In 2005, the Center for Biological Diversity petitioned the Secretary of the Interior and the Fish and Wildlife Service (FWS) to list the polar bear as threatened under the Endangered Species Act (ESA). After a three-year rulemaking process, the FWS determined that the polar bear faces a significant threat of extinction due to global climate change and thus classified it as a threatened species in May 2008. This decision was met with challenges from various industry groups, environmental organizations, and states, leading to a consolidated Multidistrict Litigation in the U.S. District Court for the District of Columbia. The District Court upheld the Listing Rule, granting summary judgment to the FWS and dismissing all challenges. Joint Appellants subsequently appealed, arguing that the Listing Rule was arbitrary and capricious under the Administrative Procedure Act (APA) due to alleged deficiencies in the rulemaking process. The appellate court's role is to assess whether the Listing Rule resulted from sound decision-making, emphasizing that the Appellants failed to identify specific errors in the agency's reasoning or present overlooked data or studies.
Appellants do not dispute the agency's findings regarding climate science or polar bear biology, but rather argue that the Fish and Wildlife Service (FWS) misinterpreted and misapplied the record. The court disagrees with this claim, adhering to the Supreme Court's principle that courts should not replace agency judgment in matters requiring technical expertise. The court finds that Appellants' arguments reflect differing opinions on policy and science, not legitimate legal challenges, thus affirming the District Court's judgment.
The excerpt also outlines the Endangered Species Act (ESA), established in 1973, aimed at conserving ecosystems for endangered and threatened species. Definitions are provided for "endangered species" and "threatened species," as well as the responsibilities of the Secretaries of Interior and Commerce regarding the maintenance of species lists. The ESA allows "interested persons" to petition for species listings based on specific factors affecting species survival. The FWS must base its listing decisions on the best scientific and commercial data available.
The background includes a specific case where the Center for Biological Diversity petitioned to list the polar bear as threatened due to climate change impacts. Following a comprehensive 262-page Status Review completed by FWS on December 21, 2006, the agency considered public and peer input before finalizing its decision.
On January 9, 2007, the Fish and Wildlife Service (FWS) proposed to list the polar bear (Ursus maritimus) as a threatened species, initiating a 90-day public comment period. The FWS collaborated with the U.S. Geological Survey (USGS) to gather and analyze scientific data, resulting in nine reports on polar bear population dynamics, habitat use, and sea ice conditions. The final Listing Rule was published on May 15, 2008, concluding that polar bears are likely to become endangered in the foreseeable future and should be listed as threatened.
The Listing Rule elaborates on the species' taxonomy, evolution, and population, noting that polar bears have evolved in sea ice habitats and are adapted to these environments. They primarily inhabit sea ice year-round, though some populations may utilize land during certain seasons. Polar bears prefer specific sea ice characteristics and are predominantly found in areas of high biological productivity, particularly near the continental shelf where prey accessibility is greater.
Worldwide, the polar bear population is estimated at 20,000-25,000, distributed across 19 relatively discrete populations rather than a single nomadic group. The boundaries of these populations have evolved from studies on movement patterns and genetic analysis, with research ongoing since the early 1970s. The Listing Rule adopts terminology from the World Conservation Union's Polar Bear Specialist Group to define these populations and their management units.
Telemetry studies indicate extensive movement overlap among individual polar bears, yet reveal spatial segregation among different groups or stocks across their circumpolar range. This research, combined with survey data, marking and tagging efforts, and traditional knowledge, has led to the identification of 19 relatively distinct polar bear populations. Genetic analyses confirm boundaries between certain populations while also acknowledging overlap among others.
The Listing Rule categorizes these 19 populations into four functional groups or "ecoregions"—Archipelago, Seasonal Ice, Divergent, and Convergent—based on their relationships to sea ice habitat and environmental changes, which aids in forecasting future population status.
The U.S. Fish and Wildlife Service (FWS) identified three key reasons for listing polar bears as a threatened species: (1) their reliance on sea ice for survival; (2) the ongoing decline of sea ice, with evidence indicating that this habitat loss threatens the species throughout its range and may lead to endangerment in the foreseeable future; and (3) climatic changes that continue to diminish the extent and quality of Arctic sea ice.
FWS cited statutory listing factors, including habitat destruction and inadequate regulatory mechanisms for species preservation. The agency's evaluation relied on extensive scientific literature, including reports from the Intergovernmental Panel on Climate Change (IPCC), which indicate a rapid and well-documented retreat of sea ice. Predictions suggest a seasonally ice-free Arctic by the mid-21st century, with current summer sea ice losses occurring significantly ahead of modeled projections.
FWS emphasized the crucial role of sea ice for polar bears, serving as a platform for hunting seals, breeding, and long-distance movements. The agency's findings are supported by peer-reviewed studies on polar bear biology, demographics, and population modeling.
Changes to the polar bear’s habitat due to declining sea ice are projected to threaten the species' existence, affecting the availability of ice seals, which are their primary prey. This loss will lead to increased nutritional stress, reduced reproductive success, and a decline in overall bear populations, with variations in impact across different populations. As a result, polar bears are likely to face the risk of extinction in the near future.
Following the Listing Rule's publication, multiple legal challenges were filed against the Fish and Wildlife Service (FWS). Some plaintiffs contended that the listing of polar bears as threatened was unwarranted due to a lack of foreseeable extinction risk, while others argued for an endangered status citing imminent extinction threats. These cases were consolidated into a Multidistrict Litigation. During an initial hearing on summary judgment motions, the District Court examined whether to apply a Chevron framework to review FWS's interpretation of endangered species classifications. The Court determined that FWS had incorrectly interpreted the definition of "endangered species" and remanded the Listing Rule back to the agency for a reassessment, recognizing the term as ambiguous.
In response, FWS submitted a memorandum asserting that the polar bear did not qualify for endangered status at the time of listing, although it acknowledged the species would likely become endangered in the foreseeable future. Subsequently, the District Court held another hearing and granted summary judgment in favor of FWS, concluding that the agency’s decision to list polar bears as threatened was not arbitrary or capricious. This decision is now being challenged by appellants, with several conservation groups intervening in support of FWS.
Appellants argue that the Fish and Wildlife Service (FWS) improperly applied statutory criteria in its listing decision regarding polar bears, claiming the agency ignored or misinterpreted the relevant record and failed to adequately explain its decision-making process. They raise several specific issues: inadequate linkage of habitat loss to extinction risk, reliance on a single range-wide determination, flawed population models, misapplication of the term "likely" in predicting endangerment, an inappropriate 45-year timeframe for the "foreseeable future," neglect of Canadian conservation efforts, and failure to adequately respond to comments from Alaska regarding the listing. The court finds these arguments unpersuasive.
The review standard applied is whether the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," as outlined in the Administrative Procedure Act (APA). Courts will uphold agency decisions if the agency considered relevant factors and provided a rational connection between the facts and its conclusions. The agency's Listing Rule is based on three key points: the polar bear's dependence on sea ice, the decline of sea ice, and the significant impact of climate change on Arctic sea ice, which the court finds reasonable and well-supported. The Listing Rule reflects a comprehensive analysis, with the majority of peer reviewers endorsing FWS's conclusions, despite one dissenting opinion expressing concerns about bias and potential negative impacts on Arctic Inuit communities.
Several of the Appellants' challenges to the Listing Rule are based on misinterpretations of the record and disregard for the explanations provided by the Fish and Wildlife Service (FWS). The District Court correctly noted that many arguments represent alternative viewpoints on policy and science, which the court defers to the agency on. The Appellants failed to present evidence that FWS overlooked any scientific studies or findings in formulating the Listing Rule. During oral arguments, Appellants’ counsel conceded that they did not claim FWS failed to utilize the best available scientific data, as mandated by 16 U.S.C. 1533(b)(1)(A). Instead, their disagreement centers on the implications of the data regarding the species' viability.
The court emphasized that when the agency's foundational premises are well-explained and uncontested, and the majority of scientific experts support the agency's conclusions, the court must uphold the agency’s determination. Consequently, the court affirmed the District Court's decision regarding the Listing Rule.
Addressing the Appellants' claims of arbitrary and capricious rulemaking, the court noted the Appellants argue that FWS inadequately justified how predicted habitat loss would lead to a significant population decline, potentially endangering the species within 45 years. They reference case law indicating that mere habitat loss does not automatically qualify a species for listing; rather, each case must be evaluated individually. However, the court found FWS had sufficiently explained the connection between habitat loss and the polar bear's endangerment, detailing how decreased sea ice affects food availability, increases drowning risks, and raises human-wildlife interactions. The agency analyzed demographic trends, particularly in the Western Hudson Bay population, which is declining due to lack of year-round sea ice. Experts predict that ongoing sea ice loss will severely impact polar bear reproduction and distribution, reinforcing FWS's conclusions and justifying the Listing Rule.
The agency's decision regarding the polar bear species differs significantly from the situation in Defenders of Wildlife. It provided a thorough explanation of how habitat loss could lead to endangerment for this species, articulating a clear rationale connecting the facts and decisions made. Although some Joint Appellants argue against the conclusion that the species is threatened throughout its range, pointing to specific ecoregions that are somewhat insulated from ice melt, the agency's analysis was comprehensive. The Archipelago and Convergent ecoregions have features that protect ice stability, resulting in less severe population declines compared to more vulnerable areas. However, the agency noted that these regions still face challenges, including changes in ice extent, lower prey productivity, increased competition among bears, and vulnerability to diseases and environmental disturbances.
Despite localized projections suggesting stability, FWS emphasized that accepted climate models predict widespread sea ice loss affecting all polar bear populations. The decline in Arctic sea ice is already evident, with record losses observed in 2007, which exceeded prior climate model predictions. The agency indicated that while some high-latitude areas might experience temporary improvements due to climate change, these will ultimately lead to reduced population numbers and distribution across the species' range.
FWS concluded that northern polar bear populations will likely face declines in demographic parameters akin to those observed in the Western Hudson Bay population due to projected sea ice losses, leading to potential extinction risk across their range. While some populations may persist into mid-century, this does not negate the decision to list the species as threatened instead of endangered. Appellants contend that FWS should have recognized Distinct Population Segments (DPS) under the Endangered Species Act. However, they do not challenge the underlying DPS Policy, which requires a sequential assessment of discreteness, significance, and conservation status of population segments. FWS evaluated the nineteen polar bear populations and four ecoregions against these criteria and found none met the DPS requirements. Specifically, while appellants cited differences among populations to argue for legal discreteness, FWS noted a lack of significant morphological or physiological differences and emphasized the overall similarity in habitat dependence and life history traits across the species.
FWS identified minimal genetic differences among polar bear populations, suggesting extensive intermixing due to large home ranges. Comment 51 of the Listing Rule emphasizes that the 19 identified populations should be viewed as a single Arctic population rather than discrete units. FWS acknowledged the fluidity of population boundaries, indicating that while some populations are distinct, others overlap, and these boundaries reflect functional management units based on usage patterns rather than rigid geographic limits. Consequently, FWS determined that the physiological and behavioral characteristics of polar bears do not justify distinguishing population segments under the DPS Policy.
Appellants contended that the polar bear’s range spans multiple Arctic countries with different management programs, which they argued satisfies the "international governmental boundaries" criterion. FWS countered that the global nature of threats to polar bears and the collective management efforts by range countries do not warrant using international boundaries to meet the discreteness requirement. The agency's decision to list the species across its entire range was found to be reasonable, not arbitrary or capricious.
Additionally, Appellants challenged FWS's reliance on two USGS-developed population models used to inform the Listing Rule. These models included a deterministic Carrying Capacity Model, which projected future polar bear numbers based on current densities and sea ice projections, and a Bayesian Network Model, which accounted for additional stressors affecting polar bears. Appellants cited limitations in these models as grounds for their argument against FWS's reliance on them.
Appellants criticize the U.S. Fish and Wildlife Service (FWS) for assuming that polar bear density will remain constant, a point USGS acknowledged as likely invalid. They also argue that the bear model (BM) was unreliable, as FWS described it as an "alpha" level prototype needing further development. While agencies may be deferred to regarding complex modeling, they are required to explain their assumptions and methodologies and to defend their models analytically if challenged. Appellants assert that FWS failed to provide this defense, but this claim lacks merit. The FWS outlined the models' methodologies in the Listing Rule and made the full Amstrup Report available for public comment. The Listing Rule recognized the limitations of the models and stated that they were used only to confirm existing population trend forecasts. This approach differs from previous cases where agencies did not sufficiently explain model shortcomings. Appellants contradict themselves by criticizing the models' reliability while also citing USGS’s assertion that FWS did not rely on them enough. Notably, USGS concluded that the models indicated a high likelihood of extinction for polar bears in certain ecoregions, suggesting the models supported a stronger position than FWS took. The claim that FWS ignored the models' limitations is false, as FWS acknowledged these limitations and justified its narrow reliance on the models to confirm trends based on other evidence. Finally, Appellants argue that FWS improperly applied the IPCC's definition of "likely" in its listing standard, but this claim remains unaddressed in the provided excerpt.
A threatened species is defined as one likely to become endangered in the foreseeable future across a significant part of its range, according to the Act (16 U.S.C. 1532(20)). The term “likely” lacks a specific definition in the Act or regulations, but the Intergovernmental Panel on Climate Change (IPCC) defines it as 67-to-90 percent certainty. Appellants argue that the U.S. Fish and Wildlife Service (FWS) applied the IPCC’s definition when assessing the polar bear's status. They reference a section in the Listing Rule where FWS acknowledges the IPCC’s probability terms in relation to climate forecasts. However, FWS’s mention of the IPCC appears limited to confidence in climate projections rather than the polar bear’s survival, as indicated by surrounding context focused on climate data. FWS contends it interpreted “likely” using its ordinary meaning rather than the IPCC standard, which aligns with statutory construction principles. Appellants also claim FWS acted arbitrarily by not applying any standard of “likelihood,” but the agency is permitted to use common language in rulemaking. FWS provided a reasoned determination of the species’ likelihood of becoming endangered, and no precedent exists to invalidate an Endangered Species Act listing due to the absence of a specialized definition for “likely.”
The Listing Rule's application of the term "likely" aligns with its common understanding, and the agency's actions were not deemed arbitrary or capricious. The Endangered Species Act defines a threatened species as one likely to become endangered within the "foreseeable future," which the FWS interprets on a case-by-case basis. In this instance, FWS deemed a 45-year period as the appropriate timeframe for foreseeability, supported by an analysis of scientific data regarding threats to the species, specifically the polar bear's loss of sea ice habitat. Appellants contested this definition but provided no legal basis for their alternative interpretation. They did not dispute the underlying data but rather FWS's interpretation, which was justified and clearly articulated. The FWS's approach was consistent with established climate models, which indicated reliable projections until mid-century. The appellate ruling concluded that FWS's decision did not ignore relevant factors or contradict the evidence, validating its chosen timeframe for foreseeability.
The agency's explanation for its decision is deemed plausible and rooted in its expertise, despite appellants' challenges to the U.S. Fish and Wildlife Service (FWS) regarding its assessment of polar bear biology and the 45-year foreseeability period. The agency's reliance on 30 climate projections sufficiently supports its foreseeability definition, even though polar bear biological factors were acknowledged but not used as the main basis for this determination.
Appellants argue that FWS failed to adequately consider Canada's polar bear conservation efforts when deciding on species listing under the Endangered Species Act (ESA). Their argument is inconsistent; they suggest that these foreign efforts should influence the agency's evaluation of the best available scientific data and potentially mitigate the need for listing due to domestic habitat destruction. However, FWS's Listing Rule references Canadian conservation measures, concluding that there are no effective regulatory mechanisms to address the primary threat of sea ice habitat loss. This indicates that FWS considered relevant factors and provided a rational basis for its decision.
Additionally, appellants claim an independent obligation for FWS to account for foreign conservation efforts beyond the five factors outlined in the ESA. FWS addressed concerns about potential negative impacts of listing on Canadian polar bear management, highlighting that benefits have arisen from amendments to the Marine Mammal Protection Act, which allows U.S. citizens to import trophies from sport-harvested polar bears in approved Canadian populations.
Economic benefits from the importation of polar bear trophies include revenue for native hunters and communities, funding for research, a conservation fund for the Chukchi Sea population, and local support for conservation programs. Despite these benefits, the U.S. Fish and Wildlife Service (FWS) is mandated to list a species as endangered or threatened when scientific evidence warrants it, regardless of the economic implications. The cessation of the import provision under Section 104(c)(5) of the Marine Mammal Protection Act (MMPA) does not factor into the listing decision. The benefits from the import program do not mitigate the threats to polar bears from habitat loss due to sea ice reduction.
Regarding the State of Alaska's claim that the FWS failed to provide adequate written justification under Section 4(i) of the Endangered Species Act, the agency did respond to Alaska's comments with a detailed 45-page letter. Alaska contends this response was insufficient, but the court supports the FWS’s compliance with Section 4(i), asserting that the Act does not specify the exact content required for a written justification. The FWS's response was deemed adequate under the regulatory framework, as the agency's interpretation aligns with the statutory requirements and effectively addressed Alaska's concerns.
The excerpt addresses the rejection of the State agency's position by the federal agency, emphasizing the requirement for adequate justification in accordance with Section 4(i) of the Endangered Species Act. The federal agency, referred to as FWS, is not held to a strict standard for justifications; rather, it must inform state agencies of the basis for actions diverging from state recommendations. The court notes that FWS’s interpretation of regulations does not warrant deference if it merely paraphrases statutory language, referencing the Supreme Court decisions in Gonzales v. Oregon and others.
The court finds FWS’s response to Alaska's objections reasonable and respectful, indicating that FWS adequately addressed state concerns in its 45-page response, despite Alaska’s dissatisfaction with the substance of the response. Alaska's arguments focus on the content of FWS's justification rather than its timeliness. Section 4(i) is interpreted as a procedural requirement allowing states to voice concerns rather than ensuring satisfaction with responses. The court affirms that FWS fulfilled its obligations under Section 4(i) and that substantive challenges to the Listing Rule should be pursued separately. The judgment of the District Court is affirmed.
