794 F.Supp.2d 65 (D.D.C. 2011), Misc. 08-764 (EGS), In re Polar Bear Endangered Species Act Listing and

Docket Nº:Misc. 08-764 (EGS).
Citation:794 F.Supp.2d 65
Opinion Judge:EMMET G. SULLIVAN, District Judge.
Party Name:In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND
Attorney:Anna Margo Seidman, Safari Club International, John C. Martin, Crowell & Moring LLP, Benjamin Ellison, Patton Boggs, LLP, Michael B. Wigmore, Bingham McCutchen LLP, Benjamin Longstreth, Natural Resources Defense Council, Jason C. Rylander, Defenders of Wildlife, Howard M. Crystal, Meyer Glitzenst...
Case Date:June 30, 2011
Court:United States District Courts, District of Columbia
 
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794 F.Supp.2d 65 (D.D.C. 2011)

In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(d) RULE LITIGATION.

This Document Relates To:

Ctr. for Biological Diversity, et al. v. Salazar, 1 et al., No. 08-2113; State of Alaska v. Salazar, et al., No. 08-1352; Safari Club Int'l, et al. v. Salazar, et al., No. 08-1550; California Cattlemen's Ass'n, et al. v. Salazar, et al., No. 08-1689; Conservation Force, et al. v. Salazar, et al., No. 09-245.

Misc. No. 08-764 (EGS).

MDL Docket No. 1993.

United States District Court, District of Columbia.

June 30, 2011

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Anna Margo Seidman, Safari Club International, John C. Martin, Crowell & Moring LLP, Benjamin Ellison, Patton Boggs, LLP, Michael B. Wigmore, Bingham McCutchen LLP, Benjamin Longstreth, Natural Resources Defense Council, Jason C. Rylander, Defenders of Wildlife, Howard M. Crystal, Meyer Glitzenstein & Crystal, Washington, DC, Bradley E. Meyen, Assistant Attorney General, Department of Law, Anchorage, AK, Craig D. Galli, Holland & Hart LLP, Salt Lake City, UT, M. Reed Hopper, Theodore Hadzi-Antich, Damien M. Schiff, Pacific Legal Foundation, Sacramento, CA, Murray D. Feldman, Holland & Hart LLP, Boise, ID, Brendan R. Cummings, Kassia R. Siegel, Joshua Tree, CA, Andrew Elsas Wetzler, Rebecca Riley, Natural Resources Defense Council, Inc., Chicago, IL, John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Guillermo A. Montero, Kristen Byrnes Floom, Clifford Eugene Stevens, Jr., Meredith L. Flax, Robert Pendleton Williams, Hao-Chin Hubert Yang, Erik Edward Petersen, Department of Justice, John F. Cooney, Margaret N. Strand, Venable, LLP, Rachel D. Gray, Roger R. Martella, Jr., Thomas G. Echikson, Sidley Austin LLP, Washington, DC, Jeffrey M. Feldman, Kevin M. Cuddy, Feldman Orlansky & Sanders, Anchorage, AK, for Defendants.

Douglas Scott Burdin, Safari Club International, Thomas Richard Lundquist, Crowell & Moring LLP, Washington, DC, for Plaintiffs and Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

In May 2008, the U.S. Fish and Wildlife Service (" FWS" or " the Service" ) issued its final rule listing the polar bear as a " threatened species" under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear ( Ursus maritimus ) Throughout Its Range, 73 Fed.Reg. 28,212 (May 15, 2008) (the " Listing Rule" ). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act (" ESA" or " the Act" ), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act (" APA" ), 5 U.S.C. §§ 551-559, 701-706, claiming that the Service's decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties' cross-motions for summary judgment.

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly

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developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed. Indeed, it is not this Court's role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the Supreme Court and by this Circuit, the full extent of the Court's authority in this case is to determine whether the agency's decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency's listing determination rises to the level of irrationality. In the Court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs' or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.

In sum, having carefully considered plaintiffs' motions, the federal defendants' and defendant-intervenors' cross-motions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court's November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service's decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency's discretion based upon the facts and the best available science as of 2008 when the agency made its

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listing determination. Accordingly, the Court hereby DENIES plaintiffs' motions for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.

TABLE OF CONTENTS
INTRODUCTION 68
TABLE OF CONTENTS 70
I. BACKGROUND 71
A. Statutory Background 71
B. Factual and Procedural Background 72
II. STANDARD OF REVIEW 79
III. DISCUSSION 81
A. The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing 82
1. Plaintiff CBD's Claim that the Polar Bear Should Have Been Considered Endangered at the Time of Listing 82
a. The Service's Findings 82
b. Plaintiff CBD's Arguments 85
c. The Court's Analysis 87
i. Standard of Review on Remand 87
ii. Merits 89
2. Joint Plaintiffs' Claim that the Polar Bear Should Not Have Been Considered Threatened at the Time of Listing 90
a. Joint Plaintiffs' Argument that the Service Failed to Demonstrate that the Polar Bear Is 67-90% Likely to Become Endangered 91
b. Joint Plaintiffs' Argument that the Service Arbitrarily Selected 45 Years As the " Foreseeable Future" Timeframe for the Polar Bear 93
B. The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualifies As a " Distinct Population Segment" 96
1. The Service's Policy 97
2. Plaintiffs CBD, SCI, and CF's Claim that the Service Wrongly Concluded that No Polar Bear Population or Ecoregion Is " Discrete" 98
3. The Court's Analysis 100
C. The Service Did Not Arbitrarily Fail to Consider Other Listing Factors 101
1. Joint Plaintiffs' Claim that the Service Failed to " Take Into Account" Foreign Conservation Efforts to Protect the Polar Bear 101
2. Joint Plaintiffs' Claim that the Service Failed to Rely upon the " Best Available Science" 104
a. Joint Plaintiffs' Argument that Climate Science Is Too Uncertain to Support the Service's Conclusion 104
b. Joint Plaintiffs' Argument that the USGS Population Models Do Not Support the Service's Conclusion 106
c. Joint Plaintiffs' Argument that the Service Ignored Scientific Data and Made Improper Findings Regarding the Southern Beaufort Sea Population 108
3. Plaintiff CBD's Claim that the Service Failed to Consider Whether the Threat of Overutilization Warranted Listing the Polar Bear As Endangered (" Listing Factor B" ) 110
4. Joint Plaintiffs' Claim that the Service Wrongly Concluded that Existing Regulatory Mechanisms Will Not Protect Polar Bears despite Anticipated
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