IN RE POLAR BEAR ENDANGERED SPECIES ACT … · IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING65...

65IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTINGCite as 794 F.Supp.2d 65 (D.D.C. 2011)

V. CONCLUSIONFor the reasons set forth above, the

Court will grant the SSA’s [9] Motion forSummary Judgment in its entirety.Crummey’s [14] Motion to File a Surreplywill be denied. Crummey’s [19] SecondMotion for Judicial Notice will be granted-in-part and denied-in-part; specifically, themotion will be granted insofar as Crum-mey asks this Court to take into accountthe materials and authorities cited in hismotion, and the motion will be denied tothe extent Crummey seeks to supplementhis arguments in opposition to the SSA’sMotion for Summary Judgment. Finally,this action will be dismissed in its entirety.An appropriate Order accompanies thisMemorandum Opinion.

,

In re POLAR BEAR ENDANGEREDSPECIES 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 ofAlaska v. Salazar, et al., No. 08-1352;Safari Club Int’l, et al. v. Salazar, etal., No. 08-1550; California Cattle-men’s Ass’n, et al. v. Salazar, et al.,No. 08–1689; Conservation Force, etal. 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.Background: Environmental organiza-tions and others brought separate actions

challenging Fish and Wildlife Service’s(FWS) decision to list polar bear as threat-ened under Endangered Species Act(ESA). Actions were consolidated, and par-ties cross-moved for summary judgment.

Holdings: The District Court, Emmet G.Sullivan, J., held that:

(1) FWS’s determination that polar bearswere not endangered at time of listingwas not arbitrary and capricious;

(2) use by FWS of ‘‘foreseeable future’’timeframe of 45 years over which polarbear was likely to become endangeredwas not arbitrary and capricious;

(3) FWS reasonably declined to designateany polar bear population or ecoregionas a distinct population segment (DPS)under ESA; and

(4) FWS properly ‘‘took into account’’ for-eign conservation efforts to protectbears.

Government’s motion granted.

1. Administrative Law and ProcedureO754.1, 763

In order for court to make findingthat federal agency action was ‘‘arbitrary,capricious, an abuse of discretion, or other-wise not in accordance with law,’’ in viola-tion of Administrative Procedure Act(APA), the court must determine whetherthe agency considered the factors relevantto its decision and articulated a rationalconnection between the facts found and thechoice made. 5 U.S.C.A. § 706(2)(A).

2. Administrative Law and ProcedureO759, 760

In reviewing agency action under theAdministrative Procedure Act (APA), the

1. Pursuant to Fed.R.Civ.P. 25(d), InteriorSecretary Ken Salazar is automatically substi-tuted as a defendant for his predecessor, Dirk

Kempthorne, who was sued in his officialcapacity.

66 794 FEDERAL SUPPLEMENT, 2d SERIES

court is not empowered to substitute itsjudgment for that of the agency, and def-erence to the agency’s judgment is particu-larly appropriate where the decision atissue requires a high level of technicalexpertise. 5 U.S.C.A. § 551 et seq.

3. Administrative Law and ProcedureO676, 763

Administrative action must be invali-dated as arbitrary, in violation of Adminis-trative Procedure Act (APA), where theagency relied on factors which Congresshas not intended it to consider, entirelyfailed to consider an important aspect ofthe problem, offered an explanation for itsdecision that runs counter to the evidencebefore the agency, or is so implausible thatit could not be ascribed to a difference inview or the product of agency expertise,and determination must be made solely onbasis of record before the agency when itmade its decision. 5 U.S.C.A. § 551 etseq.

4. Statutes O219(2)In determining, under Chevron analy-

sis, whether a statute unambiguously ex-presses the intent of Congress, courtshould use all the traditional tools of statu-tory construction, including looking to thetext and structure of the statute, as well asits legislative history, if appropriate.

5. Statutes O219(1)An agency statutory interpretation

qualifies for Chevron review when it meetstwo requirements: (1) when it appears thatCongress delegated authority to the agen-cy generally to make rules carrying theforce of law, and (2) the agency interpreta-tion claiming deference was promulgatedin the exercise of that authority.

6. Environmental Law O528Conclusion of Fish and Wildlife Ser-

vice (FWS), in listing polar bear as‘‘threatened species’’ under Endangered

Species Act (ESA), that bear was not en-dangered at time of listing was not arbi-trary and capricious; ESA weighed avail-able facts and scientific information beforeit, and complied with remand order toprovide additional explanation for its origi-nal ‘‘threatened’’ listing. 5 U.S.C.A. § 706;Endangered Species Act of 1973, § 2 etseq., 16 U.S.C.A. § 1531 et seq.

7. Environmental Law O528

Fish and Wildlife Service (FWS), inlisting polar bear as ‘‘threatened species’’under Endangered Species Act (ESA), didnot adopt numerical standard of probabili-ty in determining whether polar bear was‘‘likely’’ to become endangered; lone state-ment in rule, that it attempted to use termin manner consistent with its use by Inter-national Panel on Climate Change (IPCC),did not demonstrate FWS’s intent to adoptIPCC’s numerical standards for all pur-poses, and FWS used terms ‘‘likely’’ and‘‘very likely’’ interchangeably throughoutrule. Endangered Species Act of 1973,§ 3(20), 16 U.S.C.A. § 1532(20).

8. Environmental Law O528

Use by Fish and Wildlife Service(FWS), in listing polar bear as ‘‘threatenedspecies’’ under Endangered Species Act(ESA), of ‘‘foreseeable future’’ timeframeof 45 years over which polar bear waslikely to become endangered was not arbi-trary and capricious in violation of Admin-istrative Procedure Act (APA); agency suf-ficiently explained its decision was basedon life-history and population dynamics ofpolar bears, annual sea ice, and directionof projected rates of change of sea ice infuture decades, climate change projectionsfound in International Panel on ClimateChange Fourth Assessment Report (IPCCAR4) were primary basis for FWS’s deter-mination of foreseeable future timeframe,and FWS took all relevant listing factorsinto account and considered whether fac-


tors would affect likelihood polar bearwould become endangered within foresee-able future. 5 U.S.C.A. § 706; Endan-gered Species Act of 1973, § 3(20), 16U.S.C.A. § 1532(20).

9. Environmental Law O528The Fish and Wildlife Service (FWS)

may designate a ‘‘distinct population seg-ment’’ (DPS) to avoid listing an entirespecies as endangered, where only a por-tion of its population warrants protectionunder Endangered Species Act (ESA).Endangered Species Act of 1973, § 3(16),16 U.S.C.A. § 1532(16).

10. Environmental Law O528Fish and Wildlife Service (FWS), in

listing polar bear as ‘‘threatened species’’under Endangered Species Act (ESA),reasonably declined to designate any polarbear population or ecoregion as a distinctpopulation segment (DPS) under ESA; al-though there were some recognized differ-ences among polar bear ecoregions andeven some differences from population topopulation, FWS determined bears wereuniversally similar in their dependence onsea ice habitat and negative response toloss of that habitat. 5 U.S.C.A. § 706;Endangered Species Act of 1973, § 3(16),16 U.S.C.A. § 1532(16).


listing polar bear as ‘‘threatened species’’under Endangered Species Act (ESA),properly ‘‘took into account’’ foreign con-servation efforts to protect bears; as partof its analysis of listing, FWS discussedharvest management programs in each ofrange countries along with relevant con-servation benefits of programs, addressedconservation and economic benefits of po-lar bear sport-hunting programs, and enu-merated the regulatory mechanisms thatgoverned polar bears in each of rangecountries, including bilateral and multilat-

eral agreements and overarching interna-tional frameworks that governed manage-ment of polar bear range-wide. 5 U.S.C.A.§ 706; Endangered Species Act of 1973,§ 4(b)(1)(A), 16 U.S.C.A. § 1533(b)(1)(A).


listing polar bear as ‘‘threatened species’’under Endangered Species Act (ESA),properly relied on ‘‘best available science’’relating to future global climate changeand impact of any such change on Arcticecosystem and on bear, in making its list-ing decision; in addition, FWS took stepsto reduce uncertainty to extent feasible. 5U.S.C.A. § 706; Endangered Species Actof 1973, § 4(b)(1)(A), 16 U.S.C.A.§ 1533(b)(1)(A).

13. Statutes O219(1)An agency is entitled to particular

deference in its interpretation of a statutewhere it has drawn conclusions from scien-tific data.


listing polar bear as ‘‘threatened species’’under Endangered Species Act (ESA),reasonably concluded that polar bear wasnot endangered at time of listing, takingthreat of future habitat losses in combina-tion with threat of overharvest into ac-count; FWS expressly considered only ex-isting mechanisms in making its listingdetermination. 5 U.S.C.A. § 706; Endan-gered Species Act of 1973, § 4(a)(1), 16U.S.C.A. § 1533(a)(1); 50 C.F.R.§ 424.11(c).


listing polar bear as ‘‘threatened species’’under Endangered Species Act (ESA),properly complied with ESA provision re-quiring it to provide written justificationfor its failure to adopt regulations consis-


tent with Alaska’s comments, which disa-greed with FWS’s proposed listing rule;FWS responded in writing to two sets ofcomments from Alaska, and specifically ad-dressed each of issues identified by Alaska,both in its response letter and in responseto comments that appeared in listing ruleitself. 5 U.S.C.A. § 706; Endangered Spe-cies Act of 1973, § 4(i), 16 U.S.C.A.§ 1533(i).

Anna Margo Seidman, Safari Club In-ternational, John C. Martin, Crowell &Moring LLP, Benjamin Ellison, PattonBoggs, LLP, Michael B. Wigmore, Bing-ham McCutchen LLP, Benjamin Long-streth, Natural Resources Defense Coun-cil, Jason C. Rylander, Defenders ofWildlife, Howard M. Crystal, Meyer Glit-zenstein & Crystal, Washington, DC,Bradley E. Meyen, Assistant AttorneyGeneral, 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, Sacra-mento, CA, Murray D. Feldman, Holland& Hart LLP, Boise, ID, Brendan R.Cummings, Kassia R. Siegel, JoshuaTree, CA, Andrew Elsas Wetzler, Rebec-ca Riley, Natural Resources DefenseCouncil, Inc., Chicago, IL, John J. Jack-son, III, Conservation Force, Metairie,LA, for Plaintiffs.

Guillermo A. Montero, Kristen ByrnesFloom, Clifford Eugene Stevens, Jr., Mer-edith L. Flax, Robert Pendleton Williams,Hao-Chin Hubert Yang, Erik Edward Pet-ersen, Department of Justice, John F.Cooney, Margaret N. Strand, Venable,LLP, Rachel D. Gray, Roger R. Martella,Jr., Thomas G. Echikson, Sidley AustinLLP, Washington, DC, Jeffrey M. Feld-man, Kevin M. Cuddy, Feldman Orlansky

& Sanders, Anchorage, AK, for Defen-dants.

Douglas Scott Burdin, Safari Club Inter-national, Thomas Richard Lundquist, Cro-well & Moring LLP, Washington, DC, forPlaintiffs and Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, DistrictJudge.

In May 2008, the U.S. Fish and WildlifeService (‘‘FWS’’ or ‘‘the Service’’) issuedits final rule listing the polar bear as a‘‘threatened species’’ under the Endan-gered Species Act of 1973. See Determi-nation of Threatened Status for the PolarBear (Ursus maritimus ) Throughout ItsRange, 73 Fed.Reg. 28,212 (May 15, 2008)(the ‘‘Listing Rule’’). The Service conclud-ed that the polar bear is likely to becomeendangered within the foreseeable futurebecause of anticipated impacts to its seaice habitat from increasing Arctic tempera-tures, which have been attributed to globalgreenhouse gas emissions and related at-mospheric changes. Numerous plaintiffshave challenged the Listing Rule underthe Endangered Species Act (‘‘ESA’’ or‘‘the Act’’), 16 U.S.C. §§ 1531–1544, andthe Administrative Procedure Act(‘‘APA’’), 5 U.S.C. §§ 551–559, 701–706,claiming that the Service’s decision to listthe polar bear as a threatened species wasarbitrary and capricious and an abuse ofagency discretion. Pending before theCourt are the parties’ cross-motions forsummary judgment.

As the briefing in this case makes clear,the question of whether, when, and how tolist the polar bear under the ESA is auniquely challenging one. The three-yeareffort by FWS to resolve this questionrequired agency decision-makers and ex-perts not only to evaluate a body of sciencethat is both exceedingly complex and rap-


idly developing, but also to apply that sci-ence in a way that enabled them to makereasonable predictions about potential im-pacts over the next century to a speciesthat spans international boundaries. Inthis process, the Service considered over160,000 pages of documents and approxi-mately 670,000 comment submissions fromstate and federal agencies, foreign govern-ments, Alaska Native Tribes and tribalorganizations, federal commissions, localgovernments, commercial and trade organ-izations, conservation organizations, non-governmental organizations, and privatecitizens. In addition to relying on its ownexperts, the agency also consulted a num-ber of impartial experts in a variety offields, including climate scientists and po-lar bear biologists.

In view of these exhaustive administra-tive proceedings, the Court is keenlyaware that this is exactly the kind of deci-sion-making process in which its role isstrictly circumscribed. Indeed, it is notthis Court’s role to determine, based on itsindependent assessment of the scientificevidence, whether the agency could havereached a different conclusion with regardto the listing of the polar bear. Rather, asmandated by the Supreme Court and bythis Circuit, the full extent of the Court’sauthority in this case is to determinewhether the agency’s decision-making pro-cess and its ultimate decision to list thepolar bear as a threatened species satisfycertain minimal standards of rationalitybased upon the evidence before the agencyat that time.

For the reasons set forth below, theCourt is persuaded that the Listing Rulesurvives this highly deferential standard.After careful consideration of the numer-ous objections to the Listing Rule, theCourt finds that plaintiffs have failed todemonstrate that the agency’s listing de-termination rises to the level of irrational-

ity. In the Court’s opinion, plaintiffs’challenges amount to nothing more thancompeting views about policy and science.Some plaintiffs in this case believe thatthe Service went too far in protecting thepolar bear; others contend that the Ser-vice did not go far enough. According tosome plaintiffs, mainstream climate sci-ence shows that the polar bear is alreadyirretrievably headed toward extinctionthroughout its range. According to oth-ers, climate science is too uncertain tosupport any reliable predictions about thefuture of polar bears. However, thisCourt is not empowered to choose amongthese competing views. Although plain-tiffs have proposed many alternative con-clusions that the agency could have drawnwith respect to the status of the polarbear, the Court cannot substitute eitherthe plaintiffs’ or its own judgment for thatof the agency. Instead, this Court isbound to uphold the agency’s determina-tion that the polar bear is a threatenedspecies as long as it is reasonable, regard-less of whether there may be other rea-sonable, or even more reasonable, views.That is particularly true where, as here,the agency is operating at the frontiers ofscience.

In sum, having carefully consideredplaintiffs’ motions, the federal defendants’and defendant-intervenors’ cross-motions,the oppositions and replies thereto, varioussupplemental briefs, the supplemental ex-planation prepared by FWS in response tothis Court’s November 4, 2010 remand or-der, arguments of counsel at a motionshearing held on February 23, 2011, therelevant law, the full administrative rec-ord, and for the reasons set forth below,the Court finds that the Service’s decisionto list the polar bear as a threatened spe-cies under the ESA represents a reasonedexercise of the agency’s discretion basedupon the facts and the best available sci-ence as of 2008 when the agency made its


listing determination. Accordingly, theCourt hereby DENIES plaintiffs’ motionsfor summary judgment and GRANTS the

federal defendants’ and defendant-interve-nors’ motions for summary judgment.

TABLE OF CONTENTS INTRODUCTIONTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT68TABLE OF CONTENTSTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT70

I. BACKGROUND TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT71A. Statutory Background TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT71B. Factual and Procedural Background TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT72

II. STANDARD OF REVIEW TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT79III. DISCUSSION TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT81

A. The Service Articulated a Rational Basis for Its Conclusion that the PolarBear Met the Definition of a Threatened Species at the Time of ListingTTTTTT82

1. Plaintiff CBD’s Claim that the Polar Bear Should Have BeenConsidered Endangered at the Time of Listing TTTTTTTTTTTTTTTTTTTTTTTT82

a. The Service’s Findings TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT82b. Plaintiff CBD’s Arguments TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT85c. The Court’s Analysis TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT87

i. Standard of Review on RemandTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT87ii. MeritsTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT89

2. Joint Plaintiffs’ Claim that the Polar Bear Should Not Have BeenConsidered Threatened at the Time of Listing TTTTTTTTTTTTTTTTTTTTTTTTT90

a. Joint Plaintiffs’ Argument that the Service Failed to Demonstratethat the Polar Bear Is 67–90% Likely to Become EndangeredTTTTTT91

b. Joint Plaintiffs’ Argument that the Service Arbitrarily Selected45 Years As the ‘‘Foreseeable Future’’ Timeframe for the PolarBear TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT93

B. The Service Articulated a Rational Basis for Its Conclusion that No PolarBear Population or Ecoregion Qualifies As a ‘‘Distinct PopulationSegment’’ TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT96

1. The Service’s PolicyTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT972. Plaintiffs CBD, SCI, and CF’s Claim that the Service Wrongly

Concluded that No Polar Bear Population or Ecoregion Is‘‘Discrete’’ TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT98

3. The Court’s Analysis TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT100C. The Service Did Not Arbitrarily Fail to Consider Other Listing FactorsTTTTT101

1. Joint Plaintiffs’ Claim that the Service Failed to ‘‘Take Into Account’’Foreign Conservation Efforts to Protect the Polar Bear TTTTTTTTTTTTTTT101

2. Joint Plaintiffs’ Claim that the Service Failed to Rely upon the ‘‘BestAvailable Science’’ TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT104

a. Joint Plaintiffs’ Argument that Climate Science Is Too Uncertainto Support the Service’s Conclusion TTTTTTTTTTTTTTTTTTTTTTTTTTTTT104

b. Joint Plaintiffs’ Argument that the USGS Population Models DoNot Support the Service’s ConclusionTTTTTTTTTTTTTTTTTTTTTTTTTTTT106

c. Joint Plaintiffs’ Argument that the Service Ignored ScientificData and Made Improper Findings Regarding the SouthernBeaufort Sea Population TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT108

3. Plaintiff CBD’s Claim that the Service Failed to Consider Whetherthe Threat of Overutilization Warranted Listing the Polar Bear AsEndangered (‘‘Listing Factor B’’) TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT110


4. Joint Plaintiffs’ Claim that the Service Wrongly Concluded thatExisting Regulatory Mechanisms Will Not Protect Polar Bearsdespite Anticipated Habitat Losses (‘‘Listing Factor D’’) TTTTTTTTTTTTTTT112

D. The Service Followed Proper Rulemaking Procedures TTTTTTTTTTTTTTTTTTTTTT1131. Plaintiff Alaska’s Claim that the Service Violated Section 4(i) of the

ESA by Failing to Provide a Sufficient ‘‘Written Justification’’ inResponse to CommentsTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT114

2. Plaintiff CF’s Claim that the Service Failed to Respond to SignificantComments TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT116

IV. CONCLUSION TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT116

I. BACKGROUND

A. Statutory Background

Congress enacted the ESA ‘‘to provide ameans whereby the ecosystems uponwhich endangered species and threatenedspecies depend may be conserved, [and] toprovide a program for the conservation ofsuch endangered species and threatenedspecies.’’ 2 16 U.S.C. § 1531(b). An ‘‘en-dangered species’’ is ‘‘any species which isin danger of extinction throughout all or asignificant portion of its range.’’ Id.§ 1532(6). A ‘‘threatened species’’ is ‘‘anyspecies which is likely to become an endan-gered species within the foreseeable futurethroughout all or a significant portion ofits range.’’ Id. § 1532(20). The term‘‘species’’ is defined in the Act to includespecies, subspecies, and ‘‘any distinct pop-ulation segment of any species of verte-brate fish or wildlife which interbreedswhen mature.’’ Id. § 1532(16).

The ESA requires the Secretary of theInterior to publish and maintain a list ofall species that have been designated as

threatened or endangered. Id. § 1533(c).Species are added to and removed fromthis list after notice and an opportunity forpublic comment, either on the initiative ofthe Secretary or as a result of a petitionsubmitted by an ‘‘interested person.’’ Id.§§ 1533(b)(1), (3), (5). The Secretary ofthe Interior and the Secretary of Com-merce are responsible for making listingdecisions.3 Id. §§ 1532(15), 1533(a)(2).The Secretary of the Interior has jurisdic-tion over the polar bear. See 50 C.F.R.§ 402.01(b).

A listing determination is made on thebasis of one or more of five statutorilyprescribed factors:

(a) the present or threatened destruc-tion, modification, or curtailment ofthe species’ habitat or range;

(b) overutilization for commercial, recre-ational, scientific, or educational pur-poses;

(c) disease or predation;

(d) the inadequacy of existing regulato-ry mechanisms; or

2. Under the conservation program establishedby the ESA, a designation of ‘‘endangered’’triggers a broad range of protections, includ-ing a prohibition on ‘‘taking’’ individual mem-bers of the species. See 16 U.S.C.§ 1538(a)(1)(B); see also id. § 1532(19) (de-fining the term ‘‘take’’ to mean ‘‘harass,harm, pursue, hunt, shoot, wound, kill, trap,capture, or collect, or to attempt to engage inany such conduct’’). The Act authorizes theSecretary to extend these prohibitions, inwhole or in part, to threatened species as

well. Id. § 1533(d). In addition, the Secre-tary shall ‘‘issue such regulations as he deemsnecessary and advisable to provide for theconservation of [threatened] species.’’ Id.

3. The Secretary of the Interior has delegatedhis responsibilities under the Act to FWS.See 50 C.F.R. § 402.01(b). The Secretary ofCommerce has delegated his responsibilitiesunder the Act to the National Marine Fisher-ies Service (‘‘NMFS’’). See id.


(e) other natural or manmade factorsaffecting the species’ continued exis-tence.

16 U.S.C §§ 1533(a)(1)(A)-(E); see also 50C.F.R. § 424.11(c). The agency must lista species if ‘‘any one or a combination’’ ofthese factors demonstrates that the spe-cies is threatened or The Secretary of theInterior has delegated his responsibilitiesunder the Act to FWS. See 50 C.F.R.§ 402.01(b). The Secretary of Commercehas delegated his responsibilities underthe Act to the National Marine FisheriesService (‘‘NMFS’’). See id. endangered.50 C.F.R. § 424.11(c).

The ESA further provides that the deci-sion to list a species must be made

solely on the basis of the best scientificand commercial data available TTT afterconducting a review of the status of thespecies and after taking into accountthose efforts, if any, being made by anyState or foreign nation, or any politicalsubdivision of a State or foreign nation,to protect such speciesTTTT

16 U.S.C. § 1533(b)(1)(A).

B. Factual and Procedural Back-ground

Polar bears are marine mammals thatare described as ‘‘ice-obligate,’’ meaning

that they are evolutionarily adapted to,and indeed completely reliant upon, sea icefor their survival and primary habitat.ARL 117259.4 They depend upon sea icefor critical functions such as hunting ice-dependent seals (their primary source offood), migrating between feeding areasand land-based maternity dens, and travel-ing long distances in search of mates orfood. ARL 139259. Over most of theirrange, polar bears remain on the ice year-round. ARL 139245. The internationalPolar Bear Specialist Group—the authori-tative source for information on theworld’s polar bears—has identified nine-teen polar bear populations located withinfive countries in the ice-covered regions ofthe Northern Hemisphere: the UnitedStates (in Alaska), Canada, Denmark (inGreenland), Norway, and Russia.5 ARL117216–17, 117219.

On February 16, 2005, the Center forBiological Diversity submitted a petition tothe Secretary of the Interior to list thepolar bear as a threatened species underthe ESA due to observed and anticipateddeclines in the Arctic sea ice upon whichthe polar bear relies for survival. Seegenerally ARL 4040–4209. FWS ultimate-ly issued a final rule listing the polar bearas a threatened species on May 15, 2008.6

4. The facts in this background section areexcerpted from the administrative record forthe Listing Rule. Citations to the administra-tive record for the Listing Rule are abbreviat-ed ‘‘ARL.’’

5. These nineteen populations are generallyidentified by their geographical location: Arc-tic Basin, Baffin Bay, Barents Sea, ChukchiSea, Davis Strait, East Greenland, Foxe Ba-sin, Gulf of Boothia, Kane Basin, Kara Sea,Lancaster Sound, Laptev Sea, M’ClintockChannel, Northern Beaufort Sea, NorwegianBay, Southern Beaufort Sea, Southern Hud-son Bay, Western Hudson Bay, and ViscountMelville Sound. ARL 117220, Figure 1. TheUnited States Geological Survey (‘‘USGS’’)recently re-evaluated the existing population

boundaries to create an additional popula-tion—Queen Elizabeth—located on the north-ern border of Greenland. ARL 117222.

6. Prior to the action currently before thisCourt, the Center for Biological Diversity alsoinitiated lawsuits to enforce various statutorydeadlines throughout the listing process forthe polar bear. To the maximum extent prac-ticable, the Secretary must respond to listingpetitions within 90 days with an initial findingstating whether the petition ‘‘presents sub-stantial scientific or commercial informationindicating that the petitioned action may bewarranted.’’ 16 U.S.C. § 1533(b)(3)(A).When the Secretary failed to timely respondto its listing petition, the Center for BiologicalDiversity filed an action in the Northern Dis-


See generally ARL 117215–117307. At thetime of listing, there were estimated to beapproximately 20,000 to 25,000 polar bearsworldwide, distributed throughout the spe-cies’ range.7 ARL 117219. These esti-mates further indicated that two of thenineteen polar bear populations were in-creasing in numbers (Viscount MelvilleSound and M’Clintock Channel); six popu-lations were stable (Northern BeaufortSea, Southern Hudson Bay, Davis Strait,Lancaster Sound, Gulf of Boothia, FoxeBasin); and five populations were declin-ing (Southern Beaufort Sea, NorwegianBay, Western Hudson Bay, Kane Basin,Baffin Bay). ARL 117221. Insufficientdata were available to identify trends forthe remaining six populations (BarentsSea, Kara Sea, Laptev Sea, Chukchi Sea,Arctic Basin, East Greenland). ARL117221.

In its Listing Rule, FWS acknowledgedthat sea ice conditions across the Arctichad changed over the past several decades.ARL 117227–28. Specifically, the agencycited data indicating that the summer/fallice melt season in the Arctic lengthened byapproximately two weeks per decade be-

tween 1979 and 2005. ARL 117227. Theagency also cited data indicating that Sep-tember (i.e., minimum) sea ice extent wasat an all-time low during the period be-tween 2002 and 2007. ARL 117224. FWSfurther noted that scientists had observedsignificant recent declines in winter (i.e.,maximum) sea ice extent, ARL 117226,cumulative annual sea ice extent, ARL117226, and overall sea ice age and thick-ness, ARL 117226–27.

Relying on complex climate models andrelated data from the International Panelon Climate Change (‘‘IPCC’’)—which FWSacknowledged to be the leading interna-tional body in climate change science—FWS attributed these changes in sea ice toincreased Arctic temperatures caused bygreenhouse gas emissions and relatedchanges in atmospheric and oceanic circu-lation.8 ARL 117227–30. As FWS de-scribed, due to a reported lag time inresponse between when greenhouse gasesare emitted into the atmosphere and whenthe impacts of those emissions are felt onthe ground, the IPCC concluded that theglobal climate system is committed to a

trict of California in December 2005. Ctr. forBiological Diversity v. Norton, No. 05–5191(N.D. Cal. filed Dec. 15, 2005). The Secre-tary ultimately published a 90–day finding onFebruary 9, 2006, ARL 5597–98, and heagreed to issue the next required finding byDecember 27, 2006. The parties settled thecase with a consent decree to that effect. SeeSettlement Agreement, Ctr. for Biological Di-versity v. Kempthorne, No. 05–5191 (N.D. Cal.June 28, 2006). On January 9, 2007, FWSpublished in the Federal Register a proposedrule to list the species as threatened through-out its range. See generally ARL 59985–60021. The ESA imposes a nondiscretionarydeadline of one year from the date a proposedrule is published within which the agencymust publish a final rule. 16 U.S.C.§ 1533(b)(6). After that one-year deadlinepassed, the Center for Biological Diversityfiled a second action to compel FWS to issueits final rule. Ctr. for Biological Diversity v.

Kempthorne, No. 08–1339 (N.D. Cal. filedMar. 10, 2008). The Northern District ofCalifornia granted plaintiff’s motion for sum-mary judgment and directed FWS to publishits final listing determination for the polarbear by May 15, 2008. Ctr. for BiologicalDiversity v. Kempthorne, No. 08–1339, 2008WL 1902703, 2008 U.S. Dist. LEXIS 34753(N.D.Cal. Apr. 28, 2008).

7. The Service found that the polar bear occu-pied the full extent of its historical range atthe time of listing. See ARL 117242.

8. In its final Listing Rule, FWS relied in par-ticular on the IPCC Fourth Assessment Re-port (‘‘AR4’’), issued in 2007, which was themost recent climate change report availablefrom the IPCC at the time FWS made itslisting determination. ARL 117231; see gen-erally ARL 151180–152632.


continued warming trend through the endof the 21st century. ARL 117233–34. In-deed, FWS noted that average projectedwarming levels through mid-century weregenerally consistent across all IPCC cli-mate models, regardless of differences inpossible emission levels over that period.ARL 117257. FWS looked also to IPCCmodels of Arctic sea ice, which similarlyprojected declines in ice extent throughthe end of the 21st century. ARL 117234.As FWS noted, the ten models that mostaccurately reflected historical sea icechanges prior to 2007 all projected a de-cline in September sea ice extent of overthirty percent (30%) by mid-century.ARL 117236–37. On the basis of theseIPCC models and associated analysis,FWS concluded that it could confidentlypredict a significant decline in the polarbear’s sea ice habitat over the next 40 to50 years. ARL 117279–81.

FWS further concluded that the extentof anticipated declines in sea ice will signif-icantly impact polar bear populationhealth. ARL 117279. As FWS described,sea ice losses have been tied to nutritionalstress in polar bears because of loweroverall numbers of ice-dependent prey, de-creased access to the prey that remain,shorter hunting seasons and longer sea-sonal fasting periods, and higher energeticdemands from traveling farther and swim-ming longer distances across open water toreach sea ice. ARL 117279. FWS deter-mined that this nutritional stress and otherrelated factors will likely result in a de-cline in the physical condition of polarbears, leading to lower overall bodyweights and reduced cub survival rates.ARL 117270. FWS further found thatconsistent declines in physical conditionand reproductive success will ultimatelylead to population-level declines. ARL117279.

In reaching this conclusion, FWS reliedin part on long-term studies showing thatthese impacts had already been observedin some of the southern-most polar bearpopulations. According to FWS, monitor-ing reports indicated that the WesternHudson Bay population—one of the long-est-studied polar bear groups—had experi-enced declines in body condition amongboth adult male and adult female bearsover the past three decades, with an asso-ciated population decrease of approximate-ly twenty-two percent (22%). ARL117271. FWS noted that this Canadianpopulation also experienced significant de-clines in body mass among female bearsover that period. ARL 117270. A com-prehensive review of the polar bear’s sta-tus conducted prior to listing indicatedthat, between 1971 and 2001, the averagedate of spring break-up of the sea ice inthe region advanced by three weeks, andtemperatures increased by between 0.5∞Cand 0.8∞C per decade. ARL 139286. Thecorrelation between the timing of sea icebreak-up and the body condition of adultfemale polar bears was found to be statisti-cally significant. ARL 139286.

The same polar bear status review alsoindicated that scientists monitoring theSouthern Beaufort Sea polar bear popula-tion—another long-studied group—ob-served similar changes in body conditionand unusual hunting behaviors. ARL139279. As noted in the status review,population estimates for this group be-tween 1986 and 2006 also showed declines,although researchers were not confidentenough in these estimates to assert thatthe observed declines were statisticallysignificant. ARL 139279.

Prior to issuing its final rule, FWS com-missioned the United States GeologicalSurvey (‘‘USGS’’) to conduct additional sci-entific analysis related to the polar bear


listing decision.9 Among other things,USGS undertook an effort to forecast thestatus of polar bears in different parts ofthe Arctic at three future time periods inthe 21st century (i.e., 45 years, 75 years,and 100 years). See generally Forecastingthe Range–Wide Status of Polar Bears atSelected Times in the 21st Century, ARL161306–161436. USGS developed twomodels in an effort to predict potentialfuture changes to polar bear populationnumbers across a range of scenarios, usingclimate models and the existing body ofknowledge about polar bears. ARL161313. A simple ‘‘carrying capacity’’model was designed to estimate potentialchanges in numbers of bears based oncurrent polar bear population densities andannual sea ice projections. ARL 161316.A more comprehensive ‘‘Bayesian Net-work’’ model was designed to determinethe probability of certain population out-comes (e.g., ‘‘larger than now,’’ ‘‘same asnow,’’ ‘‘smaller,’’ ‘‘rare,’’ or ‘‘extinct’’), tak-ing into account a wide range of factorsincluding the seasonal availability of seaice, as well as population stressors unrelat-ed to sea ice loss. ARL 161317, 161325–26.

For the purpose of these models, USGSgrouped the nineteen global polar bearpopulations into four ‘‘ecoregions’’—Sea-sonal Ice, Divergent Ice, Convergent Ice,and Archipelago—based upon regional pat-terns of ice formation. ARL 117276. TheSeasonal Ice Ecoregion, for example, oc-curs at the southern end of the polar bearrange and is ice-free for a portion of theyear. ARL 117221. In the Divergent IceEcoregion, which is located mainly in Alas-ka, ice formed at the shore drifts awayfrom land as a result of wind and ocean

currents. ARL 117222. In the Conver-gent Ice Ecoregion, sea ice formed in theDivergent Ice Ecoregion moves towardland and collects at the shore. ARL117222. The Archipelago Ecoregion, atthe northernmost point of the CanadianArctic, generally has thicker and morepersistent ice year-round. ARL 117222.USGS determined that these variations insea ice conditions generally correlate todifferences in how polar bears interactwith their sea ice habitat. ARL 117221.

Consistent with IPCC climate and seaice models, both of the USGS models pro-jected population declines in all four polarbear ecoregions over the next 100 years.ARL 161312. The simple carrying capaci-ty model indicated that polar bear popula-tion levels range-wide will have moderatelydecreased by year 45, assuming averageprojected levels of future sea ice. ARL161331. Assuming minimal levels of fu-ture sea ice, the carrying capacity modelprojected trends ‘‘toward extirpation’’ ofbears in the Divergent Ice Ecoregion byyear 45 and in the Seasonal Ecoregion byyear 75. ARL 161331. Similarly, accord-ing to USGS, the Bayesian Network modelresults suggested that ‘‘multiple stressorswill likely play important and deleteriousroles on all polar bear populations, evenstarting at year 45, and generally increasein their effect through year 100.’’ ARL161332. For example, the Bayesian Net-work model projected an outcome of ex-tinction for bears in the Seasonal and Di-vergent Ice Ecoregions by year 45 and forbears in the Convergent Ice Ecoregion byyear 75. ARL 161312–13. In the Archi-pelago Ecoregion, a ‘‘smaller’’ population

9. FWS commissioned USGS to prepare thisadditional analysis in February 2007, after thepublication of the proposed listing rule to listthe polar bear as a threatened species. ARL117239. In response to the significant new

information contained in the USGS reports,FWS re-opened the public comment periodon the proposed rule through October 22,2007. ARL 117239.


was the dominant outcome at year 45 un-der all scenarios. ARL 161332.

In relying on the USGS populationmodels, FWS emphasized that it had lessconfidence in the specific numerical out-comes of these models than in their ‘‘gen-eral direction and magnitude.’’ ARL117278. Specifically, FWS pointed to sev-eral caveats that USGS itself identified inthe development of these models. AsFWS described, USGS acknowledged thatthe carrying capacity model only account-ed for changes in sea ice extent and couldnot account for several other importantfactors, including seasonal ice fluctuationsand other population stressors. ARL117277. Further, USGS indicated thatthis simple model assumed a linear rela-tionship between sea ice and numbers ofbears, which is not necessarily the case,and it also assumed that polar bear densi-ty will not change over time, which ‘‘isalmost certainly not valid.’’ ARL 161323.FWS similarly discounted the specific out-comes of the Bayesian Network model,which USGS described as a ‘‘first-genera-tion ‘alpha’ level prototype,’’ ARL 161338,because it reflected the judgment of onlyone polar bear expert and ‘‘still must bevetted through other polar bear experts.’’ARL 161338; see also ARL 117278. Inso-far as these population models were gen-erally consistent with the record as awhole, however, FWS found that thesemodels supported a conclusion that sea icelosses will negatively impact polar bears

in a significant way within the foreseeablefuture. ARL 117278; ARL 117300.

Based on a voluminous administrativerecord, including the studies describedabove, and input from fourteen peer re-viewers and numerous polar bear special-ists, climate scientists, experts in Tradi-tional Ecological Knowledge (‘‘TEK’’),10

state and federal agencies, foreign govern-ments, Alaska Native tribes and tribal or-ganizations, federal commissions, localgovernments, commercial and trade organ-izations, conservation organizations, non-governmental organizations, and privatecitizens, FWS concluded that the polarbear was threatened throughout its rangeat the time of listing, within the meaningof the ESA. ARL 117296. Specifically,FWS determined that all polar bear popu-lations will be affected by substantial loss-es of sea ice within the foreseeable future(which it defined as 45 years), althoughdifferent populations will be affected atdifferent rates and to different degrees.ARL 117279–80. FWS further found thatpolar bears are unlikely to adapt to theseanticipated habitat changes. ARL117264–66.

However, notwithstanding these find-ings, FWS concluded that the polar bearwas not endangered in any portion of itsrange at the time of listing. ARL 117301.The agency determined that at the time oflisting the species was generally abundantthroughout its range, the species continued

10. TEK is a formally-recognized body ofknowledge developed by the native peoplewho co-exist with the polar bear in its habitat.TEK principles and observations includewhere and when polar bears feed, how theyhunt, where they den, how they respond todifferent types of ice habitat, and how theytravel. See Defendant–Intervenor ArcticSlope Regional Corporation Cross–Motionand Memorandum in Opposition, Docket Nos.146, 147 (‘‘ASRC Def–Int. Mot.’’) at 3. Thisknowledge has been gained through tradition-

al subsistence efforts, handed down over gen-erations by oral tradition, and shared withscientists researching the species, includingFWS scientists. ASRC Def–Int. Mot. at 3.TEK offers an opportunity for ‘‘clear observa-tional records over relatively long temporalscales.’’ ASRC Def–Int. Mot. at 11 (quotingARL 130884). For the purposes of the ListingRule, FWS accepted TEK as a relevant sourceof information on the ecology of polar bears.ARL 117252.


to occupy the full extent of its historicalrange, and it had yet to experience precipi-tous population declines in any portion ofits range. ARL 117299–301. Even in theWestern Hudson Bay population, where astatistically-significant decline had beenobserved, the species continued to repro-duce normally. ARL 117300. Accordingto FWS, these countervailing facts demon-strated that the polar bear was not ‘‘indanger of extinction’’ at the time it madeits listing decision, although the agencyreiterated that the species would likelybecome an endangered species by mid-century. ARL 117301.

The publication of the Listing Rule trig-gered lawsuits by a number of organiza-tions and individuals: (1) the State ofAlaska (‘‘Alaska’’) 11 (State of Alaska v. Sa-lazar, et al., No. 08–1352 (D.D.C. Aug. 4,2008)); (2) Safari Club International andSafari Club International Foundation (col-

lectively, ‘‘SCI’’) 12 (Safari Club Int’l, et al.v. Salazar, et al., No. 08–1550 (D.D.C.Sept. 8, 2008)); (3) California Cattlemen’sAssociation and the Congress on RacialEquality (collectively, ‘‘CCA’’) 13 (Califor-nia Cattlemen’s Ass’n, et al. v. Salazar, etal., No. 08–1689 (D.D.C. Oct. 2, 2008)); (4)Center for Biological Diversity, NaturalResources Defense Council, and Green-peace (collectively, ‘‘CBD’’) 14 (Ctr. for Bio-logical Diversity, et al. v. Salazar, et al.,No. 08–1339 (N.D. Cal. Mar. 10, 2008)); 15

and (5) Conservation Force, the InuvialuitGame Council, and numerous hunting andtrapping organizations as well as individu-als (collectively, ‘‘CF’’) 16 (ConservationForce, et al. v. Salazar, et al., No. 09–245(D.D.C. Feb. 9, 2009)). These five actionswere subsequently consolidated before thisCourt, along with six related actions, pur-suant to an order of the Judicial Panel on

11. The State of Alaska is a sovereign statewith an averred interest in the managementof its wildlife and natural resources, includingthe polar bear, and an averred interest in theimpact of the Listing Rule on public services,tourism, transportation, and resource devel-opment within the state. Alaska Compl. ¶¶ 9,10.

12. Safari Club International and Safari ClubInternational Foundation are not-for-profitpublic education and hunting advocacy or-ganizations with an averred interest in theimpact of the Listing Rule on sustainable usewildlife conservation efforts, including foreigntrophy hunting programs. SCI Compl. ¶¶ 14–17.

13. California Cattlemen’s Association and theCongress on Racial Equality are not-for-profitorganizations that represent California’s beefproducers and poor and minority businessowners, respectively, with an averred interestin ensuring that the Listing Rule does notexpose their members to an elevated risk ofcitizen suits and increased costs of doing busi-ness. CCA First Am. Compl. ¶¶ 5, 6.

14. Center for Biological Diversity, NaturalResources Defense Council, and Greenpeaceare not-for-profit environmental advocacy or-

ganizations with members that have anaverred interest in the protection and conser-vation of wildlife species, such as the polarbear, and their habitat. CBD Third Am.Compl. ¶¶ 20–23.

15. This case was subsequently transferredand assigned a new case number in thisCourt. See Ctr. for Biological Diversity, et al.v. Salazar, et al., No. 08–2113 (D.D.C. Dec. 8,2008).

16. Conservation Force is a not-for-profit wild-life conservation organization with an averredinterest in managing and protecting gamespecies, including polar bears. CF Compl.¶ 16. Joining with Conservation Force in itslawsuit is the Inuvialuit Game Council, whichrepresents the interests of the Inuvialuit peo-ple on all matters pertaining to wildlife man-agement within Canada’s Inuvialuit Settle-ment Region. CF Compl. ¶ 17. Also joiningwith these plaintiffs are a number of huntingand trapping organizations, sportsmen organ-izations and outfitters, and individuals whohave participated in polar bear trophy hunt-ing. CF Compl. ¶¶ 18–50.


Multi–District Litigation.17 See generallyCertified Copy of Transfer Order, DocketNo. 1.18

Several groups intervened to defendagainst plaintiffs’ challenges to the ListingRule. Specifically, this Court permittedthe Alaska Oil and Gas Association(‘‘AOGA’’) and the Arctic Slope RegionalCorporation (‘‘ASRC’’) to intervene as de-fendants in the challenge brought by plain-tiff CBD. See Stipulation and Order Re-garding Intervention, Docket No. 33, at 4–5. The Court also permitted SCI, a plain-tiff in its own action, to intervene as adefendant in the action brought by plaintiffCBD. Plaintiff CBD was permitted tointervene as a defendant in the remainingchallenges to the Listing Rule.

On October 20, 2009, plaintiffs filed theirmotions for summary judgment.19 Amongother claims, plaintiff CBD contends thatthe decision to list the polar bear as

threatened was arbitrary and capriciousbecause the polar bear met the definitionof an endangered species under the ESAat the time of listing and thus qualified fora higher level of protection. The remain-ing plaintiffs (collectively, ‘‘Joint Plain-tiffs’’) contend, among other things, thatthe decision to list the polar bear wasarbitrary and capricious because the polarbear did not meet the definition of athreatened species at the time of listingand therefore did not qualify for ESA pro-tections.

The federal defendants filed their cross-motion for summary judgment on Decem-ber 7, 2009. See generally Federal Defen-dants’ Combined Opposition and Cross–Motion for Summary Judgment on ListingRule Claims, Docket No. 137 (‘‘Fed. Def.Mot.’’). The various defendant-intervenorsfiled their cross-motions for summaryjudgment on January 19, 2010.20

17. On the same day that FWS issued its finalrule listing the polar bear as a threatenedspecies, the Secretary of the Interior publish-ed proposed regulations pursuant to 16U.S.C. § 1533(d). See Special Rule for thePolar Bear, 73 Fed.Reg. 28,306 (May 15,2008) (‘‘Interim 4(d) Rule’’). These regula-tions were later finalized and codified at 50C.F.R. § 17.40(q) and are the subject of twoadditional actions before this Court. The fourremaining actions challenge the Service’ssubsequent refusal to issue permits for im-porting sport-hunted polar bear trophies un-der the Marine Mammal Protection Act(‘‘MMPA’’), 16 U.S.C. §§ 1371–1389 (2006).These six actions have been briefed separatelyfrom the Listing Rule cases; therefore, theCourt does not address either the 4(d) Rule orthe import ban challenges here.

18. Unless otherwise specified, all referencesto pleadings, proceedings, hearings, opinions,and orders can be found on the Misc. No. 08–764 docket.

19. Plaintiffs Center for Biological Diversity,Natural Resources Defense Council andGreenpeace jointly filed a motion for sum-mary judgment. See generally Motion forSummary Judgment by CBD, Docket No. 125

(‘‘CBD Mot.’’). The remaining plaintiffs alsofiled a joint motion for summary judgmentthat addresses their common claims. See gen-erally Joint Motion for Summary Judgmenton Listing Rule Claims, Docket No. 127 (‘‘JPMot.’’). The Court also permitted each ofthese plaintiffs to submit supplemental mo-tions and memoranda in support of summaryjudgment. See generally Alaska’s Motion forSummary Judgment on Listing Rule Claims,Docket No. 128 (‘‘Alaska Mot.’’); Motion andSupplemental Memorandum of CCA in Sup-port of Motion for Summary Judgment Chal-lenging the Listing Rule, Docket No. 124(‘‘CCA Mot.’’); Motion for Summary Judg-ment and Supplemental Memorandum ofPoints and Authorities by SCI, Docket No.123 (‘‘SCI Mot.’’); Motion for Summary Judg-ment by CF, Docket No. 126, corrected atDocket No. 131 (‘‘CF Mot.’’).

20. See generally Defendant–Intervenor SCICross–Motion for Summary Judgment andMemorandum in Opposition, Docket Nos.144, 145 (‘‘SCI Def–Int. Mot.’’); Defendant–Intervenor ASRC Cross–Motion and Memo-randum in Opposition, Docket Nos. 146, 147(‘‘ASRC Def–Int. Mot.’’); Defendant–Interve-nor AOGA Cross–Motion for Summary Judg-


This Court held an initial hearing on theparties’ cross-motions for summary judg-ment on October 20, 2010. At that hear-ing, the Court focused only on a thresholdquestion: whether it must review theagency’s interpretation of the ESA listingclassifications under step one or step twoof the familiar framework set forth inChevron, U.S.A., Inc. v. Natural Re-sources Defense Council, Inc., 467 U.S.837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).In a Memorandum Opinion issued on No-vember 4, 2010, the Court held that FWShad improperly relied on an erroneousplain-meaning reading of the definition ofan endangered species that could not beupheld under step one of Chevron. In rePolar Bear Endangered Species Act List-ing and § 4(d) Rule Litigation, 748F.Supp.2d 19, 29 (D.D.C.2010) [hereinafterIn re Polar Bear ]. Finding that the term‘‘endangered species’’ under the ESA isinstead ambiguous, the Court remandedthe Listing Rule to the agency ‘‘to treatthe statutory language as ambiguous.’’ Id.

In response to the Court’s remand or-der, on December 22, 2010, the federaldefendants submitted the agency’s memo-randum of supplemental explanation. Seegenerally Supplemental Explanation forthe Legal Basis of the Department’s May15, 2008 Determination of Threatened Sta-tus for Polar Bears, Docket No. 237–1(‘‘Supp. Exp.’’). In their SupplementalExplanation, FWS concluded that, eventreating the phrase ‘‘in danger of extinc-tion’’ in the definition of an endangeredspecies as ambiguous, the administrativerecord does not support a finding that thepolar bear qualified for endangered statusat the time of listing. Because the agencydetermined that the species is likely tobecome endangered within the foreseeablefuture, however, FWS reiterated that the

polar bear met ESA’s the definition of athreatened species at the time of listing.Supp. Exp. at 16.

The Court gave the parties an opportu-nity to submit additional briefs respondingto the agency’s supplemental explanation.See generally Joint Plaintiffs’ Response toFederal Defendants’ Supplemental Expla-nation, Docket No. 240 (‘‘JP Supp. Mem.’’);Plaintiff CBD’s Response to Federal De-fendants’ Supplemental Explanation,Docket No. 241 (‘‘CBD Supp. Mem.’’);AOGA and ASRC Defendant–Intervenors’Response to Federal Defendants’ Supple-mental Explanation, Docket No. 239(‘‘AOGA Supp. Mem.’’); Federal Defen-dants’ Supplemental Reply, Docket No.242 (‘‘Fed. Def. Supp. Reply’’). A secondmotions hearing was held on February 23,2011, during which the Court heard argu-ments on all plaintiffs’ Listing Rule claims.The parties’ cross-motions for summaryjudgment are now ripe for determinationby the Court.

II. STANDARD OF REVIEW

[1] The Service’s listing decisions aresubject to review under the APA. See,e.g., Am. Wildlands v. Kempthorne, 530F.3d 991, 997 (D.C.Cir.2008). Under APAreview, federal agency actions are to beheld unlawful and set aside where they are‘‘arbitrary, capricious, an abuse of discre-tion, or otherwise not in accordance withlaw.’’ 5 U.S.C. § 706(2)(A). To make thisfinding, a court must determine whetherthe agency ‘‘considered the factors rele-vant to its decision and articulated a ra-tional connection between the facts foundand the choice made.’’ Keating v. FERC,569 F.3d 427, 433 (D.C.Cir.2009) (citingBalt. Gas & Elec. Co. v. Natural Res. Def.Council, Inc., 462 U.S. 87, 105, 103 S.Ct.2246, 76 L.Ed.2d 437 (1983)).

ment, Docket No. 148 (‘‘AOGA Def–Int.Mot.’’); Defendant–Intervenor CBD Cross–

Motion for Summary Judgment, Docket No.149 (‘‘CBD Def–Int. Mot.’’).


[2] The standard of review under theAPA is a narrow one. Citizens to Pres.Overton Park v. Volpe, 401 U.S. 402, 416,91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Thecourt is not empowered to substitute itsjudgment for that of the agency. Id. Def-erence to the agency’s judgment is particu-larly appropriate where the decision atissue ‘‘requires a high level of technicalexpertise.’’ Marsh v. Or. Natural Res.Council, 490 U.S. 360, 375–77, 109 S.Ct.1851, 104 L.Ed.2d 377 (1989); Ethyl Corp.v. EPA, 541 F.2d 1, 36 (D.C.Cir.1976)(‘‘[The court] must look at the decision notas the chemist, biologist or statistician that[it is] qualified neither by training norexperience to be, but as a reviewing courtexercising [its] narrowly defined duty ofholding agencies to certain minimal stan-dards of rationality.’’). Specifically, withregard to FWS decisions, this Court haspreviously recognized that ‘‘[g]iven the ex-pertise of the FWS in the area of wildlifeconservation and management and the def-erential standard of review, the Court be-gins with a strong presumption in favor ofupholding decisions of the [FWS].’’ Am.Wildlands v. Kempthorne, 478 F.Supp.2d92, 96 (D.D.C.2007) (citing Carlton v. Bab-bitt, 900 F.Supp. 526, 530 (D.D.C.1995)).

[3] This narrow, deferential standarddoes not, however, shield the agency froma ‘‘thorough, probing, in-depth’’ review.Overton Park, 401 U.S. at 415, 91 S.Ct.814. The court’s inquiry into the factsmust be both ‘‘searching and careful.’’ Id.at 416, 91 S.Ct. 814. Administrative actionmust be invalidated as arbitrary where theagency

relied on factors which Congress has notintended it to consider, entirely failed toconsider an important aspect of theproblem, offered an explanation for itsdecision that runs counter to the evi-dence before the agency, or is so implau-sible that it could not be ascribed to a

difference in view or the product ofagency expertise.

Motor Vehicle Mfrs. Ass’n v. State FarmMut. Auto. Ins. Co., 463 U.S. 29, 43, 103S.Ct. 2856, 77 L.Ed.2d 443 (1983). Thisdetermination must be made solely on thebasis of the record before the agency whenit made its decision. Camp v. Pitts, 411U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d106 (1973).

[4] Where the court reviews an agen-cy’s interpretation of a statute it ischarged with administering, the SupremeCourt’s opinion in Chevron provides theappropriate framework of review. Thefirst step in this review process is for thecourt to determine ‘‘whether Congress hasdirectly spoken to the precise question atissue.’’ Chevron, 467 U.S. at 842, 104 S.Ct.2778. ‘‘If the intent of Congress is clear,that is the end of the matter; for thecourt, as well as the agency, must giveeffect to the unambiguously expressed in-tent of Congress.’’ Id. at 842–43, 104 S.Ct.2778. In determining whether the statuteunambiguously expresses the intent ofCongress, the court should use all the ‘‘tra-ditional tools of statutory construction,’’see id. at 843 n. 9, 104 S.Ct. 2778, includinglooking to the text and structure of thestatute, as well as its legislative history, ifappropriate. See Bell Atlantic Tel. Co. v.FCC, 131 F.3d 1044, 1047 (D.C.Cir.1997).

If the court concludes that the statute iseither silent or ambiguous with respect tothe precise question at issue, the secondstep of the court’s review process is todetermine whether the interpretation prof-fered by the agency is ‘‘based on a permis-sible construction of the statute.’’ Chev-ron, 467 U.S. at 843, 104 S.Ct. 2778. Thecourt must defer to agency interpretationsthat are not ‘‘procedurally defective, arbi-trary or capricious in substance, or mani-festly contrary to the statute.’’ UnitedStates v. Mead Corp., 533 U.S. 218, 227,


121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(citing Chevron, 467 U.S. at 843–44, 104S.Ct. 2778).

III. DISCUSSION

Plaintiffs have identified a number ofpurported deficiencies in the Listing Rule,each of which forms the basis for a claimthat FWS violated both the ESA and theAPA when it listed the polar bear as athreatened species. Plaintiffs’ claims canbe classified into three general categories.

First, each of the plaintiffs in this caseargues that the Service’s decision to listthe polar bear as a threatened species wasbased on a fundamentally flawed interpre-tation of the ESA’s listing standards and amisguided application of the record evi-dence. Specifically, plaintiff CBD claimsthat FWS wrongly concluded that the po-lar bear did not qualify for endangeredstatus at the time of listing, given theevidence in the record indicating that sub-stantial anticipated sea ice losses will con-tinue through the end of the 21st century.By contrast, Joint Plaintiffs claim thatFWS failed to demonstrate that the polarbear is sufficiently likely to become endan-gered within the foreseeable future and,therefore, the agency wrongly concludedthat the polar bear qualified for threatenedstatus at the time of listing. In the alter-native, a smaller subset of plaintiffs (in-cluding CBD, SCI, and CF) argues thatFWS erred when it concluded that no po-lar bear population or ecoregion qualifiesas a ‘‘distinct population segment,’’ whichwould have allowed the Service to tailorESA protections more narrowly acrosspopulations.

Second, plaintiffs argue that FWS ig-nored or otherwise failed to adequatelyaddress four listing factors that the ESArequires the agency to consider. JointPlaintiffs claim that the Service failed toadequately ‘‘take into account’’ foreign con-

servation programs, particularly Canadiansport-hunting programs, because it failedto ensure that its listing decision would notnegatively impact those programs. JointPlaintiffs also claim that the Service failedto demonstrate that it relied upon the‘‘best available science,’’ because the cli-mate models, population models, and popu-lation monitoring studies the Service reliedupon do not, in fact, support the agency’sconclusion that the polar bear is likely tobecome endangered within the foreseeablefuture. Plaintiff CBD claims that FWSimproperly downplayed the threat of hunt-ing to the polar bear and wrongly conclud-ed that the polar bear was not in danger ofextinction at the time of listing as a resultof the combined threats of habitat loss(‘‘Listing Factor A’’) and overutilization(‘‘Listing Factor B’’). Joint Plaintiffs fi-nally claim that FWS wrongly concludedthat existing regulatory mechanisms(‘‘Listing Factor D’’) will be insufficient toprotect the polar bear despite future seaice losses.

Third and finally, plaintiffs identify defi-ciencies in the Service’s decision-makingprocess for the Listing Rule. Plaintiff Alas-ka claims that FWS failed to provide anadequate ‘‘written justification’’ in re-sponse to the State’s comments, as it wasrequired to do under Section 4(i) of theESA. Plaintiff CF claims that FWS simi-larly erred by failing to respond to itscomments on the Listing Rule.

Having carefully considered each ofthese arguments, the Court is simply notpersuaded that the Service’s decision tolist the polar bear as a threatened speciesunder the ESA was arbitrary and capri-cious. As the Supreme Court noted inBabbitt v. Sweet Home, ‘‘[t]he task of de-fining and listing endangered and threat-ened species requires an expertise and at-tention to detail that exceeds the normalprovince of Congress,’’ and of the courts as


well. 515 U.S. 687, 708, 115 S.Ct. 2407,132 L.Ed.2d 597 (1995). This Court is notempowered to substitute its own judgmentfor that of the agency but can only holdthe agency to ‘‘minimal standards of ra-tionality.’’ Ethyl Corp., 541 F.2d at 36.Accordingly, and for the reasons set forthbelow, the Court finds that the ListingRule represents a reasoned exercise of theService’s discretion based on the facts andthe best available science at the time theagency made its determination.

The Court will now address each ofplaintiffs’ claims in turn.21

A. The Service Articulated a Ration-al Basis for Its Conclusion thatthe Polar Bear Met the Definitionof a Threatened Species at theTime of Listing

1. Plaintiff CBD’s Claim that the Po-lar Bear Should Have Been Considered

Endangered at the Time of Listing

The Court turns first to plaintiff CBD’sclaim that FWS wrongly concluded thatthe polar bear did not qualify for endan-gered status as of 2008. The Court willbegin by outlining the Service’s interpreta-tion of the definition of an endangeredspecies under the ESA, as applied to thepolar bear.

a. The Service’s Findings

In their original briefs and at a motionshearing held on October 20, 2010, the fed-eral defendants argued that the text,structure, and legislative history of theESA plainly and unambiguously requirethat a species must be in imminent dangerof extinction to be designated as an endan-gered species. This Court held in a No-vember 4, 2010 Memorandum Opinion thatneither the statute itself nor its legislativehistory compels the federal defendants’reading of the term ‘‘in danger of extinc-tion’’ and that the term is, instead, ambigu-ous. In re Polar Bear, 748 F.Supp.2d at28–29. Accordingly, following D.C. Circuitprecedent, the Court remanded the rule toagency decision-makers to ‘‘fill in the gap’’in the statute by providing additional ex-planation for the agency’s determinationthat the polar bear was not in danger ofextinction at the time of listing. Id. at 29.On December 22, 2010, the federal defen-dants submitted the agency’s Supplemen-tal Explanation in response to the Court’sremand order.

The Service emphasizes that its Supple-mental Explanation is not intended to setforth a new statement of agency policy ora new ‘‘rule’’ pursuant to the APA, nordoes the agency intend to adopt indepen-dent, broad-based criteria for defining thestatutory term ‘‘in danger of extinction.’’

21. As a threshold matter, the federal defen-dants contend that one set of plaintiffs—California Cattlemen’s Association and theCongress on Racial Equality—failed to dem-onstrate standing to challenge the ListingRule and, therefore, any claims uniquelyraised by those plaintiffs must be dismissed.The Court finds, however, that these plain-tiffs have raised no claims that were notalso fully briefed by the larger group ofJoint Plaintiffs. Accordingly, as the federaldefendants concede that the remainingplaintiffs in this action have demonstratedtheir standing to challenge the Listing Rule,see Fed. Def. Reply, Docket No. 195, at 71–72, the Court need not consider the federal

defendants’ standing challenge, and it de-clines to do so. See Massachusetts v. EPA,549 U.S. 497, 518, 127 S.Ct. 1438, 167L.Ed.2d 248 (2007) (‘‘Only one of the peti-tioners needs to have standing to permit usto consider the petition for review.’’); seealso Ass’n of Am. Physicians and Surgeons,Inc. v. FDA, 539 F.Supp.2d 4, 14 (D.C.Cir.2008) (citing Mountain States Legal Found.v. Glickman, 92 F.3d 1228, 1232 (D.C.Cir.1996) (‘‘ ‘For each claim, if constitutionaland prudential standing can be shown forat least one plaintiff, [the court] need notconsider the standing of the other plaintiffsto raise that claim.’ ’’)).


Supp. Exp. at 1–2. Nonetheless, the agen-cy claims that its starting point in makingsuch a determination is the general under-standing that the phrase ‘‘in danger ofextinction’’ describes a species that is cur-rently on the brink of extinction in thewild. Supp. Exp. at 3. According to FWS,to be ‘‘currently on the brink of extinction’’does not necessarily mean that extinctionis certain or inevitable; rather, whether aspecies is currently on the brink of extinc-tion ‘‘depends on the life history and ecolo-gy of the species, the nature of the threats,and the species’ response to thosethreats.’’ Supp. Exp. at 3.

As FWS describes, the agency’s past‘‘endangered’’ listings can be broken outinto roughly four categories:

Category 1: Species facing a catastroph-ic threat from which the risk of extinc-tion is imminent and certain. In thiscategory, the timing of the threat aloneis sufficient to deem the species in dan-ger of extinction. The snail darter isthe classic example of a species in thiscategory. See Tenn. Valley Auth. v.Hill, 427 [437] U.S. 153 [98 S.Ct. 2279,57 L.Ed.2d 117] (1978). This fish spe-cies was discovered shortly after theTennessee Valley Authority had begunconstruction of the Tellico Dam on theLittle Tennessee River and, at the timeof listing, the dam project threatened toimmediately and completely obliteratethe only known population.Category 2: Narrowly restricted endem-ics that, as a result of their limitedrange or population size, are vulnerableto extinction from elevated threats.This category applies to species found inan extremely limited range that, in addi-tion, are facing increasing threats. Alarge portion of listed species fall in thiscategory. An example of one of thesespecies is the Devil’s Hole pupfish,which lives in a single sinkhole in the

southern Nevada desert that is experi-encing a drop in groundwater level. SeeCappaert v. United States, 426 U.S. 128[96 S.Ct. 2062, 48 L.Ed.2d 523] (1976).

Category 3: Species formerly morewidespread that have been reduced tocritically low numbers or restrictedranges and, consequently, are at a highrisk of extinction due to threats thatwould not otherwise imperil the species.This category represents a class of spe-cies experiencing both a severe rangereduction and/or precipitous populationcrash combined with ongoing threats.Some examples of species falling in thiscategory include California condors,whooping cranes, and vernal pool spe-cies, many of which have been all butwiped out by development and relatedfactors. These species experience sucha restricted range that they are ex-tremely vulnerable to both ongoing andchance threats.

Category 4: Species with relativelywidespread distribution that have never-theless suffered ongoing major reduc-tions in numbers, range, or both, as aresult of persistent threats. This cate-gory shares common characteristics withthreatened species in that they have suf-fered some recent decline in numbers,range, or both, but to a more severeextent. An example of a species fallingin this category is the red-cockadedwoodpecker, which was formerly a com-mon bird but experienced a precipitousdecline in 1970 caused by an almostcomplete loss of its primary longleafpine habitat. Currently, only small, iso-lated populations of this species remain,making the species more vulnerable tothreats including reproductive isolation.

Supp. Exp. at 4–6. Although there is nosingle metric for determining if a species is‘‘in danger of extinction,’’ FWS contendsthat these four categories demonstrate the


agency’s largely consistent approach to en-dangered species listings. See Supp. Exp.at 4.

The Service asserts that its general un-derstanding of the statutory definition ofan ‘‘endangered species’’ and its approachto species listings is supported by the text,structure, and the legislative history of theESA. The Service notes that, insofar as anendangered species is any species which‘‘is in danger of extinction’’ and a threat-ened species is any species which is ‘‘likelyto become an endangered species withinthe foreseeable future,’’ the ESA recog-nizes species with ‘‘two distinct degrees ofimperilment based on the temporal prox-imity of the risk of extinction.’’ Supp.Exp. at 9. Within that general framework,the agency must exercise its discretion andexpert judgment to weigh multiple factorson a species-specific basis. The Serviceasserts that its past listing decisions, in-cluding the polar bear Listing Rule, repre-sent a reasoned exercise of that discre-tion.22

The Service contends that its species-specific listing determination for the polarbear constitutes a permissible constructionof the ESA, given the life history andecology of the species, the nature and tim-ing of the threats, and the species’ ob-served and anticipated responses to thosethreats. According to FWS, the adminis-trative record in this case demonstratesthat, at the time of listing, the polar bearfit none of the four general categories ofendangered species identified by the agen-cy as representative of its past listing deci-

sions. Rather, the evidence before theagency showed that at the time of listingthe polar bear was a widespread, circum-polar species that had not been restrictedto a critically small range or critically lownumbers, nor had it suffered precipitousreductions in numbers or range. SeeSupp. Exp. at 15.

Specifically, FWS found the followingfacts dispositive:

1 At the time of listing, the polar bearwas widely distributed in nineteenpopulations and numbered in abun-dance between 20,000 to 25,000 indi-viduals. Supp. Exp. at 15.

1 Fourteen of the nineteen polar bearpopulations were considered to be sta-ble, increasing, or data deficient at thetime of listing. Supp. Exp. at 15.

1 Only one population—Western HudsonBay—was verified to be in a statisti-cally-significant decline, although twoother populations were also actually orpotentially declining. Supp. Exp. at15.

1 No population decline was found to beprecipitous, and reproduction and re-cruitment were still occurring in de-clining populations. Supp. Exp. at 15.

In short, FWS determined, ‘‘there issimply no information in the Administra-tive Record to suggest that the species hasexperienced significant population declinesor severe retractions in its range such thatit is currently on the brink of extinction orthat it faced a sudden and calamitous

22. As this Court observed in its November 4,2010 opinion, the courts have not offered aninterpretation of the phrase ‘‘in danger ofextinction’’ in the context of reviewing a list-ing determination. In re Polar Bear, 748F.Supp.2d at 26 n. 12. Nonetheless, FWSasserts that its approach is consistent withjudicial interpretations indicating that Con-gress intended to delegate broad responsibili-

ty to the agency to make listing determina-tions. See, e.g., Trout Unlimited v. Lohn, 559F.3d 946, 961 (9th Cir.2009) (in which thecourt found that ‘‘[b]y leaving an ‘explicit gap’for agency-promulgated regulations, the ESAexpressly delegates authority to the [agency]to decide how such listing determinationshould be made.’’).


threat.’’ Supp. Exp. at 15–16.23 Accord-ingly, the agency concluded that the polarbear warranted listing as threatenedrange-wide but did not qualify as an en-dangered species at the time of listing.

b. Plaintiff CBD’s Arguments

Plaintiff CBD contends that, despite thisCourt’s remand order, the agency’s inter-pretation of the term ‘‘endangered species’’to exclude the polar bear continues to vio-late the ESA. First, CBD contends thatthe agency has not significantly departedfrom its original position that an endan-gered species must be at risk of bothimminent and certain extinction. Accord-ing to CBD, nothing in the text, structure,or legislative history of the ESA supportsthe Service’s conclusion that the temporalproximity of an extinction threat is thecontrolling distinction between a threat-ened and an endangered species.24 Such anarrow reading of the statute, CBD con-tends, sets the bar for an ‘‘endangered’’listing impossibly high. Moreover, it con-travenes the purpose of the ESA, which isto provide a flexible approach to protectingspecies so that they can be recovered anddelisted.

CBD also claims that the Service un-lawfully discounted or otherwise failed toconsider key scientific information in de-termining that the polar bear was notendangered in any portion of its range.Indeed, CBD claims that FWS never ac-tually analyzed whether, at the time of

listing, polar bears fit within any of thefour categories of endangered species de-scribed in its Supplemental Explanation.According to CBD, the administrativerecord demonstrates that the polar bearfits within three of the four ‘‘endan-gered’’ classifications identified by theagency.

With respect to Category One, CBD as-serts that FWS never considered whetherglobal warming constitutes a ‘‘catastrophicthreat.’’ CBD contends, as it did in itsoriginal briefing, that polar bears in atleast the Seasonal and Divergent IceEcoregions face such a threat, and did atthe time of listing, because the best avail-able science at the time indicated that acertain amount of warming is already com-mitted through the end of the 21st centuryand that continued warming trends areunlikely to be reversed in the near future.CBD points specifically to the USGS popu-lation modeling exercises, which projecteddeclines in all of the polar bear ecoregionsthrough mid-century, or approximatelyover a 45–year period. CBD also cites toevidence in the record, including the List-ing Rule itself, which suggests that thesemodels are only conservative estimates ofthe potential impacts to polar bears fromsea ice losses. See ARL 117275 (‘‘Simulat-ed and projected rates of habitat loss dur-ing the late 20th and early 21st centuriesby many [climate models] tend to be less

23. Although population modeling for the spe-cies projected significant future declines insome polar bear populations, the agency ulti-mately determined that these model outcomeswere too uncertain to support a specific con-clusion about the actual rate of decline. SeeSupp. Exp. at 17. Similarly, although popu-lation monitoring showed evidence of signifi-cant declines in body condition in some polarbear populations, see Supp. Exp. at 17, FWSfound them insufficient to warrant endan-gered status for any particular population atthe time of listing. See Supp. Exp. at 18.

24. As this Court noted in its remand order,the legislative history of the ESA indicatesthat Congress did not seek to make any singlefactor controlling when drawing the distinc-tion between an endangered and a threatenedspecies, nor did it seek to limit the applicabili-ty of the endangered category to only thosespecies facing imminent extinction. See In rePolar Bear, 748 F.Supp.2d at 28.


than observed rates of loss during the pasttwo decades; therefore, habitat lossesbased on [these models] were consideredto be conservative.’’); ARL 117280 (‘‘Therecord low sea ice conditions of 2007 arean extension of an accelerating trend ofminimum sea ice conditions and furthersupport the concern that current sea icemodels may be conservative and underesti-mate the rate and level of change expectedin the future.’’).

In addition to the USGS populationmonitoring exercises, CBD references pop-ulation-specific studies to suggest thatthree populations—Western Hudson Bay,Southern Beaufort Sea, and Baffin Bay—were in danger of extinction at the time oflisting. Reports in the record from theinternational Polar Bear Specialist Groupindicate that six of the nineteen polar bearpopulations were declining at the time oflisting, including these three. The West-ern Hudson Bay population saw a declineof twenty-two percent (22%) over an eigh-teen year period and showed statisticallysignificant declines in body mass amongfemale bears, ARL 117271, which mustmaintain a certain body weight to success-fully reproduce, ARL 117270. Research-ers estimated that cub production in thispopulation would ‘‘probably be negligiblewithin the next 15–25 years.’’ ARL117270. Population numbers also declinedin the Southern Beaufort Sea population,along with significant cumulative declines

in observed cub survival and skull size andadult male body mass and skull size. SeeARL 117272. Unprecedented instances ofstarvation and cannibalism among theSouthern Beaufort Sea were also reportedand attributed to nutritional stress. SeeARL 117272.

Finally, CBD points to a letter from theMarine Mammal Commission (‘‘MMC’’),25

the agency charged with advising FWS onmarine mammal issues, which urged FWSto list the polar bear as endangered inlight of the USGS population modelingreports. See ARL 126312. In its letter,MMC concluded that ‘‘[w]hen taken as awhole, [the USGS reports] present a bleakpicture of the survival prospects of mostpopulations of polar bears, absent rigorousmanagement of the underlying factorsdriving climate change.’’ ARL 126315.According to CBD, this letter supports aconclusion that the agency acted arbitrari-ly in failing to find that the polar bear wasendangered throughout a significant por-tion of its range at the time the agencymade its decision.

With respect to Category Two, CBDasserts that FWS never considered wheth-er the polar bear should be considered a‘‘narrowly restricted endemic’’ species fac-ing elevated threats. By contrast, CBDcontends that the polar bear should beconsidered an endemic species because it

25. MMC is a non-executive agency created bythe Marine Mammal Protection Act(‘‘MMPA’’). 16 U.S.C. §§ 1403, 1406. TheMMPA does not require FWS to follow theMMC’s recommendations but only requiresFWS to respond to MMC and explain its rea-soning if those recommendations are not fol-lowed. Id. § 1402(d); see also ARL 108484.The Court notes that MMC provided two setsof comments on the listing decision and com-ments as a peer reviewer on the Service’searlier status assessment for the polar bear.MMC’s comments on the status assessmentand its first set of comments on the proposed

listing supported the Service’s range-wide‘‘threatened’’ designation for the polar bear.See ARL 18533; ARL 61800; ARL 126309.In its second set of comments, referencedhere, MMC recommended listing the polarbear as endangered because of USGS popula-tion projections for the Seasonal and Diver-gent Ice ecoregions. See ARL 126309. FWSresponded to MMC’s recommendation by let-ter dated June 17, 2008. AR4D 14233 (finalresponse dated June 17, 2008 included in theadministrative record for the Interim 4(d)Rule); see also ARL 108485 (draft responsedated Feb. 28, 2008).


relies exclusively on a particular type ofsea ice habitat. FWS acknowledged thatthis habitat type is at risk from continuedwarming patterns; indeed, this conclusionforms the basis for the agency’s decision tolist the species as threatened. As such,CBD argues that the agency was obligatedto consider whether the polar bear shouldhave properly been classified as endan-gered because of its unique habitat needsand the particular threats to that habitatfrom climate change.

Finally, with respect to Category Four,CBD asserts that the agency failed to con-sider whether any polar bear population‘‘ ‘suffered ongoing major reductions in itsnumbers, range, or both, as a result offactors that have not been abated.’ ’’ CBDSupp. Mem. at 24 (quoting Supp. Exp. at6). At the least, CBD contends that atwenty-two percent decline in the WesternHudson Bay population should have beenconsidered a ‘‘major decline in numbers.’’CBD Supp. Mem. at 24.

CBD also points out that, although thepolar bear was the first species to be listeddue to climate change, FWS never consid-ered whether the existence of a new threatmight warrant the creation of an altogeth-er new category. Instead, CBD contends,the agency relied on flawed conclusions,incorrect assumptions, and an unreason-ably narrow interpretation of the statuteto justify a lower level of protection for thepolar bear than the species demands. Ac-cording to CBD, the agency consistentlyfailed to articulate a rational connectionbetween the record evidence and thechoice it made. For these reasons, CBDargues that the Service’s interpretation ofthe definition of ‘‘endangered species’’ toexclude the polar bear was arbitrary, ca-pricious, and manifestly contrary to thetext, structure, and purpose of the ESA.

c. The Court’s Analysis

As a threshold matter, the parties dis-agree on whether the Court is obliged toreview the statutory interpretation setforth in the agency’s Supplemental Expla-nation under the deferential Chevronframework, or whether another standardshould guide the Court’s review on re-mand. Before reaching the merits of theagency’s Supplemental Explanation, theCourt must first determine the appropri-ate standard of review. The Court turnsnow to that question.

i. Standard of Review on Remand

As noted above, where a court reviewsan agency’s interpretation of a statute it ischarged with administering, such as theESA, the Supreme Court’s opinion inChevron, U.S.A., Inc. v. Natural Re-sources Defense Council, Inc. provides theappropriate framework of review. Here,the federal defendants, the defendant-in-tervenors, and the Joint Plaintiffs concurthat this Court, having found that theagency’s plain-meaning interpretation ofthe definition of an endangered speciesfails under step one of the Chevron frame-work, should now analyze the agency’sSupplemental Explanation under step twoof Chevron, which requires the Court touphold any reasonable agency interpreta-tion of ambiguous statutory language. See467 U.S. at 843–44, 104 S.Ct. 2778. Plain-tiff CBD contends, by contrast, that theagency’s Supplemental Explanation here isnot ‘‘Chevron step two-worthy.’’ CBDSupp. Mem. at 4.

[5] Under the Supreme Court’s deci-sion in United States v. Mead, an agencyinterpretation qualifies for Chevron reviewwhen it meets two requirements: (1)‘‘when it appears that Congress delegatedauthority to the agency generally to makerules carrying the force of law,’’ and (2)‘‘the agency interpretation claiming defer-ence was promulgated in the exercise of


that authority.’’ 533 U.S. at 226–27, 121S.Ct. 2164; see also Pub. Citizen, Inc. v.HHS, 332 F.3d 654, 659 (D.C.Cir.2003)(citing Mead standard). According toCBD, the agency’s Supplemental Explana-tion meets neither of these requirements.Indeed, CBD goes further, arguing thatthe agency’s Supplemental Explanation isentitled to no deference at all. Where aChevron analysis is inappropriate, the Su-preme Court has held that an agency in-terpretation may nonetheless be entitledto ‘‘respect,’’ but only to the extent that in-terpretation has the ‘‘power to persuade.’’Skidmore v. Swift & Co., 323 U.S. 134,140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); seealso Power v. Barnhart, 292 F.3d 781, 786(D.C.Cir.2002) (‘‘Under Skidmore, wegrant an agency’s interpretation only somuch deference as its persuasiveness war-rants.’’). CBD asserts that the agency’sSupplemental Explanation has no ‘‘powerto persuade’’ because it is inconsistentwith the statute’s text, legislative history,and policy objectives, and because it is ef-fectively post hoc rationalization, devel-oped directly in response to litigation.Accordingly, CBD concludes, the agency’sinterpretation of the statutory phrase ‘‘indanger of extinction’’ does not warrantdeference under either the Chevron or theSkidmore standard, and this Court ‘‘mustdecide for itself the best interpretation of‘in danger of extinction’ as applied to thepolar bear.’’ CBD Supp. Mem. at 9 (citingLandmark Legal Found. v. IRS, 267 F.3d1132, 1136 (D.C.Cir.2001)).

After careful consideration of these ar-guments, the Court nevertheless concludesthat Chevron provides the appropriatestandard of review on remand. This Courtremanded the Listing Rule to FWS for thevery limited purpose of providing addition-al explanation for its listing determinationfor the polar bear. In other cases re-manding an agency decision for a similarlylimited purpose, the D.C. Circuit has sub-

sequently reviewed the agency’s supple-mental analysis under the Chevron frame-work. See Sec’y of Labor v. Nat’l CementCo. of Cal., 573 F.3d 788, 793 (D.C.Cir.2009) (concluding that ‘‘the Secretary’s in-terpretation [on remand] is entitled toChevron deference’’); PDK Labs., Inc. v.DEA, 438 F.3d 1184, 1189–90 (D.C.Cir.2006) (‘‘This leaves us with the task ofresolving at Chevron’s second step wheth-er the Deputy Administrator’s resolutionof that ambiguity [on remand] is based ona permissible construction of the statute.’’).

Indeed, the D.C. Circuit recently ad-dressed this precise question in Menkes v.U.S. Department of Homeland Security,637 F.3d 319 (D.C.Cir.2011). In Menkes,as here, the D.C. Circuit remanded to theCoast Guard for a ‘‘forthright’’ agency in-terpretation of ambiguous statutory lan-guage in the Great Lakes Pilotage Act.Although the plaintiff in that case arguedthat the agency’s response on remand wasnot entitled to deferential Chevron review,the D.C. Circuit disagreed. Specifically,the court found that Chevron deferencewas appropriate because the Coast Guardwas acting ‘‘pursuant to an express delega-tion from Congress’’ and because its inter-pretation addressed ‘‘interstitial questions’’that the agency ‘‘deserve[d] deference toaddress.’’ Id. at 331–32 (citing Barnhartv. Walton, 535 U.S. 212, 222, 122 S.Ct.1265, 152 L.Ed.2d 330 (2002); see alsoMylan Labs., Inc. v. Thompson, 389 F.3d1272, 1280 (D.C.Cir.2004)). The court foundthat the agency was not required to con-duct notice-and-comment rulemaking pro-cedures or engage in a formal adjudicatoryprocess for its statutory interpretation towarrant deferential review. Menkes, 637F.3d at 332–33. Rather, the court con-cluded that ‘‘the Coast Guard’s enunciationof the aforecited statutory interpretationsand rules has the ‘force of law,’ TTT espe-cially given the instruction from this courtto the agency to ‘come to grips with themeaning of the statute.’ ’’ Id. at 332.


Because this Court finds that the court’sopinion in Menkes bears directly on thequestion before it, it is bound to follow theD.C. Circuit’s approach. Here, as inMenkes, the Court required the Service tograpple with the ambiguities in the ESA’sdefinition of the term ‘‘endangered spe-cies,’’ pursuant to the agency’s expressauthority to make listing determinationscase-by-case in light of the best availablescience for each species. The Court ex-pressly did not require the agency to adoptindependent, broad-based criteria or pro-spective policy guidance regarding the in-terpretation of the phrase ‘‘in danger ofextinction’’ in the ESA. Further, theCourt expressly did not require the agencyto conduct notice-and-comment rulemakingprocedures or to engage in additional fact-finding. Given the narrow scope of theremand order in this case, the Court ispersuaded that the agency’s SupplementalExplanation qualifies for deferential re-view under Chevron.26

ii. Merits

[6] As set forth below, having carefullyconsidered the agency’s Supplemental Ex-planation, the parties’ arguments con-tained in both the original and supplemen-

tal briefing, and the relevant case law, theCourt finds that it must uphold the Ser-vice’s conclusion that the polar bear wasnot endangered at the time of listing understep two of the Chevron framework.

As an initial matter, the Court finds thatthe agency’s general understanding thatan endangered species is ‘‘on the brink ofextinction’’ is not clearly out of line withCongressional intent.27 With that said,however, the agency’s general understand-ing of the definition of an endangered spe-cies is not the primary focus of the Court’sinquiry. Rather, as the Court recognizedin its remand order, the decision to list aspecies as threatened or endangered ishighly fact-specific. See In re Polar Bear,748 F.Supp.2d at 28. On remand, theagency maintains that the facts in the ad-ministrative record show that the polarbear was not endangered as of 2008. Therelevant question before this Court, there-fore, is whether that conclusion was a rea-sonable one.

As discussed above, plaintiff CBD con-tends that the agency’s conclusion isflawed because FWS improperly ignoredor discounted relevant factors. This Courtdisagrees. The Court is not persuadedthat the agency ignored or otherwise failedto consider any of the information cited by

26. While the Court is sensitive to CBD’s con-cerns that the agency’s Supplemental Expla-nation may constitute post hoc rationaliza-tion, it finds persuasive the D.C. Circuit’sreasoning in Alpharma, Inc. v. Leavitt, 460F.3d 1, 6 (D.C.Cir.2006), in which the courtnoted that it would make no sense for acourt to order a remand for supplementalexplanation only to then reject that explana-tion as post hoc rationalization. Moreover,the Court is persuaded that the agency’s Sup-plemental Explanation does not constituteimpermissible post hoc rationalization be-cause the agency decision-makers themselvesdeveloped and approved it. See Pub. Citizenv. FMCSA, 374 F.3d 1209, 1218 (D.C.Cir.2004) (noting that ‘‘[t]he expertise of theagency TTT must be brought to bear’’ (cita-tion omitted)).

27. The agency’s determination that an endan-gered species is ‘‘on the brink of extinction’’draws from the primary distinction betweenthe categories of threatened and endangeredspecies as set forth in the text of the ESA. Asthis Court has previously observed, there is atemporal element to the distinction betweenthe categories of endangered and threatenedspecies. See In re Polar Bear, 748 F.Supp.2dat 26. This temporal distinction is also fre-quently noted in the legislative history. Seeid. at 28 (noting that the legislative historyemphasizes that an endangered species ‘‘is’’(currently or presently or actually) in dangerof extinction, whereas a threatened species is‘‘likely to become’’ so endangered).


plaintiff CBD. All of that information—including the population modeling data andpolar bear monitoring reports—is includedin the voluminous administrative recordthat was before the agency and, indeed,much of that data was cited by the agencyas a basis for designating the polar bear asa threatened species. Notably, CBD citesto the agency’s findings in the Listing Ruleitself for much of the evidence that itclaims the agency ignored.

To the extent that CBD is asking thisCourt to find that FWS drew improperconclusions from the scientific informationit considered, the Court declines to do so.Although the evidence emphasized byCBD is very troubling, the Court findsthat the agency acted well within its dis-cretion to weigh the available facts andscientific information before it in reachingits conclusion that the polar bear was notendangered at the time of listing.28 Wherean agency has exercised its Congressional-ly–authorized discretion to weigh the rele-vant factors, and it has made a listingdetermination based on a reasoned choice,the Court will not disturb its conclusion.See Animal Legal Def. Fund v. Glickman,204 F.3d 229, 235 (D.C.Cir.2000) (‘‘WhereCongress delegates power to an agency toregulate on the borders of the unknown,courts cannot interfere with reasonable in-terpretations of equivocal evidence.’’).

While CBD would have weighed the factsdifferently, the Court is persuaded thatFWS carefully considered all of the avail-able scientific information before it, and itsreasoned judgment is entitled to defer-ence.

Finally, the Court is satisfied that theagency has complied with its remand orderto provide additional explanation for theagency’s original ‘‘threatened’’ listing.Plaintiff CBD has identified no compellingevidence demonstrating that the agency’sproffered interpretation of the ESA ismanifestly contrary to the statute. Ac-cordingly, the Court concludes that theagency’s Supplemental Explanation suffi-ciently demonstrates that the Service’sdefinition of an endangered species, as ap-plied to the polar bear, represents a per-missible construction of the ESA and mustbe upheld under step two of the Chevronframework.29 See Serono Labs. v. Shalala,158 F.3d 1313, 1321 (D.C.Cir.1998) (underdeferential Chevron framework, a courtmust uphold a reasonable construction ofthe statute, even if it believes that anotherinterpretation is more reasonable).2. Joint Plaintiffs’ Claim that the Po-

lar Bear Should Not Have BeenConsidered Threatened at the Timeof Listing

The Court turns now to Joint Plaintiffs’claim that FWS similarly misinterpreted

28. Certainly, where global warming has beenidentified as the primary threat to the polarbear’s sea ice habitat and the agency hasacknowledged that the global warming trendis unlikely to reverse itself, a conclusion thatthe species is, in some sense, ‘‘in danger ofextinction’’ has undeniable appeal. TheUSGS population models, which predict atrend of extinction across three of the fourpolar bear ecoregions in as little as 75 years,particularly give the Court pause. However,the Court cannot agree with CBD that theagency’s conclusions based on the record, in-cluding these population models, rise to thelevel of irrationality. Specifically, the Courtaccepts as reasonable the agency’s explana-

tion that it declined to find that these prelimi-nary, alpha-level population models, whichcame relatively late in the decision-makingprocess, were sufficiently persuasive to war-rant an ‘‘endangered’’ listing for the polarbear.

29. Because the Court finds that the agencyreasonably concluded that the polar bear wasnot in danger of extinction in any portion ofits range at the time of listing, the Court willnot address CBD’s related argument that theSeasonal and Divergent Ice Ecoregions con-stitute a ‘‘significant portion’’ of the polarbear range. See 16 U.S.C. § 1532(6).


and misapplied the ESA when it concludedthat the polar bear is likely to becomeendangered within the foreseeable futureand thus qualified for threatened status atthe time the agency made its listing deter-mination. Joint Plaintiffs argue, first, thatFWS failed to demonstrate that the polarbear is sufficiently ‘‘likely’’ to become en-dangered and, second, that FWS arbitrari-ly selected a 45–year time period as the‘‘foreseeable future’’ for the polar bear,when a shorter time period would havebeen more appropriate. Each of thesearguments is addressed in turn.

a. Joint Plaintiffs’ Argument that theService Failed to Demonstrate thatthe Polar Bear Is 67–90% Likely toBecome Endangered

A threatened species under the ESA is aspecies that is ‘‘likely to become an endan-gered species within the foreseeable futurethroughout all or a significant portion ofits range.’’ 16 U.S.C. § 1532(20). JointPlaintiffs claim that FWS failed to provethat the polar bear is sufficiently ‘‘likely’’to become endangered within the meaningof this definition. Specifically, Joint Plain-tiffs contend that FWS failed to demon-strate a 67–90% likelihood that the polarbear will become endangered within theforeseeable future.

As an initial matter, Congress did notdefine the term ‘‘likely’’ in the ESA. FWShas not adopted regulations or other guid-ance defining the term. Nor has any courtdefined the term.30 Joint Plaintiffs lookinstead to the IPCC’s Fourth AssessmentReport (‘‘IPCC AR4’’), which providesthat, for the purposes of its climate modelsand projections, a ‘‘likely’’ outcome is onethat has a 67–90% probability of occur-ring.31 ARL 151195 n. 6. Joint Plaintiffsassert that this standard of likelihood isrelevant not only because FWS relied inpart on the climate models in the IPCCAR4 in reaching its ‘‘threatened’’ determi-nation for the polar bear, but also becauseFWS itself purportedly adopted this nu-merical standard of likelihood for the pur-poses of making its listing decision. Insupport of this argument, Joint Plaintiffspoint specifically to a statement in theagency’s response to comments on the pro-posed rule, in which FWS noted that it‘‘attempted to use [the terms ‘‘unlikely,’’‘‘likely,’’ and ‘‘very likely’’] in a mannerconsistent with how they are used in theIPCC AR4.’’ ARL 117241. According toJoint Plaintiffs, therefore, this statementindicates that the agency adopted this highnumerical standard of likelihood for allpurposes, including statutory interpreta-tion of the term ‘‘likely’’ as it appears inthe ESA.32

30. The District of Oregon in Trout Unlimitedv. Lohn is the only court to have significantlydiscussed the term ‘‘likely’’ as it appears inthe ESA. 645 F.Supp.2d 929 (D.Or.2007). Inthat case, the district court declined to definethe term but upheld as reasonable the Nation-al Marine Fisheries Service’s interpretation ofthe term to mean ‘‘more likely than not.’’ Id.at 944. The ‘‘more likely than not’’ standardhas also previously been adopted by FWS ininterpreting the ‘‘threatened’’ designation un-der the ESA. See W. Watersheds Project v. U.S.FWS, 535 F.Supp.2d 1173, 1184 (D.Idaho2007).

31. According to IPCC standards, a ‘‘morelikely than not’’ outcome has a 50–66% prob-

ability of occurring. A ‘‘very likely’’ outcomeis one that has more than a 90–95% probabili-ty of occurring; an ‘‘extremely likely’’ out-come has a 96–99% probability of occurring;and a ‘‘virtually certain’’ outcome has a great-er than 99% probability of occurring. ARL151195 n. 6.

32. In their reply brief, Joint Plaintiffs raisethe alternative argument that even if FWS didnot specifically adopt this particular numeri-cal standard, the Listing Rule should then beoverturned because the agency failed to adoptany standard for determining whether the po-lar bear is ‘‘likely’’ to become endangered.See JP Reply, Docket No. 170, at 14. To theextent the Court considers this new argument


In making this argument, it is not JointPlaintiffs’ position that FWS adopted animpermissible construction of the statute.To the contrary, Joint Plaintiffs appear tosuggest that a 67–90% standard of likeli-hood would be reasonable. See JP Mot. at10 (noting that 67–90% is consistent withdictionary definition of the term ‘‘likely’’).Instead, Joint Plaintiffs assert that, havingadopted this high standard, FWS subse-quently failed to meet that standard whenit relied on highly uncertain climate andpopulation modeling. For this reason,Joint Plaintiffs conclude, the agency’s de-termination that the polar bear is likely tobecome endangered was arbitrary and ca-pricious.

The federal defendants respond thatFWS did not adopt any numerical defini-tion of the term ‘‘likely’’ in the ListingRule, let alone the unreasonably high stan-dard of 67–90%. They assert that JointPlaintiffs have simply taken out of contexta statement that was intended to referonly to the standards used to assess thereliability of climate models, which is ‘‘en-tirely separate from the ultimate standardunder the ESA for determining whether aspecies meets the statutory definition ofthreatened based on the entirety of theavailable science and the five listing fac-tors.’’ Fed. Def. Mot. at 56. Indeed, thefederal defendants point out that the verynext sentence of the agency’s response tocomments refers explicitly to ‘‘the limita-tions and uncertainties of the climate mod-els and their projections.’’ ARL 117241.This statement suggests that the agencyintended to apply the numerical standardcited by Joint Plaintiffs only to those cli-mate models, which are only part of a

voluminous administrative record, and notmore broadly. According to the federaldefendants, because Joint Plaintiffs incor-rectly assume that the agency adopted aquantitative definition of the term ‘‘likely,’’their attempt to show non-compliance withthis standard must fail.33

[7] The threshold question before theCourt, therefore, is whether FWS in factadopted the Joint Plaintiffs’ proffered nu-merical definition of the term ‘‘likely.’’Having carefully reviewed the administra-tive record, the Court is not persuadedthat FWS adopted a numerical standardof 67–90% probability in determiningwhether the polar bear is ‘‘likely’’ to be-come endangered. Although the only ar-guable definition of the term ‘‘likely’’ inthe Listing Rule appears in the responseto comments that Joint Plaintiffs havehighlighted, the Court agrees with thefederal defendants that this lone state-ment does not demonstrate the agency’sintent to adopt the IPCC’s numerical stan-dards for all purposes, including statutoryconstruction.

Indeed, a close review of the recordbelies any such intention. The record re-veals that FWS used the terms ‘‘likely’’and ‘‘very likely’’ interchangeably through-out its Listing Rule. See, e.g., ARL117245 (‘‘Because of the habitat changesanticipated in the next 40–50 years, andthe corresponding reductions in reproduc-tion and survival, and, ultimately, popula-tion numbers, we have determined that thepolar bear is likely to be in danger ofextinction throughout all or a significantportion of its range by 2050.’’ (emphasis

that was raised improperly for the first timeon reply, the Court is persuaded that theagency articulated a reasoned basis for itslisting determination for the polar bear, not-withstanding the fact that it did not purport todefine the term ‘‘likely’’ in its Listing Rule.

33. The federal defendants also argue that, re-gardless of how the term ‘‘likely’’ could benumerically defined, the agency’s determina-tion for the polar bear easily would meet thatstandard.


added)); ARL 117252 (‘‘[W]e conclude thatthe species is not currently in danger ofextinction throughout all or a significantportion of its range, but is very likely tobecome so within the foreseeable future.’’(emphasis added)). The Court concludesthat if FWS had intended to imbue theseterms with the mathematical precisionurged by Joint Plaintiffs for the purposesof statutory construction, it would haveused these terms more deliberately.

Because the Court finds that FWS didnot adopt a statutory interpretation thatwould require a showing that at the timeof listing the polar bear had a 67–90%likelihood of becoming endangered withinthe foreseeable future in order to be listedas a threatened species, the Court declinesto reach Joint Plaintiffs’ claim that theagency failed to make such a showing.Accordingly, the Court concludes that theListing Rule is not arbitrary and capri-cious on these grounds.

b. Joint Plaintiffs’ Argument that theService Arbitrarily Selected 45Years As the ‘‘Foreseeable Future’’Timeframe for the Polar Bear

The Court turns now to Joint Plaintiffs’argument that the Service’s choice of a‘‘foreseeable future’’ timeframe over whichthe polar bear is likely to become endan-gered was arbitrary and capricious. In its

Listing Rule, FWS defined the ‘‘foresee-able future’’ as ‘‘the timeframe over whichthe best available scientific data allow us toreliably assess the effects of threats on thepolar bear,’’ and it concluded based onrecord evidence that it could confidentlypredict potential impacts to the polar bearfrom sea ice losses over a 45–year period.ARL 117257. Joint Plaintiffs argue thatthe agency’s choice of 45 years as theforeseeable future for the polar bear wasarbitrary and was based on inappropriatefactors.34 They further contend that FWSerred when it failed to consider whetherany time period shorter than 45 yearswould be more appropriately foreseeable.The Court will address these arguments inturn.

Joint Plaintiffs raise two significant ar-guments in support of their claim that the45–year time period was arbitrarily cho-sen. First, Joint Plaintiffs claim that theagency’s choice of a 45–year time periodwas inappropriately based only on biologi-cal factors (e.g., life history characteristicsof the polar bear) rather than on what theagency could actually foresee. Citing tothe proposed rule for the polar bear, JointPlaintiffs assert that FWS initially chose a45–year timeframe because it correspondsroughly to three polar bear generations.35

34. Plaintiff CBD also challenges the Service’schoice of a 45–year timeframe for the polarbear. Plaintiff CBD contends that the ‘‘fore-seeable future’’ for the polar bear should beextended beyond 45 years to the year 2100.The Court finds CBD’s claim perplexing. Thebasis of CBD’s argument appears to be thatimpacts to the polar bear over the next 100years were not only foreseeable at the time oflisting but were also drastic enough to war-rant listing the species as endangered. Bydefinition, however, a ‘‘foreseeable future’’determination is only relevant for threatenedspecies. See 16 U.S.C. § 1532(20). FWS de-termined that impacts to the polar bear overthe next 45 years were sufficiently foreseeableto warrant listing the species as threatened as

of 2008. Therefore, impacts to the polar bearbeyond year 45 were not relevant to the agen-cy’s listing determination.

35. Joint Plaintiffs also argue that, to the ex-tent FWS relied on biological considerations,FWS incorrectly calculated the generationlength of a polar bear. As the federal defen-dants point out, Joint Plaintiffs never raisedthis point before the agency, and it is well-established in this Circuit that issues notraised before the agency are waived. SeeNat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562(D.C.Cir.2002). Even assuming the argumentis not waived, however, plaintiffs point to noevidence suggesting that a different calcula-tion of polar bear generation length would


According to Joint Plaintiffs, FWS latermodified its analysis at the final rule stagein an attempt to justify its arbitrary choiceby pointing to sources of scientific data,including IPCC reports and other climateprojections. Second, Joint Plaintiffs arguethat FWS should have considered what is‘‘foreseeable’’ with respect to all five of theESA’s statutory listing factors (i.e., habitatloss, overutilization, regulatory mecha-nisms, disease, and other manmade fac-tors). This kind of comprehensive review,Joint Plaintiffs argue, would have enabledthe agency to make a more accurate as-sessment of the species’ likelihood of be-coming endangered because other factorsmay offset a foreseeable threat. Focusingspecifically on regulatory mechanisms(‘‘Listing Factor D’’), Joint Plaintiffs con-tend that ‘‘because the Service cannot rea-sonably ‘foresee’ or predict anything aboutexisting regulatory mechanisms in 45years, that period is too long.’’ JP Mot. at14.

The federal defendants respond thatFWS reasonably defined the foreseeablefuture as 45 years because it found that itcould make confident forecasts about polarbear population trends up to that point,based on climate modeling and other reli-able data. Specifically, the federal defen-dants assert, climate change projectionsfrom the IPCC AR4 supported a 45–yearforeseeable future timeframe at the timeof listing. As the federal defendants de-scribe, model outcomes reported in theIPCC AR4, which FWS accepted as thebest available science on climate change,consistently predict a certain base level ofoverall warming through mid-century, re-gardless of whether actual emissions in-crease or decrease over that period. Fed.Def. Mot. at 73 (citing ARL 117279).FWS found, relying on these IPCC re-ports, that beyond that point the choice of

emission scenario begins to influence mod-el outcomes more significantly. See ARL117233. According to FWS, therefore, atthe time the agency made its listing deci-sion minimum impacts to Arctic sea icecould be predicted with confidence for upto fifty years but projections became morespeculative beyond that point.

As the federal defendants point out,FWS also acknowledged that a 45–yearperiod roughly corresponds to three polarbear generations. However, according tothe federal defendants, the agency foundthis correlation to be relevant because pop-ulation status projections will generally beeven more reliable if they correspond insome way to the life history characteristicsof the species. See ARL 117258. Specifi-cally, the federal defendants assert, FWSdetermined that population projectionsthat can be made over multiple polar beargenerations are more reliable than projec-tions that only span one generation. Thefederal defendants contend that it was notirrational for FWS to rely on biologicalfactors in this way to support its choice ofa foreseeable future timeframe for its list-ing decision.

With respect to Joint Plaintiffs’ argu-ment that FWS erred when it failed toconsider what is ‘‘foreseeable’’ for all fivelisting factors, and particularly ListingFactor D (‘‘existing regulatory mecha-nisms’’), the federal defendants respondthat the statute contains no such require-ment. Indeed, the federal defendants as-sert, the ‘‘suggestion that the Service couldforego listing the polar bear under FactorD based on wholly speculative and uncer-tain future regulatory mechanisms is con-trary to the ESA.’’ Fed. Def. Mot. at 75.Moreover, there is no evidence in the rec-ord, according to the federal defendants,that any regulatory mechanisms have been

render the agency’s conclusion arbitrary and capricious.


or will be implemented that would effec-tively address the loss of sea ice within theforeseeable future. As such, the federaldefendants conclude, Joint Plaintiffs’ argu-ment lacks merit.

[8] As with the term ‘‘likely,’’ Con-gress has not defined the term ‘‘foresee-able future’’ under the ESA, and FWS hasnot promulgated any regulations or otherpolicy guidance defining the term. Atleast one court has recognized that what is‘‘foreseeable’’ is likely to vary from speciesto species depending on a number of fac-tors and, therefore, a bright-line rule offoreseeability is inappropriate. See W.Watersheds Project v. Foss, No. 06–1574,2005 WL 2002473, at *16, 2005 U.S. Dist.LEXIS 45753, at *44–45 (E.D.Pa. Aug. 19,2005) (noting that ‘‘the definition of ‘fore-seeable future’ may vary depending on theparticular species—for example, ‘foresee-able future’ may be defined differently fora sequoia tree TTT than for the slickspotpeppergrass, which is an annual or bienni-al plant’’). In the absence of a quantita-tive standard, a ‘‘foreseeable future’’ de-termination is made on the basis of theagency’s reasoned judgment in light of thebest available science for the species un-der consideration. See id. (declining toestablish a bright-line rule but noting thatthe agency must articulate a satisfactoryexplanation for its definition).

Having carefully considered the parties’arguments and the administrative record,the Court rejects Joint Plaintiffs’ argu-ment that the choice of a 45–year foresee-able future timeframe for the polar bearwas arbitrary and based on improper con-siderations. Contrary to Joint Plaintiffs’

assertions, FWS does not appear to havebased its choice solely on biological factors,even at the proposed rule stage. To theextent this Court considers the agency’sproposed rule, which is not the action be-fore it on review, the Court finds that theagency sufficiently explained that its deci-sion was based on ‘‘IUCN criteria,36 thelife-history and population dynamics of po-lar bears, documented changes to date inboth multi-year and annual sea ice, and thedirection of projected rates of change ofsea ice in future decades,’’ which all sup-ported a 45–year or three-generation time-frame for the foreseeable future. ARL59992. Moreover, the final Listing Ruleindicates that the climate change projec-tions found in the IPCC AR4—and notbiological factors—were the primary basisfor the Service’s determination of the fore-seeable future timeframe. See ARL117257. In light of the IPCC AR4 find-ings, the Court is satisfied that the agencyarticulated a rational basis for its choice.

The Court also rejects Joint Plaintiffs’argument that FWS erred by failing to‘‘foresee’’ future developments with re-spect to all five listing factors over thenext 45 years. Notably, Joint Plaintiffs donot contend that the ESA required FWSto conduct such an analysis; they assertonly that it would have resulted in a moreaccurate conclusion. Here, however, a re-view of the Listing Rule reveals that theagency in fact took all five listing factorsinto account, and it considered whetherthose factors would affect the likelihoodthat the polar bear will become endan-gered within the foreseeable future. Withrespect to overutilization (‘‘Listing FactorB’’), for example, the agency found that

36. A 45–year time period for the foreseeablefuture is consistent with the work of the inter-national Polar Bear Specialist Group, whichreassessed the status of the polar bear in June2005 for the purposes of the InternationalUnion for the Conservation of Nature’s

(‘‘IUCN’’) Red List classification, a list of spe-cies considered to be threatened. ARL117258. Although the standards for Red List-ing classification differ from ESA listing stan-dards, FWS nonetheless found the IUCN as-sessment to be instructive. See ARL 117254.


harvest ‘‘is likely exacerbating the effectsof habitat loss in several populations’’ andthat polar bear mortality from harvest‘‘may in the future approach unsustainablelevels for several populations’’ as thesepopulations begin to experience the stress-es of habitat change. ARL 117284. Fur-ther, with respect to regulatory mecha-nisms (‘‘Listing Factor D’’), the agencyconcluded that there are no known regula-tory mechanisms that could effectively ad-dress the primary threat to the polar bearfrom future sea ice losses.37 To the extentthe agency was required to consider otherlisting factors, the Court is satisfied thatFWS did so.

Finally, Joint Plaintiffs argue that eventhough FWS considered impacts to thepolar bear over a 45–year time period tobe reasonably foreseeable, FWS nonethe-less erred when it failed to consider ashorter timeframe, which would likely bemore foreseeable. The applicable stan-dard, however, is not whether the agencycould have taken a more reasonable ap-proach. The agency must only show thatthe approach it took was a rational one.See Envtl. Def. Fund v. Costle, 657 F.2d275, 283 (D.C.Cir.1981) (‘‘[The APA stan-dard] mandates judicial affirmance if a ra-tional basis for the agency’s decision ispresented TTT even though [a court] mightotherwise disagree.’’). Although JointPlaintiffs may have less confidence thanFWS in the conclusions that the agencyreached, that is not an appropriate basisfor invalidating an agency’s rational choice,

particularly in matters requiring scientificor technical expertise. See Marsh v. Or.Natural Res. Council, 490 U.S. 360, 375–77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).Accordingly, the Court concludes thatFWS appropriately exercised its discretionin selecting a 45–year ‘‘foreseeable future’’timeframe for the polar bear.

B. The Service Articulated a Ration-al Basis for Its Conclusion thatNo Polar Bear Population orEcoregion Qualifies As a ‘‘Dis-tinct Population Segment’’

Whereas plaintiff CBD and Joint Plain-tiffs primarily focus on the question ofwhether the polar bear warranted endan-gered or threatened status throughout itsrange in 2008, a subset of plaintiffs argue,in the alternative, that FWS should havedifferentiated among the various polarbear populations and/or ecoregions accord-ing to their relative levels of risk in mak-ing its listing decision. Specifically, plain-tiffs CBD, SCI, and CF assert that FWSerred when it declined to designate anypolar bear population or ecoregion as adistinct population segment (‘‘DPS’’) underthe ESA, which would have allowed theagency to tailor ESA protections morenarrowly. The common question present-ed by these three plaintiffs is whetherFWS arbitrarily determined that no polarbear population or ecoregion is sufficiently‘‘discrete’’ for the purposes of a DPS des-ignation.38 The Court turns now to thatquestion.

37. The ESA does not require FWS to ‘‘fore-see’’ what regulatory mechanisms will be inplace in the future—it is only required to takeexisting regulatory mechanisms into accountin its listing determination. 16 U.S.C.§ 1533(a)(1)(D); Biodiversity Legal Found. v.Babbitt, 943 F.Supp. 23, 26 (D.D.C.1996); seealso Or. Natural Res. Council v. Daley, 6F.Supp.2d 1139, 1153–54 (D.Or.1998).

38. In a related claim, plaintiffs SCI and CFfurther assert that FWS arbitrarily failed toconsider using its authority to list the polarbear in only part of its range. Essentially,these plaintiffs claim that FWS erred by fail-ing to consider whether any portion of thepolar bear range did not warrant listing asthreatened. The Court concludes that thisclaim has no merit. As a threshold matter, inlight of recent court opinions, it is unclear


1. The Service’s Policy

[9] The term ‘‘species’’ as it is used inthe ESA includes ‘‘any distinct populationsegment of any species of vertebrate fishor wildlife which interbreeds when ma-ture.’’ 16 U.S.C. § 1532(16) (emphasisadded). Congress did not further definethe term ‘‘distinct population segment,’’nor is the term defined in scientific dis-course. In 1996, however, FWS andNMFS jointly promulgated a ‘‘Policy Re-garding the Recognition of Distinct Verte-brate Population Segments Under the En-dangered Species Act’’ (‘‘DPS Policy’’), 61Fed.Reg. 4722 (Feb. 7, 1996), which pro-vides guidance to both agencies in apply-ing the term ‘‘distinct population segment’’for the purposes of an ESA listing. Pur-suant to this policy, FWS may designate aDPS to avoid listing an entire specieswhere only a portion of its population war-rants ESA protections. See Nat’l Ass’n ofHome Builders v. Norton, 340 F.3d 835,842 (9th Cir.2003).

The DPS Policy outlines three elementsto be considered in evaluating a possibleDPS:

1. The discreteness of the populationsegment in relation to the remainderof the species to which it belongs;

2. The significance of the populationsegment to the species to which itbelongs; and

3. The population segment’s conserva-tion status in relation to the Act’sstandards for listingTTTT

DPS Policy, 61 Fed.Reg. at 4725. Theseconsiderations are to be evaluated sequen-tially—i.e., FWS must first determine thatthe population segment is discrete beforeit can consider whether that segment isalso significant. Id. If, however, a popula-tion segment is found to be both discreteand significant, FWS may consider wheth-er that segment is threatened or endan-gered as defined by the ESA. Id.

A population segment is ‘‘discrete’’ whenit satisfies either one of the following con-ditions:

1. It is ‘‘markedly separated’’ from oth-er populations of the same taxon asa consequence of physical, physiolog-ical, ecological, or behavioral factors.Quantitative measures of genetic ormorphological discontinuity mayprovide evidence of this separation.

2. It is delimited by international gov-ernmental boundaries within whichdifferences in control of exploitation,management of habitat, conservationstatus, or regulatory mechanismsexist that are significant in light of[the five ESA listing factors].

Id. The test for discreteness under theagencies’ DPS Policy is not intended to beparticularly rigid. Id. at 4724. For exam-ple, it does not require absolute reproduc-tive isolation but allows for some inter-change among population segments. Id.The purpose of the distinctness criterion ismerely to ensure that a DPS can be rea-sonably defined and described in order toensure effective administration and en-forcement of the Act. Id.

whether the agency has the authority to list aspecies in only a portion of its range withoutgoing through the process of a DPS designa-tion. See generally Federal Defendants’ No-tice of Withdrawal of M–37013, Docket No.258 (citing Defenders of Wildlife v. Salazar,729 F.Supp.2d 1207 (D.Mont.2010)). Fur-ther, the Court finds that FWS sufficientlyconsidered whether any portion of the polarbear population did not warrant listing under

the ESA. This assessment is implied in theagency’s conclusion that the polar bear didwarrant listing throughout its range. FWSprovided ample explanation in its Listing Rulefor why polar bears range-wide are likely tobecome endangered within the foreseeable fu-ture and, as a result, warranted at least a‘‘threatened’’ designation. The Court istherefore persuaded that FWS did not arbi-trarily fail to consider this issue.


Nonetheless, both the ‘‘discreteness’’ cri-terion and the ‘‘significance’’ criterion wereadopted to ensure that FWS uses its au-thority to list DPS’s ‘‘sparingly,’’ at theurging of Congress. Id. at 4725 (citingS.Rep. No. 96–151, at 7 (1979)). DPS des-ignation is primarily intended to enableprotection and recovery of declining organ-isms in a more timely and less costly man-ner, and on a smaller scale, than would berequired for an entire species or subspe-cies. DPS Policy, 61 Fed.Reg. at 4725. Itis not a tactic for subdividing a largerpopulation that FWS has already deter-mined, on the same information, warrantslisting across a larger range. See Friendsof the Wild Swan v. U.S. FWS, 12F.Supp.2d 1121, 1133 (D.Or.1997).

At least two courts have acknowledgedthat the term ‘‘distinct population seg-ment’’ in the ESA is ambiguous, and,therefore, the agency’s interpretation andapplication of that term falls within steptwo of a Chevron analysis and is entitled todeference. See Nw. Ecosystem Alliance v.U.S. FWS, 475 F.3d 1136, 1141–43 (9thCir.2007); State of Maine v. Norton, 257F.Supp.2d 357, 385 (D.Me.2003). Bothcourts upheld the agency’s 1996 DPS Poli-cy as a reasonable interpretation of theESA.39 Nw. Ecosystem Alliance, 475 F.3dat 1145; State of Maine v. Norton, 257F.Supp.2d at 387.2. Plaintiffs CBD, SCI, and CF’s Claim

that the Service Wrongly Concludedthat No Polar Bear Population orEcoregion Is ‘‘Discrete’’

In its Listing Rule, FWS consideredwhether any distinct population segments

exist for the polar bear. As an initialmatter, FWS considered whether any po-lar bear population or ecoregion is ‘‘dis-crete’’ within the meaning of its DPS Poli-cy. The agency determined that, whiledifferent populations exhibit minor differ-ences of behavior, genetics, and life-historyparameters, no population or geographicarea is markedly separated as a conse-quence of physical, physiological, ecologi-cal, or behavioral factors. ARL 117298.In the Service’s estimation, the minor dif-ferences between individual populationsand ecoregions do not outweigh the simi-larities that are most relevant to the polarbear’s conservation status—in particular,the species’ universal reliance on sea icehabitat for critical life functions. ARL117298. As the federal defendants note,‘‘[w]hile polar bears adopt different strate-gies to deal with the seasonal absence ofsea-ice TTT their response to declining seaice is essentially the same, with the samenegative result: they suffer nutritionalstress because they spend longer amountsof time outside of their preferred sea-icehabitats where seals are accessible.’’ Fed.Def. Mot. at 104 (citing ARL 117274). Ac-cordingly, FWS concluded that no portionof the polar bear population is sufficiently‘‘discrete’’ to qualify for designation as aDPS. Plaintiffs CBD, CF, and SCI contendthat, contrary to record evidence, FWSarbitrarily determined that no polar bearpopulation is ‘‘markedly separated’’ fromother populations.40 In support of theirargument, plaintiffs point to evidence fromthe record which purportedly demon-

39. The DPS Policy itself has not been chal-lenged by any party in this case and is notbefore this Court on review.

40. In addition to its claim that FWS reacheda conclusion that is contrary to the evidence,CBD raises two additional claims: (1) that theagency failed to consider behavioral differ-ences among the polar bear populations; and

(2) that the agency failed to consider whetherany ecoregion qualifies as a DPS. The Courtcannot agree that the agency failed to consid-er either issue. First, FWS did acknowledgebehavioral differences among polar bear pop-ulations but deemed these differences to beminor in comparison to their relevant similar-ities. See ARL 117298. Second, FWS ap-


strates that USGS scientists, polar bearexperts, and the MMC all have identifieddistinctions among the world’s polar bearpopulations and, particularly, the fourecoregions. In light of this record evi-dence, plaintiffs argue that the Service’sconclusion that there is no marked separa-tion among polar bear population groupswas irrational.

Plaintiff CBD points primarily to com-ments from various reviewers suggestingthat the draft final listing rule did notadequately reflect the importance of theecoregion structure for polar bears. Forexample, USGS reviewers noted:

An important, and fairly emphatic, con-clusion from the body of 2007 USGSwork was that the life-history dynamics,demography, and present and futurestatus of polar bears in the 4 ecoregionsare different, owing largely to differentice dynamics, its spatiotemporal avail-ability, how it has responded to globalwarming and how it is predicted to re-spond in the future. In these Ecore-gions, the relationships between polarbears and their sea ice habitat are fun-damentally different.

See CBD Mot. at 38 (citing ARL 88920).

USGS commenters also rejected theagency’s assessment in the draft final rulethat ‘‘there are no morphological, or physi-ological differences across the range of thespecies that may indicate adaptations toenvironmental variations.’’ CBD Mot. at38 (citing ARL 96589). In response to thisstatement, USGS reviewers wrote:

This statement does not seem to us tobe true. We do see unique life historycomponents that are related to where apolar bear lives within the overall range.That is, the polar bears in the seasonalice ecoregion come ashore and fast for4–8 months while polar bears in thepolar basin may be on ice and nevercome to land—they may den on iceTTTT

This statement seems to contradict theecoregion idea—that there are some ma-jor differences in the ice regimes that doinfluence how polar bears make a livingin the different parts of their range.

ARL 96841.One particularly troubling comment that

CBD highlights is USGS’s statement that‘‘a careful reading of Amstrup et al. (2007)[the polar bear status report that formedthe basis for the Listing Rule] might leadto a different conclusion than that reachedby the Service.’’ ARL 101097. USGSgoes on:

Taken at face value, the outcomes fromthe Bayesian Network Modeling arethat polar bear populations living in theSeasonal and Divergent ecoregions aremost likely extinct within the foresee-able futureTTTT The fates of the popula-tions living in the Convergent and Archi-pelago ecoregions are different, with amuch smaller probability of beingsmaller than the present or extinct.The Draft Final Rule does not clearlyarticulate the scientific reasoning be-hind dismissing an ‘‘endangered’’ desig-nation for parts of the range TTTT Howdid the scientific evidence lead to the

pears to have considered whether any polarbear population segment—including ecore-gions—qualifies as a DPS:

Although polar bears within different popu-lations or ecoregions (as defined by Amstrupet al. 2007) may have minor differences indemographic parameters, behavior, or lifehistory strategies, in general polar bearshave a similar dependence upon sea ice

habitats, rely upon similar prey, and exhibitsimilar life history characteristics through-out their range.

ARL 117298 (emphasis added). Finally, FWSseparately determined that the polar bear wasnot endangered in any portion of its range atthe time of listing, including three specificpopulations and at least two ecoregions. SeeARL 117299–301.


status determination of ‘‘threatened’’ vs‘‘endangered’’?

ARL 101097 (emphasis added).41

The federal defendants respond thatFWS reached a reasonable conclusion,even in light of this record evidence. Thedefendants assert that, on balance, theagency found that there are no significantmorphological or physiological differences(i.e., differences in physical form or func-tion) among polar bears that indicatedphysical, evolutionary adaptations to envi-ronmental differences in the particular ar-eas, and that the small genetic differencesamong polar bears in different areas are‘‘not sufficient to distinguish populationsegments.’’ ARL 117298. According todefendants, the record does not show the‘‘marked separation’’ among either popula-tions or ecoregions that is a pre-requisitefor designating a DPS. Therefore, thedefendants contend, FWS reasonably con-cluded that no polar bear population orecoregion is ‘‘discrete,’’ applying the stan-dards set out in the agency’s DPS Policy.

3. The Court’s Analysis

[10] Having carefully considered theparties’ arguments and the administrativerecord, the Court finds that it must deferto the agency’s application of its DPS Poli-cy. The Court notes that, as FWS hasacknowledged, there are some recognizeddifferences among polar bear ecoregionsand even some differences from populationto population. Each population is appar-

ently distinguishable enough to be identi-fied as discrete for management purposes,and the boundaries of these populationshave been identified and confirmed overdecades of scientific study and monitoring.See ARL 139247. Nonetheless, while theserecognized distinctions would seem to beenough to satisfy the minimal criterionthat a DPS must be ‘‘adequately definedand described,’’ 61 Fed.Reg. at 4724, theCourt is not persuaded that the agency’scontrary conclusion rises to the level ofirrationality.

The Court recognizes that FWS hasadopted a formal policy for designating aDPS, which was promulgated through no-tice-and-comment rulemaking and hasbeen expressly upheld as reasonable by atleast two other courts. Relying on thispolicy, FWS engaged in weighing the factsto determine whether or not any polarbear population segment is ‘‘markedly sep-arated’’ from other populations. TheCourt finds that FWS articulated a reason-able basis for its conclusion that no polarbear population or ecoregion is meaning-fully ‘‘discrete’’ for the purposes of DPSdesignation: even if there are behavioraldifferences among polar bear populationsegments, polar bears are universally simi-lar in one crucial respect-namely, theirdependence on sea ice habitat and negativeresponse to the loss of that habitat. TheCourt must defer to the agency’s reasonedconclusion. See Envtl. Def. Fund v. Cos-

41. Plaintiff CBD also points to a 2008 reportfrom Canadian polar bear researchers, whichconcluded that polar bears may be appropri-ately managed in ‘‘designatable units.’’ ARL127663. The Canadian Species at Risk Act(‘‘SARA’’), like the ESA, allows for the protec-tion of sub-units of species that are geneticallyand/or geographically distinct (so-called ‘‘de-signatable units’’ or ‘‘DUs’’). ARL 127663.The authors of this Canadian study noted that‘‘polar bears belong to ecosystems that differfundamentally in their structure and function-ing (e.g., sea ice regime, biological productivi-

ty, prey species and availability, etc.)TTTT

Thus, it appears that, although all polar bearsin Canada belong to a single species they donot share a single, uniform conservation sta-tus.’’ ARL 127668. On this basis, the au-thors recommended analyzing the Canadianpolar bear population in terms of five distinctgenetic units that also represent distinct eco-logical and geographic groups. ARL 127680.Plaintiff CBD cites to this study as furtherevidence that polar bear populations are suffi-ciently distinct to qualify for designation asDPS under the ESA.


tle, 657 F.2d at 283.42 Accordingly, theCourt concludes that FWS reasonably de-clined to designate any polar bear popula-tion or ecoregion as a DPS.43

C. The Service Did Not ArbitrarilyFail to Consider Other ListingFactors

Plaintiffs also argue that the ListingRule should be overturned because of de-ficiencies in the Service’s analysis of sev-eral of the listing factors the ESA re-quires the agency to consider. First,Joint Plaintiffs contend that FWS arbi-trarily and capriciously failed to adequate-ly ‘‘take into account’’ foreign conservationefforts, as required by 16 U.S.C.§ 1533(b)(1)(A) (‘‘§ 1553(b)(1)(A)’’). Sec-ond, Joint Plaintiffs contend that FWSarbitrarily and capriciously failed to dem-onstrate that it relied upon the ‘‘bestavailable science,’’ which is also requiredby § 1533(b)(1)(A). Third, plaintiff CBDcontends that FWS arbitrarily and capri-ciously failed to find that overharvest or

overutilization is a significant threat to po-lar bear populations (‘‘Listing Factor B’’).Finally, Joint Plaintiffs contend that FWSarbitrarily and capriciously concluded thatregulatory mechanisms (both existing andfuture) are insufficient to protect the polarbear despite the threat of substantial hab-itat losses (‘‘Listing Factor D’’). Each ofthese claims is addressed in turn.

1. Joint Plaintiffs’ Claim that the Ser-vice Failed to ‘‘Take Into Account’’Foreign Conservation Efforts toProtect the Polar Bear

The ESA requires that any listing deci-sion must be made

solely on the basis of the best scientificand commercial data available TTT afterconducting a review of the status of thespecies and after taking into accountthose efforts, if any, being made by anyState or foreign nation, or any politicalsubdivision of a State or foreign nation,to protect such species, whether by pre-

42. Further, the only case law cited by anyparty on this issue weighs in favor of defer-ence to the agency. In an unpublished deci-sion, the Ninth Circuit upheld the Service’sfinding that interior mountain quail are notsufficiently discrete from the remainder of thepopulation to warrant listing as a DPS. W.Watersheds Project v. Hall, 338 Fed.Appx. 606,608 (9th Cir.2009). Despite significant rec-ord evidence showing that the mountain quailis geographically and ecologically isolatedfrom other quail, the lower court nonethelessupheld the Service’s finding that no mountainquail population is ‘‘discrete’’ because there isno ‘‘physical barrier’’ that precludes intermix-ing among populations. W. Watersheds Pro-ject v. Hall, No. 06–0073, 2007 WL 2790404,at *3–4, 2007 U.S. Dist. LEXIS 70710, at *11–13 (D.Idaho 2007). The appellate court af-firmed the district court’s finding that FWShad articulated a rational connection betweenthe facts found and the agency’s conclusionthat there was no ‘‘marked separation’’among quail populations. W. Watersheds Pro-ject, 338 Fed.Appx. at 608. In that case, bothcourts upheld the Service’s determination as

rational, even in the face of significant coun-tervailing facts.

43. Plaintiffs CF and SCI assert that becausethe polar bear species is clearly ‘‘delimited byinternational boundaries,’’ FWS should haveconcluded that polar bear populations arediscrete on this basis as well. See CF Mot. at14. In its Listing Rule, FWS consideredwhether international boundaries might satis-fy the discreteness requirement of the DPSPolicy. The agency concluded that differ-ences in management across the polar bear’srange do not qualify any polar bear popula-tion segment as ‘‘discrete’’ because eachrange country shares management obligationswith other range countries and, therefore, thedifferences in management between polarbear populations are not significant. More-over, the agency noted that any differences inmanagement across international boundariesare irrelevant because the threat of sea iceloss is a global one that cannot be limited toor managed by one country alone. ARL117298. The Court declines to find that thisconclusion was irrational.


dator control, protection of habitat andfood supply, or other conservation prac-tices, within any area under its jurisdic-tion, or on the high seas.44

16 U.S.C. § 1533(b)(1)(A) (emphasis add-ed). Joint Plaintiffs contend that FWSfailed to satisfy this requirement primarilybecause it did not devote a separate sec-tion of its Listing Rule to an assessment offoreign conservation programs that impactpolar bears, particularly Canadian sport-hunting programs.

In its supplemental memorandum, plain-tiff CF takes this essentially proceduralargument a step further. Relying on adictionary definition of the phrase ‘‘to takeinto account,’’ plaintiff CF contends thatFWS was required not only to ‘‘consider’’but also to ‘‘allow for’’ the existence offoreign conservation programs. See CFMot. at 8. In other words, CF contendsthat FWS is required to ensure that exist-ing conservation efforts are not negativelyimpacted by its listing decisions.

CF contends that Congress specificallyintended to encourage sport trophy hunt-ing through the ESA. According to CF,Congressman John Dingell envisioned thisgoal when he introduced the ESA as a billin 1973. CF asserts that Rep. Dingelldescribed the Act as having been

carefully drafted to encourage TTT for-eign governments to develop healthy

stocks of animals occurring naturallywithin their borders. If these animalsare considered valuable as trophy ani-mals TTT they should be regarded as apotential source of revenue to the man-aging agency and they should be encour-aged to develop to the maximum extentcompatible with the ecosystem uponwhich they depend.

CF Mot. at 10 (citing ARL 152657). Fur-ther, CF asserts that the House of Repre-sentatives ‘‘clearly elucidated its intent’’when it explained:

[T]he section requires the Secretary togive full consideration to efforts beingcurrently made by any foreign countryto protect fish or wildlife species withinthat country, in making a determinationas to whether or not those species areendangered or threatened. There isprovided ample authority and directionto the Secretary to consider the effortsof such countries in encouraging themaintenance of stocks of animals forpurposes such as trophy hunting.

CF Mot. at 9 (citing H. Rep. No. 93–412,at 150 (1973)). CF contends that this pas-sage represents a consensus on the agen-cy’s ‘‘obligation to support the use of tro-phy hunting to pursue conservation goals.’’CF Mot. at 9.45

The federal defendants generally re-spond that FWS adequately ‘‘took into ac-count’’ the conservation efforts being made

44. As the parties acknowledge, Congress didnot define the phrase ‘‘taking into account,’’nor has it been defined or otherwise clarifiedby regulation, by agency policy, or by anycourt.

45. According to CF, its reading of the ESAalso makes sense because trophy hunting pro-grams are essential to the efficacy of the stat-ute. These programs purportedly provide auseful lever by which the United States canexercise its influence to accomplish conserva-tion goals in countries that are beyond theESA’s reach. Specifically, CF contends thatthe United States can encourage a foreign

country to comply with ESA conservationstandards (and thus protect a species that isendangered outside our borders) by threaten-ing the country with import restrictions, solong as that country has an economicallyvaluable and viable trophy hunting program.CF contends that Congress intended to usetrade to manage the actions of foreign indi-viduals and nations in this way. Therefore,CF concludes, all listing decisions must takeforeign programs into account by ensuringthat those programs remain an effective toolfor furthering conservation goals.


in the polar bear range countries—bothregulatory and non-regulatory—and con-cluded that none of those efforts offsets orsignificantly reduces the primary threat tothe polar bear’s survival: loss of sea icehabitat. See Fed. Def. Mot. at 142 (citingARL 117246). According to the defen-dants, this is all the ESA requires.

[11] Having carefully considered theparties’ arguments and the administrativerecord, this Court agrees with the federaldefendants. Although an explicit findingmight have been clearer, the Court is sat-isfied that FWS sufficiently consideredconservation efforts in the polar bearrange countries before it decided to listthe polar bear as threatened range-wide.As part of its analysis of Listing Factor B,the agency discussed harvest managementprograms in each of the range countries,along with the relevant conservation bene-fits of those programs. FWS also ad-dressed the conservation and economicbenefits of polar bear sport-hunting pro-grams in its response to comments on theListing Rule. See ARL 117240. As partof its analysis of Listing Factor D, theagency enumerated the regulatory mecha-nisms that govern polar bears in each ofthe range countries—including legal pro-tections and on-the-ground habitat protec-tions—as well as bilateral and multilateralagreements and overarching internationalframeworks that govern management ofthe polar bear range-wide, such as the1973 Agreement on the Conservation ofPolar Bears and the Convention on Inter-national Trade in Endangered Species(‘‘CITES’’). See ARL 117285–92. Be-

yond sport-hunting programs and regula-tory mechanisms, FWS also consideredvoluntary agreements between indigenouspeoples for jointly managing polar bearpopulations, national parks and nature re-serves, and a variety of other foreign con-servation efforts.

Joint Plaintiffs have not identified a sin-gle foreign conservation effort that FWSfailed to take into account. Indeed, JointPlaintiffs have not even explained why theagency’s exhaustive analysis is deficient,except to say that the agency did notexpressly state that it was taking foreignconservation efforts ‘‘into account.’’ TheCourt declines to invalidate the ListingRule on this basis.

The Court also rejects plaintiff CF’s re-lated claim that the agency was obligatedto avoid making a listing decision for thepolar bear that would negatively impactsport-hunting programs. Although CFhas cited some isolated passages from thelegislative history that express support fortrophy hunting programs, neither the stat-ute itself nor its legislative history makesclear that the ESA requires FWS to avoidmaking listing decisions that might affectthose programs.46 Rather, the ESA onlyrequires the agency to consider how for-eign conservation efforts might impact thedecision to list a particular species asthreatened or endangered. See 16 U.S.C.§ 1533(b)(1)(A) (requiring the Secretary tomake listing decisions ‘‘solely on the basisof the best scientific and commercial dataavailable TTT after taking into accountthose efforts, if any, being made by anyState or foreign nation, or any political

46. In fact, the Court notes that in the quotefrom Congressman Dingell that plaintiff CFfrequently cites for support, plaintiff repeated-ly and disingenuously omits key language. Infull, this quote reads: ‘‘If these animals areconsidered valuable as trophy animals andthey are not endangered they should be regard-ed as a potential source of revenue to themanagement agency[.]’’ Comm. on Env’t and

Public Works, 97th Cong., A Legislative Histo-ry of the Endangered Species Act of 1973, asAmended in 1976, 1977, 1978, and 1981, at195 (1982) (emphasis added). This statementwould suggest that the agency may promotetrophy hunting programs only to the extentthat those programs do not impact a listedspecies.


subdivision of a State or foreign nation, toprotect such species, whether by predatorcontrol, protection of habitat and food sup-ply, or other conservation practices, withinany area under its jurisdiction, or on thehigh seas.’’).47 That is exactly what FWSdid here. After considering a variety offoreign conservation efforts, FWS conclud-ed that, while these efforts may have beensufficient to protect the species from over-harvest and disturbance, they will not besufficient to offset sea ice loss, which is theprimary threat to the polar bear’s survival,and thus these efforts did not affect theagency’s conclusion that the polar bearwarranted listing under the ESA. SeeARL 117292. This is all the statute re-quires. Accordingly, the Court concludesthat the agency properly discharged itsduty under § 1533(b)(1)(A) to take foreignconservation programs into account.

2. Joint Plaintiffs’ Claim that theService Failed to Rely upon the

‘‘Best Available Science’’

Joint Plaintiffs argue that FWS alsofailed to demonstrate that it relied upon

the ‘‘best scientific and commercial dataavailable,’’ as required by § 1533(b)(1)(A).Joint Plaintiffs put forward the followingthree arguments in support of this claim:First, they contend that climate changescience and predictions related to sea iceloss at the time the agency made its listingdecision were too uncertain to support theagency’s conclusion that polar bears arethreatened. Second, they point to weak-nesses in the carrying capacity and Baye-sian Network models developed by USGSand claim that these models were likewiseinsufficient to support the agency’s listingdetermination. Third, and finally, JointPlaintiffs assert that FWS ignored all butfive years of data for the Southern Beau-fort Sea polar bear population and drewimproper scientific conclusions from thislimited data set. The Court will addresseach of these arguments in turn.

a. Joint Plaintiffs’ Argument that Cli-mate Science Is Too Uncertain to Sup-

port the Service’s Conclusion

First, Joint Plaintiffs contend that thepolar bear did not warrant listing under

47. Similarly, the 1973 House Report cited byplaintiff CF states that ESA Section 4(b) ‘‘re-quires the Secretary to give full considerationto efforts being currently made by any foreigncountry to protect fish or wildlife specieswithin the country, in making a determinationas to whether or not those species are endan-gered or threatened.’’ H. Rep. No. 93–412, at11 (1973) (emphasis added). The Court notesthat this is the same interpretation adopted byFWS in its ‘‘Policy for Evaluation of Conser-vation Efforts When Making Listing Deci-sions’’ (‘‘PECE Policy’’), which specifies theconditions under which FWS may considerconservation efforts that have not yet beenimplemented. 68 Fed.Reg. 15,100, 15,100(March 28, 2003) (‘‘While the Act requires usto take into account all conservation effortsbeing made to protect a species, the policyidentifies criteria we will use in determiningwhether formalized conservation efforts thathave yet to be implemented or to show effec-tiveness contribute to making listing a speciesas threatened or endangered unnecessary.’’

(emphasis added)). This is also the very sameinterpretation set out in those listing decisionsthat Joint Plaintiffs cite as examples of wherethe agency properly took foreign conservationprograms into account. Proposed Status forDPS of Rockfish in Puget Sound, 74 Fed.Reg.18,516, 18,537 (Apr. 23, 2009) (‘‘Section4(b)(1)(A) of the ESA requires the Secretary ofCommerce to take into account efforts beingmade to protect a species that has been peti-tioned for listing. Accordingly, we will assessconservation measures being taken to protectthese six rockfish DPSs to determine whetherthey ameliorate the species’ extinction risks.’’(emphasis added)); Status Determination forthe Gulf of Maine DPS of Atlantic Salmon, 74Fed.Reg. 29,344, 29,377 (June 19, 2009) (‘‘Wethen assess existing efforts being made toprotect the species to determine if these con-servation efforts improve the status of the spe-cies such that it does not meet the ESA’sdefinition of a threatened or endangered spe-cies.’’ (emphasis added)).


the ESA at the time of listing because theadministrative record shows ‘‘tremendousuncertainty’’ about the nature and extentof future global climate change and theimpact of any such change on the Arcticecosystem and on the polar bear. JP Mot.at 17. Specifically, Joint Plaintiffs point toa 2007 ‘‘Uncertainty Report’’ from the ad-ministrative record, which notes that ‘‘un-certainty in projections of Arctic climatechange is relatively high’’ as a consequenceof its smaller spatial scale and high sensi-tivity to climate change impacts and thecomplex processes that control ice develop-ment. See JP Mot. at 18 (citing ARL128805). Further, Joint Plaintiffs notethat the IPCC reports themselves, whichare widely acknowledged to be the defini-tive source of modern climate changeknowledge, indicate that complex systemslike the Arctic are ‘‘inherently unpredict-able’’ and have ‘‘high scientific uncertain-ties,’’ which range from ‘‘inadequate scien-tific understanding of the problem, datagaps and general lack of data to inherentuncertainties of future events in general.’’JP Mot. at 19 (citing IPCC’s Special Re-port on Emissions Scenarios Section 1.2,Box 1–1: Uncertainties and Scenario Anal-ysis, http://grida.no/climate/ipcc/emission/025.htm). This inherent uncertainty, ac-cording to Joint Plaintiffs, is compoundedby the predictive nature of the USGS fore-casting reports, which attempt to forecastsea ice conditions up to 100 years into thefuture on the basis of mathematical model-ing that cannot replicate the complex Arc-tic system.

Joint Plaintiffs contend that FWS failedto explain how, despite the high degree ofuncertainty in climate science, it nonethe-less found that polar bears are ‘‘likely’’ tobe in danger of extinction within the fore-

seeable future.48 According to Joint Plain-tiffs, the uncertainty surrounding futureclimate change impacts should have pre-vented FWS from being able to discernany such trend with confidence. JP Mot.at 20–21 (citing Bennett v. Spear, 520 U.S.154, 176, 117 S.Ct. 1154, 137 L.Ed.2d 281(1997) (‘‘The obvious purpose of the re-quirement that each agency ‘use the bestscientific and commercial data available’ isto ensure that the ESA not be implement-ed haphazardly, on the basis of speculationor surmise.’’)).

The federal defendants respond thatJoint Plaintiffs’ arguments must fail as amatter of law because they incorrectly as-sume that scientific certainty (or even a‘‘high degree’’ of certainty) is required be-fore the Service may list a species asthreatened under the ESA. The federaldefendants point out that Joint Plaintiffshave neither challenged the IPCC reportsdirectly nor identified better climatechange data. Joint Plaintiffs merely as-sert that the available climate science atthe time of listing was ‘‘too uncertain’’ forthe Service to rely upon, a position whichthe federal defendants contend is contraryto D.C. Circuit precedent. See Sw. Ctr.for Biological Diversity v. Babbitt, 215F.3d 58, 60 (D.C.Cir.2000) (finding that theService is required to rely on the bestavailable scientific data, even if that data is‘‘quite inconclusive’’).

The federal defendants further respondthat Joint Plaintiffs have overstated theuncertainty of climate change science.According to the federal defendants,mainstream climate science at the time oflisting, as reflected in the IPCC AR4, ac-cepted that further global and regional

48. As discussed above, according to JointPlaintiffs, the proper standard for determin-ing whether the polar bear is ‘‘likely’’ to be-come endangered is 67–90% likelihood.

However, as the Court has concluded, FWSdid not adopt such a high standard and thusneed not demonstrate that it met that highstandard.


Arctic warming is very likely to occur,based on the levels of greenhouse gases inthe atmosphere and those likely to be em-itted. See Fed. Def. Mot. at 81 (citingARL 152436; ARL 151205). Moreover,the federal defendants contend that FWSfound that any uncertainty in climatechange projections could be reduced byconsidering an ‘‘ensemble’’ of climatechange models—in other words, by aver-aging the results of a group of modelsthat most closely reflect actual observedconditions—and it did so here. See Fed.Def. Mot. at 81 (citing ARL 117232; ARL128806). According to the federal defen-dants, uncertainties surrounding climatechange impacts did not prevent the Ser-vice from making a credible assessment ofthe likely direction and magnitude ofthose impacts, even if it was not possibleto make such predictions with precision.

[12] Having considered the parties’ ar-guments, the Court agrees with the federaldefendants. Joint Plaintiffs’ claim boilsdown to an argument that the availabledata were not certain enough to adequate-ly support the outcome of the agency’slisting decision for the polar bear. It iswell-settled in the D.C. Circuit that FWSis entitled—and, indeed, required—to relyupon the best available science, even ifthat science is uncertain or even ‘‘quiteinconclusive.’’ Sw. Ctr. for Biological Di-versity, 215 F.3d at 60. The ‘‘best avail-able science’’ requirement merely prohibitsFWS from disregarding available scientificevidence that is better than the evidence itrelied upon. Id. (citing City of Las Vegasv. Lujan, 891 F.2d 927, 933 (D.C.Cir.1989)); see also Building Indus. Ass’n ofSuperior Cal. v. Norton, 247 F.3d 1241,1246 (D.C.Cir.2001) (‘‘Assuming the stud-ies the Service relied on were imperfect,that alone is insufficient to underminethose authorities’ status as the ‘best scien-tific TTT data available’TTTT [T]he Service

must utilize the ‘best scientific TTT dataavailable,’ not the best scientific data pos-sible.’’). Joint Plaintiffs have pointed to noinformation that was superior to the IPCCAR4 reports at the time the agency madeits listing decision. The Court declines tofind that it was arbitrary for the agency torely upon what were generally accepted tobe the best available climate change dataat the time the agency made its listingdecision, particularly when the agency alsotook steps to reduce uncertainty to theextent feasible.

[13] Moreover, an agency is entitled toparticular deference where it has drawnconclusions from scientific data. EthylCorp., 541 F.2d at 36. As this Court hasobserved, ‘‘some degree of speculation anduncertainty is inherent in agency decision-making’’ and ‘‘though the ESA should notbe implemented ‘haphazardly’ TTT an agen-cy need not stop in its tracks when it lackssufficient information.’’ Oceana v. Evans,384 F.Supp.2d 203, 219 (D.D.C.2005) (cit-ing cases). Notwithstanding a handful ofreferences to uncertainty that appear inrecord documents, Joint Plaintiffs havefailed to persuade this Court that FWSimplemented the ESA ‘‘haphazardly.’’ Ac-cordingly, the Court concludes that FWSdid not act arbitrarily in relying on anddrawing reasonable conclusions from theIPCC reports and climate models in mak-ing its listing determination for the polarbear.

b. Joint Plaintiffs’ Argument that theUSGS Population Models Do NotSupport the Service’s Conclusion

Second, Joint Plaintiffs contend thatFWS similarly failed to demonstrate a ra-tional connection between the USGS popu-lation models and the conclusions that theagency drew from those models. Specifi-cally, Joint Plaintiffs assert (i) that the twoUSGS population models FWS consid-


ered—the carrying capacity and BayesianNetwork models—are fundamentallyflawed, (ii) that FWS failed to address theshortcomings of both models in its ListingRule, and (iii) that the agency also failed toexplain how these models sufficiently sup-port its listing decision.

Joint Plaintiffs identify two primaryflaws with the carrying capacity model:first, that the term ‘‘carrying capacity’’ ismisleading because USGS did not use theterm according to its traditional defini-tion,49 and second, that the model improp-erly assumes that current estimated polarbear densities will remain constantthrough time, an assumption which USGSitself admitted is ‘‘ ‘almost certainly notvalid.’ ’’ See JP Mot. at 28 (quoting ARL82463). As a result, Joint Plaintiffs con-tend that the carrying capacity modelgives a false impression that every unitchange in sea ice habitat will result in acorresponding unit change in polar bearpopulation numbers. With regard to theBayesian Network model, Joint Plaintiffspoint out that the model was only at apreliminary stage at the time of listingbecause it was developed based on theinput of only one polar bear expert and,therefore, requires further developmentbefore it can be considered reliable.

As an initial matter, the federal defen-dants respond that Joint Plaintiffs focustoo narrowly on the weaknesses of thesetwo models. These models were not thesole basis for the agency’s listing decision;rather, the federal defendants contend thatFWS merely found that these two modelswere consistent with the other record evi-dence before it, including published litera-ture and the opinions of numerous peerreviewers. As a legal matter, the federal

defendants note, the question is not wheth-er these two models alone support theagency’s decision but instead whether theagency’s decision is supported by the rec-ord as a whole. See Fed. Def. Mot. at 85(citing Van Valin v. Locke, 671 F.Supp.2d1, 8 (D.D.C.2009)). Here, according to thefederal defendants, the full record ade-quately supports the agency’s listing deci-sion.

In any event, the federal defendantscontend that FWS fully disclosed theweaknesses in both models and discountedthem accordingly by relying only upontheir general direction and magnitude andthat FWS was entitled to draw reasonableconclusions from the USGS populationmodels, despite their acknowledged flaws.According to the federal defendants, thesemodels were the best available scientificinformation of their kind when FWS madeits listing decision, and the law requiresthe agency to consider them. Fed. Def.Mot. at 87 (citing Building Indus. Ass’n,247 F.3d at 1246). The federal defendantsfurther note that it is well-settled that anexpert agency has wide latitude to consid-er and weigh scientific data and informa-tion within its area of expertise. Fed. Def.Mot. at 90 (citing Am. Bioscience v.Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001)).

Having considered the parties’ argu-ments, the Court concludes that JointPlaintiffs’ second argument must also fail.Despite plaintiffs’ criticisms, they have not,in fact, challenged the USGS models as thebest available science of their kind at thetime of listing. Instead, Joint Plaintiffsappear to take the position that FWSshould have drawn different conclusions

49. The traditional definition of the term ‘‘car-rying capacity’’ refers to ‘‘[t]he maximumnumber of individuals that a given environ-ment can support without detrimental ef-

fects.’’ JP Mot. at 28 (quoting American Heri-tage Dictionary of the English Language (4thed. 2009)).


from these models or, indeed, disregardedthem entirely. The Court cannot agree.

Again, it is well-settled in the D.C. Cir-cuit that an agency must rely upon thebest available science, even if that scienceis imperfect. See Building Indus. Ass’n,247 F.3d at 1246.50 Moreover, Joint Plain-tiffs have failed to demonstrate that FWSdrew wholly arbitrary conclusions from theUSGS population models. As this Courthas observed, ‘‘[t]here is nothing inherent-ly problematic about using predictions ofpopulation trends to analyze the status of aspeciesTTTT’’ Oceana, Inc. v. Evans, 384F.Supp.2d 203, 221 n. 21 (D.D.C.2005).FWS candidly acknowledged the weak-nesses in both models and tempered itsreliance on them accordingly, as it is per-mitted to do in weighing scientific informa-tion. See Balt. Gas & Elec. Co. v. NaturalRes. Def. Council, 462 U.S. 87, 103, 103S.Ct. 2246, 76 L.Ed.2d 437 (1983) (notingthat a reviewing court must be ‘‘at its mostdeferential’’ when examining conclusionsmade ‘‘at the frontiers of science’’); seealso Int’l Fabricare Inst. v. EPA, 972 F.2d

384, 389 (D.C.Cir.1992) (‘‘The rationale fordeference is particularly strong when the[agency] is evaluating scientific data withinits technical expertise: ‘[I]n an area char-acterized by scientific and technologicaluncertainty[,] TTT this court must proceedwith particular caution, avoiding all temp-tation to direct the agency in a choicebetween rational alternatives.’ ’’ (quotingEnvtl. Def. Fund v. Costle, 578 F.2d 337,339 (D.C.Cir.1978))).51 Given the defer-ence courts must grant to an agency inthis area, this Court declines to find thatthe agency’s reliance on and evaluation ofthe USGS population models was arbitraryand capricious.

c. Joint Plaintiffs’ Argument that theService Ignored Scientific Data andMade Improper Findings Regardingthe Southern Beaufort Sea Popula-tion

As noted above, in its Listing Rule FWSrelied in part on long-term studies of theSouthern Beaufort Sea population as evi-dence suggesting that polar bears experi-

50. The Court notes, further, that although the‘‘best available science’’ mandate does notrequire FWS to generate new scientific data,see Sw. Ctr. for Biological Diversity v. Babbitt,215 F.3d 58, 60–61 (D.C.Cir.2000), FWS es-sentially did so here when it commissionedUSGS to conduct additional analysis, includ-ing these population models. The federal de-fendants point out that population modelingdata is not required for a listing decision andin many cases this type of data is not avail-able. See Fed. Def. Reply at 49, n. 22. TheCourt declines to find that it was irrational forFWS to consider available population models,even if they were imperfect.

51. In their opening brief, Joint Plaintiffs ar-gue that the FWS improperly relied upon theUSGS population models because these mod-els bear no ‘‘rational relationship’’ to the real-ity that they are purported to represent. JPMot. at 27 (citing Greater Yellowstone Coal. v.Kempthorne, 577 F.Supp.2d 183, 198 (D.D.C.2008) (‘‘[A] model must be rejected as arbi-trary and capricious ‘if there is simply no

rational relationship between the model andthe known behavior of [the items] to which itis applied.’ ’’) (internal citation omitted)). Intheir reply brief, however, Joint Plaintiffsclarify that they do not challenge the agency’schoice of models; rather, they challenge theService’s application of those models. See JPReply at 36. To the extent Joint Plaintiffshave challenged the Service’s choice of mod-els, they have failed to show that the carryingcapacity and Bayesian Network models arenot ‘‘rationally related’’ to the reality theypurport to represent, and as such their cita-tion to Greater Yellowstone Coalition is inapt.In Greater Yellowstone Coalition, this Courtrejected sound level modeling that was atodds with recorded sound levels and thatformed the exclusive basis for the agency’ssnowmobile plan. 577 F.Supp.2d at 198–99.Here, the Court is persuaded that the projec-tions of the USGS population models are gen-erally consistent with observed facts about seaice decline and its impacts on polar bears atthe time of listing.


ence nutritional stress as a result of sea iceloss. Joint Plaintiffs challenge the Ser-vice’s specific findings as to the SouthernBeaufort Sea population. Joint Plaintiffsraise three arguments: (1) that FWS im-properly concluded that the SouthernBeaufort Sea polar bear population hadexperienced population declines as a resultof diminishing sea ice at the time of listing;(2) that FWS ignored all but five years ofdata when it reached this conclusion; and(3) that record evidence does not, in fact,show declines in polar bear vital rates andreproductive success in the SouthernBeaufort Sea population. In particular,Joint Plaintiffs point to two studies—Hunter, et al. (2007) (ARL 82291–341) andRegehr, et al. (2007) (ARL 131467–516)—which purportedly demonstrate, based ondata from as early as 1979, that FWSoverstated the significance of the pasttrend in the number of ice-free days peryear in the Southern Beaufort Sea.

The federal defendants respond, first,that Joint Plaintiffs misstate the agency’sactual finding with regard to the SouthernBeaufort Sea polar bear population. Ac-cording to the federal defendants, FWSdid not, in fact, find that the SouthernBeaufort Sea population had experiencedstatistically-significant population declinesat the time the agency made its listingdetermination.52 Instead, the agency re-lied upon modeling and related data indi-cating a significant future decline in polarbear numbers in that population. See Fed.Def. Mot. at 96. According to the federaldefendants, this significant future declineadequately supports the agency’s conclu-sion based on the record as a whole thatthe polar bear qualified for threatened sta-tus at the time of listing, both in the

Southern Beaufort Sea and throughout itsrange.

Second, the federal defendants respondthat FWS did not ignore past data relatedto the Southern Beaufort Sea polar bearpopulation. Indeed, the federal defen-dants point out that FWS explicitly consid-ered both of the studies identified by JointPlaintiffs in its Listing Rule. See ARL117248, 117272. However, according tothe federal defendants, the agency deter-mined that the best available data at thetime of listing was one five-year study thatdirectly compared the number of ice-freedays in the Southern Beaufort Sea to thepopulation growth rate among polar bearsin that area. See Fed. Def. Mot. at 98.As the federal defendants note, JointPlaintiffs have identified no other studiesthat make that same direct comparisonover a larger data set. Therefore, al-though the agency, like Joint Plaintiffs,would have preferred more data, the fed-eral defendants contend that this five-yearstudy was the ‘‘ ‘most comprehensive andcomplete’ ’’ data of its kind and, as such,FWS properly relied upon it. Fed. Def.Mot. at 98 (quoting ARL 110135).

Finally, the federal defendants rejectJoint Plaintiffs’ argument that no declinesin vital rates had been observed in theSouthern Beaufort Sea prior to listing.They respond that researchers studyingthis population found that a number ofmeasures of polar bear physical conditionand reproductive success had declined pri-or to the agency’s listing determination.For example, the federal defendants assertthat in a study covering the period of1982–2006, USGS scientists determinedthat mass, length, and skull sizes of youngmales had declined; mass, length, andskull sizes of young females had declined;skull sizes and/or lengths of adult males

52. Indeed, FWS found that there was not astatistically-significant decline in polar bearnumbers in the Southern Beaufort Sea from

1986–2006 based upon the available data.See ARL 117272.


and females had declined; and the numberof yearling cubs per female had declined,suggesting reduced cub survival. See Fed.Def. Mot. at 98–99 (citing ARL 117272–73;ARL 82418, 82429–30). To the extentJoint Plaintiffs disagree with the evidenceFWS considered, the federal defendantsrespond that FWS is the expert finder offact and was permitted to draw reasonableconclusions about ‘‘equivocal evidence.’’Fed. Def. Mot. at 99–100 (citing AnimalLegal Def. Fund, 204 F.3d at 235).

Largely for the reasons given by thefederal defendants and based upon thestandards it has already articulated, theCourt is persuaded that Joint Plaintiffs’final argument must fail as well. JointPlaintiffs have simply not met the veryhigh burden of showing that the conclu-sions that the agency drew from the bestavailable scientific information for theSouthern Beaufort Sea population were ar-bitrary and capricious.53

3. Plaintiff CBD’s Claim that the Ser-vice Failed to Consider Whether theThreat of Overutilization Warrant-ed Listing the Polar Bear As En-dangered (‘‘Listing Factor B’’)

As discussed throughout, the ESA re-quires FWS to list a species on the basis of

one or more of the following five criteria or‘‘listing factors’’:

(a) the present or threatened destruc-tion, modification, or curtailment ofthe species’ habitat or range;

(b) overutilization for commercial, recre-ational, scientific, or educational pur-poses;

(c) disease or predation;

(d) the inadequacy of existing regulato-ry mechanisms; or

(e) other natural or manmade factorsaffecting the species’ continued exis-tence.

16 U.S.C. § 1533(a)(1). In this case, FWSdetermined, based upon the record beforeit, that the polar bear is threatenedthroughout its range solely based uponListing Factor A, the present or threat-ened destruction of the species’ habitat.Plaintiff CBD contends that FWS down-played the equally severe threat of huntingto the polar bear and, consequently, failedto adequately consider Listing Factor B,overutilization.

Specifically, plaintiff CBD asserts thatFWS was wrong to conclude that overutili-

53. Although plaintiff CBD generally agreesthat FWS relied on the best available sciencein reaching its listing determination for thepolar bear, it has raised a related issue:whether FWS is required to give the ‘‘benefitof the doubt to the species’’ in drawing con-clusions based on the best available scientificinformation. See CBD Mot. at 3 (citing Centerfor Biological Diversity v. Lohn, 296F.Supp.2d 1223, 1239 (W.D.Wash.2003)); seealso Conner v. Burford, 848 F.2d 1441, 1454(9th Cir.1988). Defendant–Intervenor AOGAand the federal defendants disagree that thisstandard applies in a listing case. The Courtfinds that it need not decide that questionbecause this case does not resemble any of thecases where courts have chosen to apply the‘‘benefit of the doubt’’ standard. See Conner,848 F.2d at 1454 (FWS failed to rely on thebest available science in reaching a jeopardy

determination); Ctr. for Biological Diversity v.Lohn, 296 F.Supp.2d 1223, 1239 (W.D.Wash.2003) (FWS failed to rely on the best availablescience when it refused to list the orca), vacat-ed and remanded on other grounds, 483 F.3d984 (9th Cir.2007); Defenders of Wildlife v.Babbitt, 958 F.Supp. 670, 680–81 (D.D.C.1997) (FWS failed to rely upon the best avail-able science when it refused to list the Cana-da Lynx). Here, the Court finds that FWSproperly relied upon the best available scienti-fic information for the polar bear when itdecided to list the polar bear as threatenedrange-wide. CBD has cited no instancewhere a court has found that the Service wasrequired to list a threatened species as endan-gered based on the ‘‘benefit of the doubt’’standard, nor is the Court aware of any suchauthority.


zation does not ‘‘by itself’’ pose a sufficientthreat to justify listing the species. CBDMot. at 45. As a threshold matter, accord-ing to CBD, this standard improperly rais-es the bar for listing because the ESArequires FWS to analyze whether thethreat of overharvest in combination withthe threat of global warming renders thepolar bear currently in danger of extinc-tion. Moreover, CBD contends that theService’s conclusion does not follow fromthe available evidence. In support of thisargument, CBD cites to statements in therecord indicating that FWS scientists be-lieve overharvest is a threat to the species,as well as statements from the ListingRule itself indicating that five polar bearpopulations may have been harvested atunsustainable levels, based upon anecdotalevidence. See CBD Mot. at 41–43. Final-ly, plaintiff CBD asserts that FWS inap-propriately relied upon uncertain futuremanagement actions when it concludedthat current management mechanisms are‘‘ ‘flexible enough to allow adjustments inorder to ensure that harvests are sustaina-ble.’ ’’ CBD Mot. at 44 (quoting ARL117284).

The federal defendants generally re-spond that FWS took harvest rates intoaccount, among other factors, when it con-sidered whether any of the polar bearpopulations was endangered. On the basisof this analysis, FWS concluded that polarbear harvests may approach unsustainablelevels in the future, as polar bears begin toexperience more nutritional stress and de-clining population numbers. The federaldefendants maintain that the agency’sanalysis, as well as its reasoned conclusion,did not contravene the ESA. Moreover,because FWS found that the polar bear isprimarily threatened by habitat loss, thedefendants assert that it is essentially amoot point whether the species is alsothreatened based on overutilization.

Having carefully considered the parties’arguments and the administrative record,the Court is not persuaded that either theagency’s analysis or its conclusion on thisissue was arbitrary, capricious, or contraryto law. As an initial matter, to the extentFWS may have erred when it determinedthat harvest is not ‘‘by itself’’ a sufficientbasis for listing the polar bear as threat-ened, the Court finds that this error wouldnot be a sufficient basis for invalidatingthe Listing Rule. The ESA is clear that aspecies may be listed based on ‘‘any one’’of the five listing factors. 16 U.S.C.§ 1533(a)(1). Here, FWS reasonably de-termined that the polar bear qualified forthreatened status range-wide based onhabitat loss (‘‘Listing Factor A’’) alone.

[14] The relevant question, however, iswhether FWS unreasonably concludedthat the polar bear was not endangered atthe time of listing, taking the threat offuture habitat losses in combination withany threat of overharvest. The Court con-curs with plaintiff CBD that the agency’sown regulations require FWS to list aspecies if ‘‘any one or a combination ’’ ofthe five listing factors demonstrates that itis threatened or endangered. 50 C.F.R.§ 424.11(c) (emphasis added); see alsoWildEarth Guardians v. Salazar, 741F.Supp.2d 89, 103 (D.D.C.2010) (findingthat the Service’s failure to consider cumu-lative impact of listing factors renderedthe agency’s decision not to reclassify theUtah prairie dog arbitrary and capricious).Nonetheless, the Court finds that FWS didconsider whether the threat of overharvestmight impact the polar bear in conjunctionwith projected habitat losses.

Specifically, the agency found that har-vest ‘‘is likely exacerbating the effects ofhabitat loss in several populations,’’ andthat polar bear mortality from harvest‘‘may in the future approach unsustainablelevels for several populations’’ as these


populations begin to experience the stress-es of habitat change. ARL 117284. FWSconcluded, however, that the polar bearwas not in danger of extinction on thisbasis at the time of listing and, moreover,that harvest regulations, where they exist,are ‘‘flexible enough to allow adjustmentsin order to ensure that harvests are sus-tainable.’’ ARL 117284. Even if the evi-dence cited by plaintiff CBD persuasivelydemonstrates that overharvest was athreat to the polar bear at the time oflisting, the Court is not persuaded thatthis evidence demonstrates that the agen-cy’s conclusion was an irrational one.

Moreover, the Court is not persuadedthat FWS inappropriately relied upon un-certain future management actions when itreached this conclusion. FWS expresslyconsidered only existing mechanisms inmaking its listing determination for thepolar bear. ARL 117284 (‘‘[I]n makingour finding we have not relied on agree-ments that have not been implemented.’’).As documented in the Listing Rule, mostpolar bear range countries have regulatorymechanisms in place that address polarbear hunting. See ARL 117284. TheListing Rule indicates that, while overhar-vest could be occurring in approximatelyfive populations for which no data wereavailable at the time of listing, see ARL117282, hunting was below maximum sus-tainable levels in all populations for whichdata were available, see ARL 117283, Ta-ble 2. FWS concluded therefore that exist-ing mechanisms to control overharvest hadbeen generally demonstrated to be effec-tive and, moreover, that effective manage-

ment of hunting will continue to be impor-tant to ‘‘minimize effects for populationsexperiencing increased stress.’’ ARL117283. The Court declines to find, in theabsence of clear evidence to the contrary,that it was arbitrary for the agency toassume that the adaptive managementprinciples, which appear to be working forthe majority of polar bear populations, willcontinue to be flexible enough to accountfor future population reductions.54

Accordingly, the Court concludes thatFWS articulated a rational basis for itsdetermination that the polar bear was notin danger of extinction at the time of list-ing because of the threat of anticipated seaice losses, even taking into account poten-tial threats from overharvest.

4. Joint Plaintiffs’ Claim that the Ser-vice Wrongly Concluded that Exist-ing Regulatory Mechanisms WillNot Protect Polar Bears despite An-ticipated Habitat Losses (‘‘ListingFactor D’’)

Joint Plaintiffs argue, finally, that FWSdrew an improper conclusion from the evi-dence when it found that existing regulato-ry mechanisms are not sufficient to protectpolar bears despite anticipated sea ice loss-es. According to Joint Plaintiffs, even ifthere are no regulatory mechanisms thatwould ‘‘eradicate’’ the threat of sea ice loss,existing regulatory mechanisms such asconservation plans and other federal, state,and foreign laws are not necessarily insuf-ficient to protect a ‘‘viable population’’ ofbears over the foreseeable future.55 JP

54. To the extent CBD further contends thatFWS failed to consider the impacts of illegalhunting, the Court is persuaded that FWStook illegal hunting into account to the extentfeasible. See ARL 117245–46; ARL 117284.

55. Joint Plaintiffs have also argued that FWSunlawfully failed to establish either a ‘‘mini-mum viable population’’ size or to determine

the ‘‘minimum amount of habitat’’ necessaryto ‘‘support a viable population.’’ JP Mot. at32. At least two circuits have rejected similararguments. See Home Builders Ass’n of N.Cal. v. U.S. FWS, 321 Fed.Appx. 704, 705 (9thCir.2009) (‘‘The FWS is not required to state athreshold level of habitat loss that is neces-sary to find a species is threatened.’’); Heart-wood v. Kempthorne, No. 05–313, 2007 WL


Mot. at 22. Given that overall polar bearpopulation numbers had risen in the yearsprior to listing, Joint Plaintiffs assert thatexisting regulatory mechanisms were notonly adequate to protect the species at thetime of listing but they will continue toadequately protect the species into the fu-ture.

The federal defendants respond thatFWS rationally concluded that existingregulatory mechanisms at the time of list-ing will be inadequate to protect the polarbear despite future habitat losses. Thedefendants explain that, while the agencyfound that existing regulatory mechanismshad adequately addressed previous threatsto the polar bear (e.g., overhunting) andpresumably will remain adequate to pro-tect against those threats, there is no evi-dence in the record that these existingregulatory mechanisms are sufficient toensure that polar bears will not become indanger of extinction within the foreseeablefuture.

The Court declines to find that FWSimproperly concluded that existing regula-tory mechanisms are inadequate to protect

the polar bear. Joint Plaintiffs have point-ed to no record evidence suggesting thatexisting mechanisms will offset the poten-tial impacts to the polar bear from signifi-cant future losses of its sea ice habitat.Therefore, plaintiffs have given the Courtvery little basis from which to concludethat the agency’s finding was irrational,arbitrary and capricious; accordingly, theCourt declines to overturn the agency’sreasoned determination on thesegrounds.56

D. The Service Followed ProperRulemaking Procedures

The Court turns finally to two purportedprocedural deficiencies that have beenidentified by plaintiffs. First, plaintiffState of Alaska claims that FWS failed tosatisfy its obligation under Section 4(i) ofthe ESA to provide a ‘‘written justifica-tion’’ explaining why it issued a final rulethat conflicts with comments it receivedfrom the State. Second, plaintiff CFclaims that FWS failed to adequately re-spond to specific comments that wereraised during the notice-and-comment pe-

1795296 at *8, 2007 U.S. Dist. LEXIS at *27(S.D. Ohio June 19, 2007) (rejecting the argu-ment that FWS was required to ‘‘identify anumber that represents the point at which theIndiana bat will survive, a number that repre-sents the point at which the Indiana bat willrecover, and a number that represents thepoint at which the total population will be-come extinct’’), aff’d, 302 Fed.Appx. 394 (6thCir.2008). This Court concurs with thosecourts that the ESA itself articulates the ap-propriate standard for listing, which is limitedto the five factors outlined in 16 U.S.C.§ 1533. Accordingly, Joint Plaintiffs’ relatedclaim must fail.

56. In a related claim, plaintiff SCI argues thatFWS also failed to consider whether futureregulatory and non-regulatory mechanismswould substantially mitigate the threat of seaice loss. Although SCI concedes that ListingFactor D only requires FWS to consider theinadequacy of ‘‘existing’’ regulatory mecha-

nisms, SCI argues that FWS should have con-sidered future mechanisms under other listingfactors. The Court finds that plaintiff SCI’sargument is without merit. As other courtshave found, the ESA does not permit FWS toconsider speculative future conservation ac-tions when making a listing determination.See, e.g., Biodiversity Legal Found. v. Babbitt,943 F.Supp. 23, 26 (D.D.C.1996) (‘‘[T]he Sec-retary TTT cannot use promises of future ac-tions as an excuse for not making a determi-nation based on the existing record.’’); seealso Fund for Animals v. Babbitt, 903 F.Supp.96, 113 (D.D.C.1995). Moreover, establishedagency policy requires that in making a listingdetermination FWS may only consider for-malized conservation efforts that have beenimplemented and have been shown to be ef-fective. PECE Policy, 68 Fed.Reg. at 15,100.Accordingly, the Court finds that FWS wasnot required to consider speculative futureefforts to reduce greenhouse gas emissions.


riod for the proposed Listing Rule. Eachof these procedural claims is addressedbriefly below.57

1. Plaintiff Alaska’s Claim that theService Violated Section 4(i) of theESA by Failing to Provide a Suffi-cient ‘‘Written Justification’’ in Re-sponse to Comments

Under Section 4(i) of the ESA, if FWSreceives comments from a State (or stateagency) disagreeing with all or part of aproposed listing, and the agency subse-quently issues a final rule that conflictswith those comments, it must then providethe State with a ‘‘written justification’’ ex-plaining its failure to adopt regulationsconsistent with the agency’s comments.16 U.S.C. § 1533(i). The parties agreethat on April 9 and October 22, 2007, theState of Alaska and the Alaska Depart-ment of Fish and Game submitted com-ments that disagreed with the proposedlisting rule for the polar bear and, specifi-cally, with the agency’s reliance on popula-tion modeling efforts conducted by theUSGS. See ARL 84248–84274; ARL124961–125006. The parties also agreethat on June 17, 2008, after the final List-ing Rule was issued, FWS sent a lengthyletter to the Governor of Alaska with spe-cific responses to the State’s commentspursuant to 16 U.S.C. § 1533(i). See ARL11361–11408. Plaintiff State of Alaskanonetheless contends that FWS failed tocomply with Section 4(i) because its re-sponses to five particular comments didnot adequately ‘‘justify’’ the agency’s ac-tions. Alaska Mot. at 7–15.

The ESA recognizes that states play acrucial role in the listing process, and theiradvice and involvement ‘‘must not be ig-nored.’’ See Alaska Mot. at 6 (citingS.Rep. No. 97–418, at 12 (1982)). Here,Alaska argues that FWS ‘‘effectively ig-nored’’ the State’s concerns, Alaska Mot.at 10, by failing to provide an adequateresponse to the following comments:

1. Comments on deficiencies in theUSGS Carrying Capacity Model(Alaska Mot. at 7–10);

2. Comments on deficiencies in theUSGS Bayesian Network Model(Alaska Mot. at 10–11);

3. Comments on the status of theSouthern Beaufort Sea polar bearpopulation (Alaska Mot. at 11–13);

4. Comments on the agency’s inappro-priate choice of 45 years as the‘‘foreseeable future’’ (Alaska Mot. at13–14); and

5. Comments on uncertainty in climatechange modeling (Alaska Mot. at 14–15).58

In support of its position, State of Alas-ka cites San Luis & Delta–Mendota WaterAuth. v. Badgley, the only legal precedentthat deals with a claim under ESA Section4(i). 136 F.Supp.2d 1136 (E.D.Cal.2000).In that case, regional water authoritieschallenged the listing of a fish species asthreatened, and the NMFS failed to re-spond to the authorities’ comments withany kind of written justification. Id. at1150–51. The court subsequently reversedthe NMFS’s listing decision (on other

57. The federal defendants have also respond-ed at length to what they characterize as a‘‘claim’’ by plaintiff CBD that the polar bearlisting rule was improperly influenced by po-litical considerations. See Fed. Def. Mot. at128–32. Plaintiff CBD did not in fact raiseany such claim. Accordingly, the Court willnot address the federal defendants’ argumentson this issue.

58. The content of Alaska’s comments is iden-tical to the substantive claims raised by theJoint Plaintiffs, which have been discussed atlength above. The Court therefore will notrecount the substance of Alaska’s commentsand the agency’s responses thereto.


grounds, in addition to the 4(i) violation)and remanded to the agency. Id. at 1151–52. Alaska contends that this Courtshould do the same. Alaska Mot. at 9–10.

The federal defendants respond thatFWS fully complied with Section 4(i) of theESA when it provided Alaska with its writ-ten justification on June 17, 2008.59 Thefederal defendants point out that all ofAlaska’s comments were addressed, includ-ing the five at issue here, in the finalListing Rule itself as well as in the agen-cy’s response to the State. See Fed. Def.Mot. at 126. While Alaska may have pre-ferred a different or a more detailed expla-nation, the defendants contend that none isrequired.

[15] This Court agrees. Section 4(i)requires only that FWS provide a ‘‘writtenjustification for [the Secretary’s] failure toadopt regulations consistent with the[State] agency’s comments or petition.’’16 U.S.C. § 1533(i). FWS did so here.There is no dispute that FWS respondedin writing to two sets of comments fromthe State of Alaska. Moreover, FWS spe-cifically addressed each of the issues iden-tified by Alaska, both in its response letterand in the response to comments that ap-pears in the Listing Rule itself. See, e.g.,ARL 11394–95 (carrying capacity mod-el); 60 ARL 11405–08 (Bayesian Networkmodel); ARL 11389, 11399–404 (SouthernBeaufort Sea population); ARL 11365–66,11382–84 (‘‘foreseeable future’’); ARL

59. As a threshold matter, the defendants con-tend that the substance of the agency’s letteris not reviewable, for two reasons: (1) theletter of written justification does not consti-tute ‘‘final agency action,’’ as is required forAPA review (5 U.S.C. § 704); and (2) theagency’s response to comments is committedto its discretion by law (5 U.S.C. § 701(a)(2)).Fed. Def. Mot. at 122 (citing Bennett v. Spear,520 U.S. 154, 175, 117 S.Ct. 1154, 137L.Ed.2d 281 (1997) (‘‘The APA, by its terms,provides a right to judicial review of all ‘finalagency action for which there is no otheradequate remedy in a court,’ and applies uni-versally ‘except to the extent that (1) statutespreclude judicial review; or (2) agency actionis committed to agency discretion by law.’ ’’))(internal citations omitted). Alaska respondsthat, at a minimum, the Service’s letter isreviewable as part of a review of the finalListing Rule, pursuant to section 704 of theAPA. Alaska Reply at 9 (citing 5 U.S.C. § 704(a ‘‘procedural TTT agency action TTT not di-rectly reviewable is subject to review on thereview of the final agency action’’)).

Case law provides little guidance on thisquestion. Indeed, the only case that address-es a failure to comply with ESA Section 4(i) isone where FWS failed to provide any re-sponse whatsoever, a clear violation of Sec-tion 4(i). See San Luis, 136 F.Supp.2d at1151. The Court agrees with Alaska’s assess-ment that the agency’s justification letter is aprocedural step that becomes reviewable

upon review of the final agency action (here,the Listing Rule). The ESA mandates that theFWS ‘‘shall’’ submit an explanatory writtenjustification to a state or state agency if itissues a regulation that conflicts with thestate’s comments. See Bennett, 520 U.S. at175, 117 S.Ct. 1154 (‘‘[A]ny contention thatthe relevant provision of 16 U.S.C.§ 1536(a)(2) is discretionary would fly in theface of its text, which uses the imperative‘shall.’ ’’). ‘‘It is rudimentary administrativelaw that discretion as to the substance of theultimate decision does not confer discretionto ignore the required procedures of decision-making.’’ Id. at 172, 117 S.Ct. 1154. TheCourt is persuaded, however, that the stan-dard of review set out in Section 4(i) is not arigorous one.

60. The Court was unable to locate many ofthe specific concerns that Alaska purports tohave raised in its comments with regard tothe carrying capacity model. The Courttherefore notes that FWS was not obligated torespond to arguments that were not, in fact,raised. See Vt. Yankee Nuclear Power Corp. v.Natural Res. Def. Council, 435 U.S. 519, 553–54, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)(agency proceedings ‘‘should not be a gameor forum to engage in unjustified obstruction-ism by making cryptic and obscure referencesto matters,’’ and then seeking to invalidateagency action on grounds that the agencyfailed to consider the matters).


11363–70, 11395–98 (scientific uncertaintyand climate change modeling). Indeed,Alaska’s own pleadings make clear thatFWS did at least attempt to respond toeach of the State’s concerns. Having care-fully reviewed the parties’ arguments, theState’s comments, and the agency’s re-sponses, the Court is satisfied that FWSdid not ignore any of Alaska’s concerns.Accordingly, the Court concludes thatFWS fulfilled its duty to respond to Alas-ka’s comments under ESA Section 4(i).

2. Plaintiff CF’s Claim thatFWS Failed to Respond to

Significant Comments

In its supplemental motion for summaryjudgment, plaintiff CF contends that FWSalso failed to respond to certain ‘‘signifi-cant’’ comments which ‘‘if true, would re-quire a change in the proposed rule.’’ SeeCF Mot. at 20 (citing Am. Mining Cong. v.EPA, 907 F.2d 1179, 1188 (D.C.Cir.1990)).61 Plaintiff CF did not, however,pursue this claim in its reply brief. Ac-cordingly, because plaintiff CF appears tohave abandoned this procedural claim, theCourt will not consider it further. See Bd.

of Regents of the Univ. of Wash. v. EPA,86 F.3d 1214, 1222 (D.C.Cir.1996) (declin-ing to rule on a claim that ‘‘petitionersappear to have dropped’’).62

IV. CONCLUSION

For the foregoing reasons, plaintiffs’motions for summary judgment are herebyDENIED, the federal defendants’ cross-motion for summary judgment is herebyGRANTED and the defendant-interve-nors’ cross-motions for summary judgmentare hereby GRANTED. An appropriateOrder accompanies this MemorandumOpinion.

SO ORDERED.

,

61. CF identifies nine concerns which it pur-ports to have raised in comments on the pro-posed rule and which, it claims, were neveraddressed. Specifically, CF highlights:1. The agency’s failure to consider the role

of sun spot cycles as a primary climatefactor;

2. The agency’s failure to consider literatureon the dynamics of solar irradiation;

3. The agency’s failure to explain why itrelied so heavily on a declining trendamong the Western Hudson Bay polar bearpopulation when that trend is offset bygains in polar bear numbers in other popu-lations;

4. The agency’s failure to objectively reviewdata;

5. The agency’s failure to specify the degreeand nature of impacts to polar bears fromreceding sea ice;

6. The agency’s failure to explain how adecline in the Western Hudson Bay polar

bear population is attributable to globalwarming;

7. The agency’s failure to address why thepolar bear survived two historical warmingperiods;

8. The agency’s failure to explain projecteddeclines in the Southern Beaufort Sea polarbear population when reports indicate ‘‘nocorrelation between demographic changesand ice melt’’ in that region; and

9. The agency’s failure to consider thatwarming will actually improve polar bearhabitat in the northernmost Arctic region.

See CF Mot. at 20–22.

62. Even if this claim were not abandoned, forthe reasons set out in the federal defendants’response brief and on the basis of the admin-istrative record the Court is persuaded thatFWS adequately addressed plaintiff CF’s com-ments, to the extent any response was re-quired. See Fed. Def. Mot. at 133–37.

IN RE POLAR BEAR ENDANGERED SPECIES ACT … · IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING65...

Documents

Transcript of IN RE POLAR BEAR ENDANGERED SPECIES ACT … · IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING65...