Mountain States Legal Foundation: Polar Bear Listing Upheld

Mountain States Legal Foundation: Polar Bear Listing Upheld

   By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation

A western legal foundation has expressed dismay with the decision by a federal appellate court upholding the 2008 decision by the U.S. Fish and Wildlife Service (FWS) to place polar bears on the Endangered Species Act (ESA) list.  Mountain States Legal Foundation (MSLF) filed a friend of the court brief in April 2012 advising the U.S. Court of Appeals for the District of Columbia that the FWS decision read both the word "likely" ("likely to become an endangered species") and "scientific" ("best available") out of the ESA, failed to use the "best available scientific data," and engaged in "rank speculation" as to the fate of polar bears.  Nonetheless, the panel deferred to the agency's "expertise" and thus upheld the decision.  The ruling concerned a consolidated case involving four appeals of the June 2011 ruling by the federal district court for the District of Columbia in five separate lawsuits filed shortly after the listing.

 "We are very disappointed with the ruling given the fact that polar bears are experiencing their highest population numbers ever recorded and the federal government's own admission that there is no evidence that polar bears will experience a decline in population," said William Perry Pendley of MSLF.  "The court erred in deferring to the 'junk science' the agency used."

Polar bears (Ursus maritimus) are marine mammals found throughout ice-covered seas in the Northern Hemisphere that live on sea ice but spend significant time on land and have endured through previous periods of global warming.  In the late 1960s, some 8,000-10,000 polar bears were known to exist, but today there are 20,000-25,000 polar bears worldwide.  In the last few years, the worldwide population has not declined significantly.

Nonetheless, in response to a petition by the Center for Biological Diversity to list the polar bear under the ESA, the FWS, in January 2007, published a finding that listing of the polar bear was warranted and a draft rule to list the polar bear as "threatened."  In May 2008, the Secretary of Interior published both a final rule determining polar bears to be threatened and regulations to protect the polar bear.

The FWS opined that polar bear habitat-sea ice-is declining over the species' range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range.  According to the FWS, productivity, abundance, and availability of ice seals-the polar bear's primary prey-will be diminished by the loss of sea ice and polar bears will be required to expend more energy to obtain food.  The FWS concluded that existing regulations are inadequate because they were not effective in "counteracting the worldwide growth of" greenhouse gasses.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

Safari Club Int'l v. Salazar (In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig. - MDL No. 1993), 709 F.3d 1 (D.C. Cir. 2013) [enhanced version available to subscribers

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