154 



flexible affirmative duty, rather than a carefully circumscribed mandate to take 

 certain actions. 21 



While it was generally assumed at the time of Senate ratification that the 

 Agreement would be implemented domestically through the Marine Mammal Protection 

 Act (MMPA), this Act insufficiently protects polar bear habitat. As noted in the MMC 

 Legal Review : 



[T]he United States lacks any legal authority that confronts polar bear 

 habitat/ecosystem protection head on. . . . [Current authorities] do not provide 

 affirmative means or duties to protect polar bear habitat and the ecosystem of 

 which it is a part. 22 



Congressional Action Is Needed 



FWS Should be Given Affirmative Authority to Protect Polar Bear Habitat 



Despite the requirements of the Agreement on the Conservation of Polar Bears, 

 neither Congress nor the U.S. Fish and Wildlife Service has developed a proactive 

 regime to protect polar bear habitat in the 18 years since the Senate ratification. As 

 previously noted, the FWS is finally in the process of developing a Polar Bear Habitat 

 Conservation Strategy, which it expects to complete by June 1995. To assure that the 

 FWS has clear legal authority to take the actions it determines are necessary to protect 

 polar bear habitat fully, Congress should amend the MMPA. Such an amendment 

 should give the FWS full affirmative authority to protect essential polar bear habitat 

 both on land and in the waters off the coast of Alaska. Clear authority for onshore 

 areas will assure that the FWS can protect key land denning areas. Additional offshore 

 authority will assure that the FWS can protect other important denning, feeding and 

 migration areas that may be identified by the Polar Bear Strategy. 



During the final negotiating session for the Agreement on the Conservation of 

 Polar Bears, Curtis Bohlen, Chief of the U.S. delegation, told the other negotiators that 

 the United States intended the treaty to designate "a large portion of the Arctic region 

 as an area where the polar bear would enjoy total protection." 23 He added: 'Anything 

 less would be unacceptable to the American people, for whom the polar bear has 

 become both an example of wanton killing for the sake of short-term economic gain and 



21 MMC Legal Review al 45. 



" MMC Legal Review at 129-130. 



° Final Acl and Summary Record of: The Conference to Prepare and Agreement on the Conservation 

 of Polar Bears 19 (1980). 



