling, and illegal trade of tigers, their parts, and derivatives.

3.

Engaging with indigenous and local communities to gain their participation in biodiversity conservation, minimize negative impacts on tigers, their prey, and habitats, and reduce the incidence of human-tiger conflict by providing sustainable and alternative livelihood options through financial support, technical guidance, and other measures.

4.

Increasing the effectiveness of tiger and habitat management.

5.

Exploring and mobilizing domestic funding, including new financing mechanisms based on forest carbon financing including REDD+, payment for ecosystem services (PES), ecotourism, and private sector, donor, and non-governmental organization partnerships.

6.

Appealing for the commitment of international financial institutions, such as The World Bank, the Global Environment Facility, Asian Development Bank, bilateral and other donors and foundations, CITES Secretariat, non-governmental organizations, and other conservation partners to provide or mobilize financial and technical support to tiger conservation.


18 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

7.

Looking forward to the establishment of a multi-donor trust fund or other flexible arrangements to support tiger conservation.

8.

Requesting financial institutions and other partners, including the Global Tiger Initiative, to assist in identifying and establishing a mechanism to coordinate and monitor the use of the multi-donor trust fund allocated for tiger conservation and the implementation of the GTRP, including its Global Support Programs for capacity building and knowledge sharing, combating wildlife crime, demand reduction, and the GTRP progress report. In the interim, we request the Global Tiger Initiative to fulfill this role.

9.

Agreeing to convene high-level meetings on a regular basis to review the progress of NTRPs and the GTRP and to help ensure continued high levels of political commitment to tiger recovery.

10.

Building tiger conservation awareness by celebrating Global Tiger Day annually on 29 July.

11.

Welcome and sincerely appreciating the pledges made during the Tiger Summit, [and] the continued support of the partners in the Global Tiger Initiative, and participation of new ones.


A Road to Destruction in the Serengeti

19

A ROAD TO DESTRUCTION IN THE SERENGETI Mindi Lasley, Esq. †

It’s one of the greatest events on earth—every spring the ground trembles as two million wildebeest, zebras, gazelles and other grazers travel north, while the lions, cheetahs and leopards follow in pursuit. This Great Migration, as this spectacular congregation of animal life is often referred, makes famous a tiny portion of East Africa known as the Serengeti. The Serengeti consists of Northern Tanzania and Southern Kenya in an area of approximately twelve thousand square miles. Tanzania labeled the portion of this wonderland within its border as the Serengeti National Park (Park) which was designated as a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site by the United Nations in 1981. 1 To be included on the World Heritage List, sites must be of outstanding universal value and meet at least one out of ten selection criteria. 2 The Park was designated as a natural site based on criteria number xii which states “to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance” and criteria number x which states “to contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened †

Mindi Lasley, Esq. is a private practitioner in Tampa, FL. She works with various conservation organizations, including Big Cat Rescue located in Tampa, FL. 1

UNESCO WORLD HERITAGE CONVENTION, available at http://whc.unesco.org/en/list/156. 2 Id., available at http://whc.unesco.org/en/criteria/.


20 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

species of outstanding universal value from the point of view of science or conservation.” 3 Maintaining the UNESCO World Heritage Site designation is important as it not only brings in financial assistance from the United Nations but it draws tourists. Tourism is big business in Tanzania as it is home to not just the Park but also the contiguous Ngorongoro Crater National Park, equally renowned for its wildlife, the island of Zanzibar and Mount Kilimanjaro that also bring in tourists. While Tanzania is ranked one of the poorer countries in the world, 4 thousands of tourists flock to Tanzania each year primarily for wildlife viewing and safaris. Tourism consists of 8% of the national GDP in 2009; 5 however, tourism fell 7.27% in 2009 according to the Tanzanian Ministry of Natural Resources of Tourism. 6 Ecolodges tout themselves as pillars for wildlife conservation and compete for tourists while the more adventurous opt for walking safaris and sleeping in tents among the wildlife. High season for tourism is obviously during the migration when the sky is dotted with hot-air balloons filled with tourists seeking the best view of the legendary migration. It is not surprising that when the Tanzanian President announced in 2010 plans to construct a highway that would be part of the 452 kilometer Natta-Mugumu-Tabora “B”-KleinsLoliondo-Mto wa Mbu tarmac road, and traverse the northern section of the Park for approximately 53 kilometers, that the tourism industry, UNESCO, and the International Union for 3

Id. available at http://whc.unesco.org/en/list/156/. THE WORLD BANK, available at http://siteresources.worldbank.org/DATASTATISTICS/Resources/GDP .pdf. (Ranked by The World Bank in 2009, as number 95 out of 193 countries with a GDP of $21,623 mil.) 5 WORLD AND TRAVEL TOURISM COUNCIL from 2009, available at http://www.wttc.org/bin/pdf/original_pdf_file/tanzania.pdf. 6 TANZANIA TOURIST BOARD, available at http://www.tanzaniatouristboard.com/news/Documents/tour_stats09.pdf. 4


A Road to Destruction in the Serengeti

21

Conservation of Nature (IUCN) expressed “serious concern” regarding the potential ramifications the proposed highway would have on wildlife. The proposed highway, also known as the Arusha-Musoma highway or Northern Road, is slated to begin construction in 2012 and will bisect the northern portion of the Park and jeopardize the annual migration of wildebeest and zebra which consists of approximately two million animals. 7 The purpose of the highway is to link the Lake Victoria area with eastern Tanzania to facilitate economic develop in a portion of Tanzania that is virtually isolated. The proposed location of the highway is extremely precarious because it will block the northern part of the Park and Kenya's Masai Mara National Reserve, the only major source of water in the area which is vital to the animals in the dry season. 8 Recent calculations indicate that if wildebeest were to be cut off from this critical supply of water during the dry season, the population would likely decline from 1.3 million animals to 200,000 which is a decrease in more than a quarter of the current population. This would obviously have a tremendous impact on the animals that prey on wildebeests, such as lions, cheetahs and leopards—the big cats of the Serengeti. Essentially, if this were to take place, the Great Migration would be destroyed. 9

7

Serengeti Highway Would Disrupt World’s Greatest Migration, Conservationists Warn, SCIENCE DAILY (August 25, 2010), available at http://www.sciencedaily.com/releases/2010/08/100825103824.htm. 8 See Tanzania’s Serengeti Highway Plan Could Destroy Major Carbon Sink, ECOLOGIST (August 13, 2010), available at http://www.theecologist.org/News/news_round_up/563507/tanzanias_se rengeti_highway_plan_could_destroy_major_carbon_sink.html; FZS Statement on the Proposed Serengeti Commercial Road, ZOOLOGISCHE GESELLSCHAFT FRANKFURT (FRANKFURT ZOOLOGICAL SOCIETY) (June 15, 2010), available at http://www.zgf.de/?id=72&reportId=85& language=en (hereinafter FZS). 9 Id.


22 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

The Tanzanian government conducted an Environmental Impact Assessment (Assessment) in October of 2010 which was leaked by Serengeti Watch. The Assessment analyzed the potential impacts the highway project would have on the environment, specifically, the Park, and conducted a cost/benefit analysis in favor of building the highway. The Assessment labels as credible threats to the highway project increased human-wildlife conflicts and increased populations living adjacent to the Park which will cause value of the land to increase for residential and commercial use. The Assessment recognizes the unique value of the Park and states that to recreate, or “replace,” the migration in the event that the highway destroys it may not be possible; therefore, it is necessary to prevent the destruction of the migration than to attempt to “replace” it after it is already destroyed. 10 The Assessment predicted that Tanzania would suffer a tremendous decline in tourism if the highway were to be constructed. To date, over 2,500 individuals and entities have signed a petition stating their opposition against construction of the highway. 11 When asked in a survey of travel companies about the likely percentage drop in tourism they would experience should the highway be constructed, more than 54% of respondents said 50% or more; 10% said their travelers would drop by 40%, and 19% said it would drop by 30%. 12 Section 8 of the Assessment highlights other potential negative ramifications of the highway, many of which have been raised by scientists and environmentalists: 13 10

NATIONAL ROADS AGENCY, THE UNITED REPUBLIC OF TANZANIA MINISTRY OF INFRASTRUCTURE DEVELOPMENT, Environmental and Social Impact Assessment Report § 7, available at http://www.savetheserengeti.org/wp-content/uploads/2011/02/eia-parti.pdf (hereinafter ESIA Report). 11 Id. 12 Economic Impact Statement, SERENGETI WATCH (July 27, 2010), available at http://www.savetheserengeti.org. 13 ESIA Report, supra note 10.


A Road to Destruction in the Serengeti

•

23

Increased road kill/vehicle-wildlife collisions:

This is one of the most severe threats to wildlife and one that is difficult to avoid. All sources, including UNESCO, IUCN, scientists, environmentalists, and the experts involved in preparation of the environmental impact assessment, agree that vehicle-wildlife collisions are inevitable and if there was a fence along the road to prevent the collisions, the migration would be halted completely and the wildlife would be denied access to the critical water reserves so desperately needed in the dry season. The fencing technique was attempted in a similar scenario in Botswana when a highway was constructed and as a result the wildebeest and zebra migration expired. 14 Studies have shown that areas with high traffic show a significant increase in the number of road kills. While this may appear insignificant in large, well-established populations such as wildebeests, the consequences can be huge for rare or threatened species. Even a marginal increase in mortality rates for animals such as cheetah which already suffer 90% cub mortality, could turn stable populations into decline. 15 The Assessment suggests that to minimize the vehiclewildlife collisions speed limit and zebra crossing signs be posted along the highway. It also proposes that the highway be used only during daylight hours or that it be closed from August through November; the months when the animals are crossing to and from Masai Mara in southern Kenya in search of water and greener pastures.

14 15

FZS, supra note 8. Id.


24 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Increased pressure on natural resources:

An increased use of resources will accompany the increase in population, therefore making resource regulation necessary. •

Increased human wildlife conflicts:

While programs already exist to assist villagers in their interaction with wildlife, this would need to be extended due to the population increase in this area. The Assessment reports that an increase in poaching is another enormous concern should the highway be constructed. • Increased potential for zoonotic disease transmission: The transport of goods (particularly livestock) on major roads has the potential to spread disease, many of which can cross taxonomic boundaries. Rinderpest, for instance, is transmitted from cattle to wildebeest and was responsible for an 85% reduction in the wildebeest population prior to 1958. Diseases of this nature already cross the boundaries between livestock and the Serengeti National Park and an increase in population and the travel of livestock through the Park via the highway could have severe consequences.16 •

Habitat loss fragmentation:

According to the Assessment, resident populations of cheetahs and wild dogs will be affected by loss of shelter and preying ground. 16

Id.


A Road to Destruction in the Serengeti

25

Loss of unique value of the Serengeti:

This is of great concern and is difficult to be quantified; however, as the biodiversity of the Park decreases, so will the unique value of the Serengeti. •

Threat to endangered species:

Scientists, environmentalists, IUCN, UNESCO and the Assessment all conclude that the construction of the highway would be disastrous for endangered species, particularly the Black Rhinoceros and Wild Hunting Dog at this point in time. There are growing concerns about poachers having the ability to shoot animals from the highway and being able to quickly escape.

The socio-economic concerns addressed in the Assessment focused on the developmental benefit the highway would provide to society, such as an expansion of commercial activity and easier access to markets, social services, and medical facilities. Despite the extensive list of negative consequences weighing against the construction of the highway, the Assessment concluded that benefits of the highway outweighed the costs which is the potential expiration of the Great Migration. The Assessment, however, stated that the socio-economic benefits do not disregard the need for effective mitigation and monitoring of the project impacts. 17 The Tanzanian government’s decision to proceed with the construction of the highway is surprising when considering Tanzania’s history of wildlife protection. Since pre-colonial times Tanzania has taken extensive measures to protect 17

ESIA Report, supra note 10.


26 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

wildlife and its biodiversity and its first wildlife protection laws were implemented in 1891. These initial laws expanded to designating wildlife protected areas which became popular during colonial times. During colonial times, wildlife protection regulations expanded (also known as game reserves or national parks), as did wildlife protected areas, and hunting was significantly curtailed. Post-independence, Tanzania followed the same approach in wildlife management as was utilized during colonial times, in which management regulations were highly centralized at the national level of government. The first major post-colonial wildlife legislation passed in Tanzania was the Wildlife Conservation Act of 1974 which was consolidated into the Wildlife Conservation Act of 2009. According to the Assessment, among the many objectives and strategies that are set forth in the Act are the following: •

To promote and enhance contribution of the sector to sustainable development without discrimination, implying conservation of wildlife and its habitat (Protection);

To regulate development, projects/activities in protected areas (Development);

To conserve viable populations of species making up Tanzania’s fauna and flora with emphasis on endangered, threatened, endemic species and their habitats;

Mitigate human-wildlife conflicts wherever they occur;


A Road to Destruction in the Serengeti

27

•

Enable Tanzania to participate in relevant international agreements and cooperate with neighboring countries in conservation of trans-boundary ecosystems; and

•

Enforcing environmental impact Assessment process for proposed developments in protected areas and requesting for environmental planning for developments to be carried out in the wildlife areas outside protected areas in order to minimize negative impacts. 18

The Serengeti National Park is protected by this Act and other provisions of this Act specifically regulate hunting and other human-wildlife encounters and activities. 19 As funding diminished and wildlife regulation enforcement in rural areas has proven to be difficult, humanwildlife conflict continues, especially in residential or commercial areas adjacent to national parks. Today approximately 90% of conservation funding is provided by foreign donors, and these donors have obviously provided a key financial incentive in the continuation in policies conserving wildlife. 20 The UN World Heritage Committee issued a report regarding the proposed highway from the July, 2010 meeting in Brasilia, Brazil. In conjunction with the IUCN, the World Heritage Centre concluded that the negative environmental impacts of the highway would include: 18

Id. WILDLIFE CONSERVATION ACT (2009) (Tanz.). 20 F. NELSON, ET AL., The Evolution and Reform of Tanzanian Wildlife Management, 5 CONSERVATION & SOCIETY 232-261 (2007), available at http://www.conservationandsociety.org/text.asp?2007/5/2/232/49231. 19


28 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

• • • • • •

Restriction on animal movements and migration routes; Direct wildlife mortality; Habitat fragmentation and modification; Increased impact from human activities, including poaching; Hydrological impacts and soil erosion; and Introduction of exotic species 21

The World Heritage Centre and IUCN stated they were “seriously concerned” by the proposed highway, despite the fact that the Tanzanian government claims that the highway would be gravel and not a tarmac road. The report emphasized, as did the Assessment, that the northern wilderness area of the Serengeti is a critical habitat for some of the most endangered species in the area, such as the Black Rhinoceros and the Wild Hunting Dog. The report strongly indicated that the highway would call into question the “Outstanding Universal Value,” the necessary criteria for UNESCO World Heritage Site designation, thus justifying Serengeti National Park’s inscription on the List of World Heritage in Danger and calling into question the future of its designation. 22 The report also noted concern for a recent increase in rhinoceros and elephant poaching in the Park. The issue of the highway is on the agenda to be discussed further at the 35th session of the World Heritage Committee meeting in 2011. It’s not disputed that a road or highway is needed to improve economic activity and development in Tanzania. Opponents to the proposed highway have suggested an alternate route be constructed to the south, thus bypassing the Serengeti. The alternative highway would be a tarmac 21

UNITED NATIONS, World Heritage Committee Report §7B, (July 25August 3, 2010), available at http://whc.unesco.org/en/sessions/34COM/documents/. 22 Id.


A Road to Destruction in the Serengeti

29

connection from Karatu to join the existing ShinyangaMusoma Road. This alternative road system has been surveyed by the government and would serve five times as many people as the planned northern road and would fulfill the same economic needs for linking major regions. 23 Both the African Wildlife Foundation and the Frankfort Zoological Society have made proposals for a highway to be built in the southern region that will bypass the Serengeti. Another possible option that could assist the animals should the highway be constructed in the north as proposed would be to utilize an underpass for the animals. 24 Despite the evidence presented to the Tanzanian government demonstrating the enormous negative consequences the proposed highway will more than likely have on the wildlife and the Great Migration, along with its tourism industry, the Tanzanian President rejected funding offered by The World Bank and other foreign sources to construct the alternative southern highway and has officially announced that the proposed northern road through the Serengeti National Park will be constructed as planned. 25

23

FZS, supra note 10. A. P. CLEVENGER & N. WALTHO, Factors Influencing the Effectiveness of Wildlife Underpasses in Banff National Park, Alberta, Canada, 14 CONSERVATION BIOLOGY 47-56 (2000). 25 JEREMY HANCE, Scientists: Road Through Serengeti Would Likely End Wildebeest Migration, MONGABAY.COM, (February 2, 2011), available at http://news.mongabay.com/2011/0202hance_serengeti_road.html. 24


30 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV


Why Not the Best? How Science Failed the Florida Panther

31

WHY NOT THE BEST? HOW SCIENCE FAILED THE FLORIDA PANTHER∗ Liza Gross †

On a sultry spring night in 2001, wildlife photographer Brian Call was heading home from the back reaches of south Florida’s Fakahatchee Strand. As usual, he saw no sign of the forested swampland’s rarest inhabitants, the black bear and Florida panther—until he spotted a young panther, twisted and mangled in the middle of State Road 29. As Call sat beside the lifeless, still-warm body, he heard a chirping sound. “I finally realized,” he remembers, “it was the mother calling out.” The mother’s distress was even greater than Call imagined. The photographer laid the dead panther in the grass where he thought the mother was hiding, then reported the death to the state wildlife commission. Another panther had ∗

This article was originally published in PLoS Biol 3(9): e333 (2005). Formatting and references were changed to the style and citation requirements of the WILDCAT CONSERVATION LEGAL AID SOCIETY, and updated to provide current access information to articles and studies referenced in the article. †

Liza Gross is a senior science writer/editor for the Public Library of Science (PLoS), in San Francisco, CA. Abbreviations: Endangered Species Act (ESA); Florida Fish and Wildlife Commission (FWC); US Fish and Wildlife Service (USFWS); Multi-Species/Ecosystem Recovery Implementation Team (MERIT); Panther Habitat Evaluation Model (PHEM); Population viability analysis (PVA); and Scientific Review Team (SRT).


32 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

been run over just 300 feet away earlier that night, he was told. The panthers were ten-month-old siblings. The Florida panther is one of the rarest mammals in the world, with an estimated population of 80 (FIGURE 1). About half of the panther’s current range—just over 3 million acres— is on private land. The biggest threat to its survival is habitat loss. Southern Florida lost over 1.8 million acres of forest between 1935 and 1995 and gained 11,000 miles of public roads in just 12 years (1991 to 2003, the last year for which statistics are available). Vehicle collisions alone have killed 66 panthers since 1972, when the state started keeping track. Half of these deaths have occurred since 2000. But even more panthers die from wounds sustained during battles over evershrinking territories. The fate of the panther rests with the US Fish and Wildlife Service (USFWS), the federal agency charged with using the “best available science” to make sure the panther has enough habitat to find mates, hunt, disperse to new home ranges, and persist as a population. But the USFWS was recently forced to acknowledge that, far from the best science, it has been using flawed science to regulate development in panther habitat. The agency’s admission comes on the heels of rising tensions and internal disputes, which reached a crisis point soon after the formation of a new panther recovery subteam in 2000 (the panther subteam of MultiSpecies/Ecosystem Recovery Implementation Team [MERIT]). Although most members of the MERIT subteam questioned the science behind USFWS policy decisions, the agency had decades of peer-reviewed literature on its side, much of it published by a single researcher—David Maehr, a fellow recovery subteam member.


Why Not the Best? How Science Failed the Florida Panther

33

FIGURE 1. THE FLORIDA PANTHER ~ NATIONAL WILDLIFE REFUGE HARBORS ONE OF THE RAREST ANIMALS IN THE WORLD (PHOTO: US FISH AND WILDLIFE SERVICE) Just 80 Florida panthers remain in the wild—up from 30–50 animals in 1995. This critically endangered, wide-ranging carnivore faces the same problem that places endangered species at risk worldwide: fragmented, degraded, and vanishing habitat. Florida paves over 450 acres of green space a day, forcing panthers onto deadly roads and triggering often-fatal territorial battles over smaller and smaller ranges.

The USFWS continued to defend its policies despite the subteam members’ vigorous protests and a lawsuit by environmental groups which included court declarations from the dissenting team members. Finally, as arguments grew more personalized and entrenched—and after Andrew Eller, a veteran USFWS biologist who worked on panther recovery for a decade, had publicly rebuked his agency for inflating panther numbers and misrepresenting the animal’s habitat


34 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

requirements—the agency called in an independent review team.

FIGURE 2. THE HISTORIC AND CURRENT RANGE OF THE FLORIDA PANTHER (ILLUSTRATION: RUSTY HOWSON) The “Florida” panther is really a misnomer, experts say. This mountain lion subspecies once inhabited most of the southeastern United States, north to Tennessee and west to Texas—until human persecution and encroachment extirpated the panther from 95% of its historic range. The modern Florida panther is an artifact of these forces. Genetic drift and inbreeding led to the cat’s trademark crooked tail and other unique characteristics, while unchecked development eliminated the panther from every area but southwest Florida—the last place to be developed.

When the Scientific Review Team (SRT) analyzed 25 years and 3,000 pages of panther science, it discovered fatal flaws in USFWS models used to evaluate habitat use and predict extinction risk. The USFWS was making decisions that


Why Not the Best? How Science Failed the Florida Panther

35

could place the critically endangered panther at risk without scientific justification. Unsound methodologies, the SRT reported, had passed peer review unchallenged. “Because of flaws in the system, we may have taken lands that we can’t give back to the species,” says reviewer Howard Quigley, an expert on carnivore ecology and the executive director of Beringia South, an ecology research and educational institute. Whether those fatal flaws had deadly consequences is in dispute. Meanwhile, scientists and policymakers must grapple with a more fundamental question: what happened to the best available science?

Tracking a Secretive Species In many ways, the story of the Florida panther (Puma concolor coryi) echoes that of every other large carnivore. Fearful settlers seeking revenge for lost livestock, and bounty hunters anxious to claim a $5 reward, killed panthers at every opportunity during the late 1800s and early 1900s. Extirpated from 95% of their historic range throughout the southeastern United States, panthers were reduced to a single, isolated population in southwest Florida by the 1950s (FIGURE 2). By 1967, state biologists thought they were gone there too. But in 1972, biologists found an old female, and the panther was listed as endangered when the federal Endangered Species Act (ESA) passed in 1973. When the Florida Fish and Wildlife Commission (FWC) formally started monitoring panthers in 1981, very little was known about the animal’s biology. Because panthers, like cougars, pumas, and mountain lions (all describe the same subspecies), are shy and rarely seen during the day, capture teams used hounds to track their scent and chase them into trees. Once treed, cats were darted, collected with nets or rope, and then examined and tagged with radio collars while sedated. Radio telemetry provided data on location, range,


36 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

behavior, and mortality (indicated by signal changes), and helped biologists study the health, social structure, and distribution of the population (FIGURE 3). David Maehr inherited two radio-collared animals when he signed on as leader of the FWC project in 1985 and quickly established himself as the foremost panther authority. At that time, Maehr says, the population was considered old, parasite-infested, and ready to expire at any minute. When Maehr left the FWC in 1994 to work on his Ph.D., 54 panthers had been radio-collared, with about a dozen animals under study at a time. Radio-telemetry data on 43 collared animals collected from 1981 to 1991 guided government agencies’ first attempt to define panther habitat in a 1993 habitat preservation plan. To qualify as high-quality habitat, an area had to be large enough to “support several panthers.� It also had to be contiguous with occupied range and contain significant forest cover, few residences, and few highways. Based on the telemetry data, forests got highest priority while less-forested public lands in Big Cypress National Preserve and Everglades National Park were considered less suitable. The notion of forest dependency was further developed by Maehr and James Cox, in a 1995 peer-reviewed Conservation Biology paper that would lay the foundation for future USFWS decisions in panther habitat.


Why Not the Best? How Science Failed the Florida Panther

37

FIGURE 3. COLLECTING VALUABLE DATA FROM A SEDATED PANTHER (PHOTO: US FISH AND WILDLIFE SERVICE) After ensuring a panther has survived the ordeal of treeing and capture unscathed, a team of state and federal wildlife biologists examines the cat and collects samples for laboratory analysis. Cats are also dewormed and vaccinated. A saline drip keeps the animal hydrated while the team collects skin for genetic analysis, hair to measure mercury exposure, and blood to check for diseases. The USFWS fears that a recent outbreak of feline leukemia in the Okaloacoochee Slough population could trigger accelerated extinction.

This paper and the inferences it supported placed Maehr at the center of controversy and eventually cost Andrew Eller his job. And when the SRT reported that the “most influential paper on panther habitat use” contained four fatally flawed inferences, the scientific foundation on which an imperiled species’s survival depended began to crumble. “It was put in very strong language that panthers are forest obligates and wouldn’t move across more than a 90-


38 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

meter (about 300 feet) gap of non-forest,” marvels SRT reviewer Paul Beier, a mountain lion expert. Considering that the average home range for a male is 200 square miles, Beier adds, “this was a very improbable conclusion.” Maehr and Cox’s conclusions were problematic for a variety of reasons. The researchers presented 14,500 locations from 41 radio-collared panthers, but analyzed only 8,600 locations for 23 animals—without acknowledging doing so. “They excluded animals that were out in the swampland and then came to the conclusion that panthers only used forest,” Beier says. Also at issue was the telemetry data itself. “They were taking telemetry observations from airplanes with known positional errors on the order of 200 to 300 meters or more and then making claims about habitat use at 100 meters,” says reviewer Michael Conroy, a population ecologist with the US Geological Service in Georgia. “You simply can’t do that.” But the biggest problem, says reviewer Michael Vaughan, was that all the readings were taken during the day, and panthers are nocturnal. “Most of their feeding activity is at night, they’re hunting at night, and using other areas that they don’t use during the day,” says Vaughan, an expert on large carnivore ecology with the US Geological Service in Virginia. Maehr and Cox extrapolated their daytime data to 24 hours a day, he explains. And, echoing Conroy, he adds: “You can’t do that.” “It’s unfortunate that this paper was published in a peer-reviewed journal,” Vaughan says. “Once it’s peerreviewed people tend to take it as gospel. But the peer-review process was bad.” Since Maehr either authored or coauthored some 75% of the habitat-related research on the Florida panther, his reputation has taken a beating and his work has lost credibility.


Why Not the Best? How Science Failed the Florida Panther

39

He admits that mistakes were made in data analysis, but defends his conclusions. “One of the studies that we did in terms of great cost in manpower and discomfort in the field was to go out and actively monitor animals around a 24-hour period,” he says. By counting the tip-switch changes in radio collars, Maehr says, he could tell whether an animal was active or not, and found that panthers are crepuscular—most active around sunrise and sunset. Maehr says there was nothing to suggest that panthers abandoned places they occupied during the day or exhibited patterns different from those suggested by “tens of thousands” of radio locations collected during the day, which he says included the panther’s most active periods. “The bottom line is that those data do reflect a 24-hour cycle of activity and habitat use.” One of the researchers on the MERIT panther subteam, however, argues that the 24-hour monitoring study showed only peaks of activity and did not identify habitats associated with locations. “Tip-switch data record head movement,” says Jane Comiskey, a researcher at the Institute for Environmental Modeling at the University of Tennessee and a vocal critic of Maehr’s work. In confined trials, she explains, many times walking isn’t recorded because there is no head movement; on the other hand, many activities that accompany head movement, such as feeding and grooming, occur when the animal isn’t walking. Despite all the problems in the 1995 paper, its conclusions—panthers are forest obligates that will not cross 90 meters of unforested landscape—would form the cornerstone of a habitat evaluation model used during USFWS development permit consultations. Since 1995, the USFWS has approved permits for 35 development projects impacting 38,484 acres in and around panther habitat.


40 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Deconstructing the Panther Landscape Under Section 7 of the ESA, federal agencies must consult with the USFWS to make sure their activities don’t jeopardize the habitat or survival of threatened or endangered species. In panther country, most consultations involve US Army Corps permits to destroy wetlands for urban and agricultural development. The USFWS writes biological opinions that assess the impacts of development and identify ways developers can mitigate these impacts—by preserving acreage elsewhere on the property or offsite, for example. In 1998, Eller and his coworkers had determined that a Lee County, Florida, Department of Transportation project called the Daniels Parkway extension would degrade 1,540 habitat acres and that the county could mitigate by preserving 250 acres elsewhere. The county disagreed, and in 1999 paid $317,000 to Dawson and Associates, a Washington, DC, lobbying firm that represents Florida development and agricultural interests, to “advise and assist Lee County in obtaining more timely resolution and significantly more reasonable terms in the federal permit for [the] Daniels Parkway extension,” according to a purchase order obtained from Lee County. That same year, during a Section 7 consultation on Daniels Parkway, Maehr presented a new habitat evaluation model to the USFWS. Maehr, working as a consultant for Lee County, developed the model with Jonathan Deason, a professor of environmental and energy management at George Washington University. Deason is also listed as a senior advisor to Dawson and Associates. The model, called the Panther Habitat Evaluation Model (PHEM), estimates functionally equivalent panther habitat units based on weighted scores for six habitat factors. The PHEM score determines habitat impacts and corresponding mitigation. Seventy-five percent of the score is based on four factors: land vegetation


Why Not the Best? How Science Failed the Florida Panther

41

type (hardwood hammock forest gets the highest value), forest patch size, proximity to forest (the 90-meter rule), and proximity to a population core. All four factors were based on what the SRT called flawed inferences in the 1995 paper. The same week PHEM was presented, Senator Slade Gorton (Republican, Washington)—a proponent of scaling back ESA habitat protections—quietly inserted a rider into the 2000 Department of the Interior appropriations bill directing the USFWS “to work cooperatively with the Lee County, Florida, Department of Transportation to ensure that measures designed to minimize the impacts on the Florida panther related to the Daniels Parkway extension are reasonable and conceived properly.” Although the language in the rider “sounded innocuous,” Eller says, “we knew it meant accept PHEM or else.” When USFWS biologists were asked to evaluate PHEM, Eller says, they decided it should not be used in permit decisions. A major problem with PHEM is that it starts with an ideal 500-hectare (two square miles) patch of oak hammock that’s less than 90 meters from the nearest forest patch, says Eller. “If habitat didn’t match that ideal, then the score was lowered. But nothing in the areas of concern matches that description.” The USFWS biologists wrote a letter intended for Maehr explaining the problems, Eller says, but the letter wasn’t sent until about three months after consultation on Daniels Parkway concluded. In the end, based on PHEM, the agency preserved just 94 acres—less than 40% of what the biologists recommended based on their own models. Essential steps were skipped by developing an impactassessment model based on daytime panther locations, observes Comiskey. Because only the most frequently used lands merit mitigation under PHEM, much of the forest of southwest Florida didn’t qualify. “In the Daniels Parkway


42 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

extension, only 11% of the forest on the project site qualified based on the rules for patch sizes, proximity to other patches and the [population] core, forest type, and connectivity,” Comiskey says. And because of the 90-meter rule, no mitigation was required for the largest forest patch. “It’s damaging to the credibility of the authors, the journals, and the reviewers who approved the papers to have published sensitive methodologies that could put a highly endangered animal at risk without scientific justification,” Comiskey says. “Especially when potential conflicts of interest are involved.” Maehr brushes aside suggestions of conflict, insisting that he worked with developers to find creative ways of dealing with development and to convince landowners that having a panther on their land would be an asset, not a liability. “You’re not going to make it an asset by pounding private landowners over the head with the panther.” And Maehr says he never intended that PHEM become the “agency standard” for permit review: “We viewed it as a step in a process that would lead to a better approach.” He concedes that the 1995 paper failed to explain why Everglades panthers were excluded. But it was reasonable to do that, he argues, because the Everglades population appeared to be in the “final throes of extinction” and the open expanses of southeastern Florida were “atypical and unsuitable” habitat. Analytical problems aside, Maehr defends his conclusions. “All evidence continues to point to the critical nature of forest,” he says, adding that it’s dangerous to say that areas with little forest, like the Everglades, provide “excellent” panther habitat. “This almost jihad-like insistence that panthers are generalists is [argued] so the panther becomes this wonderful umbrella to block any efforts to continue to develop south Florida,” Maehr says.


Why Not the Best? How Science Failed the Florida Panther

43

Yet arguing that the panther is a forest obligate, critics say, safeguards only forest. “We all agree that removal of forest impacts panthers,” Comiskey says. “What we disagree about is whether development of other land covers also impacts panthers.” In southern Florida, forest cover often occurs in scattered tree islands separated by open prairies, marshes, shrubland, and saw palmetto thickets interspersed with agricultural and improved pasture lands. “I went into consultation after consultation arguing with both consultants and the [US Army] Corps who said that the only habitat that needed to be compensated was forested,” says Eller. In 2002, Eller began to accuse his agency of using flawed science and pressuring biologists to rewrite biological opinions to favor development. Development is outpacing habitat protection by one and a half times, Eller says. When he noted that trend in a biological opinion, however, “they took that information out.” With help from Public Employees for Environmental Responsibility (better known as PEER), Eller sued the Department of the Interior (the USFWS is a bureau in this department) under the Data Quality Act in June 2004 for using unsound science. That November, after 17 years with the USFWS, Eller was fired for not meeting deadlines and “unprofessional exchanges with the public,” among other charges. Since 1999, the USFWS has issued 29 biological opinions for development permits in or near panther habitat. “A lot of land was developed that likely would not have been developed had these flawed inferences not appeared in those publications,” says SRT reviewer Vaughan. “And they were calling this the ‘best available science.’ ”


44 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

In March 2005, outgoing USFWS Director Steve Williams upheld Eller’s data quality challenge, and admitted the agency used flawed science. In a letter to PEER, Williams wrote that he ordered the USFWS regional director to “immediately update the panther-related sections” of a multispecies recovery plan and “incorporate appropriate recommendations of the SRT.” Williams also acknowledged that the agency mistakenly equated verified population with minimum viable population—the number required for persistence. Again, these assumptions were traced to one journal article. In June 2005, Eller was reinstated by the USFWS, after both parties reached an out-of-court agreement.

Driving the Panther into a Genetic Bottleneck Until the early 1900s, the Florida panther (Puma concolor coryi) crossbred with the Texas puma (Puma concolor stanleyana), along with two other now-extinct races, where their ranges once overlapped. (The Florida and Texas subspecies shared a common border along the western edges of Louisiana and Arkansas.) Once isolated, panthers suffered inbreeding depression. Some external anomalies like cowlicks and crooked tails aren’t likely to have serious effects on fitness. But heart defects, susceptibility to heavy parasite loads, and reproductive abnormalities—including poor sperm quality and undescended testicles—could prove devastating. “Geneticists were telling us the cats were so inbred they would probably only survive another 25 to 40 years,” says Eller. Population estimates in the 1990s hovered around 30 to 50 animals. In an effort to revitalize the population, the USFWS released eight female Texas cougars into unoccupied panther ranges in 1995. But a group of papers on panther genetics and demography questioned the need for introducing outside genes, called genetic introgression. The papers claimed that even though observed defects likely had a genetic basis, they


Why Not the Best? How Science Failed the Florida Panther

45

had minor impacts on individual and population fitness. The introgression experiment generated significant controversy, SRT reviewer Quigley says, with one side saying the population was vigorous and a variety of others saying it wasn’t and that introgression was critical to the panther’s survival. There’s a legitimate argument to be made against introgression from an evolutionary standpoint, Quigley says: “If there’s any indication that an endangered species can be recovered without watering down the original genetic stock, then we should be willing to do that.” But in this case, he says, the question boiled down to whether the population was on the verge of extinction and needed introgression as a last resort. And the goal of the introgression experiment was to mimic historic gene flow, not to replace or swamp the panther gene pool. The argument against introgression suggested the population was vigorous and so introgression was unwarranted. “The claims were that the populations were doing pretty well prior to the introduction of Texas cougars,” says the SRT’s Conroy. The review team traced evidence for arguments against genetic introgression to “one graph and four sentences” in a 1995 Conservation Biology paper coauthored by Maehr and Gerard Caddick. In the paper, the authors interpreted a figure that plotted births against deaths per year as evidence of a robust population. But the SRT found a problem with mortality detection (kittens under four months weren’t radiocollared and couldn’t contribute to total deaths). And because it wasn’t clear that births and deaths (presented as raw numbers) corresponded to the same population base, the SRT concluded, the graph couldn’t support inferences about percapita vital rates or population growth rates. Growth-rate estimates are one parameter used in population viability analyses (PVAs) to predict extinction risk. Another is kitten survival—estimated at 84% to 87% in the Maehr and Caddick paper. The SRT called the estimate—


46 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

presented with no underlying data—“indefensible,” citing a more recent data-supported estimate of 52% for pure panthers. The team also wrote that it would be unprecedented in vertebrate studies for kitten survival to exceed adult survival, which was estimated at 82%. (Maehr sees no problem with kitten survival exceeding adult survival. “We were talking about kitten survival through one year of age, when they’re protected by their mothers.”) The kitten survival estimates were used in a PVA— peer reviewed and published in a 2002 University of Chicago book—that the USFWS used to assess panther viability. Using the unsupported kitten survival rate, the 2002 PVA estimated extinction risk at 0%. The analysis also failed to model the effects of changes in habitat or genetic restoration on extinction risk, the SRT reported, assuming they would have none. “Clearly,” the team wrote, “some combination of these changes caused extinction risk to plummet from 100% to about 0%.” It was this model that Eller cited when criticizing his agency for “pretending there’s a surplus of panthers.”


Why Not the Best? How Science Failed the Florida Panther

47

FIGURE 4. DEVELOPMENT PROJECTS IN PANTHER HABITAT SINCE 2000 (ILLUSTRATION: BRAD NUNLEY/NATIONAL WILDLIFE FEDERATION) In a 2002 landscape conservation strategy, members of the MERIT panther recovery subteam identified lands essential to the long-term survival of the Florida panther. The MERIT subteam defined the Primary Zone (dark blue) as “all lands essential for the survival of the Florida panther in the wild.” The Secondary Zone (light blue) includes “lands contiguous with the Primary Zone, and areas which panthers may currently use, and where expansion of the Florida panther population is most likely to occur.” Maintaining the integrity and connectivity of the Primary Zone, which includes both


48 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

public and private lands, is one of the highest priorities for panther survival, the subteam determined. It also stressed the importance of avoiding “land-use intensification” in the Secondary Zone, as well as in areas that panthers use to disperse. Yet development continues. Since 2000, the USFWS has written 27 biological opinions (red) evaluating the impacts of Florida development projects in panther habitat. (This map does not include biological opinions written in 2005.)

The unreliable inferences about panther demography “muddled the debate” about the viability of the population, the SRT wrote, adding “unwarranted credibility” to arguments against genetic restoration. By most accounts, the crossbreeding experiment reinvigorated the population. Hybrids have a higher kitten survival rate than pure panthers, and hybrids show a dramatic decrease in the prevalence of abnormalities. “So far it looks like this experiment is working,” Quigley says, “but the review team felt there wasn’t enough genetic monitoring going on.” The SRT report urges management agencies to collect genetic data and study the impacts of genetic restoration on individual traits and demographic vigor. “The Florida panther story promises to be the best documented example of the relevance (or irrelevance) of genetics to conservation,” the team wrote. “Future conservation decisions deserve to be informed by the results of the panther introgression experiment.”

Recovering the Panther—And Scientific Integrity In June 2005, a healthy three-year-old male panther was killed on an interstate highway in northeastern Florida, 350 miles from known panther range. FWC officials think he wandered up from south Florida in search of a mate. “With more roads, more people, and more development, panthers are


Why Not the Best? How Science Failed the Florida Panther

49

being squeezed out of their ranges and forced to go north,” says FWC spokesperson Karen Parker. Panther habitat is shrinking at a rate of nearly 1% a year. If that trend continues, 500,000 more acres—over 15% of all remaining panther habitat—will vanish in 25 years. Nothing suggests the trend will change (FIGURE 4). In 2006, developers hope to finish construction on a new city and Catholic university called Ave Maria. The project, which the USFWS estimates will impact nearly 5,000 acres, is sited right next to the Florida Panther National Wildlife Refuge along SR29, where photographer Brian Call found the road-killed panther. “If the USFWS isn’t going to write a jeopardy opinion or recommend the [US Army] Corps deny a permit for something like Ave Maria,” says Eller, “the sky’s the limit.” When a population drops below 500, conservation biologists start to worry about extinction. With fewer than 100 panthers left, every animal counts. Yet the USFWS assumed there were plenty of panthers and development could proceed anywhere except forests. How could the scientific review process go so wrong with so much at stake? “We just were not policing ourselves well,” says the SRT’s Quigley. “Up until seven years ago there wasn’t anyone questioning the science that was coming out in the publications. There was just one very prolific scientist.” What scientists should be doing is developing new knowledge and adjusting current views in a healthy exchange of ideas, he adds. “What we see in this case is a program that became so entrenched in territoriality that the kind of vibrant free exchange of ideas just didn’t happen.” While peer review is not without its problems— unsound interpretations and conclusions slip through the process from time to time—the case of the panther is unusual in that the peer-review process failed to catch such seriously flawed inferences in science used to manage an endangered species. When the two Conservation Biology papers were published in 1995, though Maehr was considered the panther


50 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

expert, he had only just started his doctoral work. Why didn’t more senior scientists flag the problems in the review process? “Peer reviewers have to rely on what the authors report in their paper,” says Reed Noss, editor of Conservation Biology at the time the papers were published and Davis-Shine Professor of Conservation Biology at the University of Central Florida. “Ultimately the onus is on the authors to use all the available data [for example] or explain why certain data were excluded from the analysis.” California law requires independent scientific review at several stages of the conservation planning process, “so consultants working for counties or developers are not able to get away with using flawed scientific methodologies.” “I think there were definitely questionable interpretations of the data,” Noss says. “Whether it was intentional or just a mistake, it’s hard to say.” But peer review will never be able to uncover all these kinds of methodological problems, Noss explains, because with so much competition for space in the journals the details of the methods don’t appear in the articles. “The word limits keep getting lower and lower. You would have to do what this independent team of reviewers did and go to the original data. There’s no way a peer reviewer is ever going to have time to do that.” The shortcomings in peer review underscore the importance of having open review and independent scientific review panels like the SRT, Noss says, and like those mandated by California law. Unlike the federal ESA, California law requires independent scientific review at several stages of the conservation planning process, “so consultants working for counties or developers are not able to get away with using flawed scientific methodologies,” says Noss. “And quality control is assured all the way through the process.” It’s what the agencies should have been doing all along for the panther, he adds. “They shouldn’t have waited until a couple


Why Not the Best? How Science Failed the Florida Panther

51

of years ago to have an independent scientific review of such a high-profile, controversial, and highly endangered species.” So why doesn’t the USFWS vet the science it uses to manage endangered species as a matter of course? “We certainly have a vetting process, but science evolves, so we have to constantly reevaluate what we use,” says Paul Souza, an USFWS assistant field supervisor. “We can always do better, but our process is a good one. Our biologists are on the front lines of research and with the help of these groups like the SRT and MERIT, we’re identifying problems and gaps in the science,” Souza says. “We just revised a biological opinion on Ave Maria when we realized we had [underestimated] the value of a panther corridor important for dispersal along Camp Keais Strand,” he adds. The project will change a two-lane rural road into a four-lane urban highway. In the revised opinion, the USFWS determined that a wildlife crossing should be built to offset the expected impacts of increased motor traffic and reduce the number of road-kill incidents. Souza says the agency will soon begin meeting with FWC officials and panther scientists to review the SRT recommendations and determine what findings should be incorporated into agency decisions. To guard against future breakdowns in the system, the SRT wrote an article recommending ways to improve peer review and ensure science-based conservation. The team also wrote a summary of the problems found in the panther literature. Both reports are in press at the Journal of Wildlife Management. 1 One recommendation involves using an independent scientific advisory committee to vet the credibility of each piece of evidence used in a recovery effort, says Quigley. “That was not done with the Florida panther, and you can see where it ended.” 1

The reports referred to by the author were subsequently published in THE JOURNAL OF WILDLIFE MANAGEMENT. See Further Reading infra pp. 53-54.


52 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Many flaws can be corrected by rigorous reanalysis of existing datasets. “There’s a difference between being wrong and being unreliable,” SRT reviewer Beier says. “The scientific process that yielded certain conclusions wasn’t sound. We’re not sure whether the conclusions are right or wrong.” A robust model for evaluating panther habitat use can be developed from reanalyzing the existing data, he says, including the data omitted from panthers in the Everglades, and by collecting better data on nighttime use. And better measures of reproductive success and age-specific survival will yield better population models, says reviewer Vaughan. “We need to go back and get more data to get a better handle on kitten survival. Then you can model population growth and reproductive rates.” One thing is certain. The panther will not survive if it is relegated to a single, isolated population in south Florida. One of the most urgent needs is to identify some of the best release sites for panther reintroduction, Beier says, “develop a plan for release, and follow through on it. We need some science for that and we need a whole lot of political will.” Developing reliable methods of studying low-density, elusive carnivores like the panther will help wildlife biologists better understand and manage other endangered species. And preserving habitat for the Florida panther provides protection for all the species that share its range—a group that includes 52 state and federally listed species. “Habitat conservation does require that certain areas don’t turn into housing tracts,” says Beier. That’s why it’s essential to start with a sound scientific foundation. Once you build a shopping mall or golf course in prime habitat for a wide-ranging species, you can’t reclaim that land if you discover you made a mistake. Everyone knows the panther needs habitat more than anything else, Quigley says, so “it’s best to err on the conservative side” when mistakes could threaten the survival of a species. “And that’s why it’s so vital to fix the flaws in the system,” he says. “So it won’t happen again.” 


Why Not the Best? How Science Failed the Florida Panther

53

Further Reading P. BEIER, ET AL., Analysis of Scientific Literature Related to the Florida Panther, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION BUREAU OF WILDLIFE DIVERSITY CONSERVATION (December 2003) available at http://oak.ucc.nau.edu/pb1/vitae/Panther-SRT.pdf (accessed April 26, 2011). P. BEIER, ET AL., Evaluating Scientific Inferences About the Florida Panther, 70 THE JOURNAL OF WILDLIFE MANAGEMENT 236-245 (2006). R. C. BELDEN & B. W. HAGEDORN, Feasibility of Translocating Panthers into Northern Florida, 57 THE JOURNAL OF WILDLIFE MANAGEMENT 388–397 (1993). E. J. COMISKEY, ET AL., Panthers and Forests in South Florida: An Ecological Perspective, 6 Conservation Ecology 18 (2002), available at http://www.ecologyandsociety.org/vol6/iss1/art18/print.pdf (accessed April 26, 2011). M. CONROY, ET AL., Improving the Use of Science in Conservation: Lessons from the Florida Panther, 70 THE JOURNAL OF WILDLIFE MANAGEMENT 1-7 (2006). P. W. HEDRICK, Gene Flow and Genetic Restoration: The Florida Panther as a Case Study, 9 CONSERVATION BIOLOGY 996–1007 (1995). D. S. MAEHR & G. B. CADDICK, Demographics and Genetic Introgression in the Florida Panther, 9 CONSERVATION BIOLOGY 1295–1298 (1995). D. S. MAEHR & J. A. COX, Landscape Features and Panthers in Florida, 9 CONSERVATION BIOLOGY 1008–1019 (1995).


54 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

D. S. MAEHR & J. P. DEASON, Wide-ranging Carnivores and Development Permits: Constructing a Multi-scale Model to Evaluate Impacts on the Florida Panther, 3 CLEAN TECHN ENVIRON POLICY 398–406 (2002), available at http://www.colliergov.net/modules/ShowDocument.aspx?docu mentid=8103 (accessed April 26, 2011). D. LAND, ET AL., Annual Report: Florida Panther Genetic Restoration and Management, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION (September 25, 2001), available at http://www.floridapanthernet.org/images/field_notes/200001panthergeneticrestorationannualreport1.pdf (accessed April 26, 2011). K. SHRADER-FRECHETTE, Measurement Problems and Florida Panther Models, 3 SOUTHEASTERN NATURALIST 37–50 (2004), available at http://www.nd.edu/~kshrader/panther-models-sen2004.pdf (accessed April 26, 2011).


Florida Panther Update: How Are They Doing Now?

55

FLORIDA PANTHER UPDATE: HOW ARE THEY DOING NOW? WildCat Conservation Legal Aid Society †

Introduction Since Liza Gross’ article, Why Not the Best? How Science Failed the Florida Panther, 1 was published in 2005, additional studies, reports, a lawsuit, and commercial development have taken place about the Florida panther and in Florida panther habitat. So with all this activity going on, how are the Florida panthers doing now?

Florida Panther Populations As of January 10, 2011, The Florida Fish and Wildlife Commission (FWC) estimates that there are between 100 and 160 adult panthers in south Florida. (This number does not include kittens.) The methods by which population numbers are gathered only include panthers that are more than one year old. Those methods include: 1) Annual Counts; and 2) Minimum number of panthers known to be alive. Both methods are discussed in a Clarification Document 2 prepared by the FWC which is intended to:

Prepared by the volunteer staff of the WildCat Conservation Legal Aid Society, Washington, DC. 1 See infra pp. 31-54. 2 The Clarification Document, THE FLORIDA FISH AND WILDLIFE COMMISSION (December 2010), available at http://myfwc.com/news/resources/fact-sheets/panther-population/


56 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

1.

provide a better understanding of the difficulties in developing a rigorous population estimate with statistical confidence;

2.

describe the methods currently used by the FWC to provide an indication of approximate population size; and

3.

provide an estimate of upper bound for the number of adult panthers in south Florida.

According to the FWC, the annual counts method was developed by Roy McBride and staff of Ranchers Supply, [by] collect[ing] data on verified panther signs and [by] conduct[ing] field surveys to tally a minimum number of panthers detected by calendar year. The technique provides an annual count based on panther sign, tracks, panthers treed by dogs, and those outfitted with radio transmitters. The method does not provide confidence intervals associated with the count's precision, does not account for annual variation of sampling effort, nor does it provide estimates of the numbers of missed or double-counted panthers (emphasis added). McBride et al. acknowledges that about onequarter of occupied panther range exists on private lands and that these properties were not surveyed. 3

The second method, Minimum number of panthers known to be alive, according to FWC, was developed by Darrell Land and is complied using both live captured panthers as well as panthers discovered at time of death (primarily road kills). Each panther is aged at first encounter and then that individual is counted as a member of the population back in time to when the cat was estimated to be at least l year-of-age. FWC provides an example of this method: “if a panther estimated to be 5 years old is encountered in 2010, it was born in 2005 and is tallied for the years 2006, 2007, 2008, 2009, and 2010. This is repeated for all panthers and then summed by year. 4 3

Id; see also MCBRIDE ET AL., Counting Pumas by Categorizing Physical Evidence, 7 SOUTHEASTERN NATURALIST 381-400 (2008). 4 Supra note 2.


Florida Panther Update: How Are They Doing Now?

57

The FWC, however, recognizes in The Clarification Document that neither of the methods provides a true population estimate and neither provides an estimate of variance. Additional research is necessary to determine the most robust and repeatable method of estimating the size of the panther population. The FWC is exploring, in conjunction with the U.S. Fish and Wildlife Service (USFWS) the use of camera trap data.5

If the current methods used to estimate the Florida Panther population is not even a true estimate; with both methods suggesting 100 panthers, to calculate an upper bound population number based on territory density will likewise not provide with any accuracy a reliable upper bound number which FWC states is 160.

Commercial Development in Florida Panther Habitat THE DANIELS PARKWAY EXTENSION The Daniels Parkway Extension was completed in 2008. According to Boylan Environmental Consultants, Inc., (BEC) the extension from Gateway Boulevard SR 82 and Gunnery Road was a long standing component of Lee County’s transportation plans to provide access from Lehigh Acres to Fort Myers, and in particular to south Lee County. Lehigh Acres is a large residential community with limited job and shopping opportunities, creating extensive travel demand to Ft. Myers and south Lee County. BEC also states that in addition to the wetlands, another consideration was the possibility of protected species being in the area, especially the endangered Florida Panther (emphasis added). In addition to assisting with the road design and alignment BEC conducted protected species surveys of the alignments, located wetlands, assessed wetland impacts, and secured environmental permitting from the South Florida Water Management District and the U.S. Army Corp of

5

Id.


58 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Engineers. 6 Currently the Daniels Parkway is being expanded from four to six lanes.

AVA MARIA TOWN & UNIVERSITY The Ava Maria University buildings were completed in August 2007. Tom Monaghan, the founder of Domino’s Pizza, provided the private school with a $250 million donation to construct the university. The town of Ava Maria is located 17 miles east of Naples, Florida. The Barron Collier family donated the land in southwest Florida. The town occupies 5,000 acres with 20% designated to the university campus. Several more planned communities are either under construction or in development in the surrounding areas north and south of the university.

Genetic Diversity & Texas Cougars Help for the survival of the Florida panthers did arrive in the nick of time by way of eight female Texas cougars introduced in southwest Florida in 1995. Two recent articles on the success of this introduction were published in September 2010. Genetic Restoration of the Florida Panther, Johnson et. al., in which they assessed the demographic, population-genetic, and biomedical consequences of this restoration experiment and show that panther numbers increased threefold, genetic heterozygosity doubled, survival and fitness measures improved, and inbreeding correlates declined significantly. Although these results are encouraging, continued habitat loss, persistent inbreeding, infectious agents, and possible habitat saturation pose new dilemmas. This intensive management program illustrates the

6

See http://boylanenv.com/Projects/Daniels%20Pkwy.htm.


Florida Panther Update: How Are They Doing Now?

59

challenges of maintaining populations of large predators worldwide. 7

In the same issue of SCIENCE, an article by Craig Packer, A Bit of Texas in Florida, compares the results of the introduction of Texas cougars in Florida with a comparable reintroduction effort in South Africa: A similar translocation of 16 lions into a highly inbred population in Hluhluwe iMfolozi Park, a fenced reserve in South Africa, also improved the reproductive performance of the lions in the park, but population size did not increase in the short term. Although translocation looks to be an effective technique for ameliorating the genetic consequences of small population size, the larger problem still remains. Big cats may be popular in places where they’ve become scarce and most people live in cities, but the rest of the world still struggles to deal with the dangers that man-eaters and cattle-killers pose to rural residents. 8

On April 7, 2011, The Florida Panther Project of the FWC, released a three page summary article, based on the Johnson et al. study, 9 How Genetic Restoration Helped the Florida Panther. 10 What stood out in this particular article is the following assessment: An inbred population that has benefited from a boost of genetic variation should increase in size in 7

WARREN E. JOHNSON, ET AL., Genetic Restoration of the Florida Panther, 329 SCIENCE 1641-1645 (September 24, 2010). 8 CRAIG PACKER, A Bit of Texas in Florida, 329 SCIENCE 1606-1607 (September 24, 2010). 9 Supra note 7. 10 DAVE ONORATO & DARRELL LAND, How Genetic Restoration Helped the Florida Panther, FLORIDA PANTHER PROJECT, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION (April 7, 2011).


60 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

most cases. In fact, the 100 to 160 adult panthers thought to reside in South Florida as of 2011 represent a more than threefold increase since 1995 (emphasis added). While genetic restoration of the Florida panther can be deemed a success with regard to some of its initial objectives, Florida panthers remain isolated and therefore suffer from inbreeding and loss of genetic variation over time. As the plan acknowledges, this eventually will require the release of additional pumas in Florida to assure the long-term survival of panther population (emphasis added)‌. Moving forward, the greatest hurdle to recovery for the Florida panther remains the preservation of sufficient habitat (emphasis added) to allow the population to increase in the long term.

The Sierra Club and other environmental organizations tried to do exactly what the Florida Panther Project anticipates, making sure that critical habitat for the Florida panther is established under the Endangered Species Act (ESA). In November 2009 the Sierra Club et al., petitioned the Department of Interior to establish 3 million acres of critical habitat for the panther. In December 2009, they told the government that if it didn’t act, they would ask a court to order the USFWS to map out the necessary habitat for the species. USFWS refused to do so continuing its decades-long unwillingness to carry out its duties under the critical habitats section of the Endangered Species Act. On February 19, 2010, the Sierra Club, the Conservancy of Southwest and three other groups filed suit. They pointed out that the Florida panther has been listed as endangered for more than thirty years and although its population has recovered to about 130 it is now declining as the development of roads invaded and fragmented the panther’s habitat and that climate disruption means that the panther will need more, not less, connected habitat to survive.


Florida Panther Update: How Are They Doing Now?

61

On April 11, 2011, Courthouse News Service reported that a federal judge rejected the lawsuit that would force the government to set up protected habitat for the endangered Florida panther. The government moved to dismiss the complaint, claiming that the court and the plaintiff’s lacked jurisdiction. It also argued in the alternative that the complaint failed to state a claim under the ESA and APA [Administrative Procedures Act]. U.S. District Judge John Steele found that the jurisdiction challenge was off-base, but agreed that the government did not violate the ESA or the APA in denying habitat petitions. In 1978, the ESA was amended to require critical habitat for endangered species, but it did not apply to animals that were on the list prior to the amendment. The statute allows the secretary to declare critical habitat for such endangered species, but does not require it. 11 The Florida panther was listed as endangered under the ESA in 1973. And finally, in October 2008, the USFWS released the Final Environmental Assessment for the Interagency Florida Panther Response Plan. The purpose and need of the proposed action contained in the 82 page report provides a transparent picture of the future of the Florida panther: [‌] to manage human-panther interactions while promoting human safety and assuring the continued existence and recovery of this endangered animal. [‌] to provide guidance for the agencies so that interactions will be handled consistently and quickly while addressing the primary objective of public safety, balanced with the need to recover an endangered species. Because appropriate human behavior is key to coexisting with wildlife, (emphasis added) the proposed Action also addresses public education and outreach focusing on living and recreating in panther habitat. Florida panthers occur primarily in southern Florida and most individuals reside south of Lake 11

See http://www.courthousenews.com/2011/04/11/35688.htm.


62 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

Okeechobee. Recovery actions over the past 25 years, particularly genetic augmentation initiated in 1995, enabled the population to grow from 30-50 to 80-100 panthers. During this same period, the Florida human population has grown 260% from about 5 million to nearly 18 million people. Because of increases in numbers of people and panthers, (emphasis added) urban/suburban areas now interfere with panther habitat, increasing the possibility of human panther interactions. 12

How Are They Doing Now? As of January 10, 2011, the FWC estimates that there are 100 to 160 panthers in South Florida. A news release issued the same day, the FWC documented 23 panther deaths in 2010: 16 were killed by vehicles, 6 died from intra specific aggression, and one of unknown causes. In 2009, the FWC documented 25 deaths: 17 were killed by vehicles; the cause of death of the other 8 were not identified in the release. 13 This year the FWC reported on March 12, 2011, that a panther was found shot in Seminole county; and two other panthers were found dead under suspicious circumstances on March 23, 2011 in Collier County and February 23, 2011 in the Golden Gates Estates area. All three deaths are being investigated by the USFWS and FWC. So far in 2011, 10 panthers were killed; four 5 week old kittens also were killed in a fire in Big Cyprus National Preserve on May 2, 2011. 14 What happened to the Florida Panther Response Plan? The year is not even half over and the number of deaths reported is nearing the mid-point if the yearly average of adult deaths is 24. 12

Environmental Assessment for the Interagency Florida Panther Response Plan, UNITED STATES FISH AND WILDLIFE SERVICE, FLORIDA PANTHER NATIONAL WILDLIFE RESERVE (2008). 13 See http://myfwc.com. 14 See http://maps.google.com/maps/ms?ie=UTF8&hl=en&msa=0&msid=203 070083427674472724.00049fa06c4533e033056&ll=26.303264,81.438904&spn=1.243381,1.749573&z=9&source=embed


Florida Panther Update: How Are They Doing Now?

63

Although the FWC states numerous times that the panther population number is an estimate and none of the methods used to calculate the population provide an accurate count, it is disturbing that the numbers appear so frequently without acknowledging that the numbers are best guesstimates. What is more distributing however is that these numbers could in fact be used to determine whether permits will be issued for commercial development. And since the human population is growing at tremendous speed, the Department of Interior is not required under the ESA to establish critical habitat, and the Florida Panther Response Plan is perhaps gathering dust, the Florida Panthers at least were able to benefit in the short term from the introduction of the eight females from Texas; their continued existence, however, remains questionable. Whether it’s Florida panthers, lions in South Africa, or tigers in Asia, efforts to balance wildcat populations and genetic diversity with the continued destruction of habitat loss, illegal activities, and human-wildlife conflicts continues. But what the future holds for most wildlife will depend on how we ultimately manage what remains now. Packer surmises that “once the entire planet reaches the same state of economic development and urbanization as the United States, wildlife managers all over the world can look forward to carting rare species from one park to another until the end of time.� 15

15

Supra note 8.


64 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV


The Plight of Wildcats in South Africa: Damage Causing Animals or Bycatch

65

THE PLIGHT OF WILDCATS IN SOUTH AFRICA: DAMAGE CAUSING ANIMALS OR BYCATCH Richard Hargreaves, LLB, F.Inst.L.Ex †

In the June-September 2010 issue of WildCat Advocate, the WildCat Conservation Legal Aid Society (WCCLAS) reported on the story that came to light in July 2010 about wild caracals who were imprisoned on the Avondale farm, located within the small community of Bedford, in the Eastern Cape province of South Africa. 1 Baviaans River farmer Charles Marais, imprisoned the wild caracals in 60 by 60 centimetre cages (less than 2 by 2 feet); collected their feces and urine from under the cages which was used to lure other wild caracals into traps so they could be killed. Mr. Marais provided this as a service to other livestock farmers throughout South Africa who incur financial losses whenever animals such as caracals and jackals are able to prey on their herds.

Richard Hargreaves, LLB, F.Inst.L.Ex, Director of the South African NGO Campaign Against Canned Hunting (http://www.cannedlion.org).

Acknowledgements: With grateful thanks to Chris Mercer of the Campaign Against Canned Hunting and Dr. Bool Smuts of the Landmark Foundation. (RH) 1

R. HARGREAVES, Caracal Factory Line, WILDCAT ADVOCATE 5, (June-September 2010), available at http://www.wcclas.org/publications.


66 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

What is most surprising about this story is that it was Mr. Marais who was subsequently portrayed as the victim on the 50/50 television programme expose. Many farmers took his side and were sympathetic towards what they perceived as victimisation towards him by the makers of 50/50. 2 This was because Mr. Marais’ services are, unfortunately, considered by many traditional farmers as the most effective solution to their predation problems. Such entrenched views that all predators in South Africa are vermin or damage-causing animals as they are now called, and must be eradicated or managed as killing of such animals is now phrased, at all costs, can be traced back to 1656 when Jan Van Riebeeck first started a system of paying bounties for anyone killing predators in the Cape Colony. Van Riebeeck was stationed in the area in 1651 to command the first Dutch settlement in South Africa. Curiously, his bounty system continued in the Cape until the Problem Animal Ordinance, No. 26 of 1957 came into effect approximately three hundred years later. Ordinance No. 26 of 1957 only served to reinforce the cultural mindset that a three hundred year bounty system had created; namely that the South African landowners and farmers were at war with the country's wildlife. As Chris Mercer states: The Problem Animal Control Ordinance of 1957 purports to be a Declaration of War upon, and an extermination programme for, any species of wildlife which affects the farming community, including caracals, African wildcats and any other predators.

2

As per the comments section at: http://www.5050.co.za/index.php?option=com_content&view=article&i d=580:operation-caracal&catid=64:episode-19-july-2010&Itemid=194.


The Plight of Wildcats in South Africa: Damage Causing Animals or Bycatch

67

Whole species are arbitrarily positioned outside the boundaries of moral or legal concern. 3 Hunting clubs were provided for under the Ordinance, which basically could allow the clubs to take any measures necessary to eradicate the Cape's vermin which, up until 1968, included the region's few remaining wild leopards. Hunting was to be done effectively and as often as deemed necessary and could include, inter alia, setting of gin traps, shooting, coursing, and poisoning. Matters were no better elsewhere in South Africa. As recently as 1983, the Transvaal Nature Conservation Ordinance 12 of 1983 in the Gauteng Province, also provided for the establishment of hunt clubs to hunt problem animals. So what is the present position? Given the more enlightened, biodiversity oriented outlook that is remarkably prevalent at all levels in Environmental Law in recent years, have matters now improved for South Africa’s wildcats in the twenty first century? Unfortunately, the short answer is no. Section 9 of the South African National Environmental Management: Biodiversity Act, 10 of 2004 (Biodiversity Act), that came into effect on 1 September 2004, allows for the issuing of Norms and Standards that would take precedence over any provincial and/or local level legislation on the same subject. On 26 November 2010 the South African Department of Environmental Affairs published the Draft Norms and Standards for the Management of Damage-Causing Animals in South Africa (Draft Norms and Standards) pursuant to Section 9 of the Biodiversity Act. 4

3

C. MERCER, Caracals (Desert Lynx): The New World Paradigm: Taking the Wild Out of Our Wildlife, III JOURNAL OF THE WILDCAT CONSERVATION LEGAL AID SOCIETY 38 (2010), available at http://www.wcclas.org/publications. 4 See http://www.environment.gov.za/HotIssues/2010/animalstandard.pdf.


68 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

These Draft Norms and Standards provide, under Definitions at paragraph 1, that a damage-causing animal means: A wild vertebrate animal that, when interacting with humans or interfering with human activities, there is substantial proof that it: (a)

causes losses to stock or to other wild specimens;

(b)

causes damage to cultivated trees, crops, natural flora or other property;

(c)

presents a threat to human life; or

(d)

is present in such numbers that agricultural grazing is materially depleted.

This is such a broad definition that it basically means that any wild vertebrate animal in South Africa could now be classified as a damage-causing animal provided there is substantial proof of any of requirements (a) to (d) as drafted. Yet, the Draft Norms and Standards provide no definition of what substantial proof ought to consist of or even what a bare minimum of substantial proof should comprise. To put this into context, using the Cape Province as a case study, the abhorrent Problem Animal Ordinance, No. 26 of 1957, listed leopards, caracals, and African wildcats as vermin in 1957. Leopards and African wildcats were taken off that list in 1968 but could now be put back on it under the Draft Norms and Standards along with lions, cheetahs, servals, black-footed cats, and any other wild vertebrate animal as long as substantial proof was adduced.


The Plight of Wildcats in South Africa: Damage Causing Animals or Bycatch

69

Assuming that substantial proof is adduced the main traditional lethal methods for the management or killing of damage-causing animals would henceforth be classified as restricted methods if the Draft Norms and Standards are made final. These restricted methods would, pursuant to paragraph 9 of the Draft Norms and Standards, only be allowed to be used by an adequately trained person. As with substantial proof, adequately trained person is not defined. As such, given his extensive experience on employing such lethal methods, presumably Mr. Marais could be considered an adequately trained person for the purposes of paragraph 9. The only other caveat that the Draft Norms and Standards put in place, before such lethal methods can be employed, is that they must be authorized by means of a permit issued by the relevant issuing authority if required. For issuing authority, the Draft Norms and Standards uses the same definition used by the Threatened or Protected Species Regulations (TOPS Regulations) published in Government Notice R152, in Government Gazette Number 29657, dated 23 February 2007, as amended. TOPS Regulation 3(4) allows for issuing authority powers to be exercised by virtually any official of the Department of Environmental Affairs or provincial department, provided such powers have been delegated or subdelegated in accordance with Sections 42 and/or 42A of the National Environmental Managements Act, 107 of 1988 (NEMA). Sections 42 and 42A of NEMA require only that such delegation be put in writing and Section 42A(1)(b) specifically allows for such delegation to be made to “the management authority of a provincial or local protected area.” 5 This is of particular concern for South Africa’s wildcats, given what Mr. Marais had to say about such authorities: 5

See http://www.acts.co.za/ntl_enviro_man/index.htm.


70 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

After a visit from nature conservation officials in January [2010] I was given specifications for cages and given three weeks to comply with these regulations. I then built cages that were double the size. They were to inspect the cages in February [2010] but never arrived. 6 If what he says is true, this would suggest that the only condition he was given with respect to his cages was that they be a mere 30 by 30 centimetres and even then the authorities were not diligent in monitoring compliance; these being the same authorities who, in all likelihood, would be given permit issuing authority power under the Draft Norms and Standards. The Draft Norms and Standards then go on to set out the Minimum requirements in respect to each of the lethal methods envisaged but these read more like gruesome directions for a use manual than a further caveat prior to implementation. By way of example, the Department of Environmental Affairs specifically states, at Section 11(2) of the Draft Norms and Standards that: Only sodium monofluoroacetate (Compound 1080) may be used in poison collars. 7 Poison collars are collars placed around the necks of livestock that will release the Compound 1080 if bitten into by a predator. Should one of South Africa's wildcats be unfortunate enough to bite into such a collar the typical chain of events would then be heaving, attempts at vomiting, agonizing cries of pain, frenzied running around caused by panic that had been brought on by fright and pain followed by collapse, violent convulsions, gagging, gulping for air and finally death. 6

LOURENS SCHOEMAN, Caracals Cause Chaos, EASTERN CAPE TODAY, (August 5–11, 2010). 7 Id. at 18.


The Plight of Wildcats in South Africa: Damage Causing Animals or Bycatch

71

Similarly, the Draft Norms and Standards would relegitimise the barbaric gin traps in respect of which a halfhearted attempt at prohibition was made by the drafters of the TOPS Regulations. TOPS Regulation 14(4)(b) allows someone with a permit to hunt a damage-causing animal with “bait and traps, excluding gin traps. . .” and TOPS Regulation 1 defines a gin trap as: A leg hold or foothold trap made up of two tightly closing jaws, a spring of sorts, and a trigger in the middle, without an off-set jaw or padded jaw that reduces chances of injury to the animal. 8 Under the Draft Norms and Standards use of a soft trap would be permitted as a restricted method to manage damagecausing animals provided that the device was inspected and approved by the relevant issuing authority prior to use. Paragraph 14 of the Draft Norms and Standards states that a soft trap must “leave a space of at least 5mm (0.19685 inches) between the closed jaws when the soft trap is set off…have...a steel spring to absorb shock…and the jaws of the soft trap must not be serrated or spiked and may be padded.” As such and especially given that the jaws of a soft trap do not have to be padded, there is no way that a designated issuing authority official could realistically differentiate between a gin trap and a soft trap. Even if the two could be differentiated a soft trap is just as capable of causing a slow and agonizing death to one of South Africa's wildcats as a gin trap. What is even more tragic is that such devices rarely even catch the damage-causing animal they are put down to catch. Instances of bycatch are all too common and this is nowhere more apparent than in the Bavianskloof Wilderness Area. The Bavianskloof, approximately 120km west of Port Elizabeth in the Eastern Cape Province, comprises 270,000 8

GOVERNMENT GAZETTE NUMBER 29657 at 20 (February 23, 2007).


72 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

hectares of natural mountainous terrain within which a small population of approximately 35 Cape leopards still exists. Cape leopards are much smaller than leopards found elsewhere in Africa and it has yet to be conclusively determined whether they are a separate sub-species or simply a sub-population. Dr. Bool Smuts of the Landmark Foundation catalogued the deaths of 31 Cape leopards in the Bavianskloof area between late 2002 and mid-2010, details of the last 5 deaths are set out below: LEOPARD 27: Reportedly killed in a gin trap near Groendal reserve in October 2008; LEOPARD 28: Shot near the Cockscomb Mountain in the Grootrivierport of the Bavianskloof Reserves while a farmer allegedly defended himself while out with his dogs tracking the leopard; LEOPARD 29: Caught around the neck in a cable snare on 15 July 2009 and died of suffocation; LEOPARD 30: Illegally hunted with dogs without a permit and shot on 10 October 2009; LEOPARD 31: Died on 8 June 2010 after being caught in a soft trap in the Winterhoek Mountains, near Willowmore flats on the edge of the Bavianskloof reserve. 9 The Province of the Eastern Cape Department of Economic Affairs, Environment and Tourism (DEAET) were well aware that rare Cape leopards were frequently dying as 9

See LANDMARK FOUNDATION newsletters available at http://www.portelizabeth.co.za/index.php?option=com_content&task=bl ogcategory&id=105&Itemid=289 and http://www.wildmark.org.uk/newsletter.html.


The Plight of Wildcats in South Africa: Damage Causing Animals or Bycatch

73

bycatch in gin traps and other devices and therefore devised a peculiar solution to this problem. Operational Policy Guideline for the Issuing of Permits to Hunt Damage Causing Leopards (Panthera Pardus) (Guideline), was approved in April 2006 and, to this day, is still in force as Provincial legislation in the Eastern Cape. The Guideline provides that so long as a set procedure is followed, the DEAET will issue a permit to a landowner to hunt a problem leopard. If the landowner “…is not interested or qualified to hunt the problem leopard he can use the services of a Professional Hunting Outfitter or any other qualified person,” in which case, “the remuneration arrangements are between the landowner and the outfitter.” The procedure is not onerous and the Guideline even provides for the leopard to be hunted without obtaining a permit which can then be issued “post facto….at the discretion of the DEAET.” This is nothing less than selling out the last of the few remaining Cape leopards in the Eastern Cape so that landowners in the area can make a bit more money from selling the hunting rights to the professional hunting industry. After much lobbying on this issue, DEAET held a one day workshop to discuss the issues of damage causing leopards and the Guideline in Port Elizabeth, on 9 February 2011. The workshop was well attended by officials, landowners, farmers’ representatives, and experts, yet the details of the plight of the Cape leopard were met with angry retorts on behalf of the farmers and threats to kill all the leopards in the conservation areas if the farmers’ concerns were not addressed.10 Unsurprisingly, little progress was made and there was no indication given that the Guideline would be overturned or even reviewed. As mentioned above, national law takes precedence over provincial law in South Africa. As such the Draft Norms 10

See http://www.cannedlion.org/content/february-11th-2011-assetstripping-world-heritage-site.


74 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

and Standards would have been a perfect opportunity for South Africa's Department of Environmental Affairs to propose and implement overriding legislation that, inter alia, might have enabled the Cape leopard to be brought back from the brink of extinction. Instead, they insist on the use of Compound 1080 and re-legitimise gin traps. With friends like these, the wildcats of South Africa hardly need any other enemies.


Impressions & Prose: The Year of the Tiger

75

IMPRESSIONS & PROSE WildCat Conservation Legal Aid Society

The Year of the Tiger

In honor of The Year of the Tiger, the staff of the WildCat Conservation Legal Aid Society thought it would be fitting to include in the final pages of our wild wildcats issue, a tribute to all tigers around the world. As we continue to pursue our mission to protect and defend all native and non-native wildcats and work toward ensuring a wild future for all wildcats™ we hope that other individuals will also hear the call of the wild and finally do what needs to be done so this magnificent creature is able to continue to exist in its natural state and not be eradicated due to our collective failure in placing monetary gain and individual wealth above all else. William Blake’s poem, The Tyger 1 written in 1794, endures the test of time and is perhaps more poignant today than Mr. Blake 1

WILLIAM BLAKE, The Tyger, SONGS OF EXPERIENCE, (1794).


76 Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV

could have ever imagined. The Tyger, part of Blake’s SONGS OF EXPERIENCE, illustrates the duality of all wildcats: aesthetic beauty and primal ferocity.

THE TYGER Tyger, Tyger burning bright In the forests of the night, What immortal hand or eye Could frame thy fearful symmetry? In what distant deeps or skies Burnt the fire in thine eyes? On what wings dare he aspire? What the hand dare seize the fire? And what shoulder and what art Could twist the sinews of thy heart? And when thy heart began to beat, What dread hand and what dread feet? What the hammer? what the chain? In what furnace was they brain? What the anvil? What dread grasp Dare its deadly terrors clasp? When the stars threw down their spears, and water’d heaven with their tears, Did He smile His work to see? Did He who made the lamb make thee? Tyger, tiger, burning bright In the forests of the night, What immortal hand or eye Dare frame they fearful symmetry?


Impressions & Prose: The Year of the Tiger

77


WILDCAT CONSERVATION LEGAL AID SOCIETY 1725 I STREET, NW SUITE 300 WASHINGTON, DC 20006 WWW.WCCLAS.ORG ~ INFO@WCCLAS.ORG


ENSURING A WILD FUTURE FOR ALL WILDCATS

Journal of the WildCat Conservation Legal Aid Society, Winter 2010, Vol. IV  

The Journal provides a unique forum for professionals and scholars to analyze and comment on the issues affecting wildcats around the world,...

Read more
Read more
Similar to
Popular now
Just for you