En banc polar bear rehearing requested

Following a February court order by a panel of three judges from the United States Court of Appeals for the 9th Circuit, overturning a District Court decision rejecting the U.S. Fish and Wildlife’s designation of critical habitat for the polar bear, the appellees in the case have filed a request for an en banc rehearing of the case. If granted, the en banc rehearing would have all of the 9th Circuit judges reconsider the case, rather than have the case decided by a three-judge panel.

Fish and Wildlife issued the critical habitat designation in November 2010, following the 2009 listing of the polar bear as threatened, under the terms of the Endangered Species Act. The designation covered a total area of 187,157 square miles, including a vast offshore area; barrier islands and spits along Alaska’s northern coast; and polar bear denning habitat along Alaska’s northern coast. Loss of sea ice resulting from global warming is thought to be the main threat to the bears.

Worried about the possible impact of the habitat designation on economic activity, a number of organizations including the Alaska Oil and Gas Association, the American Petroleum Institute, Arctic Slope Regional Corp., the state of Alaska and the Inupiat Community of the Arctic Slope appealed the designation in federal District Court in Alaska. In 2013 the District Court rejected the designation, saying that Fish and Wildlife’s designation of onshore tracts was too broad and only included small areas with habitat features.

The 9th Circuit order in February overturned the District Court decision, saying that the federal agency had correctly identified areas that contain the constituent elements for polar bear survival.

In requesting an en banc rehearing, the appellees now say that the 9th Circuit’s order is contrary to established precedent for the court for the review of Endangered Species Act agency actions; and that the order relied on invalid reasoning for where the critical habitat is located.

- ALAN BAILEY