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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« NOAA proposes endangered status for Hawaii population of false killer whales | Main| ESA news: turkeys not endangered, but big news on bears and wolves, and more status review litigation. (Happy Thanksgiving!) »

Remand of rule listing polar bear as a threatened species merely delays the controversy (and the appeals...)

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In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND Sect. 4(D) RULE LITIGATION, Misc. Action No. 08-764 (EGS), MDL Docket No. 1993, --- F.Supp.2d ----, 2010 WL 4363872 (D.D.C., Nov. 4, 2010) link here (EMMET G. SULLIVAN, District Judge.).

BACKGROUND: In May 2008, the U.S. Fish and Wildlife Service (“FWS”) issued its final rule listing the polar bear as a “threatened” species under the Endangered Species Act of 1973, which affords special protections to endangered and threatened fish and wildlife species. See Determination of Threatened Status for the Polar Bear (Ursus maritimus ) Throughout Its Range, 72 Fed.Reg. 28,212 (May 15, 2008) (the “Listing Rule”). The publication of the Listing Rule triggered many lawsuits.

CORE HOLDING: ...the Court concludes that FWS failed to adequately explain the legal basis for its Listing Rule. The federal defendants contend that, as a matter of law, an “endangered species” must be in imminent danger of extinction. The Court rejects the federal defendants' erroneous conclusion that an imminence requirement is mandated by the plain meaning of the statute. Because the federal defendants failed to acknowledge ambiguities in the definition of an endangered species, this Court can neither defer to the agency's plain-meaning interpretation nor impose its own interpretation of the statute; instead the Court must remand the Listing Rule to the agency to treat the statutory language as ambiguous. See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C.Cir.2006). The Court therefore REMANDS the Listing Rule to the agency for this limited purpose.

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In its existing rule, FWS found that all polar bear 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. On this basis, FWS concluded that projected habitat losses alone qualify the polar bear as a threatened species throughout its range. FWS also found, however, that the polar bear is not currently endangered in any portion of its range because the species is abundant, any observed population declines have been gradual rather than precipitous, and reproduction and recruitment are still occurring in all polar bear populations. Photo (and attempt at humor related to this controversial topic) from demotivators.com .

ADDITIONAL EXCERPT: Upon careful review of the legislative history, the Court is unpersuaded by the federal defendants' contention that the legislative history unambiguously requires imminent extinction for a species to be designated as endangered. Indeed, the Court notes that the word “imminent” appears once in the entire legislative history, in a passage that refers only cryptically to the definition of an endangered species. SEN. REP. No. 93-307, at 3 (1973). This single statement is not sufficient to overcome a fundamental ambiguity in the text and structure of the statute. See Humane Soc'y of the United States v. Kempthorne, 579 F.Supp.2d 7, 20 (D .D.C.2008) (Friedman, J.) (finding single inconclusive statement from the legislative history insufficient to dispel ambiguity in the ESA). Moreover, although the legislative history does emphasize that an endangered species “is” (currently or presently or actually) in danger of extinction, whereas a threatened species is “likely to be-come” so endangered, this basic distinction is already apparent from the text of the statute itself and does not compel a conclusion that an endangered species must be in danger of imminent extinction.  Having carefully considered the text, structure, and legislative history of the ESA, the Court is persuaded that Congress intended to allow the agency flexibility to make a case-by-case determination of when a species is “in danger of extinction,” based on the five statutory listing factors and the best available science for that species. Therefore, the Court finds that the ESA does not compel the federal defendants' plain-meaning interpretation that an endangered species must be in danger of imminent extinction. For the reasons stated above, the Court concludes that the statute is “silent or ambiguous with respect to the specific issue” before the Court. Chevron, 467 U.S. at 843.

Upon finding the definition of an endangered species to be ambiguous, the Court would normally be required to defer to any permissible agency construction of the statute under step two of the Chevron analysis. Id. In this case, however, there is no permissible construction to which the Court can defer. Counsel conceded at oral argument that the agency does not seek deference to its interpretation of the definition of an endangered species under step two of the Chevron test and instead relies exclusively on a plain-meaning interpretation of the ESA. As “Chevron step 2 deference is reserved for those instances when an agency recognizes that the Congress's intent is not plain from the statute's face,” Peter Pan Bus Lines, Inc., 471 F.3d at 1354, this Court is precluded from according the agency's interpretation deference under Chevron...

Therefore, having found that the agency wrongly relied on an erroneous plain-meaning reading of the definition of an endangered species, the Court must “remand for he agencyto treat the statutory lan-guage as ambiguous.”   Nat'l Cement Co., 494 F.3d at 1075; see also PDK Labs., 362 F.3d at 798 (“The law of this circuit requires in those circumstances that we withhold Chevron deference and remand to the agency so that it can fill in the gap.”). The Court therefore will remand the Listing Rule to FWS for the agency to provide a reasonable interpretation of the definition of an “endangered species,” as applied to its listing determination for the polar bear. See Humane Soc'y, 579 F.Supp.2d at 15. On remand, the agency should bring its expertise and experience to bear on the question of whether its determination that the polar bear is “threatened” throughout its range is warranted, in light of the Court's finding that the definition of an endangered species is ambiguous. “At a minimum, the agency must explain how its interpretation of the statute conforms to the text, structure and legislative history of the ESA; how its interpretation is consistent with judicial interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA's policy objectives. It must also address any legitimate concerns that its interpretation could undermine those policy objectives.” Humane Soc'y, 579 F.Supp.2d at 20-21; see also Nat'l Cement Co., 494 F.3d at 1076-77.

Because the Court does not rule on the lawfulness of the Listing Rule at this time, the Listing Rule shall remain in force during the remand period. In re Checkosky, 23 F.3d 452, 462-63 (D.C.Cir.1993).

KEITHINKING: An interesting non-decision, giving the Obama Administration yet another opportunity to decide how to navigate the continuing controversy over polar bears, global climate change, and the implementation of the Endangered Species Act.  Previously, the Obama administration affirmed the controversial Section 4(d) regulations that were originally enacted by the Bush Administration, and designed to limit the application of the take prohibition to polar bears and global climate change.  Those regulations implemented the ESA, 16 U.S.C. Sect.1533(d), a provision that authorizes the Secretary to issue “such regulations as he deems necessary and advisable to provide for the conservation” of a threatened species.  If, however, as a result of this remanded analysis, the polar bear is an endangered species, then the controversial Section 4(d) regulations would not apply.  And then...   who knows.  See also, CRS Report to Congress, and prior ESA blawg postings.