What's it all mean?


Author: Reed Hopper

After months of preparation, 15 attorneys (including myself) were sitting in the D.C. District Court last Wednesday to finally argue the much anticipated listing challenges to the polar bear.  Although the overall polar bear population is the highest in recorded history and there is no current or immediate precipitous decline in overall population anticipated, the U.S. Fish and Wildlife Service listed the polar bear as a threatened species in 2008.  Under the Endangered Species Act, a "threatened species" is one likely to become endangered within the foreseeable future while an "endangered species" is one that is "in danger of extinction throughout all or a significant portion of its range."  But instead of addressing the arguments for and against listing, the Judge posed a single question that only a lawyer could love: What does the term "in danger of extinction" mean? 

Because the parties disagreed as to the meaning of the term, with the government and industry groups arguing it meant in "imminent" danger of extinction, and the environmental groups arguing that it's a question of probability and not timing, the Judge declared the term ambiguous.  Under federal precedent, the Judge felt bound to remand the question back to the Service to explain why its interpretation is reasonable under the law.  The judge has yet to issue its remand order but he is likely to give the Service 30 days to respond and the parties some to time to reply.  The hearing on the listing argument will need to be rescheduled probably to late January. 

Check back for further details.