Endangered Species Law & Policy

On October 17, 2011, U.S. District Judge Sullivan issued two opinions in the Polar Bear litigation previously blogged about here.  In the first opinion (pdf), Judge Sullivan held that the U.S. Fish & Wildlife Service violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) without conducting an environmental assessment. 

As previously reported here, the 4(d) rule for the polar bear sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Earlier this year, Judge Sullivan upheld the Service's definition of "endangered" and its decision to list the polar bear as threatened.

Until the Service completes its analysis of the 4(d) rule under NEPA, an interim 4(d) rule issued in May 2008 remains in place.  Because the interim rule has the same effect as the final rule, the polar bear will continue to receive the same protections.

In the second opinion (pdf), Judge Sullivan held that the Service did not abuse its discretion when it determined that the polar bear is a "depleted" species under the Marine Mammal Protection Act (MMPA), and therefore sport-hunted polar bear trophies are not eligible for importation.

The Court also held that the Service did not abuse its discretion when it refused to process applications to import sport-hunted trophy polar bears that were pending at the time the Service determined that the species is depleted.   The Service stopped processing the applications because it determined that the applicants had not established that importing sport-hunted trophies would "enhance" the status of the polar bear by increasing the population or otherwise contributing to the recovery of the species.  Thus, the applications do not qualify for an exception to the MMPA's general ban on importing sport-hunted trophies of depleted marine mammals.

Excerpt from the NEPA opinion:

Plaintiffs argue that the Service purposely and unlawfully crafted its Special Rule in such a way as to avoid addressing this threat, in contravention of the ESA’s conservation mandate.

The Court understands plaintiffs’ frustration.  However, as this Court has previously observed, climate change poses unprecedented challenges of science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science.  See In re Polar Bear, 2011 U.S. Dist. LEXIS 70172, at *9-11.  Here, the Service concluded based on the evidence before it that Section 4(d) of the ESA is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and plaintiffs have offered no compelling evidence to the contrary.

Excerpts from the MMPA opinion:

[T]he 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.

[ . . . ]

[T]he 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.

[ . . . ]

[T]he 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.