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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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"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.

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Federal Judge in D.C. defers to FWS 4(d) rule on threatened status of the polar bear

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In re: Polar Bear Endangered Species Act Listing and §4(d) Rule Litig., Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C., June 30, 2011).

BACKGROUND: Several lawsuits challenging the Fish and Wildlife Service's (the Service) 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA), and to issue a rule under Section 4(d), were consolidated into multi-district litigation in the D.D.C.  On June 30, the court granted summary judgment to the Service and upheld the listing against all challenges.  Plaintiff Center for Biological Diversity's (CBD) claims against the 4(d) rule are still pending.  The focus of the litigation was mainly on the distinction between the listing categories "threatened" and "endangered" and also on reliability of the state of climate change science when predicting the impacts of climate change on ice habitat of the polar bear.  Following are the court's holdings and analysis.

RULING: 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.  Center for Biological Diversity (CBD), Natural Resources Defense Council, and Greenpeace (collectively, CBD) claimed that the Service wrongfully concluded that the polar bear did not qualify for endangered status as of 2008.  The Service had maintained that a species must be at "imminent risk" of extinction to qualify for endangered status, which it had not articulated in the 2008 listing rule, but had stated in a "Supplemental Explanation" required from previous remand.  The Service's view was that a species be "currently on the brink of extinction in the wild" and that this understanding was not intended to be narrow or inflexible, as the ultimate determination would depend "on the life history and ecology of the species, the nature of the threats, and the species' response to those threats."  The Supplemental Explanation also described four categories of situations that had been found to satisfy that test in the past and applied each concept to the facts in the polar bear record.  The court applied Chevron deference to the Supplemental Explanation and held that, as applied to the polar bear, the Service's definition of an endangered species represented a permissible construction of the ESA since "Congress did not seek to make any factor controlling when drawing the distinction [between threatened and endangered]" and that there is a "temporal element to the distinction between the categories."

Joint plaintiffs claimed that the polar bear should not have been considered threatened at the time of listing because the Service failed to demonstrate that the polar bear is sufficiently "likely" to become endangered, and the Service arbitrarily selected a 45-year time frame as the "foreseeable future" for the polar bear when a shorter time period would have been more appropriate.  Plaintiffs had argued that a demonstration of 67-90% likelihood was required to establish whether the polar bear would become an endangered species in the foreseeable future, since a large part of the Service's record had relied on Intergovernmental Panel on Climate Change (IPCC) reports that had coincidentally established meanings for the terms "likely" and "very likely."  The court rejected plaintiffs' argument here and stated that neither Congress nor the Service had adopted an official interpretation of "likely," and the Service was not bound to IPCC definitions simply because it had relied on other scientific portions of the IPCC reports.  Plaintiffs had also argued that the Service should have been limited to a shorter time period than the selected 45-year time frame due to the inability to foresee what future regulatory mechanisms may be in place.  The Service had selected 45 years because it again relied on the IPCC report that predicted warming (regardless of choice of emissions scenario) before the point at which projections diverge significantly.  The court upheld the 45-year time frame and emphasized that the ESA's listing provisions require the Services only to consider existing regulatory mechanisms.  In addition, the court noted that Congress and the Services have not yet defined the term "foreseeable future," that a bright line rule was not appropriate, and that the definition should be flexible depending on species and best available science.

RULING: The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualified As a "Distinct Population Segment."   Plaintiffs Center for Biological Diversity (CBD), Safari Club International and Safari Club International Foundation (SCI), and Conservation Force et al. (CF) claimed that the service wrongfully concluded that no polar bear population or ecoregion is "discrete."  The court upheld the Services determination regarding distinct population segments (DPSs) (since it followed formal policy for designating a DPS that had been promulgated through notice-and-comment rulemaking and upheld by prior courts) and found that the Service "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 habitat."

RULING: The Service Did Not Arbitrarily Fail to Consider Other Listing Factors.  Joint plaintiffs also argued that the listing rule should be overturned because of deficiencies in the Service's analysis of several of the listing factors the ESA requires an agency to consider:  1)  that the service failed to "take into account" foreign conservation efforts to protect the polar bear;
2)  that the service failed to rely on the "best available science"; 3) that the service failed to consider whether the threat of overutilization warranted listing the polar bear as "endangered"; and 4) that the service wrongly concluded that existing regulatory mechanisms will not protect polar bears despite anticipated habitat losses.  The court found that FWS did articulate a rational basis for each specific listing determination and the agency explained how the categories apply in the context of the polar bear and the state of its science.  Notably, the court found instances in the record where the Service did take foreign conservation efforts into account, but those efforts concentrate mostly on overharvest and disturbance and would not be sufficient to offset ice loss, which is the primary threat to the polar bear's survival.  In terms of "best available science," plaintiffs argued that climate change predictions were uncertain, pointed to weaknesses in models and claimed that the Service used a partial dataset for the Southern Beaufort Sea polar bear population.  The court found that best available science is to be relied upon even if it is uncertain or even inconclusive and this merely prohibits the Services from disregarding available scientific evidence that is better than the evidence it relied upon.  Plaintiffs did not challenge the Service's models as best available science, but appeared to take the position that the Service should have drawn different conclusion from those models.

RULING: The Service Followed Proper Rulemaking Procedures.  Plaintiff State of Alaska had claimed 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.  FWS had sent a lengthy letter to the State of Alaska in  response to its comments, which satisfied 4(i), even if Alaska “may have preferred a different or more detailed explanation.”  The court concluded that 4(i) requires only that FWS provide a “written justification for failure to adopt regulations consistent with the agency’s comments or petition,” a response which is procedural only.

EXCERPT: "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, 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 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."