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In Re Polar Bear Endangered

October 17, 2011

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

This Document Relates To:*fn1 .

Salazar, et al., No. 08-881; ) Hershey v. Salazar, et al., ) No. 09-324; Kreider v. Salazar, ) et al., No. 09-325; Atcheson, ) et al. v. Salazar, et al., ) No. 09-941Safari Club Int'l, et al

MEMORANDUM OPINION

On May 15, 2008, the U.S. Fish and Wildlife Service ("the Service" or "the agency") published its final rule listing the polar bear as a threatened species under the Endangered Species Act ("ESA") because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which the agency attributed to global greenhouse gas emissions and related atmospheric changes. See generally Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) ("Listing Rule").

This Court recently upheld the Listing Rule as a reasonable exercise of agency discretion. See In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C. June 30, 2011). The four cases currently before the Court arise out of the Service's related determination that, as of the effective date of the Listing Rule, sport-hunted polar bear trophies may no longer be imported into the United States under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361-1423h, which generally prohibits the import of marine mammal species that the Secretary has designated as "depleted."

The following plaintiffs have filed actions against the Service asserting violations of the MMPA and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706:

 Safari Club International and Safari Club International

Foundation (collectively, "SCI");  Ronald Kreider ("Kreider");  Donald Hershey ("Hershey");*fn2  Keith Atcheson, Keith Halstead, Ben Hamel, Marcus Hansen,

Aaron Nielson, Kevin Wieczorek, Dennis Dunn, and Conservation Force (collectively, "Atcheson plaintiffs"). Pending before the Court are the parties' cross-motions for summary judgment.

The SCI plaintiffs challenge the Service's legal determination that imports of sport-hunted polar bear trophies are no longer available as arbitrary, capricious, and contrary to the plain language of the MMPA. As the SCI plaintiffs note, section 104(c)(5) of the MMPA specifically authorizes the import of sport-hunted polar bear trophies from approved polar bear populations in Canada. The SCI plaintiffs argue, first, that Congress plainly intended this authorization to take precedence over the MMPA's prohibition on importing depleted marine mammal species. The SCI plaintiffs further argue, however, that the prohibition on importing depleted species does not apply to the polar bear, which they claim was never properly designated as depleted. On the same grounds, the SCI plaintiffs challenge the disposition of import permit applications submitted pursuant to section 104(c)(5) of the MMPA by individual plaintiffs Hershey and Kreider, which the Service administratively closed after the publication of the Listing Rule.

Having carefully considered plaintiffs' motions, the federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, the arguments of counsel at a motions hearing held on April 13, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service properly concluded that the polar bear is a depleted species within the meaning of the MMPA as of the publication of the Listing Rule. The Court further finds that the MMPA mandates the Service's conclusion that sport-hunted polar bear trophies are no longer eligible for import as a result of the species' depleted status. Sport hunting is not among the narrow, enumerated exceptions to the MMPA's ban on taking and importing depleted marine mammals. Accordingly, the Court concludes that the Service did not err when it administratively closed permit applications that were pending when the Listing Rule took effect, including those submitted by plaintiffs Hershey and Kreider. The Court therefore DENIES the SCI plaintiffs' motion for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.

Whereas the SCI plaintiffs primarily argue that the polar bear is not a depleted species within the meaning of the MMPA, the Atcheson plaintiffs, for their part, do not contest that the polar bear was properly designated as depleted. However, after the publication of the Listing Rule, the Atcheson plaintiffs nonetheless applied for permits to import their sport-hunted polar bear trophies under section 104(c)(4)(A) of the MMPA, which authorizes a narrow exception to the general prohibition on importing depleted marine mammals for activities that will "enhance" a depleted species, either by increasing its numbers or by otherwise contributing to the recovery of the species. The Service denied the Atcheson plaintiffs' permit applications, finding no evidence that either sport hunting itself or the subsequent import of these specific sport-hunted polar bear trophies would actually enhance the species within the meaning of the statute. The Atcheson plaintiffs challenge the denial of their permit applications as arbitrary, capricious, contrary to law, and procedurally deficient.

Having carefully considered plaintiffs' motions, the federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, the arguments of counsel at a motions hearing held on April 13, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service reasonably concluded that the Atcheson plaintiffs failed to meet the standard for an enhancement exception to the MMPA's ban on importing depleted species. Accordingly, the Court DENIES the Atcheson plaintiffs' motion for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.

I.BACKGROUND

A.Statutory and Regulatory Background

Congress enacted the MMPA to preserve and replenish marine mammal populations. See 16 U.S.C. § 1361(2). The Secretary of the Interior has jurisdiction over most marine mammals covered by the MMPA, including the polar bear. See id. § 1362(12)(A)(ii). The Secretary has delegated his duties under the MMPA to the Service. See 50 C.F.R. § 403.02(f).

The MMPA establishes a general moratorium "during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States."*fn3 16 U.S.C. § 1371(a). The statute enumerates several exceptions to this general moratorium. One such exception authorizes the Service to issue permits for the import of polar bear parts taken in sport hunts in Canada, provided certain conditions are met. See id. § 1374(c)(5). In 1997, the Service issued regulations approving six Canadian polar bear populations for so-called "trophy" imports: Southern Beaufort Sea, Northern Beaufort Sea, Viscount Melville Sound, Western Hudson Bay, Lancaster Sound, and Norwegian Bay. See 50 C.F.R. § 18.30(i)(l).

However, the MMPA imposes additional restrictions on the taking and import of marine mammals from species that are considered "depleted." A species is depleted within the meaning of the MMPA when (1) the Secretary determines that the species or population stock is below its "optimum sustainable population" ("OSP"); (2) a state with management authority over the species determines that the species or stock is below its OSP; or (3) the species or population stock is listed as an endangered species or a threatened species under the ESA. 16 U.S.C. § 1362(1).

Under section 101(a)(3)(B) of the MMPA, "no permit may be issued for the taking of any marine mammal which has been designated by the Secretary as depleted, and no importation may be made of any such mammal." Section 102(b) further provides:

[I]t is unlawful to import into the United States any marine mammal if such mammal was - (1) pregnant at the time of taking; (2) nursing at the time of taking, or less than eight months old, whichever occurs later;

(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; or (4) taken in a manner deemed inhumane by the Secretary.

Pursuant to these two provisions, therefore, members of a depleted marine mammal species or stock generally may not be imported into the United States.

The statute also enumerates some exceptions to this prohibition. Specifically, the Service may permit the take or import of depleted marine mammal species "for scientific research purposes, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock . . . , or as provided for under paragraph (5) of this subsection [authorizing the incidental, but not intentional, taking of marine mammals during the course of specified activities]." Id. § 1371(a)(3)(B).

To qualify for the narrow "enhancement" exception to the prohibition on taking and importing depleted species, the Service must determine that

(1) taking or importation is likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock; and

(2) taking or importation is consistent (I) with any conservation plan adopted by the Secretary under [the MMPA] . . . or any recovery plan developed under [the ESA] for the species or stock, or

(II) if there is no conservation or recovery plan in place, with the Secretary's evaluation of the actions required to enhance the survival or recovery of the species or stock in light of the factors that would be addressed in a conservation plan or a recovery plan.

Id. § 1374(c)(4)(A) (emphasis added).

B.Factual and Procedural Background

1.The Listing Rule

On May 15, 2008, the Service issued a final rule listing the polar bear as a threatened species throughout its range. See generally 73 Fed. Reg. at 28,212; ARL 117215-307.*fn4 Although the Listing Rule does not purport to "designate" the polar bear as a depleted species under the MMPA, the Service noted in response to comments 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.

Id. at 28,236; ARL 117240. The Service further noted:

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 MMPA-approved population in Canada to bring their trophies back into the United States. . . .

While we recognize these benefits, the Service must list a species when the best scientific and commercial information available shows that the species meets the definition of endangered or threatened. The effect of the listing, in this case an end to the import provision under Section 104(c)(5) of the MMPA, is not one of the listing factors. Furthermore, the benefits accrued to the species through the ...


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