July 29, 2013

Polar bear listing challenged in U.S. Supreme Court

By M. Reed Hopper Senior Attorney

It is a fundamental tenet of administrative law that an agency must explain its decisions and show that the facts support the agency’s conclusions.  This is required to avoid arbitrary government decisions, to provide transparency in law making, to correct errors in law and fact, and to ensure trust in our public institutions.  It was in support of these principles that we filed a suit in federal court challenging the listing of the polar bear as a threatened species.

A recent decision by a federal court in Alaska, invalidating the overly broad critical habitat designation for the polar bear, expresses our sentiment in the listing matter:

“After reviewing the voluminous pages of case law pertaining to the legally required consequence of an agency action found to be arbitrary, capricious, and procedurally errant, and in light of the seriousness of the Service’s errors, the Court hereby sets aside the Final Rule [designating critical habitat for the polar bear]. The Court does not hand down this judgment lightly, but only after careful consideration of all the law and facts involved with this critical habitat designation. There is no question that the purpose behind the Service’s designation is admirable, for it is important to protect the polar bear, but such protection must be done correctly. In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much needed economic development. The current designation went too far and was too extensive.”

The listing of the polar bear is also fraught with serious errors. When the U.S. Fish and Wildlife Service listed the polar bear as a threatened species in 2008, it had good intentions but it left some unanswered questions that are crucial to the listing decision.  For example: (1) How did the Service reach the conclusion that polar bears would be on the brink of extinction in the foreseeable future (i.e. “threatened”) without demonstrating an observable decline in the overall polar bear population (which is at a record high) and without determining a viable population? (2) How did the service determine that polar bears are threatened throughout their worldwide range when the agency’s worst case projections show a significant survival rate for polar bears in large areas of its current habitat?  And (3), was the Service correct in disregarding the adverse effect of its listing decision on Canada’s conservation efforts where 14 of the 19 polar bear populations reside?

These are the questions we pose to the U.S. Supreme Court in a petition for review filed today.  PLF represents the Congress of Racial Equality and is joined in the petition by Conservation Force and Safari Club International.

For more detail on the case, see our previous posts here, here and here.

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