Listing upheld: Federal court rejects polar bear listing appeal
In what is something of a landmark court case, the U.S. Court of Appeals for the District of Colombia Circuit has upheld the U.S. Fish and Wildlife Service’s 2008 decision to list the polar bear as threatened under the terms of the Endangered Species Act because of the threat that global warming poses to the bear’s sea-ice habitat.
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Although in the past animals have generally been listed under the Endangered Species Act, or ESA, because of severe declines in population numbers and consequent concerns about species survival, the polar bear was the first species to be listed as a direct consequence of the observed and predicted consequences of climate change, despite a relatively robust current animal population. And, with the polar bear already listed, Fish and Wildlife and the National Marine Fisheries Service, the two agencies that administer the ESA, have been considering the listing of other animal species that live on Arctic sea ice — in December the Fisheries Service listed as threatened populations of bearded and ringed seals that live in U.S. Arctic waters.
Alarmed and skepticalAlarmed by the specter of limitations placed on Arctic activities as a consequence of ESA listings and expressing skepticism about the reasoning behind the polar bear listing, a number of organizations, including the State of Alaska, filed appeals against the listing. And, with the appeals having already been rejected in federal District Court, the D.C. Circuit court has now also dismissed the appeals.
Organizations appealing the polar bear listing claimed that Fish and Wildlife had inadequately explained how a declining sea-ice extent would place the polar bear in danger of extinction. The organizations also challenged the agency’s use of polar bear population models to predict the animals’ eventual demise. Fish and Wildlife relied on a view of the bears being “likely” to become endangered without using a rigorous definition of the term “likely,” the organizations said. And, at the same time, the agency arbitrarily chose a 45-year period of future climate and population modeling as “the foreseeable future,” for the purposes of predicting potential polar bear extinction, they said. In addition, Fish and Wildlife, in making the listing decision, did not consider polar bear conservation efforts in Canada, the organizations said.
Two appellants argued that, although polar bear populations in some areas may be in decline, populations in other areas are thriving, thus rendering it incorrect to claim that the species is threatened throughout its entire range. And the State of Alaska said that a letter received from Fish and Wildlife addressing the state’s concerns about the polar bear listing had been inadequate as a legally required response to the state’s critique of the listing.
Rejected claimsA panel of three judges in the D.C. Circuit court rejected all of the claims made by those appealing the listing. In reaching their decision, the judges said that they had followed the normal judicial policy of deferring to agency scientific expertise while reviewing whether the agency had made its decision in a lawful manner and assessing whether the listing rule was based on “reasoned decision making.”
In point of fact, the appellants did not challenge the agency’s findings on climate science or polar bear biology, the judges said.
“Rather, the principal claim advanced by appellants is that the Fish and Wildlife Service misinterpreted and misapplied the record before it. We disagree,” the judges said.
And, with the agency having adequately explained its reasoning, and with uncontested scientific expertise in support of the agency’s conclusion, the court has to uphold the agency’s decision, the judges said.
Rational explanationFor example, the agency provided an adequate and rational explanation of how the future loss of sea ice would likely harm polar bears, through factors such as an increased need for open water swimming and subsequent drowning, the judges said. And, the agency had provided supporting evidence in the form of a known polar bear population decline in the western Hudson Bay area, where the sea-ice habitat loss has been particularly severe, they said.
The judges also said that a written justification for its decision that Fish & Wildlife had submitted to the State of Alaska had been sufficient to meet the legal requirements for responding to the state’s concerns.
Praise from environmentalistsEnvironmental organizations have praised the court decision as providing support for the need to protect an animal threatened by a warming climate and shrinking sea ice.
“Today’s decision is the latest legal confirmation of the indisputable science on climate change and the very real threats that polar bears face,” said Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute, on March 1. “If we’re going to save polar bears, the Obama administration needs to move swiftly to cut greenhouse pollution.”
“This ruling forces Alaska to acknowledge what has been painfully clear to everyone else: Polar bears are on a collision course with climate change and deserve protection,” said Rebecca Riley, attorney in the Natural Resources Defense Council’s land and wildlife program. “Now, we need to get serious about tackling climate change and other threats to the species like hunting and toxic contamination.”
North Slope criticismNorth Slope Native communities, on the other hand, have criticized what they have seen as a lack of consultation by the federal government in the saga of the polar bear listing.
“We, the people of the Arctic, have led the way on conservation and protection of the polar bear. So for Fish and Wildlife to come in without talking to us in northern Alaska, and make this decision is extremely frustrating,” said Rep. Ben Nageak, D-Barrow, in a statement issued by the Alaska House majority caucus. “We’ve done things in regards to polar bear protection, like harvest quotas and monitoring, that weren’t mandated by the government. Our people value the polar bear and our cultural heritage is one of reverence for the animals we share our lands with. … They, who live so far away from the polar bear and only possibly see them at zoos or on television, are now free to tell us, who live with and walk on the same land as them every day, that they know best. Federal over-reach is a fair term for this, and so is federal impudence. The Fish and Wildlife Service should be more concerned with today’s reality of shrinking sea ice and contact between vessels and marine life in the Arctic, instead of taking our rights away based on speculation. Shame on them.”
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