720 F.3d 354 (D.C. Cir. 2013), 11-5353, In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation-MDL No. 1993
|Citation:||720 F.3d 354|
|Opinion Judge:||TATEL, Circuit Judge:|
|Party Name:||In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND SECTION 4(D) RULE LITIGATION-MDL NO. 1993, Safari Club International, et al., Appellants v. Sally Jewell, Secretary of the Interior, et al., Appellees.|
|Attorney:||Douglas S. Burdin argued the cause for appellants. With him on the briefs were Anna M. Seidman and Paul Minnich. Sean E. Summers entered an appearance. Katherine W. Hazard argued the cause for appellees. On the brief were Maggie B. Smith and David Shilton. Howard M. Crystal, Eric R. Glitzenstein,...|
|Judge Panel:||Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.|
|Case Date:||June 18, 2013|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued May 9, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia (No. 1:08-mc-00764).
After listing the polar bear as a threatened species under the Endangered Species Act, the U.S. Fish and Wildlife Service, acting pursuant to a related statute— the Marine Mammal Protection Act— barred the importation of polar bear trophies. Hunters and hunting organizations challenge this determination, raising both statutory and procedural arguments. Finding them all without merit, the district court granted summary judgment to the Service. We affirm.
" [T]he largest of the living bear species," polar bears are characterized by their " large body size, a stocky form, and fur color that varies from white to yellow." Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range (" Listing Rule" ), 73 Fed.Reg. 28,212, 28,212 (May 15, 2008). Evolutionarily adapted to sea-ice habitats, polar bears live in " ice-covered seas" in Russia, northern Europe, the Canadian Arctic, and parts of Alaska. Id. at 28,212-13. A 2006 study estimated the " total number of polar bears worldwide" to be
20,000-25,000, comprised of " 19 relatively discrete populations" in different geographic regions. See id. at 28,215.
This case is not about living polar bears. Instead, it concerns polar bear trophies— " mount[s], rug[s] or other display item[s] composed of the hide, hair, skull, teeth, baculum, bones, and claws of the specimen which [were] taken ... during a sport hunt for personal, noncommercial use." 50 C.F.R. § 18.30(b)(1). Plaintiffs, Safari Club International and Safari Club International Foundation, along with individual hunters Ronald Kreider and Donald Hershey, seek to import polar bear trophies from sport hunts in the Canadian Arctic.
Two federal statutes, the Marine Mammal Protection Act (" MMPA" ), 16 U.S.C. §§ 1361 et seq., and the Endangered Species Act (" ESA" ), 16 U.S.C. § 1531 et seq., govern the importation of polar bear trophies. Congress enacted the first of these statutes, the MMPA, because " certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of" human activities. Id. § 1361(1). The MMPA restricts the importation and " taking" — i.e., harassing, hunting, capturing, or killing, see id. § 1362(13)— of polar bears, as well as other marine mammals such as seals, dolphins, walruses, and sea lions.
The MMPA establishes a " stepwise approach" to the conservation of marine mammals. Appellees' Br. 5. At step one, the statute imposes a general " moratorium on the taking and importation" of all marine mammals, regardless of the species' scarcity or abundance. See 16 U.S.C. § 1371(a). This moratorium has several enumerated exceptions, including one for importation of sport-hunted polar bear trophies. Id. § 1371(a)(1) (providing an exception to the general moratorium for " importation of polar bear parts ... taken in sport hunts in Canada" ). Specifically, section 104(c)(5) authorizes the Service to " issue a permit for the importation of polar bear parts (other than internal organs) taken in sport hunts in Canada" and provides that the Service " shall" do so when certain criteria are satisfied. Id. § 1374(c)(5)(A). Pursuant to this provision, the Service approved the issuance of permits for importation of trophies from certain Canadian polar bear populations. See 50 C.F.R. § 18.30(i)(1).
Going beyond the general moratorium, step two of the MMPA's conservation scheme imposes additional protections for species the Secretary designates as " depleted." See 16 U.S.C. §§ 1371(a)(3)(B), 1372(b)(3). The MMPA defines the term " depleted" as " any case in which" (1) the Secretary " determines that a species or population stock is below its optimum sustainable population" ; (2) an authorized State makes the same determination; or (3) " a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973." Id. § 1362(1). Two provisions of the MMPA prohibit importation of species that have been designated as depleted. Section 101(a)(3)(B) provides that:
Except for scientific research purposes, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock as provided for in paragraph (1) of this subsection, or as provided for under paragraph (5) of this subsection, during the moratorium 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.
Id. § 1371(a)(3)(B). And section 102(b)(3) reads:
Except pursuant to a permit for scientific research, or for enhancing the survival or recovery of a species or stock,
issued under section 1374(c) of this title, it is unlawful to import into the United States any marine mammal if such mammal was ... 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....
Id. § 1372(b)(3).
On May 15, 2008, the Service published a rule listing the polar bear as a threatened species under the ESA. See Determination of Threatened Status for the Polar Bear (Ursus maritimus)...
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