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In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation

June 22, 2009

IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(D) RULE LITIGATION
THIS DOCUMENT RELATES TO: SAFARI CLUB INTERNATIONAL, ET AL.
v.
SALAZAR, ET AL, NO. 08-881 (EGS)



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MDL Docket No. 1993

MEMORANDUM OPINION

Plaintiffs Safari Club International ("SCI") and Safari Club International Foundation ("SCIF") bring this action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. ("APA"), against defendants Ken Salazar, Secretary of the Interior, H. Dale Hall, Director of the United States Fish and Wildlife Service, and the United States Fish and Wildlife Service (collectively "FWS"), challenging the FWS's legal determination that the listing of the Polar Bear as threatened under the Endangered Species Act creates a ban on the import of sport-hunted polar bear trophies otherwise legal under the Marine Mammal Protection Act. Pending before the Court is defendants' Motion for Judgment on the Pleadings on the grounds that (1) plaintiffs fail to state a claim upon which relief can be granted, because plaintiffs fail to challenge a final agency action as required for judicial review under the APA; or, in the alternative, (2) plaintiffs lack standing to bring this action.*fn1

Upon consideration of the defendants' motion, the plaintiffs' opposition, the defendants' reply, the relevant law, and for the reasons stated herein, the defendants' motion is DENIED.

I. BACKGROUND

A. Statutory Background*fn2

The Endangered Species Act, 16 U.S.C. § § 1531 et seq., was enacted in 1973 "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 . . . ." 16 U.S.C. § 1531(b). Once a species is listed as endangered or threatened, statutory prohibitions help ensure the survival and recovery of the species. An endangered species is "in danger of extinction throughout all or a significant portion of its range," while a threatened species 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(6), (20).

The ESA delegates authority to determine whether to list a species as endangered or threatened to the Secretaries of Commerce and Interior. The Secretary of the Interior has jurisdiction over the polar bear. 16 U.S.C. § 1532(15).

The Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361 et seq., was enacted in 1972 in response to a decline in marine mammal populations. Administration of the MMPA, like the ESA, is divided between the Department of the Interior and the Department of Commerce, and, as with the ESA, the MMPA gives the Secretary of the Interior jurisdiction over the polar bear. 16 U.S.C. § 1362(12)(A).

The MMPA prohibits the taking or importation of marine mammals or marine mammal parts, unless a specified exception applies. 16 U.S.C. § 1371(a). The term "take" means "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). One exception to the general prohibition allows the Secretary of the Interior to issue permits authorizing the take of marine mammals for importation of polar bear parts taken in sport hunts in Canada, provided that specific requirements are met. 16 U.S.C. § 1374(c)(5). However, where the marine mammal at issue is "depleted," the MMPA further restricts the purposes for which such permits may be issued. 16 U.S.C. § 1371(a)(3)(B). Species that are listed as endangered or threatened under the ESA, such as the polar bear, are considered "depleted" for purposes of the MMPA. 16 U.S.C. § 1362(1)(C). Where a species is depleted, the Secretary may not allow importation "[e]xcept for scientific research purposes, photography for educational purposes, or enhancing the survival or recovery of [the] species or stock . . . ." 16 U.S.C. § 1371(a)(3)(B). In addition, section 1372(b) of the MMPA contains additional restrictions on importations of a marine mammal from a species or stock that has been designated as depleted. That section reads in relevant part:

Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock . . ., it is unlawful to import into the United States any marine mammal if such mammal was -

(3) taken from a species or population stock which the Secretary has, by regulation published in the Federal Register, designated as a depleted species or stock; . . .

Accordingly, where a marine mammal is from a species or stock with a depleted status, Section 1372(b) allows importation only for purposes of scientific research or enhancement of the survival or recovery of the species or stock.

B. Factual Background

1. The Final Rule

On May 15, 2008, the FWS issued a final rule listing the polar bear as a threatened species throughout its range. See 73 Fed. Reg. 28,212 (May 15, 2008) ("Final Rule"). In responding to comments the FWS had received regarding the proposed designation of the polar bear as a threatened species, the FWS noted in the Final Rule that

[U]nder the MMPA, the polar bear will be considered a 'depleted' species on the effective date of this listing. As a depleted species, imports could only be authorized under the MMPA if the import enhanced the survival of the species or was for scientific research. Therefore, authorization for the import of sport-hunted trophies will no longer be available under section 104(c)(5) of the MMPA.

73 Fed. Reg. at 28236. Moreover, in response to a comment that the FWS had not considered "the negative impacts of listing [the polar bear as threatened] on the long-term management of polar bears developed in Canada that intergrates susbistence harvest allocations with a token sport harvest[,]" the FWS stated

We acknowledge the important contribution to conservation from scientifically-based sustainable use programs. Significant benefits to polar bear management in Canada have accrued as a result of the 1994 amendments to the MMPA that allow U.S. citizens who legally sport-harvest a polar bear from an ...


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