Safari Club Int'l v. Salazar (In re Polar Bear Endangered Species Act Listing & Section 4(D) Rule Litigation—MDL No. 1993)

• Decision Date: 29 April 2013
• Docket Number: 11–5222,11–5221,11–5223.,Nos. 11–5219,s. 11–5219
• Citation: 709 F.3d 1
• Parties: In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND SECTION 4(d) RULE LITIGATION—MDL NO. 1993. Safari Club International, et al., Appellants v. Kenneth Lee Salazar, et al., Appellees Center For Biological Diversity, et al., Intervenors–Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

709 F.3d 1

In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND SECTION 4(d) RULE LITIGATION—MDL NO. 1993.Safari Club International, et al., Appellants

v. Kenneth Lee Salazar, et al., AppelleesCenter For Biological Diversity, et al., Intervenors–Appellees.

Nos. 11–5219, 11–5221, 11–5222, 11–5223.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 19, 2012.

Decided March 1, 2013.

Rehearing En Banc Denied April 29, 2013.

Appeals from the United States District Court for the District of Columbia (No. 1:08–mc–00764).

Murray D. Feldman argued the cause for appellants. With him on the briefs were Bradley E. Meyen, Assistant Attorney General, Office of the Attorney General for the State of Alaska, John J. Jackson III, Douglas S. Burdin, Anna M. Seidman, M. Reed Hopper, Theodore Hadzi–Antich, Damien S. Schiff, Marcy G. Glenn, and Christina F. Gomez. Craig D. Galli entered an appearance.

Murray D. Feldman and Bradley E. Meyen were on the brief for appellant State of Alaska.

Steven J. Lechner was on the brief for amicus curiae Mountain States Legal Foundation in support of joint appellants.

Katherine W. Hazard, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Meredith Flax and David C. Shilton, Attorneys.

Rebecca J. Riley, Brendan Cummings, Kassia Siegel, Jason Rylander, and Howard M. Crystal were on the brief for intervenor-appellees Center for Biological Diversity, et al. Eric R. Glitzenstein and Benjamin H. Longstreth entered appearances.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge:

In 2005, the Center for Biological Diversity petitioned the Secretary of the Interior and the Fish and Wildlife Service (“FWS” or “agency”) to list the polar bear under the Endangered Species Act (“ESA” or “Act”). When a species such as the polar bear is listed as either “threatened” or “endangered” under the Act, it is then subject to a host of protective measures designed to conserve the species. After a three-year rulemaking process, FWS found that, due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future. See generallyDetermination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range (“Listing Rule”), 73 Fed.Reg. 28,212 (May 15, 2008). The agency thus concluded that the polar bear should be listed as a threatened species. Id.

A number of industry groups, environmental organizations, and states challenged the Listing Rule as either overly restrictive or insufficiently protective of the polar bear. These challenges were consolidated as a Multidistrict Litigation case in the U.S. District Court for the District of Columbia. After a hearing on the parties' submissions, the District Court granted summary judgment to FWS and rejected all challenges to the Listing Rule. See generally In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 794 F.Supp.2d 65 (D.D.C.2011). Joint Appellants filed a timely appeal to contest the District Court's judgment. They contend that the Listing Rule is arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and that FWS's action should be reversed because of a series of deficiencies in the rulemaking process and the Listing Rule itself.

The appellate court's task in a case such as this is a “narrow” one. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking. It is significant that Appellants have neither pointed to mistakes in the agency's reasoning nor adduced any data or studies that the agency overlooked. In addition, Appellants challenge neither the agency's findings on climate science nor on polar bear biology. Rather, the principal claim advanced by Appellants is that FWS misinterpreted and misapplied the record before it. We disagree.

In rejecting this appeal, we are guided by the Supreme Court's admonition that “a court is not to substitute its judgment for that of the agency,” id., particularly in cases where the issues “require[ ] a high level of technical expertise,” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Given these considerations and the evident thoroughness and care of FWS's explanation for its decision, we can only conclude, as did the District Court, that Appellants' challenges “amount to nothing more than competing views about policy and science.” In re Polar Bear, 794 F.Supp.2d at 69. Accordingly, we affirm the judgment of the District Court.

I. Background

The District Court's opinion contains an extensive summary of the factual and procedural record, see id. at 71–79, so it is unnecessary for us to recite all of that information here. Instead, we offer the following background statement for convenience and clarity.

A. The Endangered Species Act

Congress passed the ESA 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). “The term ‘endangered species' means any species which is in danger of extinction throughout all or a significant portion of its range....” Id. § 1532(6). “The term ‘threatened species' means 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 Secretaries of Interior and Commerce are obligated to publish and maintain a list of all species determined to be endangered or threatened. Id. § 1533(c)(1). The Secretaries have delegated this authority to FWS and the National Marine Fisheries Service, depending on the species at issue. 50 C.F.R. § 402.01(b).

The ESA empowers an “interested person” to petition the appropriate agency for the listing of any species. 16 U.S.C. § 1533(b)(3)(A). Upon receiving such a petition, the agency “determine[s] whether [the] species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.” Id. § 1533(a)(1) (emphasis added). The agency makes a listing determination “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 ... to protect such species.” Id. § 1533(b)(1)(A).

B. The Listing Rule

On February 16, 2005, the Center for Biological Diversity petitioned the Secretary of the Interior to list the polar bear as threatened under the ESA because of the effects of global climate change on polar bear habitat. In re Polar Bear, 794 F.Supp.2d at 72. On December 21, 2006, following peer review and multiple opportunities for public comment, FWS completed a 262–page Status Review. See generallyScott Schliebe et al., Range–Wide Status Review of the Polar Bear (Ursus maritimus) (Dec. 21, 2006). (The Status Review is posted on FWS's website at http:// www. fws. gov/.) Shortly thereafter, on January 9, 2007, FWS published a proposed rule to list the species as threatened; this action triggered a 90–day public comment period. See generally12–Month Petition Finding and Proposed Rule to List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed.Reg. 1064 (Jan. 9, 2007).

During the course of the rulemaking process, FWS sought the assistance of the U.S. Geological Survey (“USGS”) in “collecting and analyzing scientific data and developing models and interpretations that would enhance the base of scientific data for [FWS's] use in developing the final decision.” Listing Rule, 73 Fed.Reg. at 28,235. USGS produced “nine scientific reports that analyze and integrate a series of studies on polar bear population dynamics, range-wide habitat use, and changing sea ice conditions in the Arctic.” Id. These reports were also subject to public comment.

FWS published the final Listing Rule on May 15, 2008. The Listing Rule concludes that “the polar bear is likely to become an endangered species within the foreseeable future throughout all of its range” and should therefore be listed as threatened. Id. at 28,212.

The Listing Rule explains in detail the taxonomy, evolution, and population of the species. Some of the principal findings are as follows:

Polar bears evolved in sea ice habitats and as a result are evolutionarily adapted to this habitat.

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Over most of their range, polar bears remain on the sea ice year-round or spend only short periods on land. However, some polar bear populations occur in seasonally ice-free environs and use land habitats for varying portions of the year.

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Although polar bears are generally limited to areas where the sea is ice-covered for much of the year, they are not evenly distributed throughout their range on sea ice. They show a preference for certain sea ice characteristics, concentrations, and specific sea ice features. Sea-ice habitat quality varies temporally as well as geographically. Polar bears show a preference for sea ice located over and near the continental shelf, likely due to higher biological productivity in these areas and greater accessibility to prey in near-shore shear zones and polynyas (areas of open sea surrounded by...