In Re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation - Mdl 1993

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
IN RE POLAR BEAR ENDANGERED )
SPECIES ACT LISTING AND § 4(d) )
RULE LITIGATION ) Misc. No. 08-764 (EGS)
) MDL Docket No. 1993
)
)
This Document Relates To: )
)
Ctr. for Biological Diversity, )
et al. v. Salazar, 1 et al., )
No. 08-2113; State of Alaska )
v. Salazar, et al., No. 08-1352; )
Safari Club Int’l, et al. v. )
Salazar, et al., No. 08-1550; )
California Cattlemen’s Ass’n, )
et al. v. Salazar, et al., No. )
08-1689; Conservation Force, )
et al. v. Salazar, et al., No. )
09-245 )
)
MEMORANDUM OPINION
In May 2008, the U.S. Fish and Wildlife Service (“FWS” or
“the Service”) issued its final rule listing the polar bear as a
“threatened species” under the Endangered Species Act of 1973.
See Determination of Threatened Status for the Polar Bear (Ursus
maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15,
2008) (the “Listing Rule”). The Service concluded that the
polar bear is likely to become endangered within the foreseeable
1
Pursuant to Fed. R. Civ. P. 25(d), Interior Secretary Ken
Salazar is automatically substituted as a defendant for his
predecessor, Dirk Kempthorne, who was sued in his official
capacity.
future because of anticipated impacts to its sea ice habitat
from increasing Arctic temperatures, which have been attributed
to global greenhouse gas emissions and related atmospheric
changes. Numerous plaintiffs have challenged the Listing Rule
under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C.
§§ 1531-1544, and the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 551-559, 701-706, claiming that the Service’s decision
to list the polar bear as a threatened species was arbitrary and
capricious and an abuse of agency discretion. Pending before
the Court are the parties’ cross-motions for summary judgment.
As the briefing in this case makes clear, the question of
whether, when, and how to list the polar bear under the ESA is a
uniquely challenging one. The three-year effort by FWS to
resolve this question required agency decision-makers and
experts not only to evaluate a body of science that is both
exceedingly complex and rapidly developing, but also to apply
that science in a way that enabled them to make reasonable
predictions about potential impacts over the next century to a
species that spans international boundaries. In this process,
the Service considered over 160,000 pages of documents and
approximately 670,000 comment submissions from state and federal
agencies, foreign governments, Alaska Native Tribes and tribal
organizations, federal commissions, local governments,
commercial and trade organizations, conservation organizations,
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nongovernmental organizations, and private citizens. In
addition to relying on its own experts, the agency also
consulted a number of impartial experts in a variety of fields,
including climate scientists and polar bear biologists.
In view of these exhaustive administrative proceedings, the
Court is keenly aware that this is exactly the kind of decision-
making process in which its role is strictly circumscribed.
Indeed, it is not this Court’s role to determine, based on its
independent assessment of the scientific evidence, whether the
agency could have reached a different conclusion with regard to
the listing of the polar bear. Rather, as mandated by the
Supreme Court and by this Circuit, the full extent of the
Court’s authority in this case is to determine whether the
agency’s decision-making process and its ultimate decision to
list the polar bear as a threatened species satisfy certain
minimal standards of rationality based upon the evidence before
the agency at that time.
For the reasons set forth below, the Court is persuaded
that the Listing Rule survives this highly deferential standard.
After careful consideration of the numerous objections to the
Listing Rule, the Court finds that plaintiffs have failed to
demonstrate that the agency’s listing determination rises to the
level of irrationality. In the Court’s opinion, plaintiffs’
challenges amount to nothing more than competing views about
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policy and science. Some plaintiffs in this case believe that
the Service went too far in protecting the polar bear; others
contend that the Service did not go far enough. According to
some plaintiffs, mainstream climate science shows that the polar
bear is already irretrievably headed toward extinction
throughout its range. According to others, climate science is
too uncertain to support any reliable predictions about the
future of polar bears. However, this Court is not empowered to
choose among these competing views. Although plaintiffs have
proposed many alternative conclusions that the agency could have
drawn with respect to the status of the polar bear, the Court
cannot substitute either the plaintiffs’ or its own judgment for
that of the agency. Instead, this Court is bound to uphold the
agency’s determination that the polar bear is a threatened
species as long as it is reasonable, regardless of whether there
may be other reasonable, or even more reasonable, views. That
is particularly true where, as here, the agency is operating at
the frontiers of science.
In sum, having carefully considered plaintiffs’ motions,
the federal defendants’ and defendant-intervenors’ cross-
motions, the oppositions and replies thereto, various
supplemental briefs, the supplemental explanation prepared by
FWS in response to this Court’s November 4, 2010 remand order,
arguments of counsel at a motions hearing held on February 23,
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2011, the relevant law, the full administrative record, and for
the reasons set forth below, the Court finds that the Service’s
decision to list the polar bear as a threatened species under
the ESA represents a reasoned exercise of the agency’s
discretion based upon the facts and the best available science
as of 2008 when the agency made its listing determination.
Accordingly, the Court hereby DENIES plaintiffs’ motions for
summary judgment and GRANTS the federal defendants’ and
defendant-intervenors’ motions for summary judgment.
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TABLE OF CONTENTS
INTRODUCTION
TABLE OF CONTENTS
I. BACKGROUND
A. Statutory Background
B. Factual and Procedural Background
II. STANDARD OF REVIEW
III. DISCUSSION
A. The Service Articulated a Rational Basis for Its
Conclusion that the Polar Bear Met the Definition of a
Threatened Species at the Time of Listing
1. Plaintiff CBD’s Claim that the Polar Bear Should
Have Been Considered Endangered at the Time of
Listing
a. The Service’s Findings
b. Plaintiff CBD’s Arguments
c. The Court’s Analysis
i. Standard of Review on Remand
ii. Merits
2. Joint Plaintiffs’ Claim that the Polar Bear
Should Not Have Been Considered Threatened at the
Time of Listing
a. Joint Plaintiffs’ Argument that the Service
Failed to Demonstrate that the Polar Bear Is
67-90% Likely to Become Endangered
b. Joint Plaintiffs’ Argument that the Service
Arbitrarily Selected 45 Years As the
“Foreseeable Future” Timeframe for the Polar
Bear
B. The Service Articulated a Rational Basis for Its
Conclusion that No Polar Bear Population or Ecoregion
Qualifies As a “Distinct Population Segment”
1. The Service’s Policy
2. Plaintiffs CBD, SCI, and CF’s Claim that the
Service Wrongly Concluded that No Polar Bear
Population or Ecoregion Is “Discrete”
3. The Court’s Analysis
C. The Service Did Not Arbitrarily Fail to Consider Other
Listing Factors
1. Joint Plaintiffs’ Claim that the Service Failed
to “Take Into Account” Foreign Conservation
Efforts to Protect the Polar Bear
2. Joint Plaintiffs’ Claim that the Service Failed
to Rely upon the “Best Available Science”
a. Joint Plaintiffs’ Argument that Climate
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Science Is Too Uncertain to Support the
Service’s Conclusion
b. Joint Plaintiffs’ Argument that the USGS
Population Models Do Not Support the
Service’s Conclusion
c. Joint Plaintiffs’ Argument that the Service
Ignored Scientific Data and Made Improper
Findings Regarding the Southern Beaufort Sea
Population
3. Plaintiff CBD’s Claim that the Service Failed to
Consider Whether the Threat of Overutilization
Warranted Listing the Polar Bear As Endangered
(“Listing Factor B”)
4. Joint Plaintiffs’ Claim that the Service Wrongly
Concluded that Existing Regulatory Mechanisms
Will Not Protect Polar Bears despite Anticipated
Habitat Losses (“Listing Factor D”)
D. The Service Followed Proper Rulemaking Procedures
1. Plaintiff Alaska’s Claim that the Service
Violated Section 4(i) of the ESA by Failing to
Provide a Sufficient “Written Justification” in
Response to Comments
2. Plaintiff CF’s Claim that the Service Failed to
Respond to Significant Comments
IV. CONCLUSION
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I. BACKGROUND
A. Statutory Background
Congress enacted the ESA “to provide a means whereby the
ecosystems upon which endangered species and threatened species
depend may be conserved, [and] to provide a program for the
conservation of such endangered species and threatened species.” 2
16 U.S.C. § 1531(b). An “endangered species” is “any species
which is in danger of extinction throughout all or a significant
portion of its range.” Id. § 1532(6). A “threatened species”
is “any species which is likely to become an endangered species
within the foreseeable future throughout all or a significant
portion of its range.” Id. § 1532(20). The term “species” is
defined in the Act to include species, subspecies, and “any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.” Id. § 1532(16).
The ESA requires the Secretary of the Interior to publish
and maintain a list of all species that have been designated as
2
Under the conservation program established by the ESA, a
designation of “endangered” triggers a broad range of
protections, including a prohibition on “taking” individual
members of the species. See 16 U.S.C. § 1538(a)(1)(B); see also
id. § 1532(19) (defining the term “take” to mean “harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct”). The Act authorizes
the Secretary to extend these prohibitions, in whole or in part,
to threatened species as well. Id. § 1533(d). In addition, the
Secretary shall “issue such regulations as he deems necessary
and advisable to provide for the conservation of [threatened]
species.” Id.
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threatened or endangered. Id. § 1533(c). Species are added to
and removed from this list after notice and an opportunity for
public comment, either on the initiative of the Secretary or as
a result of a petition submitted by an “interested person.” Id.
§§ 1533(b)(1), (3), (5). The Secretary of the Interior and the
Secretary of Commerce are responsible for making listing
decisions. 3 Id. §§ 1532(15), 1533(a)(2). The Secretary of the
Interior has jurisdiction over the polar bear. See 50 C.F.R.
§ 402.01(b).
A listing determination is made on the basis of one or more
of five statutorily prescribed factors:
(a) the present or threatened destruction,
modification, or curtailment of the species’
habitat or range;
(b) overutilization for commercial, recreational,
scientific, or educational purposes;
(c) disease or predation;
(d) the inadequacy of existing regulatory mechanisms;
or
(e) other natural or manmade factors affecting the
species’ continued existence.
16 U.S.C §§ 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c).
The agency must list a species if “any one or a combination” of
these factors demonstrates that the species is threatened or
endangered. 50 C.F.R. § 424.11(c).
3
The Secretary of the Interior has delegated his
responsibilities under the Act to FWS. See 50 C.F.R.
§ 402.01(b). The Secretary of Commerce has delegated his
responsibilities under the Act to the National Marine Fisheries
Service (“NMFS”). See id.- 9 -
The ESA further provides that the decision to list a
species must be made
solely on the basis of the best scientific and
commercial data available . . . after conducting a
review of the status of the species and after taking
into account those efforts, if any, being made by any
State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species
. . . .
16 U.S.C. § 1533(b)(1)(A).
B. Factual and Procedural Background
Polar bears are marine mammals that are described as “ice-
obligate,” meaning that they are evolutionarily adapted to, and
indeed completely reliant upon, sea ice for their survival and
primary habitat. ARL 117259. 4 They depend upon sea ice for
critical functions such as hunting ice-dependent seals (their
primary source of food), migrating between feeding areas and
land-based maternity dens, and traveling long distances in
search of mates or food. ARL 139259. Over most of their range,
polar bears remain on the ice year-round. ARL 139245. The
international Polar Bear Specialist Group – the authoritative
source for information on the world’s polar bears – has
identified nineteen polar bear populations located within five
countries in the ice-covered regions of the Northern Hemisphere:
4
The facts in this background section are excerpted from the
administrative record for the Listing Rule. Citations to the
administrative record for the Listing Rule are abbreviated
“ARL.”
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the United States (in Alaska), Canada, Denmark (in Greenland),
Norway, and Russia. 5 ARL 117216-17, 117219.
On February 16, 2005, the Center for Biological Diversity
submitted a petition to the Secretary of the Interior to list
the polar bear as a threatened species under the ESA due to
observed and anticipated declines in the Arctic sea ice upon
which the polar bear relies for survival. See generally ARL
4040-4209. FWS ultimately issued a final rule listing the polar
bear as a threatened species on May 15, 2008. 6 See generally ARL
5
These nineteen populations are generally identified by
their geographical location: Arctic Basin, Baffin Bay, Barents
Sea, Chukchi Sea, Davis Strait, East Greenland, Foxe Basin, Gulf
of Boothia, Kane Basin, Kara Sea, Lancaster Sound, Laptev Sea,
M’Clintock Channel, Northern Beaufort Sea, Norwegian Bay,
Southern Beaufort Sea, Southern Hudson Bay, Western Hudson Bay,
and Viscount Melville Sound. ARL 117220, Figure 1. The United
States Geological Survey (“USGS”) recently re-evaluated the
existing population boundaries to create an additional
population - Queen Elizabeth – located on the northern border of
Greenland. ARL 117222.
6
Prior to the action currently before this Court, the Center
for Biological Diversity also initiated lawsuits to enforce
various statutory deadlines throughout the listing process for
the polar bear. To the maximum extent practicable, the
Secretary must respond to listing petitions within 90 days with
an initial finding stating whether the petition “presents
substantial scientific or commercial information indicating that
the petitioned action may be warranted.” 16 U.S.C.
§ 1533(b)(3)(A). When the Secretary failed to timely respond to
its listing petition, the Center for Biological Diversity filed
an action in the Northern District of California in December
2005. Ctr. for Biological Diversity v. Norton, No. 05-5191
(N.D. Cal. filed Dec. 15, 2005). The Secretary ultimately
published a 90-day finding on February 9, 2006, ARL 5597-98, and
he agreed to issue the next required finding by December 27,
2006. The parties settled the case with a consent decree to
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117215-117307. At the time of listing, there were estimated to
be approximately 20,000 to 25,000 polar bears worldwide,
distributed throughout the species’ range. 7 ARL 117219. These
estimates further indicated that two of the nineteen polar bear
populations were increasing in numbers (Viscount Melville Sound
and M’Clintock Channel); six populations were stable (Northern
Beaufort Sea, Southern Hudson Bay, Davis Strait, Lancaster
Sound, Gulf of Boothia, Foxe Basin); and five populations were
declining (Southern Beaufort Sea, Norwegian Bay, Western Hudson
Bay, Kane Basin, Baffin Bay). ARL 117221. Insufficient data
were available to identify trends for the remaining six
populations (Barents Sea, Kara Sea, Laptev Sea, Chukchi Sea,
Arctic Basin, East Greenland). ARL 117221.
that effect. See Settlement Agreement, Ctr. for Biological
Diversity v. Kempthorne, No. 05-5191 (N.D. Cal. June 28, 2006).
On January 9, 2007, FWS published in the Federal Register a
proposed rule to list the species as threatened throughout its
range. See generally ARL 59985-60021. The ESA imposes a
nondiscretionary deadline of one year from the date a proposed
rule is published within which the agency must publish a final
rule. 16 U.S.C. § 1533(b)(6). After that one-year deadline
passed, the Center for Biological Diversity filed a second
action to compel FWS to issue its final rule. Ctr. for
Biological Diversity v. Kempthorne, No. 08-1339 (N.D. Cal. filed
Mar. 10, 2008). The Northern District of California granted
plaintiff’s motion for summary judgment and directed FWS to
publish its final listing determination for the polar bear by
May 15, 2008. Ctr. for Biological Diversity v. Kempthorne, No.
08-1339, 2008 U.S. Dist. LEXIS 34753 (N.D. Cal. Apr. 28, 2008).
7
The Service found that the polar bear occupied the full
extent of its historical range at the time of listing. See ARL
117242.
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In its Listing Rule, FWS acknowledged that sea ice
conditions across the Arctic had changed over the past several
decades. ARL 117227-28. Specifically, the agency cited data
indicating that the summer/fall ice melt season in the Arctic
lengthened by approximately two weeks per decade between 1979
and 2005. ARL 117227. The agency also cited data indicating
that September (i.e., minimum) sea ice extent was at an all-time
low during the period between 2002 and 2007. ARL 117224. FWS
further noted that scientists had observed significant recent
declines in winter (i.e., maximum) sea ice extent, ARL 117226,
cumulative annual sea ice extent, ARL 117226, and overall sea
ice age and thickness, ARL 117226-27.
Relying on complex climate models and related data from the
International Panel on Climate Change (“IPCC”) – which FWS
acknowledged to be the leading international body in climate
change science – FWS attributed these changes in sea ice to
increased Arctic temperatures caused by greenhouse gas emissions
and related changes in atmospheric and oceanic circulation. 8 ARL
117227-30. As FWS described, due to a reported lag time in
response between when greenhouse gases are emitted into the
8
In its final Listing Rule, FWS relied in particular on the
IPCC Fourth Assessment Report (“AR4”), issued in 2007, which was
the most recent climate change report available from the IPCC at
the time FWS made its listing determination. ARL 117231; see
generally ARL 151180-152632.
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atmosphere and when the impacts of those emissions are felt on
the ground, the IPCC concluded that the global climate system is
committed to a continued warming trend through the end of the
21st century. ARL 117233-34. Indeed, FWS noted that average
projected warming levels through mid-century were generally
consistent across all IPCC climate models, regardless of
differences in possible emission levels over that period. ARL
117257. FWS looked also to IPCC models of Arctic sea ice, which
similarly projected declines in ice extent through the end of
the 21st century. ARL 117234. As FWS noted, the ten models
that most accurately reflected historical sea ice changes prior
to 2007 all projected a decline in September sea ice extent of
over thirty percent (30%) by mid-century. ARL 117236-37. On
the basis of these IPCC models and associated analysis, FWS
concluded that it could confidently predict a significant
decline in the polar bear’s sea ice habitat over the next 40 to
50 years. ARL 117279-81.
FWS further concluded that the extent of anticipated
declines in sea ice will significantly impact polar bear
population health. ARL 117279. As FWS described, sea ice
losses have been tied to nutritional stress in polar bears
because of lower overall numbers of ice-dependent prey,
decreased access to the prey that remain, shorter hunting
seasons and longer seasonal fasting periods, and higher
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energetic demands from traveling farther and swimming longer
distances across open water to reach sea ice. ARL 117279. FWS
determined that this nutritional stress and other related
factors will likely result in a decline in the physical
condition of polar bears, leading to lower overall body weights
and reduced cub survival rates. ARL 117270. FWS further found
that consistent declines in physical condition and reproductive
success will ultimately lead to population-level declines. ARL
117279.
In reaching this conclusion, FWS relied in part on long-
term studies showing that these impacts had already been
observed in some of the southern-most polar bear populations.
According to FWS, monitoring reports indicated that the Western
Hudson Bay population – one of the longest-studied polar bear
groups – had experienced declines in body condition among both
adult male and adult female bears over the past three decades,
with an associated population decrease of approximately twenty-
two percent (22%). ARL 117271. FWS noted that this Canadian
population also experienced significant declines in body mass
among female bears over that period. ARL 117270. A
comprehensive review of the polar bear’s status conducted prior
to listing indicated that, between 1971 and 2001, the average
date of spring break-up of the sea ice in the region advanced by
three weeks, and temperatures increased by between 0.5ºC and
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0.8ºC per decade. ARL 139286. The correlation between the
timing of sea ice break-up and the body condition of adult
female polar bears was found to be statistically significant.
ARL 139286.
The same polar bear status review also indicated that
scientists monitoring the Southern Beaufort Sea polar bear
population – another long-studied group – observed similar
changes in body condition and unusual hunting behaviors. ARL
139279. As noted in the status review, population estimates for
this group between 1986 and 2006 also showed declines, although
researchers were not confident enough in these estimates to
assert that the observed declines were statistically
significant. ARL 139279.
Prior to issuing its final rule, FWS commissioned the
United States Geological Survey (“USGS”) to conduct additional
scientific analysis related to the polar bear listing decision. 9
Among other things, USGS undertook an effort to forecast the
status of polar bears in different parts of the Arctic at three
future time periods in the 21st century (i.e., 45 years, 75
years, and 100 years). See generally Forecasting the Range-Wide
9
FWS commissioned USGS to prepare this additional analysis
in February 2007, after the publication of the proposed listing
rule to list the polar bear as a threatened species. ARL
117239. In response to the significant new information
contained in the USGS reports, FWS re-opened the public comment
period on the proposed rule through October 22, 2007. ARL
117239.
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Status of Polar Bears at Selected Times in the 21st Century, ARL
161306-161436. USGS developed two models in an effort to
predict potential future changes to polar bear population
numbers across a range of scenarios, using climate models and
the existing body of knowledge about polar bears. ARL 161313.
A simple “carrying capacity” model was designed to estimate
potential changes in numbers of bears based on current polar
bear population densities and annual sea ice projections. ARL
161316. A more comprehensive “Bayesian Network” model was
designed to determine the probability of certain population
outcomes (e.g., “larger than now,” “same as now,” “smaller,”
“rare,” or “extinct”), taking into account a wide range of
factors including the seasonal availability of sea ice, as well
as population stressors unrelated to sea ice loss. ARL 161317,
161325-26.
For the purpose of these models, USGS grouped the nineteen
global polar bear populations into four “ecoregions” – Seasonal
Ice, Divergent Ice, Convergent Ice, and Archipelago – based upon
regional patterns of ice formation. ARL 117276. The Seasonal
Ice Ecoregion, for example, occurs at the southern end of the
polar bear range and is ice-free for a portion of the year. ARL
117221. In the Divergent Ice Ecoregion, which is located mainly
in Alaska, ice formed at the shore drifts away from land as a
result of wind and ocean currents. ARL 117222. In the
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Convergent Ice Ecoregion, sea ice formed in the Divergent Ice
Ecoregion moves toward land and collects at the shore. ARL
117222. The Archipelago Ecoregion, at the northernmost point of
the Canadian Arctic, generally has thicker and more persistent
ice year-round. ARL 117222. USGS determined that these
variations in sea ice conditions generally correlate to
differences in how polar bears interact with their sea ice
habitat. ARL 117221.
Consistent with IPCC climate and sea ice models, both of
the USGS models projected population declines in all four polar
bear ecoregions over the next 100 years. ARL 161312. The
simple carrying capacity model indicated that polar bear
population levels range-wide will have moderately decreased by
year 45, assuming average projected levels of future sea ice.
ARL 161331. Assuming minimal levels of future sea ice, the
carrying capacity model projected trends “toward extirpation” of
bears in the Divergent Ice Ecoregion by year 45 and in the
Seasonal Ecoregion by year 75. ARL 161331. Similarly,
according to USGS, the Bayesian Network model results suggested
that “multiple stressors will likely play important and
deleterious roles on all polar bear populations, even starting
at year 45, and generally increase in their effect through year
100.” ARL 161332. For example, the Bayesian Network model
projected an outcome of extinction for bears in the Seasonal and
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Divergent Ice Ecoregions by year 45 and for bears in the
Convergent Ice Ecoregion by year 75. ARL 161312-13. In the
Archipelago Ecoregion, a “smaller” population was the dominant
outcome at year 45 under all scenarios. ARL 161332.
In relying on the USGS population models, FWS emphasized
that it had less confidence in the specific numerical outcomes
of these models than in their “general direction and magnitude.”
ARL 117278. Specifically, FWS pointed to several caveats that
USGS itself identified in the development of these models. As
FWS described, USGS acknowledged that the carrying capacity
model only accounted for changes in sea ice extent and could not
account for several other important factors, including seasonal
ice fluctuations and other population stressors. ARL 117277.
Further, USGS indicated that this simple model assumed a linear
relationship between sea ice and numbers of bears, which is not
necessarily the case, and it also assumed that polar bear
density will not change over time, which “is almost certainly
not valid.” ARL 161323. FWS similarly discounted the specific
outcomes of the Bayesian Network model, which USGS described as
a “first-generation ‘alpha’ level prototype,” ARL 161338,
because it reflected the judgment of only one polar bear expert
and “still must be vetted through other polar bear experts.”
ARL 161338; see also ARL 117278. Insofar as these population
models were generally consistent with the record as a whole,
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however, FWS found that these models supported a conclusion that
sea ice losses will negatively impact polar bears in a
significant way within the foreseeable future. ARL 117278; ARL
117300.
Based on a voluminous administrative record, including the
studies described above, and input from fourteen peer reviewers
and numerous polar bear specialists, climate scientists, experts
in Traditional Ecological Knowledge (“TEK”), 10 state and federal
agencies, foreign governments, Alaska Native tribes and tribal
organizations, federal commissions, local governments,
commercial and trade organizations, conservation organizations,
nongovernmental organizations, and private citizens, FWS
concluded that the polar bear was threatened throughout its
range at the time of listing, within the meaning of the ESA.
ARL 117296. Specifically, FWS determined that all polar bear
10
TEK is a formally-recognized body of knowledge developed by
the native people who co-exist with the polar bear in its
habitat. TEK principles and observations include where and when
polar bears feed, how they hunt, where they den, how they
respond to different types of ice habitat, and how they travel.
See Defendant-Intervenor Arctic Slope Regional Corporation
Cross-Motion and Memorandum in Opposition, Docket Nos. 146, 147
(“ASRC Def-Int. Mot.”) at 3. This knowledge has been gained
through traditional subsistence efforts, handed down over
generations by oral tradition, and shared with scientists
researching the species, including FWS scientists. ASRC Def-
Int. Mot. at 3. TEK offers an opportunity for “clear
observational records over relatively long temporal scales.”
ASRC Def-Int. Mot. at 11 (quoting ARL 130884). For the purposes
of the Listing Rule, FWS accepted TEK as a relevant source of
information on the ecology of polar bears. ARL 117252.
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populations will be affected by substantial losses of sea ice
within the foreseeable future (which it defined as 45 years),
although different populations will be affected at different
rates and to different degrees. ARL 117279-80. FWS further
found that polar bears are unlikely to adapt to these
anticipated habitat changes. ARL 117264-66.
However, notwithstanding these findings, FWS concluded that
the polar bear was not endangered in any portion of its range at
the time of listing. ARL 117301. The agency determined that at
the time of listing the species was generally abundant
throughout its range, the species continued to occupy the full
extent of its historical range, and it had yet to experience
precipitous population declines in any portion of its range.
ARL 117299-301. Even in the Western Hudson Bay population,
where a statistically-significant decline had been observed, the
species continued to reproduce normally. ARL 117300. According
to FWS, these countervailing facts demonstrated that the polar
bear was not “in danger of extinction” at the time it made its
listing decision, although the agency reiterated that the
species would likely become an endangered species by mid-
century. ARL 117301.
The publication of the Listing Rule triggered lawsuits by a
number of organizations and individuals: (1) the State of Alaska
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(“Alaska”) 11 (State of Alaska v. Salazar, et al., No. 08-1352
(D.D.C. Aug. 4, 2008)); (2) Safari Club International and Safari
Club International Foundation (collectively, “SCI”) 12 (Safari
Club Int’l, et al. v. Salazar, et al., No. 08-1550 (D.D.C. Sept.
8, 2008)); (3) California Cattlemen’s Association and the
Congress on Racial Equality (collectively, “CCA”) 13 (California
Cattlemen’s Ass’n, et al. v. Salazar, et al., No. 08-1689
(D.D.C. Oct. 2, 2008)); (4) Center for Biological Diversity,
Natural Resources Defense Council, and Greenpeace (collectively,
“CBD”) 14 (Ctr. for Biological Diversity, et al. v. Salazar, et
11
The State of Alaska is a sovereign state with an averred
interest in the management of its wildlife and natural
resources, including the polar bear, and an averred interest in
the impact of the Listing Rule on public services, tourism,
transportation, and resource development within the state.
Alaska Compl. ¶¶ 9, 10.
12
Safari Club International and Safari Club International
Foundation are not-for-profit public education and hunting
advocacy organizations with an averred interest in the impact of
the Listing Rule on sustainable use wildlife conservation
efforts, including foreign trophy hunting programs. SCI Compl.
¶¶ 14-17.
13
California Cattlemen’s Association and the Congress on
Racial Equality are not-for-profit organizations that represent
California’s beef producers and poor and minority business
owners, respectively, with an averred interest in ensuring that
the Listing Rule does not expose their members to an elevated
risk of citizen suits and increased costs of doing business.
CCA First Am. Compl. ¶¶ 5, 6.
14
Center for Biological Diversity, Natural Resources Defense
Council, and Greenpeace are not-for-profit environmental
advocacy organizations with members that have an averred
interest in the protection and conservation of wildlife species,
- 22 -
al., No. 08-1339 (N.D. Cal. Mar. 10, 2008)); 15 and
(5) Conservation Force, the Inuvialuit Game Council, and
numerous hunting and trapping organizations as well as
individuals (collectively, “CF”) 16 (Conservation Force, et al. v.
Salazar, et al., No. 09-245 (D.D.C. Feb. 9, 2009)). These five
actions were subsequently consolidated before this Court, along
with six related actions, pursuant to an order of the Judicial
Panel on Multi-District Litigation. 17 See generally Certified
Copy of Transfer Order, Docket No. 1. 18
such as the polar bear, and their habitat. CBD Third Am. Compl.
¶¶ 20-23.
15
This case was subsequently transferred and assigned a new
case number in this Court. See Ctr. for Biological Diversity,
et al. v. Salazar, et al., No. 08-2113 (D.D.C. Dec. 8, 2008).
16
Conservation Force is a not-for-profit wildlife
conservation organization with an averred interest in managing
and protecting game species, including polar bears. CF Compl.
¶ 16. Joining with Conservation Force in its lawsuit is the
Inuvialuit Game Council, which represents the interests of the
Inuvialuit people on all matters pertaining to wildlife
management within Canada’s Inuvialuit Settlement Region. CF
Compl. ¶ 17. Also joining with these plaintiffs are a number of
hunting and trapping organizations, sportsmen organizations and
outfitters, and individuals who have participated in polar bear
trophy hunting. CF Compl. ¶¶ 18-50.
17
On the same day that FWS issued its final rule listing the
polar bear as a threatened species, the Secretary of the
Interior published proposed regulations pursuant to 16 U.S.C.
§ 1533(d). See Special Rule for the Polar Bear, 73 Fed. Reg.
28,306 (May 15, 2008) (“Interim 4(d) Rule”). These regulations
were later finalized and codified at 50 C.F.R. § 17.40(q) and
are the subject of two additional actions before this Court.
The four remaining actions challenge the Service’s subsequent
refusal to issue permits for importing sport-hunted polar bear
- 23 -
Several groups intervened to defend against plaintiffs’
challenges to the Listing Rule. Specifically, this Court
permitted the Alaska Oil and Gas Association (“AOGA”) and the
Arctic Slope Regional Corporation (“ASRC”) to intervene as
defendants in the challenge brought by plaintiff CBD. See
Stipulation and Order Regarding Intervention, Docket No. 33, at
4-5. The Court also permitted SCI, a plaintiff in its own
action, to intervene as a defendant in the action brought by
plaintiff CBD. Plaintiff CBD was permitted to intervene as a
defendant in the remaining challenges to the Listing Rule.
On October 20, 2009, plaintiffs filed their motions for
summary judgment. 19 Among other claims, plaintiff CBD contends
trophies under the Marine Mammal Protection Act (“MMPA”), 16
U.S.C. §§ 1371-1389 (2006). These six actions have been briefed
separately from the Listing Rule cases; therefore, the Court
does not address either the 4(d) Rule or the import ban
challenges here.
18
Unless otherwise specified, all references to pleadings,
proceedings, hearings, opinions, and orders can be found on the
Misc No. 08-764 docket.
19
Plaintiffs Center for Biological Diversity, Natural
Resources Defense Council and Greenpeace jointly filed a motion
for summary judgment. See generally Motion for Summary Judgment
by CBD, Docket No. 125 (“CBD Mot.”). The remaining plaintiffs
also filed a joint motion for summary judgment that addresses
their common claims. See generally Joint Motion for Summary
Judgment on Listing Rule Claims, Docket No. 127 (“JP Mot.”).
The Court also permitted each of these plaintiffs to submit
supplemental motions and memoranda in support of summary
judgment. See generally Alaska’s Motion for Summary Judgment on
Listing Rule Claims, Docket No. 128 (“Alaska Mot.”); Motion and
Supplemental Memorandum of CCA in Support of Motion for Summary
- 24 -
that the decision to list the polar bear as threatened was
arbitrary and capricious because the polar bear met the
definition of an endangered species under the ESA at the time of
listing and thus qualified for a higher level of protection.
The remaining plaintiffs (collectively, “Joint Plaintiffs”)
contend, among other things, that the decision to list the polar
bear was arbitrary and capricious because the polar bear did not
meet the definition of a threatened species at the time of
listing and therefore did not qualify for ESA protections.
The federal defendants filed their cross-motion for summary
judgment on December 7, 2009. See generally Federal Defendants’
Combined Opposition and Cross-Motion for Summary Judgment on
Listing Rule Claims, Docket No. 137 (“Fed. Def. Mot.”). The
various defendant-intervenors filed their cross-motions for
summary judgment on January 19, 2010. 20
Judgment Challenging the Listing Rule, Docket No. 124 (“CCA
Mot.”); Motion for Summary Judgment and Supplemental Memorandum
of Points and Authorities by SCI, Docket No. 123 (“SCI Mot.”);
Motion for Summary Judgment by CF, Docket No. 126, corrected at
Docket No. 131 (“CF Mot.”).
20
See generally Defendant-Intervenor SCI Cross-Motion for
Summary Judgment and Memorandum in Opposition, Docket Nos. 144,
145 (“SCI Def-Int. Mot.”); Defendant-Intervenor ASRC Cross-
Motion and Memorandum in Opposition, Docket Nos. 146, 147 (“ASRC
Def-Int. Mot.”); Defendant-Intervenor AOGA Cross-Motion for
Summary Judgment, Docket No. 148 (“AOGA Def-Int. Mot.”);
Defendant-Intervenor CBD Cross-Motion for Summary Judgment,
Docket No. 149 (“CBD Def-Int. Mot.”).
- 25 -
This Court held an initial hearing on the parties’ cross-
motions for summary judgment on October 20, 2010. At that
hearing, the Court focused only on a threshold question: whether
it must review the agency’s interpretation of the ESA listing
classifications under step one or step two of the familiar
framework set forth in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). In a
Memorandum Opinion issued on November 4, 2010, the Court held
that FWS had improperly relied on an erroneous plain-meaning
reading of the definition of an endangered species that could
not be upheld under step one of Chevron. In re Polar Bear
Endangered Species Act Listing and § 4(d) Rule Litigation, 748
F. Supp. 2d 19, 29 (D.D.C. 2010) [hereinafter In re Polar Bear].
Finding that the term “endangered species” under the ESA is
instead ambiguous, the Court remanded the Listing Rule to the
agency “to treat the statutory language as ambiguous.” Id.In response to the Court’s remand order, on December 22,
2010, the federal defendants submitted the agency’s memorandum
of supplemental explanation. See generally Supplemental
Explanation for the Legal Basis of the Department’s May 15, 2008
Determination of Threatened Status for Polar Bears, Docket No.
237-1 (“Supp. Exp.”). In their Supplemental Explanation, FWS
concluded that, even treating the phrase “in danger of
extinction” in the definition of an endangered species as
- 26 -
ambiguous, the administrative record does not support a finding
that the polar bear qualified for endangered status at the time
of listing. Because the agency determined that the species is
likely to become endangered within the foreseeable future,
however, FWS reiterated that the polar bear met ESA’s the
definition of a threatened species at the time of listing.
Supp. Exp. at 16.
The Court gave the parties an opportunity to submit
additional briefs responding to the agency’s supplemental
explanation. See generally Joint Plaintiffs’ Response to
Federal Defendants’ Supplemental Explanation, Docket No. 240
(“JP Supp. Mem.”); Plaintiff CBD’s Response to Federal
Defendants’ Supplemental Explanation, Docket No. 241 (“CBD Supp.
Mem.”); AOGA and ASRC Defendant-Intervenors’ Response to Federal
Defendants’ Supplemental Explanation, Docket No. 239 (“AOGA
Supp. Mem.”); Federal Defendants’ Supplemental Reply, Docket No.
242 (“Fed. Def. Supp. Reply”). A second motions hearing was
held on February 23, 2011, during which the Court heard
arguments on all plaintiffs’ Listing Rule claims. The parties’
cross-motions for summary judgment are now ripe for
determination by the Court.
II. STANDARD OF REVIEW
The Service’s listing decisions are subject to review under
the APA. See, e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991,
- 27 -
997 (D.C. Cir. 2008). Under APA review, federal agency actions
are to be held unlawful and set aside where they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). To make this
finding, a court must determine whether the agency “considered
the factors relevant to its decision and articulated a rational
connection between the facts found and the choice made.”
Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009) (citing
Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462
U.S. 87, 105 (1983)).
The standard of review under the APA is a narrow one.
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416
(1971). The court is not empowered to substitute its judgment
for that of the agency. Id. Deference to the agency’s judgment
is particularly appropriate where the decision at issue
“requires a high level of technical expertise.” Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 375-77 (1989); Ethyl Corp.
v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (“[The court] must look
at the decision not as the chemist, biologist or statistician
that [it is] qualified neither by training nor experience to be,
but as a reviewing court exercising [its] narrowly defined duty
of holding agencies to certain minimal standards of
rationality.”). Specifically, with regard to FWS decisions,
this Court has previously recognized that “[g]iven the expertise
- 28 -
of the FWS in the area of wildlife conservation and management
and the deferential standard of review, the Court begins with a
strong presumption in favor of upholding decisions of the
[FWS].” Am. Wildlands v. Kempthorne, 478 F. Supp. 2d 92, 96
(D.D.C. 2007) (citing Carlton v. Babbitt, 900 F. Supp. 526, 530
(D.D.C. 1995)).
This narrow, deferential standard does not, however, shield
the agency from a “thorough, probing, in-depth” review. Overton
Park, 401 U.S. at 415. The court’s inquiry into the facts must
be both “searching and careful.” Id. at 416. Administrative
action must be invalidated as arbitrary where the agency
relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983). This determination must be made solely on
the basis of the record before the agency when it made its
decision. Camp v. Pitts, 411 U.S. 138, 142 (1973).
Where the court reviews an agency’s interpretation of a
statute it is charged with administering, the Supreme Court’s
opinion in Chevron provides the appropriate framework of review.
The first step in this review process is for the court to
determine “whether Congress has directly spoken to the precise
- 29 -
question at issue.” Chevron, 467 U.S. at 842. “If the intent
of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43. In
determining whether the statute unambiguously expresses the
intent of Congress, the court should use all the “traditional
tools of statutory construction,” see id. at 843 n.9, including
looking to the text and structure of the statute, as well as its
legislative history, if appropriate. See Bell Atlantic Tel. Co.
v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997).
If the court concludes that the statute is either silent or
ambiguous with respect to the precise question at issue, the
second step of the court’s review process is to determine
whether the interpretation proffered by the agency is “based on
a permissible construction of the statute.” Chevron, 467 U.S.
at 843. The court must defer to agency interpretations that are
not “procedurally defective, arbitrary or capricious in
substance, or manifestly contrary to the statute.” United
States v. Mead, 533 U.S. 218, 227 (2001) (citing Chevron, 467
U.S. at 843-44).
III. DISCUSSION
Plaintiffs have identified a number of purported
deficiencies in the Listing Rule, each of which forms the basis
for a claim that FWS violated both the ESA and the APA when it
- 30 -
listed the polar bear as a threatened species. Plaintiffs’
claims can be classified into three general categories.
First, each of the plaintiffs in this case argues that the
Service’s decision to list the polar bear as a threatened
species was based on a fundamentally flawed interpretation of
the ESA’s listing standards and a misguided application of the
record evidence. Specifically, plaintiff CBD claims that FWS
wrongly concluded that the polar bear did not qualify for
endangered status at the time of listing, given the evidence in
the record indicating that substantial anticipated sea ice
losses will continue through the end of the 21st century. By
contrast, Joint Plaintiffs claim that FWS failed to demonstrate
that the polar bear is sufficiently likely to become endangered
within the foreseeable future and, therefore, the agency wrongly
concluded that the polar bear qualified for threatened status at
the time of listing. In the alternative, a smaller subset of
plaintiffs (including CBD, SCI, and CF) argues that FWS erred
when it concluded that no polar bear population or ecoregion
qualifies as a “distinct population segment,” which would have
allowed the Service to tailor ESA protections more narrowly
across populations.
Second, plaintiffs argue that FWS ignored or otherwise
failed to adequately address four listing factors that the ESA
requires the agency to consider. Joint Plaintiffs claim that
- 31 -
the Service failed to adequately “take into account” foreign
conservation programs, particularly Canadian sport-hunting
programs, because it failed to ensure that its listing decision
would not negatively impact those programs. Joint Plaintiffs
also claim that the Service failed to demonstrate that it relied
upon the “best available science,” because the climate models,
population models, and population monitoring studies the Service
relied upon do not, in fact, support the agency’s conclusion
that the polar bear is likely to become endangered within the
foreseeable future. Plaintiff CBD claims that FWS improperly
downplayed the threat of hunting to the polar bear and wrongly
concluded that the polar bear was not in danger of extinction at
the time of listing as a result of the combined threats of
habitat loss (“Listing Factor A”) and overutilization (“Listing
Factor B”). Joint Plaintiffs finally claim that FWS wrongly
concluded that existing regulatory mechanisms (“Listing Factor
D”) will be insufficient to protect the polar bear despite
future sea ice losses.
Third and finally, plaintiffs identify deficiencies in the
Service’s decision-making process for the Listing Rule.
Plaintiff Alaska claims that FWS failed to provide an adequate
“written justification” in response to the State’s comments, as
it was required to do under Section 4(i) of the ESA. Plaintiff
- 32 -
CF claims that FWS similarly erred by failing to respond to its
comments on the Listing Rule.
Having carefully considered each of these arguments, the
Court is simply not persuaded that the Service’s decision to
list the polar bear as a threatened species under the ESA was
arbitrary and capricious. As the Supreme Court noted in Babbitt
v. Sweet Home, “[t]he task of defining and listing endangered
and threatened species requires an expertise and attention to
detail that exceeds the normal province of Congress,” and of the
courts as well. 515 U.S. 687, 708 (1995). This Court is not
empowered to substitute its own judgment for that of the agency
but can only hold the agency to “minimal standards of
rationality.” Ethyl Corp., 541 F.2d at 36. Accordingly, and
for the reasons set forth below, the Court finds that the
Listing Rule represents a reasoned exercise of the Service’s
discretion based on the facts and the best available science at
the time the agency made its determination.
The Court will now address each of plaintiffs’ claims in
turn. 21
21
As a threshold matter, the federal defendants contend that
one set of plaintiffs – California Cattlemen’s Association and
the Congress on Racial Equality – failed to demonstrate standing
to challenge the Listing Rule and, therefore, any claims
uniquely raised by those plaintiffs must be dismissed. The
Court finds, however, that these plaintiffs have raised no
claims that were not also fully briefed by the larger group of
Joint Plaintiffs. Accordingly, as the federal defendants
- 33 -
A. The Service Articulated a Rational Basis for Its
Conclusion that the Polar Bear Met the Definition of a
Threatened Species at the Time of Listing
1. Plaintiff CBD’s Claim that the Polar Bear Should
Have Been Considered Endangered at the Time of
Listing
The Court turns first to plaintiff CBD’s claim that FWS
wrongly concluded that the polar bear did not qualify for
endangered status as of 2008. The Court will begin by outlining
the Service’s interpretation of the definition of an endangered
species under the ESA, as applied to the polar bear.
a. The Service’s Findings
In their original briefs and at a motions hearing held on
October 20, 2010, the federal defendants argued that the text,
structure, and legislative history of the ESA plainly and
unambiguously require that a species must be in imminent danger
of extinction to be designated as an endangered species. This
Court held in a November 4, 2010 Memorandum Opinion that neither
concede that the remaining plaintiffs in this action have
demonstrated their standing to challenge the Listing Rule, see
Fed. Def. Reply, Docket No. 195, at 71-72, the Court need not
consider the federal defendants’ standing challenge, and it
declines to do so. See Massachusetts v. EPA, 549 U.S. 497, 518
(2007) (“Only one of the petitioners needs to have standing to
permit us to consider the petition for review.”); see also Ass’n
of Am. Physicians and Surgeons, Inc. v. FDA, 539 F. Supp. 2d 4,
14 (D.C. Cir. 2008) (citing Mountain States Legal Found. v.
Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) (“‘For each claim,
if constitutional and prudential standing can be shown for at
least one plaintiff, [the court] need not consider the standing
of the other plaintiffs to raise that claim.’”)).
- 34 -
the statute itself nor its legislative history compels the
federal defendants’ reading of the term “in danger of
extinction” and that the term is, instead, ambiguous. In re
Polar Bear, 748 F. Supp. 2d at 28-29. Accordingly, following
D.C. Circuit precedent, the Court remanded the rule to agency
decision-makers to “fill in the gap” in the statute by providing
additional explanation for the agency’s determination that the
polar bear was not in danger of extinction at the time of
listing. Id. at 29. On December 22, 2010, the federal
defendants submitted the agency’s Supplemental Explanation in
response to the Court’s remand order.
The Service emphasizes that its Supplemental Explanation is
not intended to set forth a new statement of agency policy or a
new “rule” pursuant to the APA, nor does the agency intend to
adopt independent, broad-based criteria for defining the
statutory term “in danger of extinction.” Supp. Exp. at 1-2.
Nonetheless, the agency claims that its starting point in making
such a determination is the general understanding that the
phrase “in danger of extinction” describes a species that is
currently on the brink of extinction in the wild. Supp. Exp. at
3. According to FWS, to be “currently on the brink of
extinction” does not necessarily mean that extinction is certain
or inevitable; rather, whether a species is currently on the
brink of extinction “depends on the life history and ecology of
- 35 -
the species, the nature of the threats, and the species’
response to those threats.” Supp. Exp. at 3.
As FWS describes, the agency’s past “endangered” listings
can be broken out into roughly four categories:
Category 1: Species facing a catastrophic threat from
which the risk of extinction is imminent and certain.
In this category, the timing of the threat alone is
sufficient to deem the species in danger of
extinction. The snail darter is the classic example
of a species in this category. See Tenn. Valley Auth.
v. Hill, 427 U.S. 153 (1978). This fish species was
discovered shortly after the Tennessee Valley
Authority had begun construction of the Tellico Dam on
the Little Tennessee River and, at the time of
listing, the dam project threatened to immediately and
completely obliterate the only known population.
Category 2: Narrowly restricted endemics that, as a
result of their limited range or population size, are
vulnerable to extinction from elevated threats. This
category applies to species found in an extremely
limited range that, in addition, are facing increasing
threats. A large portion of listed species fall in
this category. An example of one of these species is
the Devil’s Hole pupfish, which lives in a single
sinkhole in the southern Nevada desert that is
experiencing a drop in groundwater level. See
Cappaert v. United States, 426 U.S. 128 (1976).
Category 3: Species formerly more widespread that have
been reduced to critically low numbers or restricted
ranges and, consequently, are at a high risk of
extinction due to threats that would not otherwise
imperil the species. This category represents a class
of species experiencing both a severe range reduction
and/or precipitous population crash combined with
ongoing threats. Some examples of species falling in
this category include California condors, whooping
cranes, and vernal pool species, many of which have
been all but wiped out by development and related
factors. These species experience such a restricted
range that they are extremely vulnerable to both
ongoing and chance threats.
- 36 -
Category 4: Species with relatively widespread
distribution that have nevertheless suffered ongoing
major reductions in numbers, range, or both, as a
result of persistent threats. This category shares
common characteristics with threatened species in that
they have suffered some recent decline in numbers,
range, or both, but to a more severe extent. An
example of a species falling in this category is the
red-cockaded woodpecker, which was formerly a common
bird but experienced a precipitous decline in 1970
caused by an almost complete loss of its primary
longleaf pine habitat. Currently, only small,
isolated populations of this species remain, making
the species more vulnerable to threats including
reproductive isolation.
Supp. Exp. at 4-6. Although there is no single metric for
determining if a species is “in danger of extinction,” FWS
contends that these four categories demonstrate the agency’s
largely consistent approach to endangered species listings. See
Supp. Exp. at 4.
The Service asserts that its general understanding of the
statutory definition of an “endangered species” and its approach
to species listings is supported by the text, structure, and the
legislative history of the ESA. The Service notes that, insofar
as an endangered species is any species which “is in danger of
extinction” and a threatened species is any species which is
“likely to become an endangered species within the foreseeable
future,” the ESA recognizes species with “two distinct degrees
of imperilment based on the temporal proximity of the risk of
extinction.” Supp. Exp. at 9. Within that general framework,
- 37 -
the agency must exercise its discretion and expert judgment to
weigh multiple factors on a species-specific basis. The Service
asserts that its past listing decisions, including the polar
bear Listing Rule, represent a reasoned exercise of that
discretion. 22
The Service contends that its species-specific listing
determination for the polar bear constitutes a permissible
construction of the ESA, given the life history and ecology of
the species, the nature and timing of the threats, and the
species’ observed and anticipated responses to those threats.
According to FWS, the administrative record in this case
demonstrates that, at the time of listing, the polar bear fit
none of the four general categories of endangered species
identified by the agency as representative of its past listing
decisions. Rather, the evidence before the agency showed that
at the time of listing the polar bear was a widespread,
circumpolar species that had not been restricted to a critically
22
As this Court observed in its November 4, 2010 opinion, the
courts have not offered an interpretation of the phrase “in
danger of extinction” in the context of reviewing a listing
determination. In re Polar Bear, 748 F. Supp. 2d at 26 n.12.
Nonetheless, FWS asserts that its approach is consistent with
judicial interpretations indicating that Congress intended to
delegate broad responsibility to the agency to make listing
determinations. See, e.g., Trout Unlimited v. Lohn, 559 F.3d
946, 961 (9th Cir. 2009) (in which the court found that “[b]y
leaving an ‘explicit gap’ for agency-promulgated regulations,
the ESA expressly delegates authority to the [agency] to decide
how such listing determination should be made.”).
- 38 -
small range or critically low numbers, nor had it suffered
precipitous reductions in numbers or range. See Supp. Exp. at
15.
Specifically, FWS found the following facts dispositive:
• At the time of listing, the polar bear was widely
distributed in nineteen populations and numbered in
abundance between 20,000 to 25,000 individuals. Supp.
Exp. at 15.
• Fourteen of the nineteen polar bear populations were
considered to be stable, increasing, or data deficient at
the time of listing. Supp. Exp. at 15.
• Only one population - Western Hudson Bay - was verified
to be in a statistically-significant decline, although
two other populations were also actually or potentially
declining. Supp. Exp. at 15.
• No population decline was found to be precipitous, and
reproduction and recruitment were still occurring in
declining populations. Supp. Exp. at 15.
In short, FWS determined, “there is simply no information
in the Administrative Record to suggest that the species has
experienced significant population declines or severe
retractions in its range such that it is currently on the brink
of extinction or that it faced a sudden and calamitous threat.”
Supp. Exp. at 15-16. 23 Accordingly, the agency concluded that
23
Although population modeling for the species projected
significant future declines in some polar bear populations, the
agency ultimately determined that these model outcomes were too
uncertain to support a specific conclusion about the actual rate
of decline. See Supp. Exp. at 17. Similarly, although
population monitoring showed evidence of significant declines in
body condition in some polar bear populations, see Supp. Exp. at
- 39 -
the polar bear warranted listing as threatened range-wide but
did not qualify as an endangered species at the time of listing.
b. Plaintiff CBD’s Arguments
Plaintiff CBD contends that, despite this Court’s remand
order, the agency’s interpretation of the term “endangered
species” to exclude the polar bear continues to violate the ESA.
First, CBD contends that the agency has not significantly
departed from its original position that an endangered species
must be at risk of both imminent and certain extinction.
According to CBD, nothing in the text, structure, or legislative
history of the ESA supports the Service’s conclusion that the
temporal proximity of an extinction threat is the controlling
distinction between a threatened and an endangered species. 24
Such a narrow reading of the statute, CBD contends, sets the bar
for an “endangered” listing impossibly high. Moreover, it
contravenes the purpose of the ESA, which is to provide a
flexible approach to protecting species so that they can be
recovered and delisted.
17, FWS found them insufficient to warrant endangered status for
any particular population at the time of listing. See Supp.
Exp. at 18.
24
As this Court noted in its remand order, the legislative
history of the ESA indicates that Congress did not seek to make
any single factor controlling when drawing the distinction
between an endangered and a threatened species, nor did it seek
to limit the applicability of the endangered category to only
those species facing imminent extinction. See In re Polar Bear,
748 F. Supp. 2d at 28.
- 40 -
CBD also claims that the Service unlawfully discounted or
otherwise failed to consider key scientific information in
determining that the polar bear was not endangered in any
portion of its range. Indeed, CBD claims that FWS never
actually analyzed whether, at the time of listing, polar bears
fit within any of the four categories of endangered species
described in its Supplemental Explanation. According to CBD,
the administrative record demonstrates that the polar bear fits
within three of the four “endangered” classifications identified
by the agency.
With respect to Category One, CBD asserts that FWS never
considered whether global warming constitutes a “catastrophic
threat.” CBD contends, as it did in its original briefing, that
polar bears in at least the Seasonal and Divergent Ice
Ecoregions face such a threat, and did at the time of listing,
because the best available science at the time indicated that a
certain amount of warming is already committed through the end
of the 21st century and that continued warming trends are
unlikely to be reversed in the near future. CBD points
specifically to the USGS population modeling exercises, which
projected declines in all of the polar bear ecoregions through
mid-century, or approximately over a 45-year period. CBD also
cites to evidence in the record, including the Listing Rule
itself, which suggests that these models are only conservative
- 41 -
estimates of the potential impacts to polar bears from sea ice
losses. See ARL 117275 (“Simulated and projected rates of
habitat loss during the late 20th and early 21st centuries by
many [climate models] tend to be less than observed rates of
loss during the past two decades; therefore, habitat losses
based on [these models] were considered to be conservative.”);
ARL 117280 (“The record low sea ice conditions of 2007 are an
extension of an accelerating trend of minimum sea ice conditions
and further support the concern that current sea ice models may
be conservative and underestimate the rate and level of change
expected in the future.”).
In addition to the USGS population monitoring exercises,
CBD references population-specific studies to suggest that three
populations – Western Hudson Bay, Southern Beaufort Sea, and
Baffin Bay – were in danger of extinction at the time of
listing. Reports in the record from the international Polar
Bear Specialist Group indicate that six of the nineteen polar
bear populations were declining at the time of listing,
including these three. The Western Hudson Bay population saw a
decline of twenty-two percent (22%) over an eighteen year period
and showed statistically significant declines in body mass among
female bears, ARL 117271, which must maintain a certain body
weight to successfully reproduce, ARL 117270. Researchers
estimated that cub production in this population would “probably
- 42 -
be negligible within the next 15-25 years.” ARL 117270.
Population numbers also declined in the Southern Beaufort Sea
population, along with significant cumulative declines in
observed cub survival and skull size and adult male body mass
and skull size. See ARL 117272. Unprecedented instances of
starvation and cannibalism among the Southern Beaufort Sea were
also reported and attributed to nutritional stress. See ARL
117272.
Finally, CBD points to a letter from the Marine Mammal
Commission (“MMC”), 25 the agency charged with advising FWS on
marine mammal issues, which urged FWS to list the polar bear as
endangered in light of the USGS population modeling reports.
See ARL 126312. In its letter, MMC concluded that “[w]hen taken
as a whole, [the USGS reports] present a bleak picture of the
25
MMC is a non-executive agency created by the Marine Mammal
Protection Act (“MMPA”). 16 U.S.C. §§ 1403, 1406. The MMPA
does not require FWS to follow the MMC’s recommendations but
only requires FWS to respond to MMC and explain its reasoning if
those recommendations are not followed. Id. § 1402(d); see also
ARL 108484. The Court notes that MMC provided two sets of
comments on the listing decision and comments as a peer reviewer
on the Service’s earlier status assessment for the polar bear.
MMC’s comments on the status assessment and its first set of
comments on the proposed listing supported the Service’s range-
wide “threatened” designation for the polar bear. See ARL
18533; ARL 61800; ARL 126309. In its second set of comments,
referenced here, MMC recommended listing the polar bear as
endangered because of USGS population projections for the
Seasonal and Divergent Ice ecoregions. See ARL 126309. FWS
responded to MMC’s recommendation by letter dated June 17, 2008.
AR4D 14233 (final response dated June 17, 2008 included in the
administrative record for the Interim 4(d) Rule); see also ARL
108485 (draft response dated Feb. 28, 2008).
- 43 -
survival prospects of most populations of polar bears, absent
rigorous management of the underlying factors driving climate
change.” ARL 126315. According to CBD, this letter supports a
conclusion that the agency acted arbitrarily in failing to find
that the polar bear was endangered throughout a significant
portion of its range at the time the agency made its decision.
With respect to Category Two, CBD asserts that FWS never
considered whether the polar bear should be considered a
“narrowly restricted endemic” species facing elevated threats.
By contrast, CBD contends that the polar bear should be
considered an endemic species because it relies exclusively on a
particular type of sea ice habitat. FWS acknowledged that this
habitat type is at risk from continued warming patterns; indeed,
this conclusion forms the basis for the agency’s decision to
list the species as threatened. As such, CBD argues that the
agency was obligated to consider whether the polar bear should
have properly been classified as endangered because of its
unique habitat needs and the particular threats to that habitat
from climate change.
Finally, with respect to Category Four, CBD asserts that
the agency failed to consider whether any polar bear population
“‘suffered ongoing major reductions in its numbers, range, or
both, as a result of factors that have not been abated.’” CBD
Supp. Mem. at 24 (quoting Supp. Exp. at 6). At the least, CBD
- 44 -
contends that a twenty-two percent decline in the Western Hudson
Bay population should have been considered a “major decline in
numbers.” CBD Supp. Mem. at 24.
CBD also points out that, although the polar bear was the
first species to be listed due to climate change, FWS never
considered whether the existence of a new threat might warrant
the creation of an altogether new category. Instead, CBD
contends, the agency relied on flawed conclusions, incorrect
assumptions, and an unreasonably narrow interpretation of the
statute to justify a lower level of protection for the polar
bear than the species demands. According to CBD, the agency
consistently failed to articulate a rational connection between
the record evidence and the choice it made. For these reasons,
CBD argues that the Service’s interpretation of the definition
of “endangered species” to exclude the polar bear was arbitrary,
capricious, and manifestly contrary to the text, structure, and
purpose of the ESA.
c. The Court’s Analysis
As a threshold matter, the parties disagree on whether the
Court is obliged to review the statutory interpretation set
forth in the agency’s Supplemental Explanation under the
deferential Chevron framework, or whether another standard
should guide the Court’s review on remand. Before reaching the
merits of the agency’s Supplemental Explanation, the Court must
- 45 -
first determine the appropriate standard of review. The Court
turns now to that question.
i. Standard of Review on Remand
As noted above, where a court reviews an agency’s
interpretation of a statute it is charged with administering,
such as the ESA, the Supreme Court’s opinion in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc. provides the
appropriate framework of review. Here, the federal defendants,
the defendant-intervenors, and the Joint Plaintiffs concur that
this Court, having found that the agency’s plain-meaning
interpretation of the definition of an endangered species fails
under step one of the Chevron framework, should now analyze the
agency’s Supplemental Explanation under step two of Chevron,
which requires the Court to uphold any reasonable agency
interpretation of ambiguous statutory language. See 467 U.S. at
843-44. Plaintiff CBD contends, by contrast, that the agency’s
Supplemental Explanation here is not “Chevron step two-worthy.”
CBD Supp. Mem. at 4.
Under the Supreme Court’s decision in United States v.
Mead, an agency interpretation qualifies for Chevron review when
it meets two requirements: (1) “when it appears that Congress
delegated authority to the agency generally to make rules
carrying the force of law,” and (2) “the agency interpretation
claiming deference was promulgated in the exercise of that
- 46 -
authority.” 533 U.S. at 226-27; see also Pub. Citizen, Inc. v.
HHS, 332 F. 3d 654, 659 (D.C. Cir. 2003) (citing Mead standard).
According to CBD, the agency’s Supplemental Explanation meets
neither of these requirements. Indeed, CBD goes further,
arguing that the agency’s Supplemental Explanation is entitled
to no deference at all. Where a Chevron analysis is
inappropriate, the Supreme Court has held that an agency
interpretation may nonetheless be entitled to “respect,” but
only to the extent that interpretation has the “power to
persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944);
see also Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002)
(“Under Skidmore, we grant an agency’s interpretation only so
much deference as its persuasiveness warrants.”). CBD asserts
that the agency’s Supplemental Explanation has no “power to
persuade” because it is inconsistent with the statute’s text,
legislative history, and policy objectives, and because it is
effectively post hoc rationalization, developed directly in
response to litigation. Accordingly, CBD concludes, the
agency’s interpretation of the statutory phrase “in danger of
extinction” does not warrant deference under either the Chevron
or the Skidmore standard, and this Court “must decide for itself
the best interpretation of ‘in danger of extinction’ as applied
to the polar bear.” CBD Supp. Mem. at 9 (citing Landmark Legal
Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001)).
- 47 -
After careful consideration of these arguments, the Court
nevertheless concludes that Chevron provides the appropriate
standard of review on remand. This Court remanded the Listing
Rule to FWS for the very limited purpose of providing additional
explanation for its listing determination for the polar bear.
In other cases remanding an agency decision for a similarly
limited purpose, the D.C. Circuit has subsequently reviewed the
agency’s supplemental analysis under the Chevron framework. See
Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F.3d 788, 793
(D.C. Cir. 2009) (concluding that “the Secretary’s
interpretation [on remand] is entitled to Chevron deference”);
PDK Labs., Inc. v. DEA, 438 F.3d 1184, 1189-90 (D.C. Cir. 2006)
(“This leaves us with the task of resolving at Chevron’s second
step whether the Deputy Administrator’s resolution of that
ambiguity [on remand] is based on a permissible construction of
the statute.”).
Indeed, the D.C. Circuit recently addressed this precise
question in Menkes v. U.S. Department of Homeland Security, 637
F.3d 319 (D.C. Cir. 2011). In Menkes, as here, the D.C. Circuit
remanded to the Coast Guard for a “forthright” agency
interpretation of ambiguous statutory language in the Great
Lakes Pilotage Act. Although the plaintiff in that case argued
that the agency’s response on remand was not entitled to
deferential Chevron review, the D.C. Circuit disagreed.
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Specifically, the court found that Chevron deference was
appropriate because the Coast Guard was acting “pursuant to an
express delegation from Congress” and because its interpretation
addressed “interstitial questions” that the agency “deserve[d]
deference to address.” Id. at 331-32 (citing Barnhart v.
Walton, 535 U.S. 212, 222 (2002); see also Mylan Labs., Inc. v.
Thompson, 389 F.3d 1272, 1280 (D.C. Cir. 2004)). The court
found that the agency was not required to conduct notice-and-
comment rulemaking procedures or engage in a formal adjudicatory
process for its statutory interpretation to warrant deferential
review. Menkes, 637 F.3d at 332-33. Rather, the court
concluded that “the Coast Guard’s enunciation of the aforecited
statutory interpretations and rules has the ‘force of law,’
. . . especially given the instruction from this court to the
agency to ‘come to grips with the meaning of the statute.’” Id.
at 332.
Because this Court finds that the court’s opinion in Menkes
bears directly on the question before it, it is bound to follow
the D.C. Circuit’s approach. Here, as in Menkes, the Court
required the Service to grapple with the ambiguities in the
ESA’s definition of the term “endangered species,” pursuant to
the agency’s express authority to make listing determinations
case-by-case in light of the best available science for each
species. The Court expressly did not require the agency to
- 49 -
adopt independent, broad-based criteria or prospective policy
guidance regarding the interpretation of the phrase “in danger
of extinction” in the ESA. Further, the Court expressly did not
require the agency to conduct notice-and-comment rulemaking
procedures or to engage in additional fact-finding. Given the
narrow scope of the remand order in this case, the Court is
persuaded that the agency’s Supplemental Explanation qualifies
for deferential review under Chevron. 26
ii. Merits
As set forth below, having carefully considered the
agency’s Supplemental Explanation, the parties’ arguments
contained in both the original and supplemental briefing, and
the relevant case law, the Court finds that it must uphold the
Service’s conclusion that the polar bear was not endangered at
the time of listing under step two of the Chevron framework.
26
While the Court is sensitive to CBD’s concerns that the
agency’s Supplemental Explanation may constitute post hoc
rationalization, it finds persuasive the D.C. Circuit’s
reasoning in Alpharma, Inc. v. Leavitt, 460 F.3d 1,6 (D.C. Cir.
2006), in which the court noted that it would make no sense for
a court to order a remand for supplemental explanation only to
then reject that explanation as post hoc rationalization.
Moreover, the Court is persuaded that the agency’s Supplemental
Explanation does not constitute impermissible post hoc
rationalization because the agency decision-makers themselves
developed and approved it. See Pub. Citizen v. FMCSA, 374 F.3d
1209, 1218 (D.C. Cir. 2004) (noting that “[t]he expertise of the
agency . . . must be brought to bear” (citation omitted)).
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As an initial matter, the Court finds that the agency’s
general understanding that an endangered species is “on the
brink of extinction” is not clearly out of line with
Congressional intent. 27 With that said, however, the agency’s
general understanding of the definition of an endangered species
is not the primary focus of the Court’s inquiry. Rather, as the
Court recognized in its remand order, the decision to list a
species as threatened or endangered is highly fact-specific.
See In re Polar Bear, 748 F. Supp. 2d at 28. On remand, the
agency maintains that the facts in the administrative record
show that the polar bear was not endangered as of 2008. The
relevant question before this Court, therefore, is whether that
conclusion was a reasonable one.
As discussed above, plaintiff CBD contends that the
agency’s conclusion is flawed because FWS improperly ignored or
discounted relevant factors. This Court disagrees. The Court
is not persuaded that the agency ignored or otherwise failed to
27
The agency’s determination that an endangered species is
“on the brink of extinction” draws from the primary distinction
between the categories of threatened and endangered species as
set forth in the text of the ESA. As this Court has previously
observed, there is a temporal element to the distinction between
the categories of endangered and threatened species. See In re
Polar Bear, 748 F. Supp. 2d at 26. This temporal distinction is
also frequently noted in the legislative history. See id. at 28(noting that the legislative history emphasizes that an
endangered species “is” (currently or presently or actually) in
danger of extinction, whereas a threatened species is “likely to
become” so endangered).
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consider any of the information cited by plaintiff CBD. All of
that information – including the population modeling data and
polar bear monitoring reports – is included in the voluminous
administrative record that was before the agency and, indeed,
much of that data was cited by the agency as a basis for
designating the polar bear as a threatened species. Notably,
CBD cites to the agency’s findings in the Listing Rule itself
for much of the evidence that it claims the agency ignored.
To the extent that CBD is asking this Court to find that
FWS drew improper conclusions from the scientific information it
considered, the Court declines to do so. Although the evidence
emphasized by CBD is very troubling, the Court finds that the
agency acted well within its discretion to weigh the available
facts and scientific information before it in reaching its
conclusion that the polar bear was not endangered at the time of
listing. 28 Where an agency has exercised its Congressionally-
28
Certainly, where global warming has been identified as the
primary threat to the polar bear’s sea ice habitat and the
agency has acknowledged that the global warming trend is
unlikely to reverse itself, a conclusion that the species is, in
some sense, “in danger of extinction” has undeniable appeal.
The USGS population models, which predict a trend of extinction
across three of the four polar bear ecoregions in as little as
75 years, particularly give the Court pause. However, the Court
cannot agree with CBD that the agency’s conclusions based on the
record, including these population models, rise to the level of
irrationality. Specifically, the Court accepts as reasonable
the agency’s explanation that it declined to find that these
preliminary, alpha-level population models, which came
relatively late in the decision-making process, were
- 52 -
authorized discretion to weigh the relevant factors, and it has
made a listing determination based on a reasoned choice, the
Court will not disturb its conclusion. See Animal Legal Def.
Fund v. Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000) (“Where
Congress delegates power to an agency to regulate on the borders
of the unknown, courts cannot interfere with reasonable
interpretations of equivocal evidence.”). While CBD would have
weighed the facts differently, the Court is persuaded that FWS
carefully considered all of the available scientific information
before it, and its reasoned judgment is entitled to deference.
Finally, the Court is satisfied that the agency has
complied with its remand order to provide additional explanation
for the agency’s original “threatened” listing. Plaintiff CBD
has identified no compelling evidence demonstrating that the
agency’s proffered interpretation of the ESA is manifestly
contrary to the statute. Accordingly, the Court concludes that
the agency’s Supplemental Explanation sufficiently demonstrates
that the Service’s definition of an endangered species, as
applied to the polar bear, represents a permissible construction
of the ESA and must be upheld under step two of the Chevron
sufficiently persuasive to warrant an “endangered” listing for
the polar bear.
- 53 -
framework. 29 See Serono Labs. v. Shalala, 158 F.3d 1313, 1321
(D.C. Cir. 1998) (under deferential Chevron framework, a court
must uphold a reasonable construction of the statute, even if it
believes that another interpretation is more reasonable).
2. Joint Plaintiffs’ Claim that the Polar Bear
Should Not Have Been Considered Threatened at the
Time of Listing
The Court turns now to Joint Plaintiffs’ claim that FWS
similarly misinterpreted and misapplied the ESA when it
concluded that the polar bear is likely to become endangered
within the foreseeable future and thus qualified for threatened
status at the time the agency made its listing determination.
Joint Plaintiffs argue, first, that FWS failed to demonstrate
that the polar bear is sufficiently “likely” to become
endangered and, second, that FWS arbitrarily selected a 45-year
time period as the “foreseeable future” for the polar bear, when
a shorter time period would have been more appropriate. Each of
these arguments is addressed in turn.
29
Because the Court finds that the agency reasonably
concluded that the polar bear was not in danger of extinction in
any portion of its range at the time of listing, the Court will
not address CBD’s related argument that the Seasonal and
Divergent Ice Ecoregions constitute a “significant portion” of
the polar bear range. See 16 U.S.C. § 1532(6).
- 54 -
a. Joint Plaintiffs’ Argument that the Service
Failed to Demonstrate that the Polar Bear Is
67-90% Likely to Become Endangered
A threatened species under the ESA is a species that is
“likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.”
16 U.S.C. § 1532(20). Joint Plaintiffs claim that FWS failed to
prove that the polar bear is sufficiently “likely” to become
endangered within the meaning of this definition. Specifically,
Joint Plaintiffs contend that FWS failed to demonstrate a 67-90%
likelihood that the polar bear will become endangered within the
foreseeable future.
As an initial matter, Congress did not define the term
“likely” in the ESA. FWS has not adopted regulations or other
guidance defining the term. Nor has any court defined the
term. 30 Joint Plaintiffs look instead to the IPCC’s Fourth
Assessment Report (“IPCC AR4”), which provides that, for the
purposes of its climate models and projections, a “likely”
30
The District of Oregon in Trout Unlimited v. Lohn is the
only court to have significantly discussed the term “likely” as
it appears in the ESA. 645 F. Supp. 2d 929 (D. Or. 2007). In
that case, the district court declined to define the term but
upheld as reasonable the National Marine Fisheries Service’s
interpretation of the term to mean “more likely than not.” Id.
at 944. The “more likely than not” standard has also previously
been adopted by FWS in interpreting the “threatened” designation
under the ESA. See W. Watersheds Project v. U.S. Forest Serv.,
535 F. Supp. 2d 1173, 1184 (D. Idaho 2007).
- 55 -
outcome is one that has a 67-90% probability of occurring. 31 ARL
151195 n.6. Joint Plaintiffs assert that this standard of
likelihood is relevant not only because FWS relied in part on
the climate models in the IPCC AR4 in reaching its “threatened”
determination for the polar bear, but also because FWS itself
purportedly adopted this numerical standard of likelihood for
the purposes of making its listing decision. In support of this
argument, Joint Plaintiffs point specifically to a statement in
the agency’s response to comments on the proposed rule, in which
FWS noted that it “attempted to use [the terms “unlikely,”
“likely,” and “very likely”] in a manner consistent with how
they are used in the IPCC AR4.” ARL 117241. According to Joint
Plaintiffs, therefore, this statement indicates that the agency
adopted this high numerical standard of likelihood for all
purposes, including statutory interpretation of the term
“likely” as it appears in the ESA. 32
31
According to IPCC standards, a “more likely than not”
outcome has a 50-66% probability of occurring. A “very likely”
outcome is one that has more than a 90-95% probability of
occurring; an “extremely likely” outcome has a 96-99%
probability of occurring; and a “virtually certain” outcome has
a greater than 99% probability of occurring. ARL 151195 n.6.
32
In their reply brief, Joint Plaintiffs raise the
alternative argument that even if FWS did not specifically adopt
this particular numerical standard, the Listing Rule should then
be overturned because the agency failed to adopt any standard
for determining whether the polar bear is “likely” to become
endangered. See JP Reply, Docket No. 170, at 14. To the extent
the Court considers this new argument that was raised improperly
- 56 -
In making this argument, it is not Joint Plaintiffs’
position that FWS adopted an impermissible construction of the
statute. To the contrary, Joint Plaintiffs appear to suggest
that a 67-90% standard of likelihood would be reasonable. See
JP Mot. at 10 (noting that 67-90% is consistent with dictionary
definition of the term “likely”). Instead, Joint Plaintiffs
assert that, having adopted this high standard, FWS subsequently
failed to meet that standard when it relied on highly uncertain
climate and population modeling. For this reason, Joint
Plaintiffs conclude, the agency’s determination that the polar
bear is likely to become endangered was arbitrary and
capricious.
The federal defendants respond that FWS did not adopt any
numerical definition of the term “likely” in the Listing Rule,
let alone the unreasonably high standard of 67-90%. They assert
that Joint Plaintiffs have simply taken out of context a
statement that was intended to refer only to the standards used
to assess the reliability of climate models, which is “entirely
separate from the ultimate standard under the ESA for
determining whether a species meets the statutory definition of
threatened based on the entirety of the available science and
for the first time on reply, the Court is persuaded that the
agency articulated a reasoned basis for its listing
determination for the polar bear, notwithstanding the fact that
it did not purport to define the term “likely” in its Listing
Rule.
- 57 -
the five listing factors.” Fed. Def. Mot. at 56. Indeed, the
federal defendants point out that the very next sentence of the
agency’s response to comments refers explicitly to “the
limitations and uncertainties of the climate models and their
projections.” ARL 117241. This statement suggests that the
agency intended to apply the numerical standard cited by Joint
Plaintiffs only to those climate models, which are only part of
a voluminous administrative record, and not more broadly.
According to the federal defendants, because Joint Plaintiffs
incorrectly assume that the agency adopted a quantitative
definition of the term “likely,” their attempt to show non-
compliance with this standard must fail. 33
The threshold question before the Court, therefore, is
whether FWS in fact adopted the Joint Plaintiffs’ proffered
numerical definition of the term “likely.” Having carefully
reviewed the administrative record, the Court is not persuaded
that FWS adopted a numerical standard of 67-90% probability in
determining whether the polar bear is “likely” to become
endangered. Although the only arguable definition of the term
“likely” in the Listing Rule appears in the response to comments
that Joint Plaintiffs have highlighted, the Court agrees with
33
The federal defendants also argue that, regardless of how
the term “likely” could be numerically defined, the agency’s
determination for the polar bear easily would meet that
standard.
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the federal defendants that this lone statement does not
demonstrate the agency’s intent to adopt the IPCC’s numerical
standards for all purposes, including statutory construction.
Indeed, a close review of the record belies any such
intention. The record reveals that FWS used the terms “likely”
and “very likely” interchangeably throughout its Listing Rule.
See, e.g., ARL 117245 (“Because of the habitat changes
anticipated in the next 40-50 years, and the corresponding
reductions in reproduction and survival, and, ultimately,
population numbers, we have determined that the polar bear is
likely to be in danger of extinction throughout all or a
significant portion of its range by 2050.” (emphasis added));
ARL 117252 (“[W]e conclude that the species is not currently in
danger of extinction throughout all or a significant portion of
its range, but is very likely to become so within the
foreseeable future.” (emphasis added)). The Court concludes
that if FWS had intended to imbue these terms with the
mathematical precision urged by Joint Plaintiffs for the
purposes of statutory construction, it would have used these
terms more deliberately.
Because the Court finds that FWS did not adopt a statutory
interpretation that would require a showing that at the time of
listing the polar bear had a 67-90% likelihood of becoming
endangered within the foreseeable future in order to be listed
- 59 -
as a threatened species, the Court declines to reach Joint
Plaintiffs’ claim that the agency failed to make such a showing.
Accordingly, the Court concludes that the Listing Rule is not
arbitrary and capricious on these grounds.
b. Joint Plaintiffs’ Argument that the Service
Arbitrarily Selected 45 Years As the
“Foreseeable Future” Timeframe for the Polar
Bear
The Court turns now to Joint Plaintiffs’ argument that the
Service’s choice of a “foreseeable future” timeframe over which
the polar bear is likely to become endangered was arbitrary and
capricious. In its Listing Rule, FWS defined the “foreseeable
future” as “the timeframe over which the best available
scientific data allow us to reliably assess the effects of
threats on the polar bear,” and it concluded based on record
evidence that it could confidently predict potential impacts to
the polar bear from sea ice losses over a 45-year period. ARL
117257. Joint Plaintiffs argue that the agency’s choice of 45
years as the foreseeable future for the polar bear was arbitrary
and was based on inappropriate factors. 34 They further contend
34
Plaintiff CBD also challenges the Service’s choice of a 45-
year timeframe for the polar bear. Plaintiff CBD contends that
the “foreseeable future” for the polar bear should be extended
beyond 45 years to the year 2100. The Court finds CBD’s claim
perplexing. The basis of CBD’s argument appears to be that
impacts to the polar bear over the next 100 years were not only
foreseeable at the time of listing but were also drastic enough
to warrant listing the species as endangered. By definition,
however, a “foreseeable future” determination is only relevant
- 60 -
that FWS erred when it failed to consider whether any time
period shorter than 45 years would be more appropriately
foreseeable. The Court will address these arguments in turn.
Joint Plaintiffs raise two significant arguments in support
of their claim that the 45-year time period was arbitrarily
chosen. First, Joint Plaintiffs claim that the agency’s choice
of a 45-year time period was inappropriately based only on
biological factors (e.g., life history characteristics of the
polar bear) rather than on what the agency could actually
foresee. Citing to the proposed rule for the polar bear, Joint
Plaintiffs assert that FWS initially chose a 45-year timeframe
because it corresponds roughly to three polar bear generations. 35
According to Joint Plaintiffs, FWS later modified its analysis
at the final rule stage in an attempt to justify its arbitrary
for threatened species. See 16 U.S.C. § 1532(20). FWS
determined that impacts to the polar bear over the next 45 years
were sufficiently foreseeable to warrant listing the species as
threatened as of 2008. Therefore, impacts to the polar bear
beyond year 45 were not relevant to the agency’s listing
determination.
35
Joint Plaintiffs also argue that, to the extent FWS relied
on biological considerations, FWS incorrectly calculated the
generation length of a polar bear. As the federal defendants
point out, Joint Plaintiffs never raised this point before the
agency, and it is well-established in this Circuit that issues
not raised before the agency are waived. See Nat’l Wildlife
Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002). Even assuming
the argument is not waived, however, plaintiffs point to no
evidence suggesting that a different calculation of polar bear
generation length would render the agency’s conclusion arbitrary
and capricious.
- 61 -
choice by pointing to sources of scientific data, including IPCC
reports and other climate projections. Second, Joint Plaintiffs
argue that FWS should have considered what is “foreseeable” with
respect to all five of the ESA’s statutory listing factors
(i.e., habitat loss, overutilization, regulatory mechanisms,
disease, and other manmade factors). This kind of comprehensive
review, Joint Plaintiffs argue, would have enabled the agency to
make a more accurate assessment of the species’ likelihood of
becoming endangered because other factors may offset a
foreseeable threat. Focusing specifically on regulatory
mechanisms (“Listing Factor D”), Joint Plaintiffs contend that
“because the Service cannot reasonably ‘foresee’ or predict
anything about existing regulatory mechanisms in 45 years, that
period is too long.” JP Mot. at 14.
The federal defendants respond that FWS reasonably defined
the foreseeable future as 45 years because it found that it
could make confident forecasts about polar bear population
trends up to that point, based on climate modeling and other
reliable data. Specifically, the federal defendants assert,
climate change projections from the IPCC AR4 supported a 45-year
foreseeable future timeframe at the time of listing. As the
federal defendants describe, model outcomes reported in the IPCC
AR4, which FWS accepted as the best available science on climate
change, consistently predict a certain base level of overall
- 62 -
warming through mid-century, regardless of whether actual
emissions increase or decrease over that period. Fed. Def. Mot.
at 73 (citing ARL 117279). FWS found, relying on these IPCC
reports, that beyond that point the choice of emission scenario
begins to influence model outcomes more significantly. See ARL
117233. According to FWS, therefore, at the time the agency
made its listing decision minimum impacts to Arctic sea ice
could be predicted with confidence for up to fifty years but
projections became more speculative beyond that point.
As the federal defendants point out, FWS also acknowledged
that a 45-year period roughly corresponds to three polar bear
generations. However, according to the federal defendants, the
agency found this correlation to be relevant because population
status projections will generally be even more reliable if they
correspond in some way to the life history characteristics of
the species. See ARL 117258. Specifically, the federal
defendants assert, FWS determined that population projections
that can be made over multiple polar bear generations are more
reliable than projections that only span one generation. The
federal defendants contend that it was not irrational for FWS to
rely on biological factors in this way to support its choice of
a foreseeable future timeframe for its listing decision.
With respect to Joint Plaintiffs’ argument that FWS erred
when it failed to consider what is “foreseeable” for all five
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listing factors, and particularly Listing Factor D (“existing
regulatory mechanisms”), the federal defendants respond that the
statute contains no such requirement. Indeed, the federal
defendants assert, the “suggestion that the Service could forego
listing the polar bear under Factor D based on wholly
speculative and uncertain future regulatory mechanisms is
contrary to the ESA.” Fed. Def. Mot. at 75. Moreover, there is
no evidence in the record, according to the federal defendants,
that any regulatory mechanisms have been or will be implemented
that would effectively address the loss of sea ice within the
foreseeable future. As such, the federal defendants conclude,
Joint Plaintiffs’ argument lacks merit.
As with the term “likely,” Congress has not defined the
term “foreseeable future” under the ESA, and FWS has not
promulgated any regulations or other policy guidance defining
the term. At least one court has recognized that what is
“foreseeable” is likely to vary from species to species
depending on a number of factors and, therefore, a bright-line
rule of foreseeability is inappropriate. See W. Watersheds
Project v. Foss, No. 06-1574, 2005 U.S. Dist. LEXIS 45753, at
*44-45 (E.D. Pa. Aug. 19, 2005) (noting that “the definition of
‘foreseeable future’ may vary depending on the particular
species - for example, ‘foreseeable future’ may be defined
differently for a sequoia tree . . . than for the slickspot
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peppergrass, which is an annual or biennial plant”). In the
absence of a quantitative standard, a “foreseeable future”
determination is made on the basis of the agency’s reasoned
judgment in light of the best available science for the species
under consideration. See id. (declining to establish a bright-
line rule but noting that the agency must articulate a
satisfactory explanation for its definition).
Having carefully considered the parties’ arguments and the
administrative record, the Court rejects Joint Plaintiffs’
argument that the choice of a 45-year foreseeable future
timeframe for the polar bear was arbitrary and based on improper
considerations. Contrary to Joint Plaintiffs’ assertions, FWS
does not appear to have based its choice solely on biological
factors, even at the proposed rule stage. To the extent this
Court considers the agency’s proposed rule, which is not the
action before it on review, the Court finds that the agency
sufficiently explained that its decision was based on “IUCN
criteria, 36 the life-history and population dynamics of polar
bears, documented changes to date in both multi-year and annual
36
A 45-year time period for the foreseeable future is
consistent with the work of the international Polar Bear
Specialist Group, which reassessed the status of the polar bear
in June 2005 for the purposes of the International Union for the
Conservation of Nature’s (“IUCN”) Red List classification, a
list of species considered to be threatened. ARL 117258.
Although the standards for Red Listing classification differ
from ESA listing standards, FWS nonetheless found the IUCN
assessment to be instructive. See ARL 117254.
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sea ice, and the direction of projected rates of change of sea
ice in future decades,” which all supported a 45-year or three-
generation timeframe for the foreseeable future. ARL 59992.
Moreover, the final Listing Rule indicates that the climate
change projections found in the IPCC AR4 – and not biological
factors – were the primary basis for the Service’s determination
of the foreseeable future timeframe. See ARL 117257. In light
of the IPCC AR4 findings, the Court is satisfied that the agency
articulated a rational basis for its choice.
The Court also rejects Joint Plaintiffs’ argument that FWS
erred by failing to “foresee” future developments with respect
to all five listing factors over the next 45 years. Notably,
Joint Plaintiffs do not contend that the ESA required FWS to
conduct such an analysis; they assert only that it would have
resulted in a more accurate conclusion. Here, however, a review
of the Listing Rule reveals that the agency in fact took all
five listing factors into account, and it considered whether
those factors would affect the likelihood that the polar bear
will become endangered within the foreseeable future. With
respect to overutilization (“Listing Factor B”), for example,
the agency found that harvest “is likely exacerbating the
effects of habitat loss in several populations” and that polar
bear mortality from harvest “may in the future approach
unsustainable levels for several populations” as these
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populations begin to experience the stresses of habitat change.
ARL 117284. Further, with respect to regulatory mechanisms
(“Listing Factor D”), the agency concluded that there are no
known regulatory mechanisms that could effectively address the
primary threat to the polar bear from future sea ice losses. 37
To the extent the agency was required to consider other listing
factors, the Court is satisfied that FWS did so.
Finally, Joint Plaintiffs argue that even though FWS
considered impacts to the polar bear over a 45-year time period
to be reasonably foreseeable, FWS nonetheless erred when it
failed to consider a shorter timeframe, which would likely be
more foreseeable. The applicable standard, however, is not
whether the agency could have taken a more reasonable approach.
The agency must only show that the approach it took was a
rational one. See Envtl. Def. Fund v. Costle, 657 F.2d 275, 283
(D.C. Cir. 1981) (“[The APA standard] mandates judicial
affirmance if a rational basis for the agency’s decision is
presented . . . even though [a court] might otherwise
disagree.”). Although Joint Plaintiffs may have less confidence
37
The ESA does not require FWS to “foresee” what regulatory
mechanisms will be in place in the future - it is only required
to take existing regulatory mechanisms into account in its
listing determination. 16 U.S.C. § 1533(a)(1)(D); Biodiversity
Legal Found. v. Babbitt, 943 F. Supp. 23, 26 (D.D.C. 1996); see
also Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139,
1153-54 (D. Or. 1998).
- 67 -
than FWS in the conclusions that the agency reached, that is not
an appropriate basis for invalidating an agency’s rational
choice, particularly in matters requiring scientific or
technical expertise. See Marsh v. Or. Natural Res. Council, 490
U.S. 360, 375-77 (1989). Accordingly, the Court concludes that
FWS appropriately exercised its discretion in selecting a 45-
year “foreseeable future” timeframe for the polar bear.
B. The Service Articulated a Rational Basis for Its
Conclusion that No Polar Bear Population or Ecoregion
Qualifies As a “Distinct Population Segment”
Whereas plaintiff CBD and Joint Plaintiffs primarily focus
on the question of whether the polar bear warranted endangered
or threatened status throughout its range in 2008, a subset of
plaintiffs argue, in the alternative, that FWS should have
differentiated among the various polar bear populations and/or
ecoregions according to their relative levels of risk in making
its listing decision. Specifically, plaintiffs CBD, SCI, and CF
assert that FWS erred when it declined to designate any polar
bear population or ecoregion as a distinct population segment
(“DPS”) under the ESA, which would have allowed the agency to
tailor ESA protections more narrowly. The common question
presented by these three plaintiffs is whether FWS arbitrarily
determined that no polar bear population or ecoregion is
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sufficiently “discrete” for the purposes of a DPS designation. 38
The Court turns now to that question.
1. The Service’s Policy
The term “species” as it is used in the ESA includes “any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16)
(emphasis added). Congress did not further define the term
“distinct population segment,” nor is the term defined in
scientific discourse. In 1996, however, FWS and NMFS jointly
promulgated a “Policy Regarding the Recognition of Distinct
Vertebrate Population Segments Under the Endangered Species Act”
(“DPS Policy”), 61 Fed. Reg. 4722 (Feb. 7, 1996), which provides
38
In a related claim, plaintiffs SCI and CF further assert
that FWS arbitrarily failed to consider using its authority to
list the polar bear in only part of its range. Essentially,
these plaintiffs claim that FWS erred by failing to consider
whether any portion of the polar bear range did not warrant
listing as threatened. The Court concludes that this claim has
no merit. As a threshold matter, in light of recent court
opinions, it is unclear whether the agency has the authority to
list a species in only a portion of its range without going
through the process of a DPS designation. See generally Federal
Defendants’ Notice of Withdrawal of M-37013, Docket No. 258
(citing Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207(D. Mont. 2010)). Further, the Court finds that FWS
sufficiently considered whether any portion of the polar bear
population did not warrant listing under the ESA. This
assessment is implied in the agency’s conclusion that the polar
bear did warrant listing throughout its range. FWS provided
ample explanation in its Listing Rule for why polar bears range-
wide are likely to become endangered within the foreseeable
future and, as a result, warranted at least a “threatened”
designation. The Court is therefore persuaded that FWS did not
arbitrarily fail to consider this issue.
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guidance to both agencies in applying the term “distinct
population segment” for the purposes of an ESA listing.
Pursuant to this policy, FWS may designate a DPS to avoid
listing an entire species where only a portion of its population
warrants ESA protections. See Nat’l Ass’n of Home Builders v.
Norton, 340 F.3d 835, 842 (9th Cir. 2003).
The DPS Policy outlines three elements to be considered in
evaluating a possible DPS:
1. The discreteness of the population segment in
relation to the remainder of the species to which it
belongs;
2. The significance of the population segment to the
species to which it belongs; and
3. The population segment’s conservation status in
relation to the Act’s standards for listing . . . .
DPS Policy, 61 Fed. Reg. at 4725. These considerations are to
be evaluated sequentially – i.e., FWS must first determine that
the population segment is discrete before it can consider
whether that segment is also significant. Id. If, however, a
population segment is found to be both discrete and significant,
FWS may consider whether that segment is threatened or
endangered as defined by the ESA. Id.
A population segment is “discrete” when it satisfies either
one of the following conditions:
1. It is “markedly separated” from other populations of
the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors.
Quantitative measures of genetic or morphological
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discontinuity may provide evidence of this
separation.
2. It is delimited by international governmental
boundaries within which differences in control of
exploitation, management of habitat, conservation
status, or regulatory mechanisms exist that are
significant in light of [the five ESA listing
factors].
Id. The test for discreteness under the agencies’ DPS Policy is
not intended to be particularly rigid. Id. at 4724. For
example, it does not require absolute reproductive isolation but
allows for some interchange among population segments. Id. The
purpose of the distinctness criterion is merely to ensure that a
DPS can be reasonably defined and described in order to ensure
effective administration and enforcement of the Act. Id.
Nonetheless, both the “discreteness” criterion and the
“significance” criterion were adopted to ensure that FWS uses
its authority to list DPS’s “sparingly,” at the urging of
Congress. Id. at 4725 (citing S. Rep. No. 96-151, at 7 (1979)).
DPS designation is primarily intended to enable protection and
recovery of declining organisms in a more timely and less costly
manner, and on a smaller scale, than would be required for an
entire species or subspecies. DPS Policy, 61 Fed. Reg. at 4725.
It is not a tactic for subdividing a larger population that FWS
has already determined, on the same information, warrants
listing across a larger range. See Friends of the Wild Swan v.
U.S. FWS, 12 F. Supp. 2d 1121, 1133 (D. Or. 1997).
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At least two courts have acknowledged that the term
“distinct population segment” in the ESA is ambiguous, and,
therefore, the agency’s interpretation and application of that
term falls within step two of a Chevron analysis and is entitled
to deference. See Nw. Ecosystem Alliance v. U.S. FWS, 475 F.3d
1136, 1141-43 (9th Cir. 2007); State of Maine v. Norton, 257 F.
Supp. 2d 357, 385 (D. Me. 2003). Both courts upheld the
agency’s 1996 DPS Policy as a reasonable interpretation of the
ESA. 39 Nw. Ecosystem Alliance, 475 F.3d at 1145; State of Maine
v. Norton, 257 F. Supp. 2d at 387.
2. Plaintiffs CBD, SCI, and CF’s Claim that the
Service Wrongly Concluded that No Polar Bear
Population or Ecoregion Is “Discrete”
In its Listing Rule, FWS considered whether any distinct
population segments exist for the polar bear. As an initial
matter, FWS considered whether any polar bear population or
ecoregion is “discrete” within the meaning of its DPS Policy.
The agency determined that, while different populations exhibit
minor differences of behavior, genetics, and life-history
parameters, no population or geographic area is markedly
separated as a consequence of physical, physiological,
ecological, or behavioral factors. ARL 117298. In the
Service’s estimation, the minor differences between individual
39
The DPS Policy itself has not been challenged by any party
in this case and is not before this Court on review.
- 72 -
populations and ecoregions do not outweigh the similarities that
are most relevant to the polar bear’s conservation status – in
particular, the species’ universal reliance on sea ice habitat
for critical life functions. ARL 117298. As the federal
defendants note, “[w]hile polar bears adopt different strategies
to deal with the seasonal absence of sea-ice . . . their
response to declining sea ice is essentially the same, with the
same negative result: they suffer nutritional stress because
they spend longer amounts of time outside of their preferred
sea-ice habitats where seals are accessible.” Fed. Def. Mot. at
104 (citing ARL 117274). Accordingly, FWS concluded that no
portion of the polar bear population is sufficiently “discrete”
to qualify for designation as a DPS.
Plaintiffs CBD, CF, and SCI contend that, contrary to
record evidence, FWS arbitrarily determined that no polar bear
population is “markedly separated” from other populations. 40 In
40
In addition to its claim that FWS reached a conclusion that
is contrary to the evidence, CBD raises two additional claims:
(1) that the agency failed to consider behavioral differences
among the polar bear populations; and (2) that the agency failed
to consider whether any ecoregion qualifies as a DPS. The Court
cannot agree that the agency failed to consider either issue.
First, FWS did acknowledge behavioral differences among polar
bear populations but deemed these differences to be minor in
comparison to their relevant similarities. See ARL 117298.
Second, FWS appears to have considered whether any polar bear
population segment - including ecoregions - qualifies as a DPS:
Although polar bears within different populations or
ecoregions (as defined by Amstrup et al. 2007) may
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support of their argument, plaintiffs point to evidence from the
record which purportedly demonstrates that USGS scientists,
polar bear experts, and the MMC all have identified distinctions
among the world’s polar bear populations and, particularly, the
four ecoregions. In light of this record evidence, plaintiffs
argue that the Service’s conclusion that there is no marked
separation among polar bear population groups was irrational.
Plaintiff CBD points primarily to comments from various
reviewers suggesting that the draft final listing rule did not
adequately reflect the importance of the ecoregion structure for
polar bears. For example, USGS reviewers noted:
An important, and fairly emphatic, conclusion from the
body of 2007 USGS work was that the life-history
dynamics, demography, and present and future status of
polar bears in the 4 ecoregions are different, owing
largely to different ice dynamics, its spatiotemporal
availability, how it has responded to global warming
and how it is predicted to respond in the future. In
these Ecoregions, the relationships between polar
bears and their sea ice habitat are fundamentally
different.
See CBD Mot. at 38 (citing ARL 88920).
have minor differences in demographic parameters,
behavior, or life history strategies, in general polar
bears have a similar dependence upon sea ice habitats,
rely upon similar prey, and exhibit similar life
history characteristics throughout their range.
ARL 117298 (emphasis added). Finally, FWS separately determined
that the polar bear was not endangered in any portion of its
range at the time of listing, including three specific
populations and at least two ecoregions. See ARL 117299-301.
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USGS commenters also rejected the agency’s assessment in
the draft final rule that “there are no morphological, or
physiological differences across the range of the species that
may indicate adaptations to environmental variations.” CBD Mot.
at 38 (citing ARL 96589). In response to this statement, USGS
reviewers wrote:
This statement does not seem to us to be true. We do
see unique life history components that are related to
where a polar bear lives within the overall range.
That is, the polar bears in the seasonal ice ecoregion
come ashore and fast for 4-8 months while polar bears
in the polar basin may be on ice and never come to
land – they may den on ice. . . . This statement seems
to contradict the ecoregion idea – that there are some
major differences in the ice regimes that do influence
how polar bears make a living in the different parts
of their range.
ARL 96841.
One particularly troubling comment that CBD highlights is
USGS’s statement that “a careful reading of Amstrup et al (2007)
[the polar bear status report that formed the basis for the
Listing Rule] might lead to a different conclusion than that
reached by the Service.” ARL 101097. USGS goes on:
Taken at face value, the outcomes from the Bayesian
Network Modeling are that polar bear populations
living in the Seasonal and Divergent ecoregions are
most likely extinct within the foreseeable future
. . . . The fates of the populations living in the
Convergent and Archipelago ecoregions are different,
with a much smaller probability of being smaller than
the present or extinct. The Draft Final Rule does not
clearly articulate the scientific reasoning behind
dismissing an “endangered” designation for parts of
the range . . . . How did the scientific evidence lead
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to the status determination of “threatened” vs
“endangered”?
ARL 101097 (emphasis added). 41
The federal defendants respond that FWS reached a
reasonable conclusion, even in light of this record evidence.
The defendants assert that, on balance, the agency found that
there are no significant morphological or physiological
differences (i.e., differences in physical form or function)
among polar bears that indicated physical, evolutionary
adaptations to environmental differences in the particular
areas, and that the small genetic differences among polar bears
in different areas are “not sufficient to distinguish population
segments.” ARL 117298. According to defendants, the record
does not show the “marked separation” among either populations
41
Plaintiff CBD also points to a 2008 report from Canadian
polar bear researchers, which concluded that polar bears may be
appropriately managed in “designatable units.” ARL 127663. The
Canadian Species at Risk Act (“SARA”), like the ESA, allows for
the protection of sub-units of species that are genetically
and/or geographically distinct (so-called “designatable units”
or “DUs”). ARL 127663. The authors of this Canadian study
noted that “polar bears belong to ecosystems that differ
fundamentally in their structure and functioning (e.g., sea ice
regime, biological productivity, prey species and availability,
etc.). . . . Thus, it appears that, although all polar bears in
Canada belong to a single species they do not share a single,
uniform conservation status.” ARL 127668. On this basis, the
authors recommended analyzing the Canadian polar bear population
in terms of five distinct genetic units that also represent
distinct ecological and geographic groups. ARL 127680.
Plaintiff CBD cites to this study as further evidence that polar
bear populations are sufficiently distinct to qualify for
designation as DPS under the ESA.
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or ecoregions that is a pre-requisite for designating a DPS.
Therefore, the defendants contend, FWS reasonably concluded that
no polar bear population or ecoregion is “discrete,” applying
the standards set out in the agency’s DPS Policy.
3. The Court’s Analysis
Having carefully considered the parties’ arguments and the
administrative record, the Court finds that it must defer to the
agency’s application of its DPS Policy. The Court notes that,
as FWS has acknowledged, there are some recognized differences
among polar bear ecoregions and even some differences from
population to population. Each population is apparently
distinguishable enough to be identified as discrete for
management purposes, and the boundaries of these populations
have been identified and confirmed over decades of scientific
study and monitoring. See ARL 139247. Nonetheless, while these
recognized distinctions would seem to be enough to satisfy the
minimal criterion that a DPS must be “adequately defined and
described,” 61 Fed. Reg. at 4724, the Court is not persuaded
that the agency’s contrary conclusion rises to the level of
irrationality.
The Court recognizes that FWS has adopted a formal policy
for designating a DPS, which was promulgated through notice-and-
comment rulemaking and has been expressly upheld as reasonable
by at least two other courts. Relying on this policy, FWS
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engaged in weighing the facts to determine whether or not any
polar bear population segment is “markedly separated” from other
populations. The Court finds that FWS articulated a reasonable
basis for its conclusion that no polar bear population or
ecoregion is meaningfully “discrete” for the purposes of DPS
designation: even if there are behavioral differences among
polar bear population segments, polar bears are universally
similar in one crucial respect - namely, their dependence on sea
ice habitat and negative response to the loss of that habitat.
The Court must defer to the agency’s reasoned conclusion. See
Envtl. Def. Fund v. Costle, 657 F.2d at 283. 42 Accordingly, the
42
Further, the only case law cited by any party on this issue
weighs in favor of deference to the agency. In an unpublished
decision, the Ninth Circuit upheld the Service’s finding that
interior mountain quail are not sufficiently discrete from the
remainder of the population to warrant listing as a DPS. W.
Watersheds Project v. Hall, 338 Fed. Appx. 606, 608 (9th Cir.
2009). Despite significant record evidence showing that the
mountain quail is geographically and ecologically isolated from
other quail, the lower court nonetheless upheld the Service’s
finding that no mountain quail population is “discrete” because
there is no “physical barrier” that precludes intermixing among
populations. W. Watersheds Project v. Hall, No. 06-0073, 2007
U.S. Dist. LEXIS 70710, at *11-13 (D. Idaho 2007). The
appellate court affirmed the district court’s finding that FWS
had articulated a rational connection between the facts found
and the agency’s conclusion that there was no “marked
separation” among quail populations. W. Watersheds Project, 338
Fed. Appx. at 608. In that case, both courts upheld the
Service’s determination as rational, even in the face of
significant countervailing facts.
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Court concludes that FWS reasonably declined to designate any
polar bear population or ecoregion as a DPS. 43
C. The Service Did Not Arbitrarily Fail to Consider Other
Listing Factors
Plaintiffs also argue that the Listing Rule should be
overturned because of deficiencies in the Service’s analysis of
several of the listing factors the ESA requires the agency to
consider. First, Joint Plaintiffs contend that FWS arbitrarily
and capriciously failed to adequately “take into account”
foreign conservation efforts, as required by 16 U.S.C.
§ 1533(b)(1)(A) (“§ 1553(b)(1)(A)”). Second, Joint Plaintiffs
contend that FWS arbitrarily and capriciously failed to
demonstrate that it relied upon the “best available science,”
which is also required by § 1533(b)(1)(A). Third, plaintiff CBD
contends that FWS arbitrarily and capriciously failed to find
43
Plaintiffs CF and SCI assert that because the polar bear
species is clearly “delimited by international boundaries,” FWS
should have concluded that polar bear populations are discrete
on this basis as well. See CF Mot. at 14. In its Listing Rule,
FWS considered whether international boundaries might satisfy
the discreteness requirement of the DPS Policy. The agency
concluded that differences in management across the polar bear’s
range do not qualify any polar bear population segment as
“discrete” because each range country shares management
obligations with other range countries and, therefore, the
differences in management between polar bear populations are not
significant. Moreover, the agency noted that any differences in
management across international boundaries are irrelevant
because the threat of sea ice loss is a global one that cannot
be limited to or managed by one country alone. ARL 117298. The
Court declines to find that this conclusion was irrational.
- 79 -
that overharvest or overutilization is a significant threat to
polar bear populations (“Listing Factor B”). Finally, Joint
Plaintiffs contend that FWS arbitrarily and capriciously
concluded that regulatory mechanisms (both existing and future)
are insufficient to protect the polar bear despite the threat of
substantial habitat losses (“Listing Factor D”). Each of these
claims is addressed in turn.
1. Joint Plaintiffs’ Claim that the Service Failed
to “Take Into Account” Foreign Conservation
Efforts to Protect the Polar Bear
The ESA requires that any listing decision must be made
solely on the basis of the best scientific and
commercial data available . . . after conducting a
review of the status of the species and after taking
into account those efforts, if any, being made by any
State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species,
whether by predator control, protection of habitat and
food supply, or other conservation practices, within
any area under its jurisdiction, or on the high seas. 44
16 U.S.C. § 1533(b)(1)(A) (emphasis added). Joint Plaintiffs
contend that FWS failed to satisfy this requirement primarily
because it did not devote a separate section of its Listing Rule
to an assessment of foreign conservation programs that impact
polar bears, particularly Canadian sport-hunting programs.
44
As the parties acknowledge, Congress did not define the
phrase “taking into account,” nor has it been defined or
otherwise clarified by regulation, by agency policy, or by any
court.
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In its supplemental memorandum, plaintiff CF takes this
essentially procedural argument a step further. Relying on a
dictionary definition of the phrase “to take into account,”
plaintiff CF contends that FWS was required not only to
“consider” but also to “allow for” the existence of foreign
conservation programs. See CF Mot. at 8. In other words, CF
contends that FWS is required to ensure that existing
conservation efforts are not negatively impacted by its listing
decisions.
CF contends that Congress specifically intended to
encourage sport trophy hunting through the ESA. According to
CF, Congressman John Dingell envisioned this goal when he
introduced the ESA as a bill in 1973. CF asserts that Rep.
Dingell described the Act as having been
carefully drafted to encourage . . . foreign
governments to develop healthy stocks of animals
occurring naturally within their borders. If these
animals are considered valuable as trophy animals
. . . they should be regarded as a potential source of
revenue to the managing agency and they should be
encouraged to develop to the maximum extent compatible
with the ecosystem upon which they depend.
CF Mot. at 10 (citing ARL 152657). Further, CF asserts that the
House of Representatives “clearly elucidated its intent” when it
explained:
[T]he section requires the Secretary to give full
consideration to efforts being currently made by any
foreign country to protect fish or wildlife species
within that country, in making a determination as to
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whether or not those species are endangered or
threatened. There is provided ample authority and
direction to the Secretary to consider the efforts of
such countries in encouraging the maintenance of
stocks of animals for purposes such as trophy hunting.
CF Mot. at 9 (citing H. Rep. No. 93-412, at 150 (1973)). CF
contends that this passage represents a consensus on the
agency’s “obligation to support the use of trophy hunting to
pursue conservation goals.” CF Mot. at 9. 45
The federal defendants generally respond that FWS
adequately “took into account” the conservation efforts being
made in the polar bear range countries - both regulatory and
non-regulatory - and concluded that none of those efforts
offsets or significantly reduces the primary threat to the polar
bear’s survival: loss of sea ice habitat. See Fed. Def. Mot. at
142 (citing ARL 117246). According to the defendants, this is
all the ESA requires.
45
According to CF, its reading of the ESA also makes sense
because trophy hunting programs are essential to the efficacy of
the statute. These programs purportedly provide a useful lever
by which the United States can exercise its influence to
accomplish conservation goals in countries that are beyond the
ESA’s reach. Specifically, CF contends that the United States
can encourage a foreign country to comply with ESA conservation
standards (and thus protect a species that is endangered outside
our borders) by threatening the country with import
restrictions, so long as that country has an economically
valuable and viable trophy hunting program. CF contends that
Congress intended to use trade to manage the actions of foreign
individuals and nations in this way. Therefore, CF concludes,
all listing decisions must take foreign programs into account by
ensuring that those programs remain an effective tool for
furthering conservation goals.
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Having carefully considered the parties’ arguments and the
administrative record, this Court agrees with the federal
defendants. Although an explicit finding might have been
clearer, the Court is satisfied that FWS sufficiently considered
conservation efforts in the polar bear range countries before it
decided to list the polar bear as threatened range-wide. As
part of its analysis of Listing Factor B, the agency discussed
harvest management programs in each of the range countries,
along with the relevant conservation benefits of those programs.
FWS also addressed the conservation and economic benefits of
polar bear sport-hunting programs in its response to comments on
the Listing Rule. See ARL 117240. As part of its analysis of
Listing Factor D, the agency enumerated the regulatory
mechanisms that govern polar bears in each of the range
countries - including legal protections and on-the-ground
habitat protections - as well as bilateral and multilateral
agreements and overarching international frameworks that govern
management of the polar bear range-wide, such as the 1973
Agreement on the Conservation of Polar Bears and the Convention
on International Trade in Endangered Species (“CITES”). See ARL
117285-92. Beyond sport-hunting programs and regulatory
mechanisms, FWS also considered voluntary agreements between
indigenous peoples for jointly managing polar bear populations,
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national parks and nature reserves, and a variety of other
foreign conservation efforts.
Joint Plaintiffs have not identified a single foreign
conservation effort that FWS failed to take into account.
Indeed, Joint Plaintiffs have not even explained why the
agency’s exhaustive analysis is deficient, except to say that
the agency did not expressly state that it was taking foreign
conservation efforts “into account.” The Court declines to
invalidate the Listing Rule on this basis.
The Court also rejects plaintiff CF’s related claim that
the agency was obligated to avoid making a listing decision for
the polar bear that would negatively impact sport-hunting
programs. Although CF has cited some isolated passages from the
legislative history that express support for trophy hunting
programs, neither the statute itself nor its legislative history
makes clear that the ESA requires FWS to avoid making listing
decisions that might affect those programs. 46 Rather, the ESA
46
In fact, the Court notes that in the quote from Congressman
Dingell that plaintiff CF frequently cites for support,
plaintiff repeatedly and disingenuously omits key language. In
full, this quote reads: “If these animals are considered
valuable as trophy animals and they are not endangered they
should be regarded as a potential source of revenue to the
management agency[.]” Comm. on Env’t and Public Works, 97th
Cong., A Legislative History of the Endangered Species Act of
1973, as Amended in 1976, 1977, 1978, and 1981, at 195 (1982)
(emphasis added). This statement would suggest that the agency
may promote trophy hunting programs only to the extent that
those programs do not impact a listed species.
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only requires the agency to consider how foreign conservation
efforts might impact the decision to list a particular species
as threatened or endangered. See 16 U.S.C. § 1533(b)(1)(A)
(requiring the Secretary to make listing decisions “solely on
the basis of the best scientific and commercial data available
. . . after taking into account those efforts, if any, being
made by any State or foreign nation, or any political
subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and
food supply, or other conservation practices, within any area
under its jurisdiction, or on the high seas.”). 47 That is
47
Similarly, the 1973 House Report cited by plaintiff CF
states that ESA Section 4(b) “requires the Secretary to give
full consideration to efforts being currently made by any
foreign country to protect fish or wildlife species within the
country, in making a determination as to whether or not those
species are endangered or threatened.” H. Rep. No. 93-412, at
11 (1973) (emphasis added). The Court notes that this is the
same interpretation adopted by FWS in its “Policy for Evaluation
of Conservation Efforts When Making Listing Decisions” (“PECE
Policy”), which specifies the conditions under which FWS may
consider conservation efforts that have not yet been
implemented. 68 Fed. Reg. 15,100, 15,100 (March 28,
2003)(“While the Act requires us to take into account all
conservation efforts being made to protect a species, the policy
identifies criteria we will use in determining whether
formalized conservation efforts that have yet to be implemented
or to show effectiveness contribute to making listing a species
as threatened or endangered unnecessary.” (emphasis added)).
This is also the very same interpretation set out in those
listing decisions that Joint Plaintiffs cite as examples of
where the agency properly took foreign conservation programs
into account. Proposed Status for DPS of Rockfish in Puget
Sound, 74 Fed. Reg. 18,516, 18,537 (Apr. 23, 2009) (“Section
4(b)(1)(A) of the ESA requires the Secretary of Commerce to take
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exactly what FWS did here. After considering a variety of
foreign conservation efforts, FWS concluded that, while these
efforts may have been sufficient to protect the species from
overharvest and disturbance, they will not be sufficient to
offset sea ice loss, which is the primary threat to the polar
bear’s survival, and thus these efforts did not affect the
agency’s conclusion that the polar bear warranted listing under
the ESA. See ARL 117292. This is all the statute requires.
Accordingly, the Court concludes that the agency properly
discharged its duty under § 1533(b)(1)(A) to take foreign
conservation programs into account.
2. Joint Plaintiffs’ Claim that the Service Failed
to Rely upon the “Best Available Science”
Joint Plaintiffs argue that FWS also failed to demonstrate
that it relied upon the “best scientific and commercial data
available,” as required by § 1533(b)(1)(A). Joint Plaintiffs
put forward the following three arguments in support of this
claim: First, they contend that climate change science and
into account efforts being made to protect a species that has
been petitioned for listing. Accordingly, we will assess
conservation measures being taken to protect these six rockfish
DPSs to determine whether they ameliorate the species’
extinction risks.” (emphasis added)); Status Determination for
the Gulf of Maine DPS of Atlantic Salmon, 74 Fed. Reg. 29,344,
29,377 (June 19, 2009) (“We then assess existing efforts being
made to protect the species to determine if these conservation
efforts improve the status of the species such that it does not
meet the ESA’s definition of a threatened or endangered
species.” (emphasis added)).
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predictions related to sea ice loss at the time the agency made
its listing decision were too uncertain to support the agency’s
conclusion that polar bears are threatened. Second, they point
to weaknesses in the carrying capacity and Bayesian Network
models developed by USGS and claim that these models were
likewise insufficient to support the agency’s listing
determination. Third, and finally, Joint Plaintiffs assert that
FWS ignored all but five years of data for the Southern Beaufort
Sea polar bear population and drew improper scientific
conclusions from this limited data set. The Court will address
each of these arguments in turn.
a. Joint Plaintiffs’ Argument that Climate
Science Is Too Uncertain to Support the
Service’s Conclusion
First, Joint Plaintiffs contend that the polar bear did not
warrant listing under the ESA at the time of listing because the
administrative record shows “tremendous uncertainty” about the
nature and extent of future global climate change and the impact
of any such change on the Arctic ecosystem and on the polar
bear. JP Mot. at 17. Specifically, Joint Plaintiffs point to a
2007 “Uncertainty Report” from the administrative record, which
notes that “uncertainty in projections of Arctic climate change
is relatively high” as a consequence of its smaller spatial
scale and high sensitivity to climate change impacts and the
complex processes that control ice development. See JP Mot. at
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18 (citing ARL 128805). Further, Joint Plaintiffs note that the
IPCC reports themselves, which are widely acknowledged to be the
definitive source of modern climate change knowledge, indicate
that complex systems like the Arctic are “inherently
unpredictable” and have “high scientific uncertainties,” which
range from “inadequate scientific understanding of the problem,
data gaps and general lack of data to inherent uncertainties of
future events in general.” JP Mot. at 19 (citing IPCC’s Special
Report on Emissions Scenarios Section 1.2, Box 1-1:
Uncertainties and Scenario Analysis, http://grida.no/climate/
ipcc/emission/025.htm). This inherent uncertainty, according to
Joint Plaintiffs, is compounded by the predictive nature of the
USGS forecasting reports, which attempt to forecast sea ice
conditions up to 100 years into the future on the basis of
mathematical modeling that cannot replicate the complex Arctic
system.
Joint Plaintiffs contend that FWS failed to explain how,
despite the high degree of uncertainty in climate science, it
nonetheless found that polar bears are “likely” to be in danger
of extinction within the foreseeable future. 48 According to
48
As discussed above, according to Joint Plaintiffs, the
proper standard for determining whether the polar bear is
“likely” to become endangered is 67-90% likelihood. However, as
the Court has concluded, FWS did not adopt such a high standard
and thus need not demonstrate that it met that high standard.
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Joint Plaintiffs, the uncertainty surrounding future climate
change impacts should have prevented FWS from being able to
discern any such trend with confidence. JP Mot. at 20-21
(citing Bennett v. Spear, 520 U.S. 154, 176 (1997) (“The obvious
purpose of the requirement that each agency ‘use the best
scientific and commercial data available’ is to ensure that the
ESA not be implemented haphazardly, on the basis of speculation
or surmise.”)).
The federal defendants respond that Joint Plaintiffs’
arguments must fail as a matter of law because they incorrectly
assume that scientific certainty (or even a “high degree” of
certainty) is required before the Service may list a species as
threatened under the ESA. The federal defendants point out that
Joint Plaintiffs have neither challenged the IPCC reports
directly nor identified better climate change data. Joint
Plaintiffs merely assert that the available climate science at
the time of listing was “too uncertain” for the Service to rely
upon, a position which the federal defendants contend is
contrary to D.C. Circuit precedent. See Sw. Ctr. for Biological
Diversity v. Babbitt, 215 F. 3d 58, 60 (D.C. Cir. 2000) (finding
that the Service is required to rely on the best available
scientific data, even if that data is “quite inconclusive”).
The federal defendants further respond that Joint
Plaintiffs have overstated the uncertainty of climate change
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science. According to the federal defendants, mainstream
climate science at the time of listing, as reflected in the IPCC
AR4, accepted that further global and regional Arctic warming is
very likely to occur, based on the levels of greenhouse gases in
the atmosphere and those likely to be emitted. See Fed. Def.
Mot. at 81 (citing ARL 152436; ARL 151205). Moreover, the
federal defendants contend that FWS found that any uncertainty
in climate change projections could be reduced by considering an
“ensemble” of climate change models – in other words, by
averaging the results of a group of models that most closely
reflect actual observed conditions – and it did so here. See
Fed. Def. Mot. at 81 (citing ARL 117232; ARL 128806). According
to the federal defendants, uncertainties surrounding climate
change impacts did not prevent the Service from making a
credible assessment of the likely direction and magnitude of
those impacts, even if it was not possible to make such
predictions with precision.
Having considered the parties’ arguments, the Court agrees
with the federal defendants. Joint Plaintiffs’ claim boils down
to an argument that the available data were not certain enough
to adequately support the outcome of the agency’s listing
decision for the polar bear. It is well-settled in the D.C.
Circuit that FWS is entitled - and, indeed, required - to rely
upon the best available science, even if that science is
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uncertain or even “quite inconclusive.” Sw. Ctr. for Biological
Diversity, 215 F. 3d at 60. The “best available science”
requirement merely prohibits FWS from disregarding available
scientific evidence that is better than the evidence it relied
upon. Id. (citing City of Las Vegas v. Lujan, 891 F.2d 927, 933
(D.C. Cir. 1989)); see also Building Indus. Ass’n of Superior
Cal. v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001) (“Assuming
the studies the Service relied on were imperfect, that alone is
insufficient to undermine those authorities’ status as the ‘best
scientific . . . data available’ . . . . [T]he Service must
utilize the ‘best scientific . . . data available,’ not the best
scientific data possible.”). Joint Plaintiffs have pointed to
no information that was superior to the IPCC AR4 reports at the
time the agency made its listing decision. The Court declines
to find that it was arbitrary for the agency to rely upon what
were generally accepted to be the best available climate change
data at the time the agency made its listing decision,
particularly when the agency also took steps to reduce
uncertainty to the extent feasible.
Moreover, an agency is entitled to particular deference
where it has drawn conclusions from scientific data. Ethyl
Corp., 541 F.2d at 36. As this Court has observed, “some degree
of speculation and uncertainty is inherent in agency
decisionmaking” and “though the ESA should not be implemented
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‘haphazardly’ . . . an agency need not stop in its tracks when
it lacks sufficient information.” Oceana v. Evans, 384 F. Supp.
2d 203, 219 (D.D.C. 2005) (citing cases). Notwithstanding a
handful of references to uncertainty that appear in record
documents, Joint Plaintiffs have failed to persuade this Court
that FWS implemented the ESA “haphazardly.” Accordingly, the
Court concludes that FWS did not act arbitrarily in relying on
and drawing reasonable conclusions from the IPCC reports and
climate models in making its listing determination for the polar
bear.
b. Joint Plaintiffs’ Argument that the USGS
Population Models Do Not Support the
Service’s Conclusion
Second, Joint Plaintiffs contend that FWS similarly failed
to demonstrate a rational connection between the USGS population
models and the conclusions that the agency drew from those
models. Specifically, Joint Plaintiffs assert (i) that the two
USGS population models FWS considered - the carrying capacity
and Bayesian Network models – are fundamentally flawed, (ii)
that FWS failed to address the shortcomings of both models in
its Listing Rule, and (iii) that the agency also failed to
explain how these models sufficiently support its listing
decision.
Joint Plaintiffs identify two primary flaws with the
carrying capacity model: first, that the term “carrying
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capacity” is misleading because USGS did not use the term
according to its traditional definition, 49 and second, that the
model improperly assumes that current estimated polar bear
densities will remain constant through time, an assumption which
USGS itself admitted is “‘almost certainly not valid.’” See JP
Mot. at 28 (quoting ARL 82463). As a result, Joint Plaintiffs
contend that the carrying capacity model gives a false
impression that every unit change in sea ice habitat will result
in a corresponding unit change in polar bear population numbers.
With regard to the Bayesian Network model, Joint Plaintiffs
point out that the model was only at a preliminary stage at the
time of listing because it was developed based on the input of
only one polar bear expert and, therefore, requires further
development before it can be considered reliable.
As an initial matter, the federal defendants respond that
Joint Plaintiffs focus too narrowly on the weaknesses of these
two models. These models were not the sole basis for the
agency’s listing decision; rather, the federal defendants
contend that FWS merely found that these two models were
consistent with the other record evidence before it, including
published literature and the opinions of numerous peer
49
The traditional definition of the term “carrying capacity”
refers to “[t]he maximum number of individuals that a given
environment can support without detrimental effects.” JP Mot.
at 28 (quoting American Heritage Dictionary of the English
Language (4th ed. 2009)).
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reviewers. As a legal matter, the federal defendants note, the
question is not whether these two models alone support the
agency’s decision but instead whether the agency’s decision is
supported by the record as a whole. See Fed. Def. Mot. at 85
(citing Van Valin v. Locke, 671 F. Supp. 2d 1, 8 (D.D.C. 2009)).
Here, according to the federal defendants, the full record
adequately supports the agency’s listing decision.
In any event, the federal defendants contend that FWS fully
disclosed the weaknesses in both models and discounted them
accordingly by relying only upon their general direction and
magnitude and that FWS was entitled to draw reasonable
conclusions from the USGS population models, despite their
acknowledged flaws. According to the federal defendants, these
models were the best available scientific information of their
kind when FWS made its listing decision, and the law requires
the agency to consider them. Fed. Def. Mot. at 87 (citing
Building Indus. Ass’n, 247 F.3d at 1246). The federal
defendants further note that it is well-settled that an expert
agency has wide latitude to consider and weigh scientific data
and information within its area of expertise. Fed. Def. Mot. at
90 (citing Am. Bioscience v. Thompson, 269 F.3d 1077, 1083 (D.C.
Cir. 2001)).
Having considered the parties’ arguments, the Court
concludes that Joint Plaintiffs’ second argument must also fail.
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Despite plaintiffs’ criticisms, they have not, in fact,
challenged the USGS models as the best available science of
their kind at the time of listing. Instead, Joint Plaintiffs
appear to take the position that FWS should have drawn different
conclusions from these models or, indeed, disregarded them
entirely. The Court cannot agree.
Again, it is well-settled in the D.C. Circuit that an
agency must rely upon the best available science, even if that
science is imperfect. See Building Indus. Ass’n, 247 F.3d at
1246. 50 Moreover, Joint Plaintiffs have failed to demonstrate
that FWS drew wholly arbitrary conclusions from the USGS
population models. As this Court has observed, “[t]here is
nothing inherently problematic about using predictions of
population trends to analyze the status of a species. . . .”
Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 221 n.21 (D.D.C.
2005). FWS candidly acknowledged the weaknesses in both models
and tempered its reliance on them accordingly, as it is
50
The Court notes, further, that although the “best available
science” mandate does not require FWS to generate new scientific
data, see Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d
59, 60-61 (D.C. Cir. 2000), FWS essentially did so here when it
commissioned USGS to conduct additional analysis, including
these population models. The federal defendants point out that
population modeling data is not required for a listing decision
and in many cases this type of data is not available. See Fed.
Def. Reply at 49, n.22. The Court declines to find that it was
irrational for FWS to consider available population models, even
if they were imperfect.
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permitted to do in weighing scientific information. See Balt.
Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103
(1983) (noting that a reviewing court must be “at its most
deferential” when examining conclusions made “at the frontiers
of science”); see also Int'l Fabricare Inst. v. EPA, 972 F.2d
384, 389 (D.C. Cir. 1992) (“The rationale for deference is
particularly strong when the [agency] is evaluating scientific
data within its technical expertise: ‘[I]n an area characterized
by scientific and technological uncertainty[,] . . . this court
must proceed with particular caution, avoiding all temptation to
direct the agency in a choice between rational alternatives.’”
(quoting Envtl. Def. Fund v. Costle, 578 F.2d 337, 339 (D.C.
Cir. 1978))). 51 Given the deference courts must grant to an
51
In their opening brief, Joint Plaintiffs argue that the FWS
improperly relied upon the USGS population models because these
models bear no “rational relationship” to the reality that they
are purported to represent. JP Mot. at 27 (citing Greater
Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183, 198
(D.D.C. 2008) (“[A] model must be rejected as arbitrary and
capricious ‘if there is simply no rational relationship between
the model and the known behavior of [the items] to which it is
applied.’”) (internal citation omitted)). In their reply brief,
however, Joint Plaintiffs clarify that they do not challenge the
agency’s choice of models; rather, they challenge the Service’s
application of those models. See JP Reply at 36. To the extent
Joint Plaintiffs have challenged the Service’s choice of models,
they have failed to show that the carrying capacity and Bayesian
Network models are not “rationally related” to the reality they
purport to represent, and as such their citation to Greater
Yellowstone Coalition is inapt. In Greater Yellowstone
Coalition, this Court rejected sound level modeling that was at
odds with recorded sound levels and that formed the exclusive
basis for the agency’s snowmobile plan. 577 F. Supp. 2d at 198-
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agency in this area, this Court declines to find that the
agency’s reliance on and evaluation of the USGS population
models was arbitrary and capricious.
c. Joint Plaintiffs’ Argument that the Service
Ignored Scientific Data and Made Improper
Findings Regarding the Southern Beaufort Sea
Population
As noted above, in its Listing Rule FWS relied in part on
long-term studies of the Southern Beaufort Sea population as
evidence suggesting that polar bears experience nutritional
stress as a result of sea ice loss. Joint Plaintiffs challenge
the Service’s specific findings as to the Southern Beaufort Sea
population. Joint Plaintiffs raise three arguments: (1) that
FWS improperly concluded that the Southern Beaufort Sea polar
bear population had experienced population declines as a result
of diminishing sea ice at the time of listing; (2) that FWS
ignored all but five years of data when it reached this
conclusion; and (3) that record evidence does not, in fact, show
declines in polar bear vital rates and reproductive success in
the Southern Beaufort Sea population. In particular, Joint
Plaintiffs point to two studies – Hunter, et al. (2007) (ARL
82291-341) and Regehr, et al. (2007) (ARL 131467-516) – which
purportedly demonstrate, based on data from as early as 1979,
99. Here, the Court is persuaded that the projections of the
USGS population models are generally consistent with observed
facts about sea ice decline and its impacts on polar bears at
the time of listing.
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that FWS overstated the significance of the past trend in the
number of ice-free days per year in the Southern Beaufort Sea.
The federal defendants respond, first, that Joint
Plaintiffs misstate the agency’s actual finding with regard to
the Southern Beaufort Sea polar bear population. According to
the federal defendants, FWS did not, in fact, find that the
Southern Beaufort Sea population had experienced statistically-
significant population declines at the time the agency made its
listing determination. 52 Instead, the agency relied upon
modeling and related data indicating a significant future
decline in polar bear numbers in that population. See Fed. Def.
Mot. at 96. According to the federal defendants, this
significant future decline adequately supports the agency’s
conclusion based on the record as a whole that the polar bear
qualified for threatened status at the time of listing, both in
the Southern Beaufort Sea and throughout its range.
Second, the federal defendants respond that FWS did not
ignore past data related to the Southern Beaufort Sea polar bear
population. Indeed, the federal defendants point out that FWS
explicitly considered both of the studies identified by Joint
Plaintiffs in its Listing Rule. See ARL 117248, 117272.
52
Indeed, FWS found that there was not a statistically-
significant decline in polar bear numbers in the Southern
Beaufort Sea from 1986-2006 based upon the available data. See
ARL 117272.
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However, according to the federal defendants, the agency
determined that the best available data at the time of listing
was one five-year study that directly compared the number of
ice-free days in the Southern Beaufort Sea to the population
growth rate among polar bears in that area. See Fed. Def. Mot.
at 98. As the federal defendants note, Joint Plaintiffs have
identified no other studies that make that same direct
comparison over a larger data set. Therefore, although the
agency, like Joint Plaintiffs, would have preferred more data,
the federal defendants contend that this five-year study was the
“‘most comprehensive and complete’” data of its kind and, as
such, FWS properly relied upon it. Fed. Def. Mot. at 98
(quoting ARL 110135).
Finally, the federal defendants reject Joint Plaintiffs’
argument that no declines in vital rates had been observed in
the Southern Beaufort Sea prior to listing. They respond that
researchers studying this population found that a number of
measures of polar bear physical condition and reproductive
success had declined prior to the agency’s listing
determination. For example, the federal defendants assert that
in a study covering the period of 1982-2006, USGS scientists
determined that mass, length, and skull sizes of young males had
declined; mass, length, and skull sizes of young females had
declined; skull sizes and/or lengths of adult males and females
- 99 -
had declined; and the number of yearling cubs per female had
declined, suggesting reduced cub survival. See Fed. Def. Mot.
at 98-99 (citing ARL 117272-73; ARL 82418, 82429-30). To the
extent Joint Plaintiffs disagree with the evidence FWS
considered, the federal defendants respond that FWS is the
expert finder of fact and was permitted to draw reasonable
conclusions about “equivocal evidence.” Fed. Def. Mot. at 99-
100 (citing Animal Legal Def. Fund, 204 F.3d at 235).
Largely for the reasons given by the federal defendants and
based upon the standards it has already articulated, the Court
is persuaded that Joint Plaintiffs’ final argument must fail as
well. Joint Plaintiffs have simply not met the very high burden
of showing that the conclusions that the agency drew from the
best available scientific information for the Southern Beaufort
Sea population were arbitrary and capricious. 53
53
Although plaintiff CBD generally agrees that FWS relied on
the best available science in reaching its listing determination
for the polar bear, it has raised a related issue: whether FWS
is required to give the “benefit of the doubt to the species” in
drawing conclusions based on the best available scientific
information. See CBD Mot. at 3 (citing Center for Biological
Diversity v. Lohn, 295 F. Supp. 2d 1223, 1239 (W.D. Wash.
2003)); see also Conner v. Burford, 848 F.2d 1441, 1454 (9th
Cir. 1988). Defendant-Intervenor AOGA and the federal
defendants disagree that this standard applies in a listing
case. The Court finds that it need not decide that question
because this case does not resemble any of the cases where
courts have chosen to apply the “benefit of the doubt” standard.
See Conner, 848 F.2d at 1454 (FWS failed to rely on the best
available science in reaching a jeopardy determination); Ctr.
for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1239
- 100 -
3. Plaintiff CBD’s Claim that the Service Failed to
Consider Whether the Threat of Overutilization
Warranted Listing the Polar Bear As Endangered
(“Listing Factor B”)
As discussed throughout, the ESA requires FWS to list a
species on the basis of one or more of the following five
criteria or “listing factors”:
(a) the present or threatened destruction,
modification, or curtailment of the species’
habitat or range;
(b) overutilization for commercial, recreational,
scientific, or educational purposes;
(c) disease or predation;
(d) the inadequacy of existing regulatory mechanisms;
or
(e) other natural or manmade factors affecting the
species’ continued existence.
16 U.S.C. § 1533(a)(1). In this case, FWS determined, based
upon the record before it, that the polar bear is threatened
throughout its range solely based upon Listing Factor A, the
present or threatened destruction of the species’ habitat.
Plaintiff CBD contends that FWS downplayed the equally severe
(W.D. Wash. 2003) (FWS failed to rely on the best available
science when it refused to list the orca), vacated and remanded
on other grounds, 483 F.3d 984 (9th Cir. 2007); Defenders of
Wildlife v. Babbitt, 958 F. Supp. 670, 680-81 (D.D.C. 1997) (FWS
failed to rely upon the best available science when it refused
to list the Canada Lynx). Here, the Court finds that FWS
properly relied upon the best available scientific information
for the polar bear when it decided to list the polar bear as
threatened range-wide. CBD has cited no instance where a court
has found that the Service was required to list a threatened
species as endangered based on the “benefit of the doubt”
standard, nor is the Court aware of any such authority.
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threat of hunting to the polar bear and, consequently, failed to
adequately consider Listing Factor B, overutilization.
Specifically, plaintiff CBD asserts that FWS was wrong to
conclude that overutilization does not “by itself” pose a
sufficient threat to justify listing the species. CBD Mot. at
45. As a threshold matter, according to CBD, this standard
improperly raises the bar for listing because the ESA requires
FWS to analyze whether the threat of overharvest in combination
with the threat of global warming renders the polar bear
currently in danger of extinction. Moreover, CBD contends that
the Service’s conclusion does not follow from the available
evidence. In support of this argument, CBD cites to statements
in the record indicating that FWS scientists believe overharvest
is a threat to the species, as well as statements from the
Listing Rule itself indicating that five polar bear populations
may have been harvested at unsustainable levels, based upon
anecdotal evidence. See CBD Mot. at 41-43. Finally, plaintiff
CBD asserts that FWS inappropriately relied upon uncertain
future management actions when it concluded that current
management mechanisms are “‘flexible enough to allow adjustments
in order to ensure that harvests are sustainable.’” CBD Mot. at
44 (quoting ARL 117284).
The federal defendants generally respond that FWS took
harvest rates into account, among other factors, when it
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considered whether any of the polar bear populations was
endangered. On the basis of this analysis, FWS concluded that
polar bear harvests may approach unsustainable levels in the
future, as polar bears begin to experience more nutritional
stress and declining population numbers. The federal defendants
maintain that the agency’s analysis, as well as its reasoned
conclusion, did not contravene the ESA. Moreover, because FWS
found that the polar bear is primarily threatened by habitat
loss, the defendants assert that it is essentially a moot point
whether the species is also threatened based on overutilization.
Having carefully considered the parties’ arguments and the
administrative record, the Court is not persuaded that either
the agency’s analysis or its conclusion on this issue was
arbitrary, capricious, or contrary to law. As an initial
matter, to the extent FWS may have erred when it determined that
harvest is not “by itself” a sufficient basis for listing the
polar bear as threatened, the Court finds that this error would
not be a sufficient basis for invalidating the Listing Rule.
The ESA is clear that a species may be listed based on “any one”
of the five listing factors. 16 U.S.C. § 1533(a)(1). Here, FWS
reasonably determined that the polar bear qualified for
threatened status range-wide based on habitat loss (“Listing
Factor A”) alone.
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The relevant question, however, is whether FWS unreasonably
concluded that the polar bear was not endangered at the time of
listing, taking the threat of future habitat losses in
combination with any threat of overharvest. The Court concurs
with plaintiff CBD that the agency’s own regulations require FWS
to list a species if “any one or a combination” of the five
listing factors demonstrates that it is threatened or
endangered. 50 C.F.R. § 424.11(c) (emphasis added); see also
Wildearth Guardians v. Salazar, 741 F. Supp. 2d 89, 103 (D.D.C.
2010) (finding that the Service’s failure to consider cumulative
impact of listing factors rendered the agency’s decision not to
reclassify the Utah prairie dog arbitrary and capricious).
Nonetheless, the Court finds that FWS did consider whether the
threat of overharvest might impact the polar bear in conjunction
with projected habitat losses.
Specifically, the agency found that harvest “is likely
exacerbating the effects of habitat loss in several
populations,” and that polar bear mortality from harvest “may in
the future approach unsustainable levels for several
populations” as these populations begin to experience the
stresses of habitat change. ARL 117284. FWS concluded,
however, that the polar bear was not in danger of extinction on
this basis at the time of listing and, moreover, that harvest
regulations, where they exist, are “flexible enough to allow
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adjustments in order to ensure that harvests are sustainable.”
ARL 117284. Even if the evidence cited by plaintiff CBD
persuasively demonstrates that overharvest was a threat to the
polar bear at the time of listing, the Court is not persuaded
that this evidence demonstrates that the agency’s conclusion was
an irrational one.
Moreover, the Court is not persuaded that FWS
inappropriately relied upon uncertain future management actions
when it reached this conclusion. FWS expressly considered only
existing mechanisms in making its listing determination for the
polar bear. ARL 117284 (“[I]n making our finding we have not
relied on agreements that have not been implemented.”). As
documented in the Listing Rule, most polar bear range countries
have regulatory mechanisms in place that address polar bear
hunting. See ARL 117284. The Listing Rule indicates that,
while overharvest could be occurring in approximately five
populations for which no data were available at the time of
listing, see ARL 117282, hunting was below maximum sustainable
levels in all populations for which data were available, see ARL
117283, Table 2. FWS concluded therefore that existing
mechanisms to control overharvest had been generally
demonstrated to be effective and, moreover, that effective
management of hunting will continue to be important to “minimize
effects for populations experiencing increased stress.” ARL
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117283. The Court declines to find, in the absence of clear
evidence to the contrary, that it was arbitrary for the agency
to assume that the adaptive management principles, which appear
to be working for the majority of polar bear populations, will
continue to be flexible enough to account for future population
reductions. 54
Accordingly, the Court concludes that FWS articulated a
rational basis for its determination that the polar bear was not
in danger of extinction at the time of listing because of the
threat of anticipated sea ice losses, even taking into account
potential threats from overharvest.
4. Joint Plaintiffs’ Claim that the Service Wrongly
Concluded that Existing Regulatory Mechanisms
Will Not Protect Polar Bears despite Anticipated
Habitat Losses (“Listing Factor D”)
Joint Plaintiffs argue, finally, that FWS drew an improper
conclusion from the evidence when it found that existing
regulatory mechanisms are not sufficient to protect polar bears
despite anticipated sea ice losses. According to Joint
Plaintiffs, even if there are no regulatory mechanisms that
would “eradicate” the threat of sea ice loss, existing
regulatory mechanisms such as conservation plans and other
54
To the extent CBD further contends that FWS failed to
consider the impacts of illegal hunting, the Court is persuaded
that FWS took illegal hunting into account to the extent
feasible. See ARL 117245-46; ARL 117284.
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federal, state, and foreign laws are not necessarily
insufficient to protect a “viable population” of bears over the
foreseeable future. 55 JP Mot. at 22. Given that overall polar
bear population numbers had risen in the years prior to listing,
Joint Plaintiffs assert that existing regulatory mechanisms were
not only adequate to protect the species at the time of listing
but they will continue to adequately protect the species into
the future.
The federal defendants respond that FWS rationally
concluded that existing regulatory mechanisms at the time of
listing will be inadequate to protect the polar bear despite
future habitat losses. The defendants explain that, while the
agency found that existing regulatory mechanisms had adequately
addressed previous threats to the polar bear (e.g., overhunting)
55
Joint Plaintiffs have also argued that FWS unlawfully
failed to establish either a “minimum viable population” size or
to determine the “minimum amount of habitat” necessary to
“support a viable population.” JP Mot. at 32. At least two
circuits have rejected similar arguments. See Home Builders
Ass’n of N. Cal. v. U.S. FWS, 321 Fed. Appx. 704, 705 (9th Cir.
2009) (“The FWS is not required to state a threshold level of
habitat loss that is necessary to find a species is
threatened.”); Heartwood v. Kempthorne, No. 05-313, 2007 U.S.
Dist. LEXIS at *27 (S.D. Ohio June 19, 2007) (rejecting the
argument that FWS was required to “identify a number that
represents the point at which the Indiana bat will survive, a
number that represents the point at which the Indiana bat will
recover, and a number that represents the point at which the
total population will become extinct”), aff’d, 302 Fed. Appx.
394 (6th Cir. 2008). This Court concurs with those courts that
the ESA itself articulates the appropriate standard for listing,
which is limited to the five factors outlined in 16 U.S.C.
§ 1533. Accordingly, Joint Plaintiffs’ related claim must fail.
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and presumably will remain adequate to protect against those
threats, there is no evidence in the record that these existing
regulatory mechanisms are sufficient to ensure that polar bears
will not become in danger of extinction within the foreseeable
future.
The Court declines to find that FWS improperly concluded
that existing regulatory mechanisms are inadequate to protect
the polar bear. Joint Plaintiffs have pointed to no record
evidence suggesting that existing mechanisms will offset the
potential impacts to the polar bear from significant future
losses of its sea ice habitat. Therefore, plaintiffs have given
the Court very little basis from which to conclude that the
agency’s finding was irrational, arbitrary and capricious;
accordingly, the Court declines to overturn the agency’s
reasoned determination on these grounds. 56
56
In a related claim, plaintiff SCI argues that FWS also
failed to consider whether future regulatory and non-regulatory
mechanisms would substantially mitigate the threat of sea ice
loss. Although SCI concedes that Listing Factor D only requires
FWS to consider the inadequacy of “existing” regulatory
mechanisms, SCI argues that FWS should have considered future
mechanisms under other listing factors. The Court finds that
plaintiff SCI’s argument is without merit. As other courts have
found, the ESA does not permit FWS to consider speculative
future conservation actions when making a listing determination.
See, e.g., Biodiversity Legal Found. v. Babbitt, 943 F. Supp.
23, 26 (D.D.C. 1996) (“[T]he Secretary . . . cannot use promises
of future actions as an excuse for not making a determination
based on the existing record.”); see also Fund for Animals v.
Babbitt, 903 F. Supp. 96, 113 (D.D.C. 1996). Moreover,
established agency policy requires that in making a listing
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D. The Service Followed Proper Rulemaking Procedures
The Court turns finally to two purported procedural
deficiencies that have been identified by plaintiffs. First,
plaintiff State of Alaska claims that FWS failed to satisfy its
obligation under Section 4(i) of the ESA to provide a “written
justification” explaining why it issued a final rule that
conflicts with comments it received from the State. Second,
plaintiff CF claims that FWS failed to adequately respond to
specific comments that were raised during the notice-and-comment
period for the proposed Listing Rule. Each of these procedural
claims is addressed briefly below. 57
1. Plaintiff Alaska’s Claim that the Service
Violated Section 4(i) of the ESA by Failing to
Provide a Sufficient “Written Justification” in
Response to Comments
Under Section 4(i) of the ESA, if FWS receives comments
from a State (or state agency) disagreeing with all or part of a
proposed listing, and the agency subsequently issues a final
determination FWS may only consider formalized conservation
efforts that have been implemented and have been shown to be
effective. PECE Policy, 68 Fed. Reg. at 15,100. Accordingly,
the Court finds that FWS was not required to consider
speculative future efforts to reduce greenhouse gas emissions.
57
The federal defendants have also responded at length to
what they characterize as a “claim” by plaintiff CBD that the
polar bear listing rule was improperly influenced by political
considerations. See Fed. Def. Mot. at 128-32. Plaintiff CBD
did not in fact raise any such claim. Accordingly, the Court
will not address the federal defendants’ arguments on this
issue.
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rule that conflicts with those comments, it must then provide
the State with a “written justification” explaining its failure
to adopt regulations consistent with the agency’s comments. 16
U.S.C. § 1533(i). The parties agree that on April 9 and October
22, 2007, the State of Alaska and the Alaska Department of Fish
and Game submitted comments that disagreed with the proposed
listing rule for the polar bear and, specifically, with the
agency’s reliance on population modeling efforts conducted by
the USGS. See ARL 84248-84274; ARL 124961-125006. The parties
also agree that on June 17, 2008, after the final Listing Rule
was issued, FWS sent a lengthy letter to the Governor of Alaska
with specific responses to the State’s comments pursuant to 16
U.S.C. § 1533(i). See ARL 11361-11408. Plaintiff State of
Alaska nonetheless contends that FWS failed to comply with
Section 4(i) because its responses to five particular comments
did not adequately “justify” the agency’s actions. Alaska Mot.
at 7-15.
The ESA recognizes that states play a crucial role in the
listing process, and their advice and involvement “must not be
ignored.” See Alaska Mot. at 6 (citing S. Rep. No. 97-418, at
12 (1982)). Here, Alaska argues that FWS “effectively ignored”
the State’s concerns, Alaska Mot. at 10, by failing to provide
an adequate response to the following comments:
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1. Comments on deficiencies in the USGS Carrying
Capacity Model (Alaska Mot. at 7-10);
2. Comments on deficiencies in the USGS Bayesian
Network Model (Alaska Mot. at 10-11);
3. Comments on the status of the Southern Beaufort Sea
polar bear population (Alaska Mot. at 11-13);
4. Comments on the agency’s inappropriate choice of 45
years as the “foreseeable future” (Alaska Mot. at
13-14); and
5. Comments on uncertainty in climate change modeling
(Alaska Mot. at 14-15). 58
In support of its position, State of Alaska cites San Luis
& Delta-Mendota Water Auth. v. Badgley, the only legal precedent
that deals with a claim under ESA Section 4(i). 136 F. Supp. 2d
1136 (E.D. Cal. 2000). In that case, regional water authorities
challenged the listing of a fish species as threatened, and the
NMFS failed to respond to the authorities’ comments with any
kind of written justification. Id. at 1150-51. The court
subsequently reversed the NMFS’s listing decision (on other
grounds, in addition to the 4(i) violation) and remanded to the
agency. Id. at 1151-52. Alaska contends that this Court should
do the same. Alaska Mot. at 9-10.
The federal defendants respond that FWS fully complied with
Section 4(i) of the ESA when it provided Alaska with its written
58
The content of Alaska’s comments is identical to the
substantive claims raised by the Joint Plaintiffs, which have
been discussed at length above. The Court therefore will not
recount the substance of Alaska’s comments and the agency’s
responses thereto.
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justification on June 17, 2008. 59 The federal defendants point
out that all of Alaska’s comments were addressed, including the
five at issue here, in the final Listing Rule itself as well as
in the agency’s response to the State. See Fed. Def. Mot. at
59
As a threshold matter, the defendants contend that the
substance of the agency’s letter is not reviewable, for two
reasons: (1) the letter of written justification does not
constitute “final agency action,” as is required for APA review
(5 U.S.C. § 704); and (2) the agency’s response to comments is
committed to its discretion by law (5 U.S.C. § 701(a)(2)). Fed.
Def. Mot. at 122 (citing Bennett v. Spear, 520 U.S. 154, 175
(1997) (“The APA, by its terms, provides a right to judicial
review of all ‘final agency action for which there is no other
adequate remedy in a court,’ and applies universally ‘except to
the extent that (1) statutes preclude judicial review; or (2)
agency action is committed to agency discretion by law.”))
(internal citations omitted). Alaska responds that, at a
minimum, the Service’s letter is reviewable as part of a review
of the final Listing Rule, pursuant to section 704 of the APA.
Alaska Reply at 9 (citing 5 U.S.C. § 704 (a “procedural . . .
agency action . . . not directly reviewable is subject to review
on the review of the final agency action”)).
Case law provides little guidance on this question.
Indeed, the only case that addresses a failure to comply with
ESA Section 4(i) is one where FWS failed to provide any response
whatsoever, a clear violation of Section 4(i). See San Luis,
136 F. Supp. 2d at 1151. The Court agrees with Alaska’s
assessment that the agency’s justification letter is a
procedural step that becomes reviewable upon review of the final
agency action (here, the Listing Rule). The ESA mandates that
the FWS “shall” submit an explanatory written justification to a
state or state agency if it issues a regulation that conflicts
with the state’s comments. See Bennett, 520 U.S. at 175 (“[A]ny
contention that the relevant provision of 16 U.S.C. § 1536(a)(2)
is discretionary would fly in the face of its text, which uses
the imperative ‘shall.’”). “It is rudimentary administrative
law that discretion as to the substance of the ultimate decision
does not confer discretion to ignore the required procedures of
decisionmaking.” Id. at 172. The Court is persuaded, however,
that the standard of review set out in Section 4(i) is not a
rigorous one.
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126. While Alaska may have preferred a different or a more
detailed explanation, the defendants contend that none is
required.
This Court agrees. Section 4(i) requires only that FWS
provide a “written justification for [the Secretary’s] failure
to adopt regulations consistent with the [State] agency's
comments or petition.” 16 U.S.C. § 1533(i). FWS did so here.
There is no dispute that FWS responded in writing to two sets of
comments from the State of Alaska. Moreover, FWS specifically
addressed each of the issues identified by Alaska, both in its
response letter and in the response to comments that appears in
the Listing Rule itself. See, e.g., ARL 11394-95 (carrying
capacity model); 60 ARL 11405-08 (Bayesian Network model); ARL
11389, 11399-404 (Southern Beaufort Sea population); ARL 11365-
66, 11382-84 (“foreseeable future”); ARL 11363-70, 11395-98
(scientific uncertainty and climate change modeling). Indeed,
Alaska’s own pleadings make clear that FWS did at least attempt
to respond to each of the State’s concerns. Having carefully
60
The Court was unable to locate many of the specific
concerns that Alaska purports to have raised in its comments
with regard to the carrying capacity model. The Court therefore
notes that FWS was not obligated to respond to arguments that
were not, in fact, raised. See Vt. Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, 435 U.S. 519, 553-54 (1978)
(agency proceedings “should not be a game or forum to engage in
unjustified obstructionism by making cryptic and obscure
references to matters,” and then seeking to invalidate agency
action on grounds that the agency failed to consider the
matters).
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reviewed the parties’ arguments, the State’s comments, and the
agency’s responses, the Court is satisfied that FWS did not
ignore any of Alaska’s concerns. Accordingly, the Court
concludes that FWS fulfilled its duty to respond to Alaska’s
comments under ESA Section 4(i).
2. Plaintiff CF’s Claim that FWS Failed to Respond
to Significant Comments
In its supplemental motion for summary judgment, plaintiff
CF contends that FWS also failed to respond to certain
“significant” comments which “if true, would require a change in
the proposed rule.” See CF Mot. at 20 (citing Am. Mining Cong.
v. EPA, 907 F.2d 1179, 1188 (D.C. Cir. 1990)). 61 Plaintiff CF
61
CF identifies nine concerns which it purports to have
raised in comments on the proposed rule and which, it claims,
were never addressed. Specifically, CF highlights:
1. The agency’s failure to consider the role of sun
spot cycles as a primary climate factor;
2. The agency’s failure to consider literature on the
dynamics of solar irradiation;
3. The agency’s failure to explain why it relied so
heavily on a declining trend among the Western
Hudson Bay polar bear population when that trend is
offset by gains in polar bear numbers in other
populations;
4. The agency’s failure to objectively review data;
5. The agency’s failure to specify the degree and
nature of impacts to polar bears from receding sea
ice;
6. The agency’s failure to explain how a decline in the
Western Hudson Bay polar bear population is
attributable to global warming;
7. The agency’s failure to address why the polar bear
survived two historical warming periods;
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did not, however, pursue this claim in its reply brief.
Accordingly, because plaintiff CF appears to have abandoned this
procedural claim, the Court will not consider it further. See
Bd. of Regents of the Univ. of Wash. v. EPA, 86 F.3d 1214, 1222
(D.C. Cir. 1996) (declining to rule on a claim that “petitioners
appear to have dropped”). 62
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motions for summary
judgment are hereby DENIED, the federal defendants’ cross-motion
for summary judgment is hereby GRANTED and the defendant-
intervenors’ cross-motions for summary judgment are hereby
GRANTED. An appropriate Order accompanies this Memorandum
Opinion.
8. The agency’s failure to explain projected declines
in the Southern Beaufort Sea polar bear population
when reports indicate “no correlation between
demographic changes and ice melt” in that region;
and
9. The agency’s failure to consider that warming will
actually improve polar bear habitat in the
northernmost Arctic region.
See CF Mot. at 20-22.
62
Even if this claim were not abandoned, for the reasons set
out in the federal defendants’ response brief and on the basis
of the administrative record the Court is persuaded that FWS
adequately addressed plaintiff CF’s comments, to the extent any
response was required. See Fed. Def. Mot. at 133-37.
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SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 30, 2011
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