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

November 4, 2010

IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(D) RULE LITIGATION


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

MDL Docket No. 1993

This Document Relates To: ALL CASES

MEMORANDUM OPINION

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 lawsuits by a number of organizations and individuals: (1) the State of Alaska ("Alaska") (State of Alaska v. Salazar,*fn1 et al., Case No. 08-1352); (2) Safari Club International and Safari Club International Foundation ("SCI") (Safari Club Int'l, et al. v. Salazar, et al., Case No. 08-1550); (3) California Cattlemen's Association and the Congress of Racial Equality ("CCA") (California Cattlemen's Ass'n, et al. v. Salazar, et al., Case No. 08-1689); (4) Center for Biological Diversity, Natural Resources Defense Council, and Greenpeace ("CBD") (Ctr. for Biological Diversity, et al. v. Salazar, et al., Case No. 08-2113); and (5) Conservation Force, the Inuvialuit Game Council, and numerous hunting and trapping organizations as well as individuals (collectively, "CF") (Conservation Force, et al. v. Salazar, et al., Case No. 09-245). These five actions were consolidated before this Court, along with six related actions, pursuant to an order of the Judicial Panel on Multi-District Litigation.*fn2 In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, Case No. 08-764, Docket No. 1.*fn3

Each of these plaintiffs has challenged the Listing Rule under the Endangered Species Act ("ESA" or "the Act"), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., claiming that FWS's decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Among other claims, plaintiff CBD contends that the decision to list the polar bear as "threatened" was arbitrary and capricious because the polar bear meets the definition of an "endangered" species under the ESA and thus qualifies for a higher level of protection. The remaining plaintiffs (collectively, the "Joint Plaintiffs") contend, among other things, that the decision to list the polar bear was arbitrary and capricious because the polar bear does not meet the definition of a threatened species and therefore does not qualify for ESA protections.*fn4

Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the plaintiffs' motions, the federal defendants' and defendant-intervenors' cross-motions, the various oppositions, replies, and supplemental briefs, the relevant law, the administrative record, statements made by counsel at the hearing held on October 20, 2010, and for the reasons stated herein, 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. Having found sufficient grounds to remand to the agency on this threshold issue, the Court defers ruling on the merits of the parties' cross-motions for summary judgment.*fn5 See, e.g., In re Checkosky, 23 F.3d 452, 463 (D.C. Cir. 1993) (noting that "reviewing courts will often and quite properly pause before exercising full judicial review and remand to the agency for a more complete explanation of a troubling aspect of the agency's decision").

I. BACKGROUND

A. Statutory Background

The ESA has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress enacted the ESA "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). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Tennessee Valley Auth., 437 U.S. at 184.

The ESA's protections are triggered when a species is designated as either "threatened" or "endangered."*fn6 An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The ESA requires the Secretary of the Interior to publish and maintain a list of all species that have been designated as threatened or endangered. Id. § 1533(c). Species are added to and removed from this list after notice and an opportunity for public comment, either on the initiative of the Secretary or as a result of a petition submitted by an "interested person." Id. §§ 1533(b)(1), (3), (5). The Secretary of the Interior is responsible for making listing determinations for the polar bear.*fn7 See 50 C.F.R. § 402.01(b).

A listing determination is made on the basis of one or more of five statutorily prescribed factors: (1) present or threatened destruction, modification, or curtailment of a species' habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting a species' continued existence. 16 U.S.C §§ 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c). The agency must list a species as long as "any one or a combination" of these factors demonstrates that it is threatened or endangered. 50 C.F.R. § 424.11(c). The decision to list a species must be made "solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species." 16 U.S.C. § 1533(b)(1)(A).

B. Factual and Procedural Background

Polar bears are marine mammals that are described as "iceobligate," meaning that they are evolutionarily adapted to sea ice for their survival and primary habitat. ARL 117216.*fn8 There are approximately 20,000 to 25,000 polar bears worldwide, distributed in approximately nineteen populations throughout the Northern Hemisphere's ice-covered regions. ARL 117216-19. Current estimates show that two of the nineteen polar bear populations are increasing in numbers, six populations are stable, and five populations are declining. ARL 117221. Insufficient data are available to identify a trend for the remaining six populations. ARL 117221.

On February 16, 2005, plaintiff Center for Biological Diversity submitted a petition to the Secretary of the Interior to list the polar bear as a threatened species under the ESA. Petition to List the Polar Bear (Ursus maritimus) as a Threatened Species Under the Endangered Species Act, ARL 4040-4209. FWS issued its final rule listing the polar bear as a threatened species on May 15, 2008.*fn9 See generally 72 Fed. Reg. 28,212. In its Listing Rule, FWS found that the projected declines in sea ice over the next several decades ...


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