In Re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation - Mdl 1993

• Court: District Court, District of Columbia
• Decided: June 30, 2011
• Docket: Misc. No. 2008-0764
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) IN RE POLAR BEAR ENDANGERED ) SPECIES ACT LISTING AND § 4(d) ) RULE LITIGATION ) Misc. No. 08-764 (EGS) ) MDL Docket No. 1993 ) ) This Document Relates To: ) ) Ctr. for Biological Diversity, ) et al. v. Salazar, 1 et al., ) No. 08-2113; State of Alaska ) v. Salazar, et al., No. 08-1352; ) Safari Club Int’l, et al. v. ) Salazar, et al., No. 08-1550; ) California Cattlemen’s Ass’n, ) et al. v. Salazar, et al., No. ) 08-1689; Conservation Force, ) et al. v. Salazar, et al., No. ) 09-245 ) )

MEMORANDUM OPINION

In May 2008, the U.S. Fish and Wildlife Service (“FWS” or

“the Service”) issued its final rule listing the polar bear as a

“threatened species” under the Endangered Species Act of 1973.

See Determination of Threatened Status for the Polar Bear (Ursus

maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15,

2008) (the “Listing Rule”). The Service concluded that the

polar bear is likely to become endangered within the foreseeable

1 Pursuant to Fed. R. Civ. P. 25(d), Interior Secretary Ken Salazar is automatically substituted as a defendant for his predecessor, Dirk Kempthorne, who was sued in his official capacity. future because of anticipated impacts to its sea ice habitat

from increasing Arctic temperatures, which have been attributed

to global greenhouse gas emissions and related atmospheric

changes. Numerous plaintiffs have challenged the Listing Rule

under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C.

§§ 1531-1544, and the Administrative Procedure Act (“APA”), 5

U.S.C. §§ 551-559, 701-706, claiming that the Service’s decision

to list the polar bear as a threatened species was arbitrary and

capricious and an abuse of agency discretion. Pending before

the Court are the parties’ cross-motions for summary judgment.

As the briefing in this case makes clear, the question of

whether, when, and how to list the polar bear under the ESA is a

uniquely challenging one. The three-year effort by FWS to

resolve this question required agency decision-makers and

experts not only to evaluate a body of science that is both

exceedingly complex and rapidly developing, but also to apply

that science in a way that enabled them to make reasonable

predictions about potential impacts over the next century to a

species that spans international boundaries. In this process,

the Service considered over 160,000 pages of documents and

approximately 670,000 comment submissions from state and federal

agencies, foreign governments, Alaska Native Tribes and tribal

organizations, federal commissions, local governments,

commercial and trade organizations, conservation organizations,

- 2 - nongovernmental organizations, and private citizens. In

addition to relying on its own experts, the agency also

consulted a number of impartial experts in a variety of fields,

including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the

Court is keenly aware that this is exactly the kind of decision-

making process in which its role is strictly circumscribed.

Indeed, it is not this Court’s role to determine, based on its

independent assessment of the scientific evidence, whether the

agency could have reached a different conclusion with regard to

the listing of the polar bear. Rather, as mandated by the

Supreme Court and by this Circuit, the full extent of the

Court’s authority in this case is to determine whether the

agency’s decision-making process and its ultimate decision to

list the polar bear as a threatened species satisfy certain

minimal standards of rationality based upon the evidence before

the agency at that time.

For the reasons set forth below, the Court is persuaded

that the Listing Rule survives this highly deferential standard.

After careful consideration of the numerous objections to the

Listing Rule, the Court finds that plaintiffs have failed to

demonstrate that the agency’s listing determination rises to the

level of irrationality. In the Court’s opinion, plaintiffs’

challenges amount to nothing more than competing views about

- 3 - policy and science. Some plaintiffs in this case believe that

the Service went too far in protecting the polar bear; others

contend that the Service did not go far enough. According to

some plaintiffs, mainstream climate science shows that the polar

bear is already irretrievably headed toward extinction

throughout its range. According to others, climate science is

too uncertain to support any reliable predictions about the

future of polar bears. However, this Court is not empowered to

choose among these competing views. Although plaintiffs have

proposed many alternative conclusions that the agency could have

drawn with respect to the status of the polar bear, the Court

cannot substitute either the plaintiffs’ or its own judgment for

that of the agency. Instead, this Court is bound to uphold the

agency’s determination that the polar bear is a threatened

species as long as it is reasonable, regardless of whether there

may be other reasonable, or even more reasonable, views. That

is particularly true where, as here, the agency is operating at

the frontiers of science.

In sum, having carefully considered plaintiffs’ motions,

the federal defendants’ and defendant-intervenors’ cross-

motions, the oppositions and replies thereto, various

supplemental briefs, the supplemental explanation prepared by

FWS in response to this Court’s November 4, 2010 remand order,

arguments of counsel at a motions hearing held on February 23,

- 4 - 2011, the relevant law, the full administrative record, and for

the reasons set forth below, the Court finds that the Service’s

decision to list the polar bear as a threatened species under

the ESA represents a reasoned exercise of the agency’s

discretion based upon the facts and the best available science

as of 2008 when the agency made its listing determination.

Accordingly, the Court hereby DENIES plaintiffs’ motions for

summary judgment and GRANTS the federal defendants’ and

defendant-intervenors’ motions for summary judgment.

- 5 - TABLE OF CONTENTS

INTRODUCTION TABLE OF CONTENTS I. BACKGROUND A. Statutory Background B. Factual and Procedural Background II. STANDARD OF REVIEW III. DISCUSSION A. The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing 1. Plaintiff CBD’s Claim that the Polar Bear Should Have Been Considered Endangered at the Time of Listing a. The Service’s Findings b. Plaintiff CBD’s Arguments c. The Court’s Analysis i. Standard of Review on Remand ii. Merits 2. Joint Plaintiffs’ Claim that the Polar Bear Should Not Have Been Considered Threatened at the Time of Listing a. Joint Plaintiffs’ Argument that the Service Failed to Demonstrate that the Polar Bear Is 67-90% Likely to Become Endangered b. Joint Plaintiffs’ Argument that the Service Arbitrarily Selected 45 Years As the “Foreseeable Future” Timeframe for the Polar Bear B. The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualifies As a “Distinct Population Segment” 1. The Service’s Policy 2. Plaintiffs CBD, SCI, and CF’s Claim that the Service Wrongly Concluded that No Polar Bear Population or Ecoregion Is “Discrete” 3. The Court’s Analysis C. The Service Did Not Arbitrarily Fail to Consider Other Listing Factors 1. Joint Plaintiffs’ Claim that the Service Failed to “Take Into Account” Foreign Conservation Efforts to Protect the Polar Bear 2. Joint Plaintiffs’ Claim that the Service Failed to Rely upon the “Best Available Science” a. Joint Plaintiffs’ Argument that Climate

- 6 - Science Is Too Uncertain to Support the Service’s Conclusion b. Joint Plaintiffs’ Argument that the USGS Population Models Do Not Support the Service’s Conclusion c. Joint Plaintiffs’ Argument that the Service Ignored Scientific Data and Made Improper Findings Regarding the Southern Beaufort Sea Population 3. Plaintiff CBD’s Claim that the Service Failed to Consider Whether the Threat of Overutilization Warranted Listing the Polar Bear As Endangered (“Listing Factor B”) 4. Joint Plaintiffs’ Claim that the Service Wrongly Concluded that Existing Regulatory Mechanisms Will Not Protect Polar Bears despite Anticipated Habitat Losses (“Listing Factor D”) D. The Service Followed Proper Rulemaking Procedures 1. Plaintiff Alaska’s Claim that the Service Violated Section 4(i) of the ESA by Failing to Provide a Sufficient “Written Justification” in Response to Comments 2. Plaintiff CF’s Claim that the Service Failed to Respond to Significant Comments IV. CONCLUSION

- 7 - I. BACKGROUND

A. Statutory Background

Congress enacted the ESA “to provide a means whereby the

ecosystems upon which endangered species and threatened species

depend may be conserved, [and] to provide a program for the

conservation of such endangered species and threatened species.” 2

16 U.S.C. § 1531(b). An “endangered species” is “any species

which is in danger of extinction throughout all or a significant

portion of its range.” Id. § 1532(6). A “threatened species”

is “any species which is likely to become an endangered species

within the foreseeable future throughout all or a significant

portion of its range.” Id. § 1532(20). The term “species” is

defined in the Act to include species, subspecies, and “any

distinct population segment of any species of vertebrate fish or

wildlife which interbreeds when mature.” Id. § 1532(16).

The ESA requires the Secretary of the Interior to publish

and maintain a list of all species that have been designated as

2 Under the conservation program established by the ESA, a designation of “endangered” triggers a broad range of protections, including a prohibition on “taking” individual members of the species. See 16 U.S.C. § 1538(a)(1)(B); see also id. § 1532(19) (defining the term “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”). The Act authorizes the Secretary to extend these prohibitions, in whole or in part, to threatened species as well. Id. § 1533(d). In addition, the Secretary shall “issue such regulations as he deems necessary and advisable to provide for the conservation of [threatened] species.” Id.

- 8 - threatened or endangered. Id. § 1533(c). Species are added to

and removed from this list after notice and an opportunity for

public comment, either on the initiative of the Secretary or as

a result of a petition submitted by an “interested person.” Id.

§§ 1533(b)(1), (3), (5). The Secretary of the Interior and the

Secretary of Commerce are responsible for making listing

decisions. 3 Id. §§ 1532(15), 1533(a)(2). The Secretary of the

Interior has jurisdiction over the polar bear. See 50 C.F.R.

§ 402.01(b).

A listing determination is made on the basis of one or more

of five statutorily prescribed factors:

(a) the present or threatened destruction, modification, or curtailment of the species’ habitat or range; (b) overutilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation; (d) the inadequacy of existing regulatory mechanisms; or (e) other natural or manmade factors affecting the species’ continued existence.

16 U.S.C §§ 1533(a)(1)(A)-(E); see also 50 C.F.R. § 424.11(c).

The agency must list a species if “any one or a combination” of

these factors demonstrates that the species is threatened or

endangered. 50 C.F.R. § 424.11(c).

3 The Secretary of the Interior has delegated his responsibilities under the Act to FWS. See 50 C.F.R. § 402.01(b). The Secretary of Commerce has delegated his responsibilities under the Act to the National Marine Fisheries Service (“NMFS”). See id.

- 9 - The ESA further provides that the decision to list a

species must be made

solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species . . . .

16 U.S.C. § 1533(b)(1)(A).

B. Factual and Procedural Background

Polar bears are marine mammals that are described as “ice-

obligate,” meaning that they are evolutionarily adapted to, and

indeed completely reliant upon, sea ice for their survival and

primary habitat. ARL 117259. 4 They depend upon sea ice for

critical functions such as hunting ice-dependent seals (their

primary source of food), migrating between feeding areas and

land-based maternity dens, and traveling long distances in

search of mates or food. ARL 139259. Over most of their range,

polar bears remain on the ice year-round. ARL 139245. The

international Polar Bear Specialist Group – the authoritative

source for information on the world’s polar bears – has

identified nineteen polar bear populations located within five

countries in the ice-covered regions of the Northern Hemisphere:

4 The facts in this background section are excerpted from the administrative record for the Listing Rule. Citations to the administrative record for the Listing Rule are abbreviated “ARL.”

- 10 - the United States (in Alaska), Canada, Denmark (in Greenland),

Norway, and Russia. 5 ARL 117216-17, 117219.

On February 16, 2005, the Center for Biological Diversity

submitted a petition to the Secretary of the Interior to list

the polar bear as a threatened species under the ESA due to

observed and anticipated declines in the Arctic sea ice upon

which the polar bear relies for survival. See generally ARL

4040-4209. FWS ultimately issued a final rule listing the polar

bear as a threatened species on May 15, 2008. 6 See generally ARL

5 These nineteen populations are generally identified by their geographical location: Arctic Basin, Baffin Bay, Barents Sea, Chukchi Sea, Davis Strait, East Greenland, Foxe Basin, Gulf of Boothia, Kane Basin, Kara Sea, Lancaster Sound, Laptev Sea, M’Clintock Channel, Northern Beaufort Sea, Norwegian Bay, Southern Beaufort Sea, Southern Hudson Bay, Western Hudson Bay, and Viscount Melville Sound. ARL 117220, Figure 1. The United States Geological Survey (“USGS”) recently re-evaluated the existing population boundaries to create an additional population - Queen Elizabeth – located on the northern border of Greenland. ARL 117222. 6 Prior to the action currently before this Court, the Center for Biological Diversity also initiated lawsuits to enforce various statutory deadlines throughout the listing process for the polar bear. To the maximum extent practicable, the Secretary must respond to listing petitions within 90 days with an initial finding stating whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A). When the Secretary failed to timely respond to its listing petition, the Center for Biological Diversity filed an action in the Northern District of California in December 2005. Ctr. for Biological Diversity v. Norton, No. 05-5191 (N.D. Cal. filed Dec. 15, 2005). The Secretary ultimately published a 90-day finding on February 9, 2006, ARL 5597-98, and he agreed to issue the next required finding by December 27, 2006. The parties settled the case with a consent decree to - 11 - 117215-117307. At the time of listing, there were estimated to

be approximately 20,000 to 25,000 polar bears worldwide,

distributed throughout the species’ range. 7 ARL 117219. These

estimates further indicated that two of the nineteen polar bear

populations were increasing in numbers (Viscount Melville Sound

and M’Clintock Channel); six populations were stable (Northern

Beaufort Sea, Southern Hudson Bay, Davis Strait, Lancaster

Sound, Gulf of Boothia, Foxe Basin); and five populations were

declining (Southern Beaufort Sea, Norwegian Bay, Western Hudson

Bay, Kane Basin, Baffin Bay). ARL 117221. Insufficient data

were available to identify trends for the remaining six

populations (Barents Sea, Kara Sea, Laptev Sea, Chukchi Sea,

Arctic Basin, East Greenland). ARL 117221.

that effect. See Settlement Agreement, Ctr. for Biological Diversity v. Kempthorne, No. 05-5191 (N.D. Cal. June 28, 2006). On January 9, 2007, FWS published in the Federal Register a proposed rule to list the species as threatened throughout its range. See generally ARL 59985-60021. The ESA imposes a nondiscretionary deadline of one year from the date a proposed rule is published within which the agency must publish a final rule. 16 U.S.C. § 1533(b)(6). After that one-year deadline passed, the Center for Biological Diversity filed a second action to compel FWS to issue its final rule. Ctr. for Biological Diversity v. Kempthorne, No. 08-1339 (N.D. Cal. filed Mar. 10, 2008). The Northern District of California granted plaintiff’s motion for summary judgment and directed FWS to publish its final listing determination for the polar bear by May 15, 2008. Ctr. for Biological Diversity v. Kempthorne, No. 08-1339, 2008 U.S. Dist. LEXIS 34753 (N.D. Cal. Apr. 28, 2008). 7 The Service found that the polar bear occupied the full extent of its historical range at the time of listing. See ARL 117242.

- 12 - In its Listing Rule, FWS acknowledged that sea ice

conditions across the Arctic had changed over the past several

decades. ARL 117227-28. Specifically, the agency cited data

indicating that the summer/fall ice melt season in the Arctic

lengthened by approximately two weeks per decade between 1979

and 2005. ARL 117227. The agency also cited data indicating

that September (i.e., minimum) sea ice extent was at an all-time

low during the period between 2002 and 2007. ARL 117224. FWS

further noted that scientists had observed significant recent

declines in winter (i.e., maximum) sea ice extent, ARL 117226,

cumulative annual sea ice extent, ARL 117226, and overall sea

ice age and thickness, ARL 117226-27.

Relying on complex climate models and related data from the

International Panel on Climate Change (“IPCC”) – which FWS

acknowledged to be the leading international body in climate

change science – FWS attributed these changes in sea ice to

increased Arctic temperatures caused by greenhouse gas emissions

and related changes in atmospheric and oceanic circulation. 8 ARL

117227-30. As FWS described, due to a reported lag time in

response between when greenhouse gases are emitted into the

8 In its final Listing Rule, FWS relied in particular on the IPCC Fourth Assessment Report (“AR4”), issued in 2007, which was the most recent climate change report available from the IPCC at the time FWS made its listing determination. ARL 117231; see generally ARL 151180-152632.

- 13 - atmosphere and when the impacts of those emissions are felt on

the ground, the IPCC concluded that the global climate system is

committed to a continued warming trend through the end of the

21st century. ARL 117233-34. Indeed, FWS noted that average

projected warming levels through mid-century were generally

consistent across all IPCC climate models, regardless of

differences in possible emission levels over that period. ARL

117257. FWS looked also to IPCC models of Arctic sea ice, which

similarly projected declines in ice extent through the end of

the 21st century. ARL 117234. As FWS noted, the ten models

that most accurately reflected historical sea ice changes prior

to 2007 all projected a decline in September sea ice extent of

over thirty percent (30%) by mid-century. ARL 117236-37. On

the basis of these IPCC models and associated analysis, FWS

concluded that it could confidently predict a significant

decline in the polar bear’s sea ice habitat over the next 40 to

50 years. ARL 117279-81.

FWS further concluded that the extent of anticipated

declines in sea ice will significantly impact polar bear

population health. ARL 117279. As FWS described, sea ice

losses have been tied to nutritional stress in polar bears

because of lower overall numbers of ice-dependent prey,

decreased access to the prey that remain, shorter hunting

seasons and longer seasonal fasting periods, and higher

- 14 - energetic demands from traveling farther and swimming longer

distances across open water to reach sea ice. ARL 117279. FWS

determined that this nutritional stress and other related

factors will likely result in a decline in the physical

condition of polar bears, leading to lower overall body weights

and reduced cub survival rates. ARL 117270. FWS further found

that consistent declines in physical condition and reproductive

success will ultimately lead to population-level declines. ARL

117279.

In reaching this conclusion, FWS relied in part on long-

term studies showing that these impacts had already been

observed in some of the southern-most polar bear populations.

According to FWS, monitoring reports indicated that the Western

Hudson Bay population – one of the longest-studied polar bear

groups – had experienced declines in body condition among both

adult male and adult female bears over the past three decades,

with an associated population decrease of approximately twenty-

two percent (22%). ARL 117271. FWS noted that this Canadian

population also experienced significant declines in body mass

among female bears over that period. ARL 117270. A

comprehensive review of the polar bear’s status conducted prior

to listing indicated that, between 1971 and 2001, the average

date of spring break-up of the sea ice in the region advanced by

three weeks, and temperatures increased by between 0.5ºC and

- 15 - 0.8ºC per decade. ARL 139286. The correlation between the

timing of sea ice break-up and the body condition of adult

female polar bears was found to be statistically significant.

ARL 139286.

The same polar bear status review also indicated that

scientists monitoring the Southern Beaufort Sea polar bear

population – another long-studied group – observed similar

changes in body condition and unusual hunting behaviors. ARL

139279. As noted in the status review, population estimates for

this group between 1986 and 2006 also showed declines, although

researchers were not confident enough in these estimates to

assert that the observed declines were statistically

significant. ARL 139279.

Prior to issuing its final rule, FWS commissioned the

United States Geological Survey (“USGS”) to conduct additional

scientific analysis related to the polar bear listing decision. 9

Among other things, USGS undertook an effort to forecast the

status of polar bears in different parts of the Arctic at three

future time periods in the 21st century (i.e., 45 years, 75

years, and 100 years). See generally Forecasting the Range-Wide

9 FWS commissioned USGS to prepare this additional analysis in February 2007, after the publication of the proposed listing rule to list the polar bear as a threatened species. ARL 117239. In response to the significant new information contained in the USGS reports, FWS re-opened the public comment period on the proposed rule through October 22, 2007. ARL 117239. - 16 - Status of Polar Bears at Selected Times in the 21st Century, ARL

161306-161436. USGS developed two models in an effort to

predict potential future changes to polar bear population

numbers across a range of scenarios, using climate models and

the existing body of knowledge about polar bears. ARL 161313.

A simple “carrying capacity” model was designed to estimate

potential changes in numbers of bears based on current polar

bear population densities and annual sea ice projections. ARL

161316. A more comprehensive “Bayesian Network” model was

designed to determine the probability of certain population

outcomes (e.g., “larger than now,” “same as now,” “smaller,”

“rare,” or “extinct”), taking into account a wide range of

factors including the seasonal availability of sea ice, as well

as population stressors unrelated to sea ice loss. ARL 161317,

161325-26.

For the purpose of these models, USGS grouped the nineteen

global polar bear populations into four “ecoregions” – Seasonal

Ice, Divergent Ice, Convergent Ice, and Archipelago – based upon

regional patterns of ice formation. ARL 117276. The Seasonal

Ice Ecoregion, for example, occurs at the southern end of the

polar bear range and is ice-free for a portion of the year. ARL

117221. In the Divergent Ice Ecoregion, which is located mainly

in Alaska, ice formed at the shore drifts away from land as a

result of wind and ocean currents. ARL 117222. In the

- 17 - Convergent Ice Ecoregion, sea ice formed in the Divergent Ice

Ecoregion moves toward land and collects at the shore. ARL

117222. The Archipelago Ecoregion, at the northernmost point of

the Canadian Arctic, generally has thicker and more persistent

ice year-round. ARL 117222. USGS determined that these

variations in sea ice conditions generally correlate to

differences in how polar bears interact with their sea ice

habitat. ARL 117221.

Consistent with IPCC climate and sea ice models, both of

the USGS models projected population declines in all four polar

bear ecoregions over the next 100 years. ARL 161312. The

simple carrying capacity model indicated that polar bear

population levels range-wide will have moderately decreased by

year 45, assuming average projected levels of future sea ice.

ARL 161331. Assuming minimal levels of future sea ice, the

carrying capacity model projected trends “toward extirpation” of

bears in the Divergent Ice Ecoregion by year 45 and in the

Seasonal Ecoregion by year 75. ARL 161331. Similarly,

according to USGS, the Bayesian Network model results suggested

that “multiple stressors will likely play important and

deleterious roles on all polar bear populations, even starting

at year 45, and generally increase in their effect through year

100.” ARL 161332. For example, the Bayesian Network model

projected an outcome of extinction for bears in the Seasonal and

- 18 - Divergent Ice Ecoregions by year 45 and for bears in the

Convergent Ice Ecoregion by year 75. ARL 161312-13. In the

Archipelago Ecoregion, a “smaller” population was the dominant

outcome at year 45 under all scenarios. ARL 161332.

In relying on the USGS population models, FWS emphasized

that it had less confidence in the specific numerical outcomes

of these models than in their “general direction and magnitude.”

ARL 117278. Specifically, FWS pointed to several caveats that

USGS itself identified in the development of these models. As

FWS described, USGS acknowledged that the carrying capacity

model only accounted for changes in sea ice extent and could not

account for several other important factors, including seasonal

ice fluctuations and other population stressors. ARL 117277.

Further, USGS indicated that this simple model assumed a linear

relationship between sea ice and numbers of bears, which is not

necessarily the case, and it also assumed that polar bear

density will not change over time, which “is almost certainly

not valid.” ARL 161323. FWS similarly discounted the specific

outcomes of the Bayesian Network model, which USGS described as

a “first-generation ‘alpha’ level prototype,” ARL 161338,

because it reflected the judgment of only one polar bear expert

and “still must be vetted through other polar bear experts.”

ARL 161338; see also ARL 117278. Insofar as these population

models were generally consistent with the record as a whole,

- 19 - however, FWS found that these models supported a conclusion that

sea ice losses will negatively impact polar bears in a

significant way within the foreseeable future. ARL 117278; ARL

117300.

Based on a voluminous administrative record, including the

studies described above, and input from fourteen peer reviewers

and numerous polar bear specialists, climate scientists, experts

in Traditional Ecological Knowledge (“TEK”), 10 state and federal

agencies, foreign governments, Alaska Native tribes and tribal

commercial and trade organizations, conservation organizations,

nongovernmental organizations, and private citizens, FWS

concluded that the polar bear was threatened throughout its

range at the time of listing, within the meaning of the ESA.

ARL 117296. Specifically, FWS determined that all polar bear

10 TEK is a formally-recognized body of knowledge developed by the native people who co-exist with the polar bear in its habitat. TEK principles and observations include where and when polar bears feed, how they hunt, where they den, how they respond to different types of ice habitat, and how they travel. See Defendant-Intervenor Arctic Slope Regional Corporation Cross-Motion and Memorandum in Opposition, Docket Nos. 146, 147 (“ASRC Def-Int. Mot.”) at 3. This knowledge has been gained through traditional subsistence efforts, handed down over generations by oral tradition, and shared with scientists researching the species, including FWS scientists. ASRC Def- Int. Mot. at 3. TEK offers an opportunity for “clear observational records over relatively long temporal scales.” ASRC Def-Int. Mot. at 11 (quoting ARL 130884). For the purposes of the Listing Rule, FWS accepted TEK as a relevant source of information on the ecology of polar bears. ARL 117252.

- 20 - populations will be affected by substantial losses of sea ice

within the foreseeable future (which it defined as 45 years),

although different populations will be affected at different

rates and to different degrees. ARL 117279-80. FWS further

found that polar bears are unlikely to adapt to these

anticipated habitat changes. ARL 117264-66.

However, notwithstanding these findings, FWS concluded that

the polar bear was not endangered in any portion of its range at

the time of listing. ARL 117301. The agency determined that at

the time of listing the species was generally abundant

throughout its range, the species continued to occupy the full

extent of its historical range, and it had yet to experience

precipitous population declines in any portion of its range.

ARL 117299-301. Even in the Western Hudson Bay population,

where a statistically-significant decline had been observed, the

species continued to reproduce normally. ARL 117300. According

to FWS, these countervailing facts demonstrated that the polar

bear was not “in danger of extinction” at the time it made its

listing decision, although the agency reiterated that the

species would likely become an endangered species by mid-

century. ARL 117301.

The publication of the Listing Rule triggered lawsuits by a

number of organizations and individuals: (1) the State of Alaska

- 21 - (“Alaska”) 11 (State of Alaska v. Salazar, et al., No. 08-1352

(D.D.C. Aug. 4, 2008)); (2) Safari Club International and Safari

Club International Foundation (collectively, “SCI”) 12 (Safari

Club Int’l, et al. v. Salazar, et al., No. 08-1550 (D.D.C. Sept.

8, 2008)); (3) California Cattlemen’s Association and the

Congress on Racial Equality (collectively, “CCA”) 13 (California

Cattlemen’s Ass’n, et al. v. Salazar, et al., No. 08-1689

(D.D.C. Oct. 2, 2008)); (4) Center for Biological Diversity,

Natural Resources Defense Council, and Greenpeace (collectively,

“CBD”) 14 (Ctr. for Biological Diversity, et al. v. Salazar, et

11 The State of Alaska is a sovereign state with an averred interest in the management of its wildlife and natural resources, including the polar bear, and an averred interest in the impact of the Listing Rule on public services, tourism, transportation, and resource development within the state. Alaska Compl. ¶¶ 9, 10. 12 Safari Club International and Safari Club International Foundation are not-for-profit public education and hunting advocacy organizations with an averred interest in the impact of the Listing Rule on sustainable use wildlife conservation efforts, including foreign trophy hunting programs. SCI Compl. ¶¶ 14-17. 13 California Cattlemen’s Association and the Congress on Racial Equality are not-for-profit organizations that represent California’s beef producers and poor and minority business owners, respectively, with an averred interest in ensuring that the Listing Rule does not expose their members to an elevated risk of citizen suits and increased costs of doing business. CCA First Am. Compl. ¶¶ 5, 6. 14 Center for Biological Diversity, Natural Resources Defense Council, and Greenpeace are not-for-profit environmental advocacy organizations with members that have an averred interest in the protection and conservation of wildlife species, - 22 - al., No. 08-1339 (N.D. Cal. Mar. 10, 2008)); 15 and

(5) Conservation Force, the Inuvialuit Game Council, and

numerous hunting and trapping organizations as well as

individuals (collectively, “CF”) 16 (Conservation Force, et al. v.

Salazar, et al., No. 09-245 (D.D.C. Feb. 9, 2009)). These five

actions were subsequently consolidated before this Court, along

with six related actions, pursuant to an order of the Judicial

Panel on Multi-District Litigation. 17 See generally Certified

Copy of Transfer Order, Docket No. 1. 18

such as the polar bear, and their habitat. CBD Third Am. Compl. ¶¶ 20-23. 15 This case was subsequently transferred and assigned a new case number in this Court. 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 wildlife conservation organization with an averred interest in managing and protecting game species, including polar bears. CF Compl. ¶ 16. Joining with Conservation Force in its lawsuit is the Inuvialuit Game Council, which represents the interests of the Inuvialuit people on all matters pertaining to wildlife management within Canada’s Inuvialuit Settlement Region. CF Compl. ¶ 17. Also joining with these plaintiffs are a number of hunting and trapping organizations, sportsmen organizations and outfitters, and individuals who have participated in polar bear trophy hunting. CF Compl. ¶¶ 18-50. 17 On the same day that FWS issued its final rule listing the polar bear as a threatened species, the Secretary of the Interior published proposed regulations pursuant to 16 U.S.C. § 1533(d). See Special Rule for the Polar Bear, 73 Fed. Reg. 28,306 (May 15, 2008) (“Interim 4(d) Rule”). These regulations were later finalized and codified at 50 C.F.R. § 17.40(q) and are the subject of two additional actions before this Court. The four remaining actions challenge the Service’s subsequent refusal to issue permits for importing sport-hunted polar bear - 23 - Several groups intervened to defend against plaintiffs’

challenges to the Listing Rule. Specifically, this Court

permitted the Alaska Oil and Gas Association (“AOGA”) and the

Arctic Slope Regional Corporation (“ASRC”) to intervene as

defendants in the challenge brought by plaintiff CBD. See

Stipulation and Order Regarding Intervention, Docket No. 33, at

4-5. The Court also permitted SCI, a plaintiff in its own

action, to intervene as a defendant in the action brought by

plaintiff CBD. Plaintiff CBD was permitted to intervene as a

defendant in the remaining challenges to the Listing Rule.

On October 20, 2009, plaintiffs filed their motions for

summary judgment. 19 Among other claims, plaintiff CBD contends

trophies under the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. §§ 1371-1389 (2006). These six actions have been briefed separately from the Listing Rule cases; therefore, the Court does not address either the 4(d) Rule or the import ban challenges here. 18 Unless otherwise specified, all references to 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 and Greenpeace jointly filed a motion for summary judgment. See generally Motion for Summary Judgment by CBD, Docket No. 125 (“CBD Mot.”). The remaining plaintiffs also filed a joint motion for summary judgment that addresses their common claims. See generally Joint Motion for Summary Judgment on Listing Rule Claims, Docket No. 127 (“JP Mot.”). The Court also permitted each of these plaintiffs to submit supplemental motions and memoranda in support of summary judgment. See generally Alaska’s Motion for Summary Judgment on Listing Rule Claims, Docket No. 128 (“Alaska Mot.”); Motion and Supplemental Memorandum of CCA in Support of Motion for Summary - 24 - that the decision to list the polar bear as threatened was

arbitrary and capricious because the polar bear met the

definition of an endangered species under the ESA at the time of

listing and thus qualified for a higher level of protection.

The remaining plaintiffs (collectively, “Joint Plaintiffs”)

contend, among other things, that the decision to list the polar

bear was arbitrary and capricious because the polar bear did not

meet the definition of a threatened species at the time of

listing and therefore did not qualify for ESA protections.

The federal defendants filed their cross-motion for summary

judgment on December 7, 2009. See generally Federal Defendants’

Combined Opposition and Cross-Motion for Summary Judgment on

Listing Rule Claims, Docket No. 137 (“Fed. Def. Mot.”). The

various defendant-intervenors filed their cross-motions for

summary judgment on January 19, 2010. 20

Judgment Challenging the Listing Rule, Docket No. 124 (“CCA Mot.”); Motion for Summary Judgment and Supplemental Memorandum of Points and Authorities by SCI, Docket No. 123 (“SCI Mot.”); Motion for Summary Judgment by CF, Docket No. 126, corrected at Docket No. 131 (“CF Mot.”). 20 See generally Defendant-Intervenor SCI Cross-Motion for Summary Judgment and Memorandum in Opposition, Docket Nos. 144, 145 (“SCI Def-Int. Mot.”); Defendant-Intervenor ASRC Cross- Motion and Memorandum in Opposition, Docket Nos. 146, 147 (“ASRC Def-Int. Mot.”); Defendant-Intervenor AOGA Cross-Motion for Summary Judgment, Docket No. 148 (“AOGA Def-Int. Mot.”); Defendant-Intervenor CBD Cross-Motion for Summary Judgment, Docket No. 149 (“CBD Def-Int. Mot.”). - 25 - This Court held an initial hearing on the parties’ cross-

motions for summary judgment on October 20, 2010. At that

hearing, the Court focused only on a threshold question: whether

it must review the agency’s interpretation of the ESA listing

classifications under step one or step two of the familiar

framework set forth in Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984). In a

Memorandum Opinion issued on November 4, 2010, the Court held

that FWS had improperly relied on an erroneous plain-meaning

reading of the definition of an endangered species that could

not be upheld under step one of Chevron. In re Polar Bear

Endangered Species Act Listing and § 4(d) Rule Litigation, 748

F. Supp. 2d 19, 29 (D.D.C. 2010) [hereinafter In re Polar Bear].

Finding that the term “endangered species” under the ESA is

instead ambiguous, the Court remanded the Listing Rule to the

agency “to treat the statutory language as ambiguous.” Id.

In response to the Court’s remand order, on December 22,

2010, the federal defendants submitted the agency’s memorandum

of supplemental explanation. See generally Supplemental

Explanation for the Legal Basis of the Department’s May 15, 2008

Determination of Threatened Status for Polar Bears, Docket No.

237-1 (“Supp. Exp.”). In their Supplemental Explanation, FWS

concluded that, even treating the phrase “in danger of

extinction” in the definition of an endangered species as

- 26 - ambiguous, the administrative record does not support a finding

that the polar bear qualified for endangered status at the time

of listing. Because the agency determined that the species is

likely to become endangered within the foreseeable future,

however, FWS reiterated that the polar bear met ESA’s the

definition of a threatened species at the time of listing.

Supp. Exp. at 16.

The Court gave the parties an opportunity to submit

additional briefs responding to the agency’s supplemental

explanation. See generally Joint Plaintiffs’ Response to

Federal Defendants’ Supplemental Explanation, Docket No. 240

(“JP Supp. Mem.”); Plaintiff CBD’s Response to Federal

Defendants’ Supplemental Explanation, Docket No. 241 (“CBD Supp.

Mem.”); AOGA and ASRC Defendant-Intervenors’ Response to Federal

Defendants’ Supplemental Explanation, Docket No. 239 (“AOGA

Supp. Mem.”); Federal Defendants’ Supplemental Reply, Docket No.

242 (“Fed. Def. Supp. Reply”). A second motions hearing was

held on February 23, 2011, during which the Court heard

arguments on all plaintiffs’ Listing Rule claims. The parties’

cross-motions for summary judgment are now ripe for

determination by the Court.

II. STANDARD OF REVIEW

The Service’s listing decisions are subject to review under

the APA. See, e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991,

- 27 - 997 (D.C. Cir. 2008). Under APA review, federal agency actions

are to be held unlawful and set aside where they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). To make this

finding, a court must determine whether the agency “considered

the factors relevant to its decision and articulated a rational

connection between the facts found and the choice made.”

Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009) (citing

Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462

U.S. 87, 105 (1983)).

The standard of review under the APA is a narrow one.

Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416

(1971). The court is not empowered to substitute its judgment

for that of the agency. Id. Deference to the agency’s judgment

is particularly appropriate where the decision at issue

“requires a high level of technical expertise.” Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 375-77 (1989); Ethyl Corp.

v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (“[The court] must look

at the decision not as the chemist, biologist or statistician

that [it is] qualified neither by training nor experience to be,

but as a reviewing court exercising [its] narrowly defined duty

of holding agencies to certain minimal standards of

rationality.”). Specifically, with regard to FWS decisions,

this Court has previously recognized that “[g]iven the expertise

- 28 - of the FWS in the area of wildlife conservation and management

and the deferential standard of review, the Court begins with a

strong presumption in favor of upholding decisions of the

[FWS].” Am. Wildlands v. Kempthorne, 478 F. Supp. 2d 92, 96

(D.D.C. 2007) (citing Carlton v. Babbitt, 900 F. Supp. 526, 530

(D.D.C. 1995)).

This narrow, deferential standard does not, however, shield

the agency from a “thorough, probing, in-depth” review. Overton

Park, 401 U.S. at 415. The court’s inquiry into the facts must

be both “searching and careful.” Id. at 416. Administrative

action must be invalidated as arbitrary where the agency

relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463

U.S. 29, 43 (1983). This determination must be made solely on

the basis of the record before the agency when it made its

decision. Camp v. Pitts, 411 U.S. 138, 142 (1973).

Where the court reviews an agency’s interpretation of a

statute it is charged with administering, the Supreme Court’s

opinion in Chevron provides the appropriate framework of review.

The first step in this review process is for the court to

determine “whether Congress has directly spoken to the precise

- 29 - question at issue.” Chevron, 467 U.S. at 842. “If the intent

of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Id. at 842-43. In

determining whether the statute unambiguously expresses the

intent of Congress, the court should use all the “traditional

tools of statutory construction,” see id. at 843 n.9, including

looking to the text and structure of the statute, as well as its

legislative history, if appropriate. See Bell Atlantic Tel. Co.

v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997).

If the court concludes that the statute is either silent or

ambiguous with respect to the precise question at issue, the

second step of the court’s review process is to determine

whether the interpretation proffered by the agency is “based on

a permissible construction of the statute.” Chevron, 467 U.S.

at 843. The court must defer to agency interpretations that are

not “procedurally defective, arbitrary or capricious in

substance, or manifestly contrary to the statute.” United

States v. Mead, 533 U.S. 218, 227 (2001) (citing Chevron, 467

U.S. at 843-44).

III. DISCUSSION

Plaintiffs have identified a number of purported

deficiencies in the Listing Rule, each of which forms the basis

for a claim that FWS violated both the ESA and the APA when it

- 30 - listed the polar bear as a threatened species. Plaintiffs’

claims can be classified into three general categories.

First, each of the plaintiffs in this case argues that the

Service’s decision to list the polar bear as a threatened

species was based on a fundamentally flawed interpretation of

the ESA’s listing standards and a misguided application of the

record evidence. Specifically, plaintiff CBD claims that FWS

wrongly concluded that the polar bear did not qualify for

endangered status at the time of listing, given the evidence in

the record indicating that substantial anticipated sea ice

losses will continue through the end of the 21st century. By

contrast, Joint Plaintiffs claim that FWS failed to demonstrate

that the polar bear is sufficiently likely to become endangered

within the foreseeable future and, therefore, the agency wrongly

concluded that the polar bear qualified for threatened status at

the time of listing. In the alternative, a smaller subset of

plaintiffs (including CBD, SCI, and CF) argues that FWS erred

when it concluded that no polar bear population or ecoregion

qualifies as a “distinct population segment,” which would have

allowed the Service to tailor ESA protections more narrowly

across populations.

Second, plaintiffs argue that FWS ignored or otherwise

failed to adequately address four listing factors that the ESA

requires the agency to consider. Joint Plaintiffs claim that

- 31 - the Service failed to adequately “take into account” foreign

conservation programs, particularly Canadian sport-hunting

programs, because it failed to ensure that its listing decision

would not negatively impact those programs. Joint Plaintiffs

also claim that the Service failed to demonstrate that it relied

upon the “best available science,” because the climate models,

population models, and population monitoring studies the Service

relied upon do not, in fact, support the agency’s conclusion

that the polar bear is likely to become endangered within the

foreseeable future. Plaintiff CBD claims that FWS improperly

downplayed the threat of hunting to the polar bear and wrongly

concluded that the polar bear was not in danger of extinction at

the time of listing as a result of the combined threats of

habitat loss (“Listing Factor A”) and overutilization (“Listing

Factor B”). Joint Plaintiffs finally claim that FWS wrongly

concluded that existing regulatory mechanisms (“Listing Factor

D”) will be insufficient to protect the polar bear despite

future sea ice losses.

Third and finally, plaintiffs identify deficiencies in the

Service’s decision-making process for the Listing Rule.

Plaintiff Alaska claims that FWS failed to provide an adequate

“written justification” in response to the State’s comments, as

it was required to do under Section 4(i) of the ESA. Plaintiff

- 32 - CF claims that FWS similarly erred by failing to respond to its

comments on the Listing Rule.

Having carefully considered each of these arguments, the

Court is simply not persuaded that the Service’s decision to

list the polar bear as a threatened species under the ESA was

arbitrary and capricious. As the Supreme Court noted in Babbitt

v. Sweet Home, “[t]he task of defining and listing endangered

and threatened species requires an expertise and attention to

detail that exceeds the normal province of Congress,” and of the

courts as well. 515 U.S. 687, 708 (1995). This Court is not

empowered to substitute its own judgment for that of the agency

but can only hold the agency to “minimal standards of

rationality.” Ethyl Corp., 541 F.2d at 36. Accordingly, and

for the reasons set forth below, the Court finds that the

Listing Rule represents a reasoned exercise of the Service’s

discretion based on the facts and the best available science at

the time the agency made its determination.

The Court will now address each of plaintiffs’ claims in

turn. 21

21 As a threshold matter, the federal defendants contend that one set of plaintiffs – California Cattlemen’s Association and the Congress on Racial Equality – failed to demonstrate standing to challenge the Listing Rule and, therefore, any claims uniquely raised by those plaintiffs must be dismissed. The Court finds, however, that these plaintiffs have raised no claims that were not also fully briefed by the larger group of Joint Plaintiffs. Accordingly, as the federal defendants - 33 - A. The Service Articulated a Rational Basis for Its Conclusion that the Polar Bear Met the Definition of a Threatened Species at the Time of Listing

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

The Court turns first to plaintiff CBD’s claim that FWS

endangered status as of 2008. The Court will begin by outlining

the Service’s interpretation of the definition of an endangered

species under the ESA, as applied to the polar bear.

a. The Service’s Findings

In their original briefs and at a motions hearing held on

October 20, 2010, the federal defendants argued that the text,

structure, and legislative history of the ESA plainly and

unambiguously require that a species must be in imminent danger

of extinction to be designated as an endangered species. This

Court held in a November 4, 2010 Memorandum Opinion that neither

concede that the remaining plaintiffs in this action have demonstrated their 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 declines to do so. See Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (“Only one of the petitioners needs to have standing to permit us to consider the petition for review.”); see also 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 constitutional and prudential standing can be shown for at least one plaintiff, [the court] need not consider the standing of the other plaintiffs to raise that claim.’”)).

- 34 - the statute itself nor its legislative history compels the

federal defendants’ reading of the term “in danger of

extinction” and that the term is, instead, ambiguous. In re

Polar Bear, 748 F. Supp. 2d at 28-29. Accordingly, following

D.C. Circuit precedent, the Court remanded the rule to agency

decision-makers to “fill in the gap” in the statute by providing

additional explanation for the agency’s determination that the

polar bear was not in danger of extinction at the time of

listing. Id. at 29. On December 22, 2010, the federal

defendants submitted the agency’s Supplemental Explanation in

response to the Court’s remand order.

The Service emphasizes that its Supplemental Explanation is

not intended to set forth a new statement of agency policy or a

new “rule” pursuant to the APA, nor does the agency intend to

adopt independent, broad-based criteria for defining the

statutory term “in danger of extinction.” Supp. Exp. at 1-2.

Nonetheless, the agency claims that its starting point in making

such a determination is the general understanding that the

phrase “in danger of extinction” describes a species that is

currently on the brink of extinction in the wild. Supp. Exp. at

3. According to FWS, to be “currently on the brink of

extinction” does not necessarily mean that extinction is certain

or inevitable; rather, whether a species is currently on the

brink of extinction “depends on the life history and ecology of

- 35 - the species, the nature of the threats, and the species’

response to those threats.” Supp. Exp. at 3.

As FWS describes, the agency’s past “endangered” listings

can be broken out into roughly four categories:

Category 1: Species facing a catastrophic threat from which the risk of extinction is imminent and certain. In this category, the timing of the threat alone is sufficient to deem the species in danger of extinction. The snail darter is the classic example of a species in this category. See Tenn. Valley Auth. v. Hill, 427 U.S. 153 (1978). This fish species was discovered shortly after the Tennessee Valley Authority had begun construction of the Tellico Dam on the Little Tennessee River and, at the time of listing, the dam project threatened to immediately and completely obliterate the only known population.

Category 2: Narrowly restricted endemics that, as a result of their limited range or population size, are vulnerable to extinction from elevated threats. This category applies to species found in an extremely limited range that, in addition, are facing increasing threats. A large portion of listed species fall in this category. An example of one of these species is the Devil’s Hole pupfish, which lives in a single sinkhole in the southern Nevada desert that is experiencing a drop in groundwater level. See Cappaert v. United States, 426 U.S. 128 (1976).

Category 3: Species formerly more widespread that have been reduced to critically low numbers or restricted ranges and, consequently, are at a high risk of extinction due to threats that would not otherwise imperil the species. This category represents a class of species experiencing both a severe range reduction and/or precipitous population crash combined with ongoing threats. Some examples of species falling in this category include California condors, whooping cranes, and vernal pool species, many of which have been all but wiped out by development and related factors. These species experience such a restricted range that they are extremely vulnerable to both ongoing and chance threats.

- 36 - Category 4: Species with relatively widespread distribution that have nevertheless suffered ongoing major reductions in numbers, range, or both, as a result of persistent threats. This category shares common characteristics with threatened species in that they have suffered some recent decline in numbers, range, or both, but to a more severe extent. An example of a species falling in this category is the red-cockaded woodpecker, which was formerly a common bird but experienced a precipitous decline in 1970 caused by an almost complete loss of its primary longleaf pine habitat. Currently, only small, isolated populations of this species remain, making the species more vulnerable to threats including reproductive isolation.

Supp. Exp. at 4-6. Although there is no single metric for

determining if a species is “in danger of extinction,” FWS

contends that these four categories demonstrate the agency’s

largely consistent approach to endangered species listings. See

Supp. Exp. at 4.

The Service asserts that its general understanding of the

statutory definition of an “endangered species” and its approach

to species listings is supported by the text, structure, and the

legislative history of the ESA. The Service notes that, insofar

as an endangered species is any species which “is in danger of

extinction” and a threatened species is any species which is

“likely to become an endangered species within the foreseeable

future,” the ESA recognizes species with “two distinct degrees

of imperilment based on the temporal proximity of the risk of

extinction.” Supp. Exp. at 9. Within that general framework,

- 37 - the agency must exercise its discretion and expert judgment to

weigh multiple factors on a species-specific basis. The Service

asserts that its past listing decisions, including the polar

bear Listing Rule, represent a reasoned exercise of that

discretion. 22

The Service contends that its species-specific listing

determination for the polar bear constitutes a permissible

construction of the ESA, given the life history and ecology of

the species, the nature and timing of the threats, and the

species’ observed and anticipated responses to those threats.

According to FWS, the administrative record in this case

demonstrates that, at the time of listing, the polar bear fit

none of the four general categories of endangered species

identified by the agency as representative of its past listing

decisions. Rather, the evidence before the agency showed that

at the time of listing the polar bear was a widespread,

circumpolar species that had not been restricted to a critically

22 As this Court observed in its November 4, 2010 opinion, the courts have not offered an interpretation of the phrase “in danger of extinction” in the context of reviewing a listing determination. In re Polar Bear, 748 F. Supp. 2d at 26 n.12. Nonetheless, FWS asserts that its approach is consistent with judicial interpretations indicating that Congress intended to delegate broad responsibility to the agency to make listing determinations. See, e.g., Trout Unlimited v. Lohn, 559 F.3d 946, 961 (9th Cir. 2009) (in which the court found that “[b]y leaving an ‘explicit gap’ for agency-promulgated regulations, the ESA expressly delegates authority to the [agency] to decide how such listing determination should be made.”). - 38 - small range or critically low numbers, nor had it suffered

precipitous reductions in numbers or range. See Supp. Exp. at

15.

Specifically, FWS found the following facts dispositive:

• At the time of listing, the polar bear was widely distributed in nineteen populations and numbered in abundance between 20,000 to 25,000 individuals. Supp. Exp. at 15.

• Fourteen of the nineteen polar bear populations were considered to be stable, increasing, or data deficient at the time of listing. Supp. Exp. at 15.

• Only one population - Western Hudson Bay - was verified to be in a statistically-significant decline, although two other populations were also actually or potentially declining. Supp. Exp. at 15.

• No population decline was found to be precipitous, and reproduction and recruitment were still occurring in declining populations. Supp. Exp. at 15.

In short, FWS determined, “there is simply no information

in the Administrative Record to suggest that the species has

experienced significant population declines or severe

retractions in its range such that it is currently on the brink

of extinction or that it faced a sudden and calamitous threat.”

Supp. Exp. at 15-16. 23 Accordingly, the agency concluded that

23 Although population modeling for the species projected significant future declines in some polar bear populations, the agency ultimately determined that these model outcomes were too uncertain to support a specific conclusion about the actual rate of decline. See Supp. Exp. at 17. Similarly, although population monitoring showed evidence of significant declines in body condition in some polar bear populations, see Supp. Exp. at - 39 - the polar bear warranted listing as threatened range-wide but

did not qualify as an endangered species at the time of listing.

b. Plaintiff CBD’s Arguments

Plaintiff CBD contends that, despite this Court’s remand

order, the agency’s interpretation of the term “endangered

species” to exclude the polar bear continues to violate the ESA.

First, CBD contends that the agency has not significantly

departed from its original position that an endangered species

must be at risk of both imminent and certain extinction.

According to CBD, nothing in the text, structure, or legislative

history of the ESA supports the Service’s conclusion that the

temporal proximity of an extinction threat is the controlling

distinction between a threatened and an endangered species. 24

Such a narrow reading of the statute, CBD contends, sets the bar

for an “endangered” listing impossibly high. Moreover, it

contravenes the purpose of the ESA, which is to provide a

flexible approach to protecting species so that they can be

recovered and delisted.

17, FWS found them insufficient to warrant endangered status for any particular population at the time of listing. See Supp. Exp. at 18. 24 As this Court noted in its remand order, the legislative history of the ESA indicates that Congress did not seek to make any single factor controlling when drawing the distinction between an endangered and a threatened species, nor did it seek to limit the applicability of the endangered category to only those species facing imminent extinction. See In re Polar Bear, 748 F. Supp. 2d at 28. - 40 - CBD also claims that the Service unlawfully discounted or

otherwise failed to consider key scientific information in

determining that the polar bear was not endangered in any

portion of its range. Indeed, CBD claims that FWS never

actually analyzed whether, at the time of listing, polar bears

fit within any of the four categories of endangered species

described in its Supplemental Explanation. According to CBD,

the administrative record demonstrates that the polar bear fits

within three of the four “endangered” classifications identified

by the agency.

With respect to Category One, CBD asserts that FWS never

considered whether global warming constitutes a “catastrophic

threat.” CBD contends, as it did in its original briefing, that

polar bears in at least the Seasonal and Divergent Ice

Ecoregions face such a threat, and did at the time of listing,

because the best available science at the time indicated that a

certain amount of warming is already committed through the end

of the 21st century and that continued warming trends are

unlikely to be reversed in the near future. CBD points

specifically to the USGS population modeling exercises, which

projected declines in all of the polar bear ecoregions through

mid-century, or approximately over a 45-year period. CBD also

cites to evidence in the record, including the Listing Rule

itself, which suggests that these models are only conservative

- 41 - estimates of the potential impacts to polar bears from sea ice

losses. See ARL 117275 (“Simulated and projected rates of

habitat loss during the late 20th and early 21st centuries by

many [climate models] tend to be less than observed rates of

loss during the past two decades; therefore, habitat losses

based on [these models] were considered to be conservative.”);

ARL 117280 (“The record low sea ice conditions of 2007 are an

extension of an accelerating trend of minimum sea ice conditions

and further support the concern that current sea ice models may

be conservative and underestimate the rate and level of change

expected in the future.”).

In addition to the USGS population monitoring exercises,

CBD references population-specific studies to suggest that three

populations – Western Hudson Bay, Southern Beaufort Sea, and

Baffin Bay – were in danger of extinction at the time of

listing. Reports in the record from the international Polar

Bear Specialist Group indicate that six of the nineteen polar

bear populations were declining at the time of listing,

including these three. The Western Hudson Bay population saw a

decline of twenty-two percent (22%) over an eighteen year period

and showed statistically significant declines in body mass among

female bears, ARL 117271, which must maintain a certain body

weight to successfully reproduce, ARL 117270. Researchers

estimated that cub production in this population would “probably

- 42 - be negligible within the next 15-25 years.” ARL 117270.

Population numbers also declined in the Southern Beaufort Sea

population, along with significant cumulative declines in

observed cub survival and skull size and adult male body mass

and skull size. See ARL 117272. Unprecedented instances of

starvation and cannibalism among the Southern Beaufort Sea were

also reported and attributed to nutritional stress. See ARL

117272.

Finally, CBD points to a letter from the Marine Mammal

Commission (“MMC”), 25 the agency charged with advising FWS on

marine mammal issues, which urged FWS to list the polar bear as

endangered in light of the USGS population modeling reports.

See ARL 126312. In its letter, MMC concluded that “[w]hen taken

as a whole, [the USGS reports] present a bleak picture of the

25 MMC is a non-executive agency created by the Marine Mammal Protection Act (“MMPA”). 16 U.S.C. §§ 1403, 1406. The MMPA does not require FWS to follow the MMC’s recommendations but only requires FWS to respond to MMC and explain its reasoning if those recommendations are not followed. Id. § 1402(d); see also ARL 108484. The Court notes that MMC provided two sets of comments on the listing decision and comments as a peer reviewer on the Service’s earlier status assessment for the polar bear. MMC’s comments on the status assessment and 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, referenced here, MMC recommended listing the polar bear as endangered because of USGS population projections for the Seasonal and Divergent Ice ecoregions. See ARL 126309. FWS responded to MMC’s recommendation by letter dated June 17, 2008. AR4D 14233 (final response dated June 17, 2008 included in the administrative record for the Interim 4(d) Rule); see also ARL 108485 (draft response dated Feb. 28, 2008). - 43 - survival prospects of most populations of polar bears, absent

rigorous management of the underlying factors driving climate

change.” ARL 126315. According to CBD, this letter supports a

conclusion that the agency acted arbitrarily in failing to find

that the polar bear was endangered throughout a significant

portion of its range at the time the agency made its decision.

With respect to Category Two, CBD asserts that FWS never

considered whether the polar bear should be considered a

“narrowly restricted endemic” species facing elevated threats.

By contrast, CBD contends that the polar bear should be

considered an endemic species because it relies exclusively on a

particular type of sea ice habitat. FWS acknowledged that this

habitat type is at risk from continued warming patterns; indeed,

this conclusion forms the basis for the agency’s decision to

list the species as threatened. As such, CBD argues that the

agency was obligated to consider whether the polar bear should

have properly been classified as endangered because of its

unique habitat needs and the particular threats to that habitat

from climate change.

Finally, with respect to Category Four, CBD asserts that

the agency failed to consider whether any polar bear population

“‘suffered ongoing major reductions in its numbers, range, or

both, as a result of factors that have not been abated.’” CBD

Supp. Mem. at 24 (quoting Supp. Exp. at 6). At the least, CBD

- 44 - contends that a twenty-two percent decline in the Western Hudson

Bay population should have been considered a “major decline in

numbers.” CBD Supp. Mem. at 24.

CBD also points out that, although the polar bear was the

first species to be listed due to climate change, FWS never

considered whether the existence of a new threat might warrant

the creation of an altogether new category. Instead, CBD

contends, the agency relied on flawed conclusions, incorrect

assumptions, and an unreasonably narrow interpretation of the

statute to justify a lower level of protection for the polar

bear than the species demands. According to CBD, the agency

consistently failed to articulate a rational connection between

the record evidence and the choice it made. For these reasons,

CBD argues that the Service’s interpretation of the definition

of “endangered species” to exclude the polar bear was arbitrary,

capricious, and manifestly contrary to the text, structure, and

purpose of the ESA.

c. The Court’s Analysis

As a threshold matter, the parties disagree on whether the

Court is obliged to review the statutory interpretation set

forth in the agency’s Supplemental Explanation under the

deferential Chevron framework, or whether another standard

should guide the Court’s review on remand. Before reaching the

merits of the agency’s Supplemental Explanation, the Court must

- 45 - first determine the appropriate standard of review. The Court

turns now to that question.

i. Standard of Review on Remand

As noted above, where a court reviews an agency’s

interpretation of a statute it is charged with administering,

such as the ESA, the Supreme Court’s opinion in Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc. provides the

appropriate framework of review. Here, the federal defendants,

the defendant-intervenors, and the Joint Plaintiffs concur that

this Court, having found that the agency’s plain-meaning

interpretation of the definition of an endangered species fails

under step one of the Chevron framework, should now analyze the

agency’s Supplemental Explanation under step two of Chevron,

which requires the Court to uphold any reasonable agency

interpretation of ambiguous statutory language. See 467 U.S. at

843-44. Plaintiff CBD contends, by contrast, that the agency’s

Supplemental Explanation here is not “Chevron step two-worthy.”

CBD Supp. Mem. at 4.

Under the Supreme Court’s decision in United States v.

Mead, an agency interpretation qualifies for Chevron review when

it meets two requirements: (1) “when it appears that Congress

delegated authority to the agency generally to make rules

carrying the force of law,” and (2) “the agency interpretation

claiming deference was promulgated in the exercise of that

- 46 - authority.” 533 U.S. at 226-27; see also Pub. Citizen, Inc. v.

HHS, 332 F. 3d 654, 659 (D.C. Cir. 2003) (citing Mead standard).

According to CBD, the agency’s Supplemental Explanation meets

neither of these requirements. Indeed, CBD goes further,

arguing that the agency’s Supplemental Explanation is entitled

to no deference at all. Where a Chevron analysis is

inappropriate, the Supreme Court has held that an agency

interpretation may nonetheless be entitled to “respect,” but

only to the extent that interpretation has the “power to

persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944);

see also Power v. Barnhart, 292 F.3d 781, 786 (D.C. Cir. 2002)

(“Under Skidmore, we grant an agency’s interpretation only so

much deference as its persuasiveness warrants.”). CBD asserts

that the agency’s Supplemental Explanation has no “power to

persuade” because it is inconsistent with the statute’s text,

legislative history, and policy objectives, and because it is

effectively post hoc rationalization, developed directly in

response to litigation. Accordingly, CBD concludes, the

agency’s interpretation of the statutory phrase “in danger of

extinction” does not warrant deference under either the Chevron

or the Skidmore standard, and this Court “must decide for itself

the best interpretation of ‘in danger of extinction’ as applied

to the polar bear.” CBD Supp. Mem. at 9 (citing Landmark Legal

Found. v. IRS, 267 F.3d 1132, 1136 (D.C. Cir. 2001)).

- 47 - After careful consideration of these arguments, the Court

nevertheless concludes that Chevron provides the appropriate

standard of review on remand. This Court remanded the Listing

Rule to FWS for the very limited purpose of providing additional

explanation for its listing determination for the polar bear.

In other cases remanding an agency decision for a similarly

limited purpose, the D.C. Circuit has subsequently reviewed the

agency’s supplemental analysis under the Chevron framework. See

Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F.3d 788, 793

(D.C. Cir. 2009) (concluding that “the Secretary’s

interpretation [on remand] is entitled to Chevron deference”);

PDK Labs., Inc. v. DEA, 438 F.3d 1184, 1189-90 (D.C. Cir. 2006)

(“This leaves us with the task of resolving at Chevron’s second

step whether the Deputy Administrator’s resolution of that

ambiguity [on remand] is based on a permissible construction of

the statute.”).

Indeed, the D.C. Circuit recently addressed 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 the Coast Guard for a “forthright” agency

interpretation of ambiguous statutory language in the Great

Lakes Pilotage Act. Although the plaintiff in that case argued

that the agency’s response on remand was not entitled to

deferential Chevron review, the D.C. Circuit disagreed.

- 48 - Specifically, the court found that Chevron deference was

appropriate because the Coast Guard was acting “pursuant to an

express delegation from Congress” and because its interpretation

addressed “interstitial questions” that the agency “deserve[d]

deference to address.” Id. at 331-32 (citing Barnhart v.

Walton, 535 U.S. 212, 222 (2002); see also Mylan Labs., Inc. v.

Thompson, 389 F.3d 1272, 1280 (D.C. Cir. 2004)). The court

found that the agency was not required to conduct notice-and-

comment rulemaking procedures or engage in a formal adjudicatory

process for its statutory interpretation to warrant deferential

review. Menkes, 637 F.3d at 332-33. Rather, the court

concluded that “the Coast Guard’s enunciation of the aforecited

statutory interpretations and rules has the ‘force of law,’

. . . especially given the instruction from this court to the

agency to ‘come to grips with the meaning of the statute.’” Id.

at 332.

Because this Court finds that the court’s opinion in Menkes

bears directly on the question before it, it is bound to follow

the D.C. Circuit’s approach. Here, as in Menkes, the Court

required the Service to grapple with the ambiguities in the

ESA’s definition of the term “endangered species,” pursuant to

the agency’s express authority to make listing determinations

case-by-case in light of the best available science for each

species. The Court expressly did not require the agency to

- 49 - adopt independent, broad-based criteria or prospective policy

guidance regarding the interpretation of the phrase “in danger

of extinction” in the ESA. Further, the Court expressly did not

require the agency to conduct notice-and-comment rulemaking

procedures or to engage in additional fact-finding. Given the

narrow scope of the remand order in this case, the Court is

persuaded that the agency’s Supplemental Explanation qualifies

for deferential review under Chevron. 26

ii. Merits

As set forth below, having carefully considered the

agency’s Supplemental Explanation, the parties’ arguments

contained in both the original and supplemental briefing, and

the relevant case law, the Court finds that it must uphold the

Service’s conclusion that the polar bear was not endangered at

the time of listing under step two of the Chevron framework.

26 While the Court is sensitive to CBD’s concerns that the agency’s Supplemental Explanation may constitute post hoc rationalization, it finds persuasive the D.C. Circuit’s reasoning in Alpharma, Inc. v. Leavitt, 460 F.3d 1,6 (D.C. Cir. 2006), in which the court noted that it would make no sense for a court to order a remand for supplemental explanation only to then reject that explanation as post hoc rationalization. Moreover, the Court is persuaded that the agency’s Supplemental Explanation does not constitute impermissible post hoc rationalization because the agency decision-makers themselves developed and approved it. See Pub. Citizen v. FMCSA, 374 F.3d 1209, 1218 (D.C. Cir. 2004) (noting that “[t]he expertise of the agency . . . must be brought to bear” (citation omitted)).

- 50 - As an initial matter, the Court finds that the agency’s

general understanding that an endangered species is “on the

brink of extinction” is not clearly out of line with

Congressional intent. 27 With that said, however, the agency’s

general understanding of the definition of an endangered species

is not the primary focus of the Court’s inquiry. Rather, as the

Court recognized in its remand order, the decision to list a

species as threatened or endangered is highly fact-specific.

See In re Polar Bear, 748 F. Supp. 2d at 28. On remand, the

agency maintains that the facts in the administrative record

show that the polar bear was not endangered as of 2008. The

relevant question before this Court, therefore, is whether that

conclusion was a reasonable one.

As discussed above, plaintiff CBD contends that the

agency’s conclusion is flawed because FWS improperly ignored or

discounted relevant factors. This Court disagrees. The Court

is not persuaded that the agency ignored or otherwise failed to

27 The agency’s determination that an endangered species is “on the brink of extinction” draws from the primary distinction between the categories of threatened and endangered species as set forth in the text of the ESA. As this Court has previously observed, there is a temporal element to the distinction between the categories of endangered and threatened species. See In re Polar Bear, 748 F. Supp. 2d at 26. This temporal distinction is also frequently noted in the legislative history. See id. at 28 (noting that the legislative history emphasizes that an endangered species “is” (currently or presently or actually) in danger of extinction, whereas a threatened species is “likely to become” so endangered).

- 51 - consider any of the information cited by plaintiff CBD. All of

that information – including the population modeling data and

polar bear monitoring reports – is included in the voluminous

administrative record that was before the agency and, indeed,

much of that data was cited by the agency as a basis for

designating the polar bear as a threatened species. Notably,

CBD cites to the agency’s findings in the Listing Rule itself

for much of the evidence that it claims the agency ignored.

To the extent that CBD is asking this Court to find that

FWS drew improper conclusions from the scientific information it

considered, the Court declines to do so. Although the evidence

emphasized by CBD is very troubling, the Court finds that the

agency acted well within its discretion to weigh the available

facts and scientific information before it in reaching its

conclusion that the polar bear was not endangered at the time of

listing. 28 Where an agency has exercised its Congressionally-

28 Certainly, where global warming has been identified as the primary threat to the polar bear’s sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, “in danger of extinction” has undeniable appeal. The USGS population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the Court pause. However, the Court cannot agree with CBD that the agency’s conclusions based on the record, including these population models, rise to the level of irrationality. Specifically, the Court accepts as reasonable the agency’s explanation that it declined to find that these preliminary, alpha-level population models, which came relatively late in the decision-making process, were - 52 - authorized discretion to weigh the relevant factors, and it has

made a listing determination 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) (“Where

Congress delegates power to an agency to regulate on the borders

of the unknown, courts cannot interfere with reasonable

interpretations of equivocal evidence.”). While CBD would have

weighed the facts differently, the Court is persuaded that FWS

carefully considered all of the available scientific information

before it, and its reasoned judgment is entitled to deference.

Finally, the Court is satisfied that the agency has

complied with its remand order to provide additional explanation

for the agency’s original “threatened” listing. Plaintiff CBD

has identified no compelling evidence demonstrating that the

agency’s proffered interpretation of the ESA is manifestly

contrary to the statute. Accordingly, the Court concludes that

the agency’s Supplemental Explanation sufficiently demonstrates

that the Service’s definition of an endangered species, as

applied to the polar bear, represents a permissible construction

of the ESA and must be upheld under step two of the Chevron

sufficiently persuasive to warrant an “endangered” listing for the polar bear.

- 53 - framework. 29 See Serono Labs. v. Shalala, 158 F.3d 1313, 1321

(D.C. Cir. 1998) (under deferential Chevron framework, a court

must uphold a reasonable construction of the statute, even if it

believes that another interpretation is more reasonable).

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

The Court turns now to Joint Plaintiffs’ claim that FWS

similarly misinterpreted and misapplied the ESA when it

concluded that the polar bear is likely to become endangered

within the foreseeable future and thus qualified for threatened

status at the time the agency made its listing determination.

Joint Plaintiffs argue, first, that FWS failed to demonstrate

that the polar bear is sufficiently “likely” to become

endangered and, second, that FWS arbitrarily selected a 45-year

time period as the “foreseeable future” for the polar bear, when

a shorter time period would have been more appropriate. Each of

these arguments is addressed in turn.

29 Because the Court finds that the agency reasonably concluded that the polar bear was not in danger of extinction in any portion of its range at the time of listing, the Court will not address CBD’s related argument that the Seasonal and Divergent Ice Ecoregions constitute a “significant portion” of the polar bear range. See 16 U.S.C. § 1532(6). - 54 - a. Joint Plaintiffs’ Argument that the Service Failed to Demonstrate that the Polar Bear Is 67-90% Likely to Become Endangered

A threatened species under the ESA is a species that is

“likely to become an endangered species within the foreseeable

future throughout all or a significant portion of its range.”

16 U.S.C. § 1532(20). Joint Plaintiffs claim that FWS failed to

prove that the polar bear is sufficiently “likely” to become

endangered within the meaning of this definition. Specifically,

Joint Plaintiffs contend that FWS failed to demonstrate a 67-90%

likelihood that the polar bear will become endangered within the

foreseeable future.

As an initial matter, Congress did not define the term

“likely” in the ESA. FWS has not adopted regulations or other

guidance defining the term. Nor has any court defined the

term. 30 Joint Plaintiffs look instead to the IPCC’s Fourth

Assessment Report (“IPCC AR4”), which provides that, for the

purposes of its climate models and projections, a “likely”

30 The District of Oregon in Trout Unlimited v. Lohn is the only court to have significantly discussed the term “likely” as it appears in the ESA. 645 F. Supp. 2d 929 (D. Or. 2007). In that case, the district court declined to define the term but upheld as reasonable the National Marine Fisheries Service’s interpretation of the term to mean “more likely than not.” Id. at 944. The “more likely than not” standard has also previously been adopted by FWS in interpreting the “threatened” designation under the ESA. See W. Watersheds Project v. U.S. Forest Serv., 535 F. Supp. 2d 1173, 1184 (D. Idaho 2007).

- 55 - outcome is one that has a 67-90% probability of occurring. 31 ARL

151195 n.6. Joint Plaintiffs assert that this standard of

likelihood is relevant not only because FWS relied in part on

the climate models in the IPCC AR4 in reaching its “threatened”

determination for the polar bear, but also because FWS itself

purportedly adopted this numerical standard of likelihood for

the purposes of making its listing decision. In support of this

argument, Joint Plaintiffs point specifically to a statement in

the agency’s response to comments on the proposed rule, in which

FWS noted that it “attempted to use [the terms “unlikely,”

“likely,” and “very likely”] in a manner consistent with how

they are used in the IPCC AR4.” ARL 117241. According to Joint

Plaintiffs, therefore, this statement indicates that the agency

adopted this high numerical standard of likelihood for all

purposes, including statutory interpretation of the term

“likely” as it appears in the ESA. 32

31 According to IPCC standards, a “more likely than not” outcome has a 50-66% probability of occurring. A “very likely” outcome is one that has more than a 90-95% probability of occurring; an “extremely likely” outcome has a 96-99% probability of occurring; and a “virtually certain” outcome has a greater than 99% probability of occurring. ARL 151195 n.6. 32 In their reply brief, Joint Plaintiffs raise the alternative argument that even if FWS did not specifically adopt this particular numerical standard, the Listing Rule should then be overturned because the agency failed to adopt any standard for determining whether the polar bear is “likely” to become endangered. See JP Reply, Docket No. 170, at 14. To the extent the Court considers this new argument that was raised improperly - 56 - In making this argument, it is not Joint Plaintiffs’

position that FWS adopted an impermissible construction of the

statute. To the contrary, Joint Plaintiffs appear to suggest

that a 67-90% standard of likelihood would be reasonable. See

JP Mot. at 10 (noting that 67-90% is consistent with dictionary

definition of the term “likely”). Instead, Joint Plaintiffs

assert that, having adopted this high standard, FWS subsequently

failed to meet that standard when it relied on highly uncertain

climate and population modeling. For this reason, Joint

Plaintiffs conclude, the agency’s determination that the polar

bear is likely to become endangered was arbitrary and

capricious.

The federal defendants respond that FWS did not adopt any

numerical definition of the term “likely” in the Listing Rule,

let alone the unreasonably high standard of 67-90%. They assert

that Joint Plaintiffs have simply taken out of context a

statement that was intended to refer only to the standards used

to assess the reliability of climate models, which is “entirely

separate from the ultimate standard under the ESA for

determining whether a species meets the statutory definition of

threatened based on the entirety of the available science and

for the first time on reply, the Court is persuaded that the agency articulated a reasoned basis for its listing determination for the polar bear, notwithstanding the fact that it did not purport to define the term “likely” in its Listing Rule. - 57 - the five listing factors.” Fed. Def. Mot. at 56. Indeed, the

federal defendants point out that the very next sentence of the

agency’s response to comments refers explicitly to “the

limitations and uncertainties of the climate models and their

projections.” ARL 117241. This statement suggests that the

agency intended to apply the numerical standard cited by Joint

Plaintiffs only to those climate models, which are only part of

a voluminous administrative record, and not more broadly.

According to the federal defendants, because Joint Plaintiffs

incorrectly assume that the agency adopted a quantitative

definition of the term “likely,” their attempt to show non-

compliance with this standard must fail. 33

The threshold question before the Court, therefore, is

whether FWS in fact adopted the Joint Plaintiffs’ proffered

numerical definition of the term “likely.” Having carefully

reviewed the administrative record, the Court is not persuaded

that FWS adopted a numerical standard of 67-90% probability in

determining whether the polar bear is “likely” to become

endangered. Although the only arguable definition of the term

“likely” in the Listing Rule appears in the response to comments

that Joint Plaintiffs have highlighted, the Court agrees with

33 The federal defendants also argue that, regardless of how the term “likely” could be numerically defined, the agency’s determination for the polar bear easily would meet that standard.

- 58 - the federal defendants that this lone statement does not

demonstrate the agency’s intent to adopt the IPCC’s numerical

standards for all purposes, including statutory construction.

Indeed, a close review of the record belies any such

intention. The record reveals that FWS used the terms “likely”

and “very likely” interchangeably throughout its Listing Rule.

See, e.g., ARL 117245 (“Because of the habitat changes

anticipated in the next 40-50 years, and the corresponding

reductions in reproduction and survival, and, ultimately,

population numbers, we have determined that the polar bear is

likely to be in danger of extinction throughout all or a

significant portion of its range by 2050.” (emphasis added));

ARL 117252 (“[W]e conclude that the species is not currently in

danger of extinction throughout all or a significant portion of

its range, but is very likely to become so within the

foreseeable future.” (emphasis added)). The Court concludes

that if FWS had intended to imbue these terms with the

mathematical precision urged by Joint Plaintiffs for the

purposes of statutory construction, it would have used these

terms more deliberately.

Because the Court finds that FWS did not adopt a statutory

interpretation that would require a showing that at the time of

listing the polar bear had a 67-90% likelihood of becoming

endangered within the foreseeable future in order to be listed

- 59 - as a threatened species, the Court declines to reach Joint

Plaintiffs’ claim that the agency failed to make such a showing.

Accordingly, the Court concludes that the Listing Rule is not

arbitrary and capricious on these grounds.

b. Joint Plaintiffs’ Argument that the Service Arbitrarily Selected 45 Years 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 which

the polar bear is likely to become endangered was arbitrary and

capricious. In its Listing Rule, FWS defined the “foreseeable

future” as “the timeframe over which the best available

scientific data allow us to reliably assess the effects of

threats on the polar bear,” and it concluded based on record

evidence that it could confidently predict potential impacts to

the polar bear from sea ice losses over a 45-year period. ARL

117257. Joint Plaintiffs argue that the agency’s choice of 45

years as the foreseeable future for the polar bear was arbitrary

and was based on inappropriate factors. 34 They further contend

34 Plaintiff CBD also challenges the Service’s choice of a 45- year timeframe for the polar bear. Plaintiff CBD contends that the “foreseeable future” for the polar bear should be extended beyond 45 years to the year 2100. The Court finds CBD’s claim perplexing. The basis of CBD’s argument appears to be that impacts to the polar bear over the next 100 years were not only foreseeable at the time of listing but were also drastic enough to warrant listing the species as endangered. By definition, however, a “foreseeable future” determination is only relevant - 60 - that FWS erred when it failed to consider whether any time

period shorter than 45 years would be more appropriately

foreseeable. The Court will address these arguments in turn.

Joint Plaintiffs raise two significant arguments in support

of their claim that the 45-year time period was arbitrarily

chosen. First, Joint Plaintiffs claim that the agency’s choice

of a 45-year time period was inappropriately based only on

biological factors (e.g., life history characteristics of the

polar bear) rather than on what the agency could actually

foresee. Citing to the proposed rule for the polar bear, Joint

Plaintiffs assert that FWS initially chose a 45-year timeframe

because it corresponds roughly to three polar bear generations. 35

According to Joint Plaintiffs, FWS later modified its analysis

at the final rule stage in an attempt to justify its arbitrary

for threatened species. See 16 U.S.C. § 1532(20). FWS determined that impacts to the polar bear over the next 45 years were sufficiently foreseeable to warrant listing the species as threatened as of 2008. Therefore, impacts to the polar bear beyond year 45 were not relevant to the agency’s listing determination. 35 Joint Plaintiffs also argue that, to the extent FWS relied on biological considerations, FWS incorrectly calculated the generation length of a polar bear. As the federal defendants point out, Joint Plaintiffs never raised this point before the agency, and it is well-established in this Circuit that issues not raised before the agency are waived. See Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 562 (D.C. Cir. 2002). Even assuming the argument is not waived, however, plaintiffs point to no evidence suggesting that a different calculation of polar bear generation length would render the agency’s conclusion arbitrary and capricious. - 61 - choice by pointing to sources of scientific data, including IPCC

reports and other climate projections. Second, Joint Plaintiffs

argue that FWS should have considered what is “foreseeable” with

respect to all five of the ESA’s statutory listing factors

(i.e., habitat loss, overutilization, regulatory mechanisms,

disease, and other manmade factors). This kind of comprehensive

review, Joint Plaintiffs argue, would have enabled the agency to

make a more accurate assessment of the species’ likelihood of

becoming endangered because other factors may offset a

foreseeable threat. Focusing specifically on regulatory

mechanisms (“Listing Factor D”), Joint Plaintiffs contend that

“because the Service cannot reasonably ‘foresee’ or predict

anything about existing regulatory mechanisms in 45 years, that

period is too long.” JP Mot. at 14.

The federal defendants respond that FWS reasonably defined

the foreseeable future as 45 years because it found that it

could make confident forecasts about polar bear population

trends up to that point, based on climate modeling and other

reliable data. Specifically, the federal defendants assert,

climate change projections from the IPCC AR4 supported a 45-year

foreseeable future timeframe at the time of listing. As the

federal defendants describe, model outcomes reported in the IPCC

AR4, which FWS accepted as the best available science on climate

change, consistently predict a certain base level of overall

- 62 - warming through mid-century, regardless of whether actual

emissions increase or decrease over that period. Fed. Def. Mot.

at 73 (citing ARL 117279). FWS found, relying on these IPCC

reports, that beyond that point the choice of emission scenario

begins to influence model outcomes more significantly. See ARL

117233. According to FWS, therefore, at the time the agency

made its listing decision minimum impacts to Arctic sea ice

could be predicted with confidence for up to fifty years but

projections became more speculative beyond that point.

As the federal defendants point out, FWS also acknowledged

that a 45-year period roughly corresponds to three polar bear

generations. However, according to the federal defendants, the

agency found this correlation to be relevant because population

status projections will generally be even more reliable if they

correspond in some way to the life history characteristics of

the species. See ARL 117258. Specifically, the federal

defendants assert, FWS determined that population projections

that can be made over multiple polar bear generations are more

reliable than projections that only span one generation. The

federal defendants contend that it was not irrational for FWS to

rely on biological factors in this way to support its choice of

a foreseeable future timeframe for its listing decision.

With respect to Joint Plaintiffs’ argument that FWS erred

when it failed to consider what is “foreseeable” for all five

- 63 - listing factors, and particularly Listing Factor D (“existing

regulatory mechanisms”), the federal defendants respond that the

statute contains no such requirement. Indeed, the federal

defendants assert, the “suggestion that the Service could forego

listing the polar bear under Factor D based on wholly

speculative and uncertain future regulatory mechanisms is

contrary to the ESA.” Fed. Def. Mot. at 75. Moreover, there is

no evidence in the record, according to the federal defendants,

that any regulatory mechanisms have been or will be implemented

that would effectively address the loss of sea ice within the

foreseeable future. As such, the federal defendants conclude,

Joint Plaintiffs’ argument lacks merit.

As with the term “likely,” Congress has not defined the

term “foreseeable future” under the ESA, and FWS has not

promulgated any regulations or other policy guidance defining

the term. At least one court has recognized that what is

“foreseeable” is likely to vary from species to species

depending on a number of factors and, therefore, a bright-line

rule of foreseeability is inappropriate. See W. Watersheds

Project v. Foss, No. 06-1574, 2005 U.S. Dist. LEXIS 45753, at

*44-45 (E.D. Pa. Aug. 19, 2005) (noting that “the definition of

‘foreseeable future’ may vary depending on the particular

species - for example, ‘foreseeable future’ may be defined

differently for a sequoia tree . . . than for the slickspot

- 64 - peppergrass, which is an annual or biennial plant”). In the

absence of a quantitative standard, a “foreseeable future”

determination is made on the basis of the agency’s reasoned

judgment in light of the best available science for the species

under consideration. See id. (declining to establish a bright-

line rule but noting that the agency must articulate a

satisfactory explanation for its definition).

Having carefully considered the parties’ arguments and the

administrative record, the Court rejects Joint Plaintiffs’

argument that the choice of a 45-year foreseeable future

timeframe for the polar bear was arbitrary and based on improper

considerations. Contrary to Joint Plaintiffs’ assertions, FWS

does not appear to have based its choice solely on biological

factors, even at the proposed rule stage. To the extent this

Court considers the agency’s proposed rule, which is not the

action before it on review, the Court finds that the agency

sufficiently explained that its decision was based on “IUCN

criteria, 36 the life-history and population dynamics of polar

bears, documented changes to date in both multi-year and annual

36 A 45-year time period for the foreseeable future is consistent with the work of the international Polar Bear Specialist Group, which reassessed the status of the polar bear in June 2005 for the purposes of the International Union for the Conservation of Nature’s (“IUCN”) Red List classification, a list of species considered to be threatened. ARL 117258. Although the standards for Red Listing classification differ from ESA listing standards, FWS nonetheless found the IUCN assessment to be instructive. See ARL 117254. - 65 - sea ice, and the direction of projected rates of change of sea

ice in future decades,” which all supported a 45-year or three-

generation timeframe for the foreseeable future. ARL 59992.

Moreover, the final Listing Rule indicates that the climate

change projections found in the IPCC AR4 – and not biological

factors – were the primary basis for the Service’s determination

of the foreseeable future timeframe. See ARL 117257. In light

of the IPCC AR4 findings, the Court is satisfied that the agency

articulated a rational basis for its choice.

The Court also rejects Joint Plaintiffs’ argument that FWS

erred by failing to “foresee” future developments with respect

to all five listing factors over the next 45 years. Notably,

Joint Plaintiffs do not contend that the ESA required FWS to

conduct such an analysis; they assert only that it would have

resulted in a more accurate conclusion. Here, however, a review

of the Listing Rule reveals that the agency in fact took all

five listing factors into account, and it considered whether

those factors would affect the likelihood that the polar bear

will become endangered within the foreseeable future. With

respect to overutilization (“Listing Factor B”), for example,

the agency found that harvest “is likely exacerbating the

effects of habitat loss in several populations” and that polar

bear mortality from harvest “may in the future approach

unsustainable levels for several populations” as these

- 66 - populations begin to experience the stresses of habitat change.

ARL 117284. Further, with respect to regulatory mechanisms

(“Listing Factor D”), the agency concluded that there are no

known regulatory mechanisms that could effectively address the

primary threat to the polar bear from future sea ice losses. 37

To the extent the agency was required to consider other listing

factors, the Court is satisfied that FWS did so.

Finally, Joint Plaintiffs argue that even though FWS

considered impacts to the polar bear over a 45-year time period

to be reasonably foreseeable, FWS nonetheless erred when it

failed to consider a shorter timeframe, which would likely be

more foreseeable. The applicable standard, however, is not

whether the agency could have taken a more reasonable approach.

The agency must only show that the approach it took was a

rational one. See Envtl. Def. Fund v. Costle, 657 F.2d 275, 283

(D.C. Cir. 1981) (“[The APA standard] mandates judicial

affirmance if a rational basis for the agency’s decision is

presented . . . even though [a court] might otherwise

disagree.”). Although Joint Plaintiffs may have less confidence

37 The ESA does not require FWS to “foresee” what regulatory mechanisms will be in place in the future - it is only required to take existing regulatory mechanisms into account in 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); see also Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1153-54 (D. Or. 1998).

- 67 - than FWS in the conclusions that the agency reached, that is not

an appropriate basis for invalidating an agency’s rational

choice, particularly in matters requiring scientific or

technical expertise. See Marsh v. Or. Natural Res. Council, 490

U.S. 360, 375-77 (1989). Accordingly, the Court concludes that

FWS appropriately exercised its discretion in selecting a 45-

year “foreseeable future” timeframe for the polar bear.

B. The Service Articulated a Rational Basis for Its Conclusion that No Polar Bear Population or Ecoregion Qualifies As a “Distinct Population Segment”

Whereas plaintiff CBD and Joint Plaintiffs primarily focus

on the question of whether the polar bear warranted endangered

or threatened status throughout its range in 2008, a subset of

plaintiffs argue, in the alternative, that FWS should have

differentiated among the various polar bear populations and/or

ecoregions according to their relative levels of risk in making

its listing decision. Specifically, plaintiffs CBD, SCI, and CF

assert that FWS erred when it declined to designate any polar

bear population or ecoregion as a distinct population segment

(“DPS”) under the ESA, which would have allowed the agency to

tailor ESA protections more narrowly. The common question

presented by these three plaintiffs is whether FWS arbitrarily

determined that no polar bear population or ecoregion is

- 68 - sufficiently “discrete” for the purposes of a DPS designation. 38

The Court turns now to that question.

1. The Service’s Policy

The term “species” as it is used in the ESA includes “any

distinct population segment of any species of vertebrate fish or

wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16)

(emphasis added). Congress did not further define the term

“distinct population segment,” nor is the term defined in

scientific discourse. In 1996, however, FWS and NMFS jointly

promulgated a “Policy Regarding the Recognition of Distinct

Vertebrate Population Segments Under the Endangered Species Act”

(“DPS Policy”), 61 Fed. Reg. 4722 (Feb. 7, 1996), which provides

38 In a related claim, plaintiffs SCI and CF further assert that FWS arbitrarily failed to consider using its authority to list the polar bear in only part of its range. Essentially, these plaintiffs claim that FWS erred by failing to consider whether any portion of the polar bear range did not warrant listing as threatened. The Court concludes that this claim has no merit. As a threshold matter, in light of recent court opinions, it is unclear whether the agency has the authority to list a species in only a portion of its range without going through the process of a DPS designation. See generally Federal Defendants’ Notice of Withdrawal of M-37013, Docket No. 258 (citing Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010)). Further, the Court finds that FWS sufficiently considered whether any portion of the polar bear population did not warrant listing under the ESA. This assessment is implied in the agency’s conclusion that the polar bear did warrant listing throughout its range. FWS provided ample explanation in its Listing Rule for why polar bears range- wide are likely to become endangered within the foreseeable future and, as a result, warranted at least a “threatened” designation. The Court is therefore persuaded that FWS did not arbitrarily fail to consider this issue. - 69 - guidance to both agencies in applying the term “distinct

population segment” for the purposes of an ESA listing.

Pursuant to this policy, FWS may designate a DPS to avoid

listing an entire species where only a portion of its population

warrants ESA protections. See Nat’l Ass’n of Home Builders v.

Norton, 340 F.3d 835, 842 (9th Cir. 2003).

The DPS Policy outlines three elements to be considered in

evaluating a possible DPS:

1. The discreteness of the population segment in relation to the remainder of the species to which it belongs; 2. The significance of the population segment to the species to which it belongs; and 3. The population segment’s conservation status in relation to the Act’s standards for listing . . . .

DPS Policy, 61 Fed. Reg. at 4725. These considerations are to

be evaluated sequentially – i.e., FWS must first determine that

the population segment is discrete before it can consider

whether that segment is also significant. Id. If, however, a

population segment is found to be both discrete and significant,

FWS may consider whether that segment is threatened or

endangered as defined by the ESA. Id.

A population segment is “discrete” when it satisfies either

one of the following conditions:

1. It is “markedly separated” from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological

- 70 - discontinuity may provide evidence of this separation.

2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of [the five ESA listing factors].

Id. The test for discreteness under the agencies’ DPS Policy is

not intended to be particularly rigid. Id. at 4724. For

example, it does not require absolute reproductive isolation but

allows for some interchange among population segments. Id. The

purpose of the distinctness criterion is merely to ensure that a

DPS can be reasonably defined and described in order to ensure

effective administration and enforcement of the Act. Id.

Nonetheless, both the “discreteness” criterion and the

“significance” criterion were adopted to ensure that FWS uses

its authority to list DPS’s “sparingly,” at the urging of

Congress. Id. at 4725 (citing S. Rep. No. 96-151, at 7 (1979)).

DPS designation is primarily intended to enable protection and

recovery of declining organisms in a more timely and less costly

manner, and on a smaller scale, than would be required for an

entire species or subspecies. DPS Policy, 61 Fed. Reg. at 4725.

It is not a tactic for subdividing a larger population that FWS

has already determined, on the same information, warrants

listing across a larger range. See Friends of the Wild Swan v.

U.S. FWS, 12 F. Supp. 2d 1121, 1133 (D. Or. 1997).

- 71 - At least two courts have acknowledged that the term

“distinct population segment” in the ESA is ambiguous, and,

therefore, the agency’s interpretation and application of that

term falls within step two of a Chevron analysis and is entitled

to deference. See Nw. Ecosystem Alliance v. U.S. FWS, 475 F.3d

1136, 1141-43 (9th Cir. 2007); State of Maine v. Norton, 257 F.

Supp. 2d 357, 385 (D. Me. 2003). Both courts upheld the

agency’s 1996 DPS Policy as a reasonable interpretation of the

ESA. 39 Nw. Ecosystem Alliance, 475 F.3d at 1145; State of Maine

v. Norton, 257 F. Supp. 2d at 387.

2. Plaintiffs CBD, SCI, and CF’s Claim that the Service Wrongly Concluded that No Polar Bear Population or Ecoregion Is “Discrete”

In its Listing Rule, FWS considered whether any distinct

population segments exist for the polar bear. As an initial

matter, FWS considered whether any polar bear population or

ecoregion is “discrete” within the meaning of its DPS Policy.

The agency determined that, while different populations exhibit

minor differences of behavior, genetics, and life-history

parameters, no population or geographic area is markedly

separated as a consequence of physical, physiological,

ecological, or behavioral factors. ARL 117298. In the

Service’s estimation, the minor differences between individual

39 The DPS Policy itself has not been challenged by any party in this case and is not before this Court on review. - 72 - populations and ecoregions do not outweigh the similarities that

are most relevant to the polar bear’s conservation status – in

particular, the species’ universal reliance on sea ice habitat

for critical life functions. ARL 117298. As the federal

defendants note, “[w]hile polar bears adopt different strategies

to deal with the seasonal absence of sea-ice . . . their

response to declining sea ice is essentially the same, with the

same negative result: they suffer nutritional stress because

they spend longer amounts of time outside of their preferred

sea-ice habitats where seals are accessible.” Fed. Def. Mot. at

104 (citing ARL 117274). Accordingly, FWS concluded that no

portion of the polar bear population is sufficiently “discrete”

to qualify for designation as a DPS.

Plaintiffs CBD, CF, and SCI contend that, contrary to

record evidence, FWS arbitrarily determined that no polar bear

population is “markedly separated” from other populations. 40 In

40 In addition to its claim that FWS reached a conclusion that is contrary to the evidence, CBD raises two additional claims: (1) that the agency failed to consider behavioral differences among the polar bear populations; and (2) that the agency failed to consider whether any ecoregion qualifies as a DPS. The Court cannot agree that the agency failed to consider either issue. First, FWS did acknowledge behavioral differences among polar bear populations but deemed these differences to be minor in comparison to their relevant similarities. See ARL 117298. Second, FWS appears to have considered whether any polar bear population segment - including ecoregions - qualifies as a DPS:

Although polar bears within different populations or ecoregions (as defined by Amstrup et al. 2007) may - 73 - support of their argument, plaintiffs point to evidence from the

record which purportedly demonstrates that USGS scientists,

polar bear experts, and the MMC all have identified distinctions

among the world’s polar bear populations and, particularly, the

four ecoregions. In light of this record evidence, plaintiffs

argue that the Service’s conclusion that there is no marked

separation among polar bear population groups was irrational.

Plaintiff CBD points primarily to comments from various

reviewers suggesting that the draft final listing rule did not

adequately reflect the importance of the ecoregion structure for

polar bears. For example, USGS reviewers noted:

An important, and fairly emphatic, conclusion from the body of 2007 USGS work was that the life-history dynamics, demography, and present and future status of polar bears in the 4 ecoregions are different, owing largely to different ice dynamics, its spatiotemporal availability, how it has responded to global warming and how it is predicted to respond in the future. In these Ecoregions, the relationships between polar bears and their sea ice habitat are fundamentally different.

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

have minor differences in demographic parameters, behavior, or life history strategies, in general polar bears have a similar dependence upon sea ice habitats, rely upon similar prey, and exhibit similar life history characteristics throughout their range.

ARL 117298 (emphasis added). Finally, FWS separately determined that the polar bear was not endangered in any portion of its range at the time of listing, including three specific populations and at least two ecoregions. See ARL 117299-301.

- 74 - USGS commenters also rejected the agency’s assessment in

the draft final rule that “there are no morphological, or

physiological differences across the range of the species that

may indicate adaptations to environmental variations.” CBD Mot.

at 38 (citing ARL 96589). In response to this statement, USGS

reviewers wrote:

This statement does not seem to us to be true. We do see unique life history components that are related to where a polar bear lives within the overall range. That is, the polar bears in the seasonal ice ecoregion come ashore and fast for 4-8 months while polar bears in the polar basin may be on ice and never come to land – they may den on ice. . . . This statement seems to contradict the ecoregion idea – that there are some major differences in the ice regimes that do influence how polar bears make a living in 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 formed the basis for the

Listing Rule] might lead to a different conclusion than that

reached by the Service.” ARL 101097. USGS goes on:

Taken at face value, the outcomes from the Bayesian Network Modeling are that polar bear populations living in the Seasonal and Divergent ecoregions are most likely extinct within the foreseeable future . . . . The fates of the populations living in the Convergent and Archipelago ecoregions are different, with a much smaller probability of being smaller than the present or extinct. The Draft Final Rule does not clearly articulate the scientific reasoning behind dismissing an “endangered” designation for parts of the range . . . . How did the scientific evidence lead

- 75 - to the status determination of “threatened” vs “endangered”?

ARL 101097 (emphasis added). 41

The federal defendants respond that FWS reached a

reasonable conclusion, even in light of this record evidence.

The defendants assert that, on balance, the agency found that

there are no significant morphological or physiological

differences (i.e., differences in physical form or function)

among polar bears that indicated physical, evolutionary

adaptations to environmental differences in the particular

areas, and that the small genetic differences among polar bears

in different areas are “not sufficient to distinguish population

segments.” ARL 117298. According to defendants, the record

does not show the “marked separation” among either populations

41 Plaintiff CBD also points to a 2008 report from Canadian polar bear researchers, which concluded that polar bears may be appropriately managed in “designatable units.” ARL 127663. The Canadian Species at Risk Act (“SARA”), like the ESA, allows for the protection of sub-units of species that are genetically and/or geographically distinct (so-called “designatable units” or “DUs”). ARL 127663. The authors of this Canadian study noted that “polar bears belong to ecosystems that differ fundamentally in their structure and functioning (e.g., sea ice regime, biological productivity, prey species and availability, etc.). . . . Thus, it appears that, although all polar bears in Canada belong to a single species they do not share a single, uniform conservation status.” ARL 127668. On this basis, the authors recommended analyzing the Canadian polar bear population in terms of five distinct genetic units that also represent distinct ecological and geographic groups. ARL 127680. Plaintiff CBD cites to this study as further evidence that polar bear populations are sufficiently distinct to qualify for designation as DPS under the ESA.

- 76 - or ecoregions that is a pre-requisite for designating a DPS.

Therefore, the defendants contend, FWS reasonably concluded that

no polar bear population or ecoregion is “discrete,” applying

the standards set out in the agency’s DPS Policy.

3. The Court’s Analysis

administrative record, the Court finds that it must defer to the

agency’s application of its DPS Policy. The Court notes that,

as FWS has acknowledged, there are some recognized differences

among polar bear ecoregions and even some differences from

population to population. Each population is apparently

distinguishable enough to be identified as discrete for

management purposes, and the boundaries of these populations

have been identified and confirmed over decades of scientific

study and monitoring. See ARL 139247. Nonetheless, while these

recognized distinctions would seem to be enough to satisfy the

minimal criterion that a DPS must be “adequately defined and

described,” 61 Fed. Reg. at 4724, the Court is not persuaded

that the agency’s contrary conclusion rises to the level of

irrationality.

The Court recognizes that FWS has adopted a formal policy

for designating a DPS, which was promulgated through notice-and-

comment rulemaking and has been expressly upheld as reasonable

by at least two other courts. Relying on this policy, FWS

- 77 - engaged in weighing the facts to determine whether or not any

polar bear population segment is “markedly separated” from other

populations. The Court finds that FWS articulated a reasonable

basis for its conclusion that no polar bear population or

ecoregion is meaningfully “discrete” for the purposes of DPS

designation: even if there are behavioral differences among

polar bear population segments, polar bears are universally

similar in one crucial respect - namely, their dependence on sea

ice habitat and negative response to the loss of that habitat.

The Court must defer to the agency’s reasoned conclusion. See

Envtl. Def. Fund v. Costle, 657 F.2d at 283. 42 Accordingly, the

42 Further, the only case law cited by any party on this issue weighs in favor of deference to the agency. In an unpublished decision, the Ninth Circuit upheld the Service’s finding that interior mountain quail are not sufficiently discrete from the remainder of the population to warrant listing as a DPS. W. Watersheds Project v. Hall, 338 Fed. Appx. 606, 608 (9th Cir. 2009). Despite significant record evidence showing that the mountain quail is geographically and ecologically isolated from other quail, the lower court nonetheless upheld the Service’s finding that no mountain quail population is “discrete” because there is no “physical barrier” that precludes intermixing among populations. W. Watersheds Project v. Hall, No. 06-0073, 2007 U.S. Dist. LEXIS 70710, at *11-13 (D. Idaho 2007). The appellate court affirmed the district court’s finding that FWS had articulated a rational connection between the facts found and the agency’s conclusion that there was no “marked separation” among quail populations. W. Watersheds Project, 338 Fed. Appx. at 608. In that case, both courts upheld the Service’s determination as rational, even in the face of significant countervailing facts.

- 78 - Court concludes that FWS reasonably declined to designate any

polar bear population or ecoregion as a DPS. 43

C. The Service Did Not Arbitrarily Fail to Consider Other Listing Factors

Plaintiffs also argue that the Listing Rule should be

overturned because of deficiencies in the Service’s analysis of

several of the listing factors the ESA requires the agency to

consider. First, Joint Plaintiffs contend that FWS arbitrarily

and capriciously failed to adequately “take into account”

foreign conservation efforts, as required by 16 U.S.C.

§ 1533(b)(1)(A) (“§ 1553(b)(1)(A)”). Second, Joint Plaintiffs

contend that FWS arbitrarily and capriciously failed to

demonstrate that it relied upon the “best available science,”

which is also required by § 1533(b)(1)(A). Third, plaintiff CBD

contends that FWS arbitrarily and capriciously failed to find

43 Plaintiffs CF and SCI assert that because the polar bear species is clearly “delimited by international boundaries,” FWS should have concluded that polar bear populations are discrete on this basis as well. See CF Mot. at 14. In its Listing Rule, FWS considered whether international boundaries might satisfy the discreteness requirement of the DPS Policy. The agency concluded that differences in management across the polar bear’s range do not qualify any polar bear population segment as “discrete” because each range country shares management obligations with other range countries and, therefore, the differences in management between polar bear populations are not significant. Moreover, the agency noted that any differences in management across international boundaries are irrelevant because the threat of sea ice loss is a global one that cannot be limited to or managed by one country alone. ARL 117298. The Court declines to find that this conclusion was irrational.

- 79 - that overharvest or overutilization is a significant threat to

polar bear populations (“Listing Factor B”). Finally, Joint

Plaintiffs contend that FWS arbitrarily and capriciously

concluded that regulatory mechanisms (both existing and future)

are insufficient to protect the polar bear despite the threat of

substantial habitat losses (“Listing Factor D”). Each of these

claims is addressed in turn.

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

The ESA requires that any listing decision must be made

solely on the basis of the best scientific and commercial data available . . . after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas. 44

16 U.S.C. § 1533(b)(1)(A) (emphasis added). Joint Plaintiffs

contend that FWS failed to satisfy this requirement primarily

because it did not devote a separate section of its Listing Rule

to an assessment of foreign conservation programs that impact

polar bears, particularly Canadian sport-hunting programs.

44 As the parties acknowledge, Congress did not define the phrase “taking into account,” nor has it been defined or otherwise clarified by regulation, by agency policy, or by any court.

- 80 - In its supplemental memorandum, plaintiff CF takes this

essentially procedural argument a step further. Relying on a

dictionary definition of the phrase “to take into account,”

plaintiff CF contends that FWS was required not only to

“consider” but also to “allow for” the existence of foreign

conservation programs. See CF Mot. at 8. In other words, CF

contends that FWS is required to ensure that existing

conservation efforts are not negatively impacted by its listing

decisions.

CF contends that Congress specifically intended to

encourage sport trophy hunting through the ESA. According to

CF, Congressman John Dingell envisioned this goal when he

introduced the ESA as a bill in 1973. CF asserts that Rep.

Dingell described the Act as having been

carefully drafted to encourage . . . foreign governments to develop healthy stocks of animals occurring naturally within their borders. If these animals are considered valuable as trophy animals . . . they should be regarded as a potential source of revenue to the managing agency and they should be encouraged to develop to the maximum extent compatible with the ecosystem upon which they depend.

CF Mot. at 10 (citing ARL 152657). Further, CF asserts that the

House of Representatives “clearly elucidated its intent” when it

explained:

[T]he section requires the Secretary to give full consideration to efforts being currently made by any foreign country to protect fish or wildlife species within that country, in making a determination as to

- 81 - whether or not those species are endangered or threatened. There is provided ample authority and direction to the Secretary to consider the efforts of such countries in encouraging the maintenance of stocks of animals for purposes such as trophy hunting.

CF Mot. at 9 (citing H. Rep. No. 93-412, at 150 (1973)). CF

contends that this passage represents a consensus on the

agency’s “obligation to support the use of trophy hunting to

pursue conservation goals.” CF Mot. at 9. 45

The federal defendants generally respond that FWS

adequately “took into account” the conservation efforts being

made in the polar bear range countries - both regulatory and

non-regulatory - and concluded that none of those efforts

offsets or significantly reduces the primary threat to the polar

bear’s survival: loss of sea ice habitat. See Fed. Def. Mot. at

142 (citing ARL 117246). According to the defendants, this is

all the ESA requires.

45 According to CF, its reading of the ESA also makes sense because trophy hunting programs are essential to the efficacy of the statute. These programs purportedly provide a useful lever by which the United States can exercise its influence to accomplish conservation goals in countries that are beyond the ESA’s reach. Specifically, CF contends that the United States can encourage a foreign country to comply with ESA conservation standards (and thus protect a species that is endangered outside our borders) by threatening the country with import restrictions, so long as that country has an economically valuable and viable trophy hunting program. CF contends that Congress intended to use trade to manage the actions of foreign individuals and nations in this way. Therefore, CF concludes, all listing decisions must take foreign programs into account by ensuring that those programs remain an effective tool for furthering conservation goals. - 82 - Having carefully considered the parties’ arguments and the

administrative record, this Court agrees with the federal

defendants. Although an explicit finding might have been

clearer, the Court is satisfied that FWS sufficiently considered

conservation efforts in the polar bear range countries before it

decided to list the polar bear as threatened range-wide. As

part of its analysis of Listing Factor B, the agency discussed

harvest management programs in each of the range countries,

along with the relevant conservation benefits of those programs.

FWS also addressed the conservation and economic benefits of

polar bear sport-hunting programs in its response to comments on

the Listing Rule. See ARL 117240. As part of its analysis of

Listing Factor D, the agency enumerated the regulatory

mechanisms that govern polar bears in each of the range

countries - including legal protections and on-the-ground

habitat protections - as well as bilateral and multilateral

agreements and overarching international frameworks that govern

management of the polar bear range-wide, such as the 1973

Agreement on the Conservation of Polar Bears and the Convention

on International Trade in Endangered Species (“CITES”). See ARL

117285-92. Beyond sport-hunting programs and regulatory

mechanisms, FWS also considered voluntary agreements between

indigenous peoples for jointly managing polar bear populations,

- 83 - national parks and nature reserves, and a variety of other

foreign conservation efforts.

Joint Plaintiffs have not identified a single foreign

conservation effort that FWS failed to take into account.

Indeed, Joint Plaintiffs have not even explained why the

agency’s exhaustive analysis is deficient, except to say that

the agency did not expressly state that it was taking foreign

conservation efforts “into account.” The Court declines to

invalidate the Listing Rule on this basis.

The Court also rejects plaintiff CF’s related claim that

the agency was obligated to avoid making a listing decision for

the polar bear that would negatively impact sport-hunting

programs. Although CF has cited some isolated passages from the

legislative history that express support for trophy hunting

programs, neither the statute itself nor its legislative history

makes clear that the ESA requires FWS to avoid making listing

decisions that might affect those programs. 46 Rather, the ESA

46 In fact, the Court notes that in the quote from Congressman Dingell that plaintiff CF frequently cites for support, plaintiff repeatedly and disingenuously omits key language. In full, this quote reads: “If these animals are considered valuable as trophy animals and they are not endangered they should be regarded as a potential source of revenue to the management agency[.]” Comm. on Env’t and Public Works, 97th Cong., A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, and 1981, at 195 (1982) (emphasis added). This statement would suggest that the agency may promote trophy hunting programs only to the extent that those programs do not impact a listed species. - 84 - only requires the agency to consider how foreign conservation

efforts might impact the decision to list a particular species

as threatened or endangered. See 16 U.S.C. § 1533(b)(1)(A)

(requiring the Secretary to make listing decisions “solely on

the basis of the best scientific and commercial data available

. . . after taking into account those efforts, if any, being

made by any State or foreign nation, or any political

subdivision of a State or foreign nation, to protect such

species, whether by predator control, protection of habitat and

food supply, or other conservation practices, within any area

under its jurisdiction, or on the high seas.”). 47 That is

47 Similarly, the 1973 House Report cited by plaintiff CF states that ESA Section 4(b) “requires the Secretary to give full consideration to efforts being currently made by any foreign country to protect fish or wildlife species within the country, in making a determination as to whether or not those species are endangered or threatened.” H. Rep. No. 93-412, at 11 (1973) (emphasis added). The Court notes that this is the same interpretation adopted by FWS in its “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE Policy”), which specifies the conditions under which FWS may consider conservation efforts that have not yet been implemented. 68 Fed. Reg. 15,100, 15,100 (March 28, 2003)(“While the Act requires us to take into account all conservation efforts being made to protect a species, the policy identifies criteria we will use in determining whether formalized conservation efforts that have yet to be implemented or to show effectiveness contribute to making listing a species as threatened or endangered unnecessary.” (emphasis added)). This is also the very same interpretation set out in those listing decisions that Joint Plaintiffs cite as examples of where the agency properly took foreign conservation programs into account. Proposed Status for DPS of Rockfish in Puget Sound, 74 Fed. Reg. 18,516, 18,537 (Apr. 23, 2009) (“Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to take - 85 - exactly what FWS did here. After considering a variety of

foreign conservation efforts, FWS concluded that, while these

efforts may have been sufficient to protect the species from

overharvest and disturbance, they will not be sufficient to

offset sea ice loss, which is the primary threat to the polar

bear’s survival, and thus these efforts did not affect the

agency’s conclusion that the polar bear warranted listing under

the ESA. See ARL 117292. This is all the statute requires.

Accordingly, the Court concludes that the agency properly

discharged its duty under § 1533(b)(1)(A) to take foreign

conservation programs into account.

2. Joint Plaintiffs’ Claim that the Service Failed to Rely upon the “Best Available Science”

Joint Plaintiffs argue that FWS also failed to demonstrate

that it relied upon the “best scientific and commercial data

available,” as required by § 1533(b)(1)(A). Joint Plaintiffs

put forward the following three arguments in support of this

claim: First, they contend that climate change science and

into account efforts being made to protect a species that has been petitioned for listing. Accordingly, we will assess conservation measures being taken to protect these six rockfish DPSs to determine whether they ameliorate the species’ extinction risks.” (emphasis added)); Status Determination for the Gulf of Maine DPS of Atlantic Salmon, 74 Fed. Reg. 29,344, 29,377 (June 19, 2009) (“We then assess existing efforts being made to protect the species to determine if these conservation efforts improve the status of the species such that it does not meet the ESA’s definition of a threatened or endangered species.” (emphasis added)). - 86 - predictions related to sea ice loss at the time the agency made

its listing decision were too uncertain to support the agency’s

conclusion that polar bears are threatened. Second, they point

to weaknesses in the carrying capacity and Bayesian Network

models developed by USGS and claim that these models were

likewise insufficient to support the agency’s listing

determination. Third, and finally, Joint Plaintiffs assert that

FWS ignored all but five years of data for the Southern Beaufort

Sea polar bear population and drew improper scientific

conclusions from this limited data set. The Court will address

each of these arguments in turn.

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

First, Joint Plaintiffs contend that the polar bear did not

warrant listing under the ESA at the time of listing because the

administrative record shows “tremendous uncertainty” about the

nature and extent of future global climate change and the impact

of any such change on the Arctic ecosystem and on the polar

bear. JP Mot. at 17. Specifically, Joint Plaintiffs point to a

2007 “Uncertainty Report” from the administrative record, which

notes that “uncertainty in projections of Arctic climate change

is relatively high” as a consequence of its smaller spatial

scale and high sensitivity to climate change impacts and the

complex processes that control ice development. See JP Mot. at

- 87 - 18 (citing ARL 128805). Further, Joint Plaintiffs note that the

IPCC reports themselves, which are widely acknowledged to be the

definitive source of modern climate change knowledge, indicate

that complex systems like the Arctic are “inherently

unpredictable” and have “high scientific uncertainties,” which

range from “inadequate scientific understanding of the problem,

data gaps and general lack of data to inherent uncertainties of

future events in general.” JP Mot. at 19 (citing IPCC’s Special

Report on Emissions Scenarios Section 1.2, Box 1-1:

Uncertainties and Scenario Analysis, http://grida.no/climate/

ipcc/emission/025.htm). This inherent uncertainty, according to

Joint Plaintiffs, is compounded by the predictive nature of the

USGS forecasting reports, which attempt to forecast sea ice

conditions up to 100 years into the future on the basis of

mathematical modeling that cannot replicate the complex Arctic

system.

Joint Plaintiffs contend that FWS failed to explain how,

despite the high degree of uncertainty in climate science, it

nonetheless found that polar bears are “likely” to be in danger

of extinction within the foreseeable future. 48 According to

48 As discussed above, according to Joint Plaintiffs, the proper standard for determining whether the polar bear is “likely” to become endangered is 67-90% likelihood. However, as the Court has concluded, FWS did not adopt such a high standard and thus need not demonstrate that it met that high standard.

- 88 - Joint Plaintiffs, the uncertainty surrounding future climate

change impacts should have prevented FWS from being able to

discern any such trend with confidence. JP Mot. at 20-21

(citing Bennett v. Spear, 520 U.S. 154, 176 (1997) (“The obvious

purpose of the requirement that each agency ‘use the best

scientific and commercial data available’ is to ensure that the

ESA not be implemented haphazardly, on the basis of speculation

or surmise.”)).

The federal defendants respond that Joint Plaintiffs’

arguments must fail as a matter of law because they incorrectly

assume that scientific certainty (or even a “high degree” of

certainty) is required before the Service may list a species as

threatened under the ESA. The federal defendants point out that

Joint Plaintiffs have neither challenged the IPCC reports

directly nor identified better climate change data. Joint

Plaintiffs merely assert that the available climate science at

the time of listing was “too uncertain” for the Service to rely

upon, a position which the federal defendants contend is

contrary to D.C. Circuit precedent. See Sw. Ctr. for Biological

Diversity v. Babbitt, 215 F. 3d 58, 60 (D.C. Cir. 2000) (finding

that the Service is required to rely on the best available

scientific data, even if that data is “quite inconclusive”).

The federal defendants further respond that Joint

Plaintiffs have overstated the uncertainty of climate change

- 89 - science. According to the federal defendants, mainstream

climate science at the time of listing, as reflected in the IPCC

AR4, accepted that further global and regional Arctic warming is

very likely to occur, based on the levels of greenhouse gases in

the atmosphere and those likely to be emitted. See Fed. Def.

Mot. at 81 (citing ARL 152436; ARL 151205). Moreover, the

federal defendants contend that FWS found that any uncertainty

in climate change projections could be reduced by considering an

“ensemble” of climate change models – in other words, by

averaging the results of a group of models that most closely

reflect actual observed conditions – and it did so here. See

Fed. Def. Mot. at 81 (citing ARL 117232; ARL 128806). According

to the federal defendants, uncertainties surrounding climate

change impacts did not prevent the Service from making a

credible assessment of the likely direction and magnitude of

those impacts, even if it was not possible to make such

predictions with precision.

Having considered the parties’ arguments, the Court agrees

with the federal defendants. Joint Plaintiffs’ claim boils down

to an argument that the available data were not certain enough

to adequately support the outcome of the agency’s listing

decision for the polar bear. It is well-settled in the D.C.

Circuit that FWS is entitled - and, indeed, required - to rely

upon the best available science, even if that science is

- 90 - uncertain or even “quite inconclusive.” Sw. Ctr. for Biological

Diversity, 215 F. 3d at 60. The “best available science”

requirement merely prohibits FWS from disregarding available

scientific evidence that is better than the evidence it relied

upon. Id. (citing City of Las Vegas v. Lujan, 891 F.2d 927, 933

(D.C. Cir. 1989)); see also Building Indus. Ass’n of Superior

Cal. v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001) (“Assuming

the studies the Service relied on were imperfect, that alone is

insufficient to undermine those authorities’ status as the ‘best

scientific . . . data available’ . . . . [T]he Service must

utilize the ‘best scientific . . . data available,’ not the best

scientific data possible.”). Joint Plaintiffs have pointed to

no information that was superior to the IPCC AR4 reports at the

time the agency made its listing decision. The Court declines

to find that it was arbitrary for the agency to rely upon what

were generally accepted to be the best available climate change

data at the time the agency made its listing decision,

particularly when the agency also took steps to reduce

uncertainty to the extent feasible.

Moreover, an agency is entitled to particular deference

where it has drawn conclusions from scientific data. Ethyl

Corp., 541 F.2d at 36. As this Court has observed, “some degree

of speculation and uncertainty is inherent in agency

decisionmaking” and “though the ESA should not be implemented

- 91 - ‘haphazardly’ . . . an agency need not stop in its tracks when

it lacks sufficient information.” Oceana v. Evans, 384 F. Supp.

2d 203, 219 (D.D.C. 2005) (citing cases). Notwithstanding a

handful of references to uncertainty that appear in record

documents, Joint Plaintiffs have failed to persuade this Court

that FWS implemented the ESA “haphazardly.” Accordingly, the

Court concludes that FWS did not act arbitrarily in relying on

and drawing reasonable conclusions from the IPCC reports and

climate models in making its listing determination for the polar

bear.

b. Joint Plaintiffs’ Argument that the USGS Population Models Do Not Support the Service’s Conclusion

Second, Joint Plaintiffs contend that FWS similarly failed

to demonstrate a rational connection between the USGS population

models and the conclusions that the agency drew from those

models. Specifically, Joint Plaintiffs assert (i) that the two

USGS population models FWS considered - the carrying capacity

and Bayesian Network models – are fundamentally flawed, (ii)

that FWS failed to address the shortcomings of both models in

its Listing Rule, and (iii) that the agency also failed to

explain how these models sufficiently support its listing

decision.

Joint Plaintiffs identify two primary flaws with the

carrying capacity model: first, that the term “carrying

- 92 - capacity” is misleading because USGS did not use the term

according to its traditional definition, 49 and second, that the

model improperly assumes that current estimated polar bear

densities will remain constant through time, an assumption which

USGS itself admitted is “‘almost certainly not valid.’” See JP

Mot. at 28 (quoting ARL 82463). As a result, Joint Plaintiffs

contend that the carrying capacity model gives a false

impression that every unit change in sea ice habitat will result

in a corresponding unit change in polar bear population numbers.

With regard to the Bayesian Network model, Joint Plaintiffs

point out that the model was only at a preliminary stage at the

time of listing because it was developed based on the input of

only one polar bear expert and, therefore, requires further

development before it can be considered reliable.

As an initial matter, the federal defendants respond that

Joint Plaintiffs focus too narrowly on the weaknesses of these

two models. These models were not the sole basis for the

agency’s listing decision; rather, the federal defendants

contend that FWS merely found that these two models were

consistent with the other record evidence before it, including

published literature and the opinions of numerous peer

49 The traditional definition of the term “carrying capacity” refers to “[t]he maximum number of individuals that a given environment can support without detrimental effects.” JP Mot. at 28 (quoting American Heritage Dictionary of the English Language (4th ed. 2009)). - 93 - reviewers. As a legal matter, the federal defendants note, the

question is not whether these two models alone support the

agency’s decision but instead whether the agency’s decision is

supported by the record as a whole. See Fed. Def. Mot. at 85

(citing Van Valin v. Locke, 671 F. Supp. 2d 1, 8 (D.D.C. 2009)).

Here, according to the federal defendants, the full record

adequately supports the agency’s listing decision.

In any event, the federal defendants contend that FWS fully

disclosed the weaknesses in both models and discounted them

accordingly by relying only upon their general direction and

magnitude and that FWS was entitled to draw reasonable

conclusions from the USGS population models, despite their

acknowledged flaws. According to the federal defendants, these

models were the best available scientific information of their

kind when FWS made its listing decision, and the law requires

the agency to consider them. Fed. Def. Mot. at 87 (citing

Building Indus. Ass’n, 247 F.3d at 1246). The federal

defendants further note that it is well-settled that an expert

agency has wide latitude to consider and weigh scientific data

and information 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’ arguments, the Court

concludes that Joint Plaintiffs’ second argument must also fail.

- 94 - Despite plaintiffs’ criticisms, they have not, in fact,

challenged the USGS models as the best available science of

their kind at the time of listing. Instead, Joint Plaintiffs

appear to take the position that FWS should have drawn different

conclusions from these models or, indeed, disregarded them

entirely. The Court cannot agree.

Again, it is well-settled in the D.C. Circuit that an

agency must rely upon the best available science, even if that

science is imperfect. See Building Indus. Ass’n, 247 F.3d at

1246. 50 Moreover, Joint Plaintiffs have failed to demonstrate

that FWS drew wholly arbitrary conclusions from the USGS

population models. As this Court has observed, “[t]here is

nothing inherently problematic about using predictions of

population trends to analyze the status of a species. . . .”

Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 221 n.21 (D.D.C.

2005). FWS candidly acknowledged the weaknesses in both models

and tempered its reliance on them accordingly, as it is

50 The Court notes, further, that although the “best available science” mandate does not require FWS to generate new scientific data, see Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 59, 60-61 (D.C. Cir. 2000), FWS essentially did so here when it commissioned USGS to conduct additional analysis, including these population models. The federal defendants point out that population modeling data is not required for a listing decision and in many cases this type of data is not available. See Fed. Def. Reply at 49, n.22. The Court declines to find that it was irrational for FWS to consider available population models, even if they were imperfect.

- 95 - permitted to do in weighing scientific information. See Balt.

Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103

(1983) (noting that a reviewing court must be “at its most

deferential” when examining conclusions made “at the frontiers

of science”); see also Int'l Fabricare Inst. v. EPA, 972 F.2d

384, 389 (D.C. Cir. 1992) (“The rationale for deference is

particularly strong when the [agency] is evaluating scientific

data within its technical expertise: ‘[I]n an area characterized

by scientific and technological uncertainty[,] . . . this court

must proceed with particular caution, avoiding all temptation to

direct the agency in a choice between rational alternatives.’”

(quoting Envtl. Def. Fund v. Costle, 578 F.2d 337, 339 (D.C.

Cir. 1978))). 51 Given the deference courts must grant to an

51 In their opening brief, Joint Plaintiffs argue that the FWS improperly relied upon the USGS population models because these models bear no “rational relationship” to the reality that they are purported to represent. JP Mot. at 27 (citing Greater Yellowstone Coal. v. Kempthorne, 577 F. Supp. 2d 183, 198 (D.D.C. 2008) (“[A] model must be rejected as arbitrary and capricious ‘if there is simply no rational relationship between the model and the known behavior of [the items] to which it is applied.’”) (internal citation omitted)). In their reply brief, however, Joint Plaintiffs clarify that they do not challenge the agency’s choice of models; rather, they challenge the Service’s application of those models. See JP Reply at 36. To the extent Joint Plaintiffs have challenged the Service’s choice of models, they have failed to show that the carrying capacity and Bayesian Network models are not “rationally related” to the reality they purport to represent, and as such their citation to Greater Yellowstone Coalition is inapt. In Greater Yellowstone Coalition, this Court rejected sound level modeling that was at odds with recorded sound levels and that formed the exclusive basis for the agency’s snowmobile plan. 577 F. Supp. 2d at 198- - 96 - agency in this area, this Court declines to find that the

agency’s reliance on and evaluation of the USGS population

models was arbitrary and capricious.

c. Joint Plaintiffs’ Argument that the Service Ignored Scientific Data and Made Improper Findings Regarding the Southern Beaufort Sea Population

As noted above, in its Listing Rule FWS relied in part on

long-term studies of the Southern Beaufort Sea population as

evidence suggesting that polar bears experience nutritional

stress as a result of sea ice loss. Joint Plaintiffs challenge

the Service’s specific findings as to the Southern Beaufort Sea

population. Joint Plaintiffs raise three arguments: (1) that

FWS improperly concluded that the Southern Beaufort Sea polar

bear population had experienced population declines as a result

of diminishing sea ice at the time of listing; (2) that FWS

ignored all but five years of data when it reached this

conclusion; and (3) that record evidence does not, in fact, show

declines in polar bear vital rates and reproductive success in

the Southern Beaufort Sea population. In particular, Joint

Plaintiffs point to two studies – Hunter, et al. (2007) (ARL

82291-341) and Regehr, et al. (2007) (ARL 131467-516) – which

purportedly demonstrate, based on data from as early as 1979,

99. Here, the Court is persuaded that the projections of the USGS population models are generally consistent with observed facts about sea ice decline and its impacts on polar bears at the time of listing. - 97 - that FWS overstated the significance of the past trend in the

number of ice-free days per year in the Southern Beaufort Sea.

The federal defendants respond, first, that Joint

Plaintiffs misstate the agency’s actual finding with regard to

the Southern Beaufort Sea polar bear population. According to

the federal defendants, FWS did not, in fact, find that the

Southern Beaufort Sea population had experienced statistically-

significant population declines at the time the agency made its

listing determination. 52 Instead, the agency relied upon

modeling and related data indicating a significant future

decline in polar bear numbers in that population. See Fed. Def.

Mot. at 96. According to the federal defendants, this

significant future decline adequately supports the agency’s

conclusion based on the record as a whole that the polar bear

qualified for threatened status at the time of listing, both in

the Southern Beaufort Sea and throughout its range.

Second, the federal defendants respond that FWS did not

ignore past data related to the Southern Beaufort Sea polar bear

population. Indeed, the federal defendants point out that FWS

explicitly considered both of the studies identified by Joint

Plaintiffs in its Listing Rule. See ARL 117248, 117272.

52 Indeed, FWS found that there was not a statistically- significant decline in polar bear numbers in the Southern Beaufort Sea from 1986-2006 based upon the available data. See ARL 117272. - 98 - However, according to the federal defendants, the agency

determined that the best available data at the time of listing

was one five-year study that directly compared the number of

ice-free days in the Southern Beaufort Sea to the population

growth rate among polar bears in that area. See Fed. Def. Mot.

at 98. As the federal defendants note, Joint Plaintiffs have

identified no other studies that make that same direct

comparison over a larger data set. Therefore, although the

agency, like Joint Plaintiffs, would have preferred more data,

the federal defendants contend that this five-year study was the

“‘most comprehensive and complete’” data of its kind and, as

such, FWS properly relied upon it. Fed. Def. Mot. at 98

(quoting ARL 110135).

Finally, the federal defendants reject Joint Plaintiffs’

argument that no declines in vital rates had been observed in

the Southern Beaufort Sea prior to listing. They respond that

researchers studying this population found that a number of

measures of polar bear physical condition and reproductive

success had declined prior to the agency’s listing

determination. For example, the federal defendants assert that

in a study covering the period of 1982-2006, USGS scientists

determined that mass, length, and skull sizes of young males had

declined; mass, length, and skull sizes of young females had

declined; skull sizes and/or lengths of adult males and females

- 99 - had declined; and the number of 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

extent Joint Plaintiffs disagree with the evidence FWS

considered, the federal defendants respond that FWS is the

expert finder of fact and was permitted to draw reasonable

conclusions about “equivocal evidence.” Fed. Def. Mot. at 99-

100 (citing Animal Legal Def. Fund, 204 F.3d at 235).

Largely for the reasons given by the federal defendants and

based upon the standards it has already articulated, the Court

is persuaded that Joint Plaintiffs’ final argument must fail as

well. Joint Plaintiffs have simply not met the very high burden

of showing that the conclusions that the agency drew from the

best available scientific information for the Southern Beaufort

Sea population were arbitrary and capricious. 53

53 Although plaintiff CBD generally agrees that FWS relied on the best available science in reaching its listing determination for the polar bear, it has raised a related issue: whether FWS is required to give the “benefit of the doubt to the species” in drawing conclusions based on the best available scientific information. See CBD Mot. at 3 (citing Center for Biological Diversity v. Lohn, 295 F. Supp. 2d 1223, 1239 (W.D. Wash. 2003)); see also Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988). Defendant-Intervenor AOGA and the federal defendants disagree that this standard applies in a listing case. The Court finds that it need not decide that question because this case does not resemble any of the cases where courts have chosen to apply the “benefit of the doubt” standard. See Conner, 848 F.2d at 1454 (FWS failed to rely on the best available science in reaching a jeopardy determination); Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1239 - 100 - 3. Plaintiff CBD’s Claim that the Service Failed to Consider Whether the Threat of Overutilization Warranted Listing the Polar Bear As Endangered (“Listing Factor B”)

As discussed throughout, the ESA requires 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 destruction, modification, or curtailment of the species’ habitat or range; (b) overutilization for commercial, recreational, scientific, or educational purposes; (c) disease or predation; (d) the inadequacy of existing regulatory mechanisms; or (e) other natural or manmade factors affecting the species’ continued existence.

16 U.S.C. § 1533(a)(1). In this case, FWS determined, based

upon the record before it, that the polar bear is threatened

throughout its range solely based upon Listing Factor A, the

present or threatened destruction of the species’ habitat.

Plaintiff CBD contends that FWS downplayed the equally severe

(W.D. Wash. 2003) (FWS failed to rely on the best available science when it refused to list the orca), vacated and remanded on other grounds, 483 F.3d 984 (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 available science when it refused to list the Canada Lynx). Here, the Court finds that FWS properly relied upon the best available scientific information for the polar bear when it decided to list the polar bear as threatened range-wide. CBD has cited no instance where a court has found that the Service was required to list a threatened species as endangered based on the “benefit of the doubt” standard, nor is the Court aware of any such authority.

- 101 - threat of hunting to the polar bear and, consequently, failed to

adequately consider Listing Factor B, overutilization.

Specifically, plaintiff CBD asserts that FWS was wrong to

conclude that overutilization does not “by itself” pose a

sufficient threat to justify listing the species. CBD Mot. at

45. As a threshold matter, according to CBD, this standard

improperly raises the bar for listing because the ESA requires

FWS to analyze whether the threat of overharvest in combination

with the threat of global warming renders the polar bear

currently in danger of extinction. Moreover, CBD contends that

the Service’s conclusion does not follow from the available

evidence. In support of this argument, CBD cites to statements

in the record indicating that FWS scientists believe overharvest

is a threat to the species, as well as statements from the

Listing Rule itself indicating that five polar bear populations

may have been harvested at unsustainable levels, based upon

anecdotal evidence. See CBD Mot. at 41-43. Finally, plaintiff

CBD asserts that FWS inappropriately relied upon uncertain

future management actions when it concluded that current

management mechanisms are “‘flexible enough to allow adjustments

in order to ensure that harvests are sustainable.’” CBD Mot. at

44 (quoting ARL 117284).

The federal defendants generally respond that FWS took

harvest rates into account, among other factors, when it

- 102 - considered whether any of the polar bear populations was

endangered. On the basis of this analysis, FWS concluded that

polar bear harvests may approach unsustainable levels in the

future, as polar bears begin to experience more nutritional

stress and declining population numbers. The federal defendants

maintain that the agency’s analysis, as well as its reasoned

conclusion, did not contravene the ESA. Moreover, because FWS

found that the polar bear is primarily threatened by habitat

loss, the defendants assert that it is essentially a moot point

whether the species is also threatened based on overutilization.

administrative record, the Court is not persuaded that either

the agency’s analysis or its conclusion on this issue was

arbitrary, capricious, or contrary to law. As an initial

matter, to the extent FWS may have erred when it determined that

harvest is not “by itself” a sufficient basis for listing the

polar bear as threatened, the Court finds that this error would

not be a sufficient basis for invalidating the Listing Rule.

The ESA is clear that a species may be listed based on “any one”

of the five listing factors. 16 U.S.C. § 1533(a)(1). Here, FWS

reasonably determined that the polar bear qualified for

threatened status range-wide based on habitat loss (“Listing

Factor A”) alone.

- 103 - The relevant question, however, is whether FWS unreasonably

concluded that the polar bear was not endangered at the time of

listing, taking the threat of future habitat losses in

combination with any threat of overharvest. The Court concurs

with plaintiff CBD that the agency’s own regulations require FWS

to list a species if “any one or a combination” of the five

listing factors demonstrates that it is threatened or

endangered. 50 C.F.R. § 424.11(c) (emphasis added); see also

Wildearth Guardians v. Salazar, 741 F. Supp. 2d 89, 103 (D.D.C.

2010) (finding that the Service’s failure to consider cumulative

impact of listing factors rendered the agency’s decision not to

reclassify the Utah prairie dog arbitrary and capricious).

Nonetheless, the Court finds that FWS did consider whether the

threat of overharvest might impact the polar bear in conjunction

with projected habitat losses.

Specifically, the agency found that harvest “is likely

exacerbating the effects of habitat loss in several

populations,” and that polar bear mortality from harvest “may in

the future approach unsustainable levels for several

populations” as these populations begin to experience the

stresses of habitat change. ARL 117284. FWS concluded,

however, that the polar bear was not in danger of extinction on

this basis at the time of listing and, moreover, that harvest

regulations, where they exist, are “flexible enough to allow

- 104 - adjustments in order to ensure that harvests are sustainable.”

ARL 117284. Even if the evidence cited by plaintiff CBD

persuasively demonstrates that overharvest was a threat to the

polar bear at the time of listing, the Court is not persuaded

that this evidence demonstrates that the agency’s conclusion was

an irrational one.

Moreover, the Court is not persuaded that FWS

inappropriately relied upon uncertain future management actions

when it reached this conclusion. FWS expressly considered only

existing mechanisms in making its listing determination for the

polar bear. ARL 117284 (“[I]n making our finding we have not

relied on agreements that have not been implemented.”). As

documented in the Listing Rule, most polar bear range countries

have regulatory mechanisms in place that address polar bear

hunting. See ARL 117284. The Listing Rule indicates that,

while overharvest could be occurring in approximately five

populations for which no data were available at the time of

listing, see ARL 117282, hunting was below maximum sustainable

levels in all populations for which data were available, see ARL

117283, Table 2. FWS concluded therefore that existing

mechanisms to control overharvest had been generally

demonstrated to be effective and, moreover, that effective

management of hunting will continue to be important to “minimize

effects for populations experiencing increased stress.” ARL

- 105 - 117283. The Court declines to find, in the absence of clear

evidence to the contrary, that it was arbitrary for the agency

to assume that the adaptive management principles, which appear

to be working for the majority of polar bear populations, will

continue to be flexible enough to account for future population

reductions. 54

Accordingly, the Court concludes that FWS articulated a

rational basis for its determination that the polar bear was not

in danger of extinction at the time of listing because of the

threat of anticipated sea ice losses, even taking into account

potential threats from overharvest.

4. Joint Plaintiffs’ Claim that the Service Wrongly Concluded that Existing Regulatory Mechanisms Will Not Protect Polar Bears despite Anticipated Habitat Losses (“Listing Factor D”)

Joint Plaintiffs argue, finally, that FWS drew an improper

conclusion from the evidence when it found that existing

regulatory mechanisms are not sufficient to protect polar bears

despite anticipated sea ice losses. According to Joint

Plaintiffs, even if there are no regulatory mechanisms that

would “eradicate” the threat of sea ice loss, existing

regulatory mechanisms such as conservation plans and other

54 To the extent CBD further contends that FWS failed to consider the impacts of illegal hunting, the Court is persuaded that FWS took illegal hunting into account to the extent feasible. See ARL 117245-46; ARL 117284.

- 106 - federal, state, and foreign laws are not necessarily

insufficient to protect a “viable population” of bears over the

foreseeable future. 55 JP Mot. at 22. Given that overall polar

bear population numbers had risen in the years prior to listing,

Joint Plaintiffs assert that existing regulatory mechanisms were

not only adequate to protect the species at the time of listing

but they will continue to adequately protect the species into

the future.

The federal defendants respond that FWS rationally

concluded that existing regulatory mechanisms at the time of

listing will be inadequate to protect the polar bear despite

future habitat losses. The defendants explain that, while the

agency found that existing regulatory mechanisms had adequately

addressed previous threats to the polar bear (e.g., overhunting)

55 Joint Plaintiffs have also argued that FWS unlawfully failed to establish either a “minimum viable population” size or to determine the “minimum amount of habitat” necessary to “support a viable population.” JP Mot. at 32. At least two circuits have rejected similar arguments. See Home Builders Ass’n of N. Cal. v. U.S. FWS, 321 Fed. Appx. 704, 705 (9th Cir. 2009) (“The FWS is not required to state a threshold level of habitat loss that is necessary to find a species is threatened.”); Heartwood v. Kempthorne, No. 05-313, 2007 U.S. Dist. LEXIS at *27 (S.D. Ohio June 19, 2007) (rejecting the argument that FWS was required to “identify a number that represents the point at which the Indiana bat will survive, a number that represents the point at which the Indiana bat will recover, and a number that represents the point at which the total population will become extinct”), aff’d, 302 Fed. Appx. 394 (6th Cir. 2008). This Court concurs with those courts that the ESA itself articulates the appropriate standard for listing, which is limited to the five factors outlined in 16 U.S.C. § 1533. Accordingly, Joint Plaintiffs’ related claim must fail. - 107 - and presumably will remain adequate to protect against those

threats, there is no evidence in the record that these existing

regulatory mechanisms are sufficient to ensure that polar bears

will not become in danger of extinction within the foreseeable

future.

The Court declines to find that FWS improperly concluded

that existing regulatory mechanisms are inadequate to protect

the polar bear. Joint Plaintiffs have pointed to no record

evidence suggesting that existing mechanisms will offset the

potential impacts to the polar bear from significant future

losses of its sea ice habitat. Therefore, plaintiffs have given

the Court very little basis from which to conclude that the

agency’s finding was irrational, arbitrary and capricious;

accordingly, the Court declines to overturn the agency’s

reasoned determination on these grounds. 56

56 In a related claim, plaintiff SCI argues that FWS also failed to consider whether future regulatory and non-regulatory mechanisms would substantially mitigate the threat of sea ice loss. Although SCI concedes that Listing Factor D only requires FWS to consider the inadequacy of “existing” regulatory mechanisms, SCI argues that FWS should have considered future mechanisms under other listing factors. The Court finds that plaintiff SCI’s argument is without merit. As other courts have found, the ESA does not permit FWS to consider speculative future conservation actions when making a listing determination. See, e.g., Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23, 26 (D.D.C. 1996) (“[T]he Secretary . . . cannot use promises of future actions as an excuse for not making a determination based on the existing record.”); see also Fund for Animals v. Babbitt, 903 F. Supp. 96, 113 (D.D.C. 1996). Moreover, established agency policy requires that in making a listing - 108 - D. The Service Followed Proper Rulemaking Procedures

The Court turns finally to two purported procedural

deficiencies that have been identified by plaintiffs. First,

plaintiff State of Alaska claims that FWS failed to satisfy its

obligation under Section 4(i) of the ESA to provide a “written

justification” explaining why it issued a final rule that

conflicts with comments it received from the State. Second,

plaintiff CF claims that FWS failed to adequately respond to

specific comments that were raised during the notice-and-comment

period for the proposed Listing Rule. Each of these procedural

claims is addressed briefly below. 57

1. Plaintiff Alaska’s Claim that the Service Violated Section 4(i) of the ESA by Failing to Provide a Sufficient “Written Justification” in Response to Comments

Under Section 4(i) of the ESA, if FWS receives comments

from a State (or state agency) disagreeing with all or part of a

proposed listing, and the agency subsequently issues a final

determination FWS may only consider formalized conservation efforts that have been implemented and have been shown to be effective. PECE Policy, 68 Fed. Reg. at 15,100. Accordingly, the Court finds that FWS was not required to consider speculative future efforts to reduce greenhouse gas emissions. 57 The federal defendants have also responded at length to what they characterize as a “claim” by plaintiff CBD that the polar bear listing rule was improperly influenced by political considerations. See Fed. Def. Mot. at 128-32. Plaintiff CBD did not in fact raise any such claim. Accordingly, the Court will not address the federal defendants’ arguments on this issue. - 109 - rule that conflicts with those comments, it must then provide

the State with a “written justification” explaining its failure

to adopt regulations consistent with the agency’s comments. 16

U.S.C. § 1533(i). The parties agree that on April 9 and October

22, 2007, the State of Alaska and the Alaska Department of Fish

and Game submitted comments that disagreed with the proposed

listing rule for the polar bear and, specifically, with the

agency’s reliance on population modeling efforts conducted by

the USGS. See ARL 84248-84274; ARL 124961-125006. The parties

also agree that on June 17, 2008, after the final Listing Rule

was issued, FWS sent a lengthy letter to the Governor of Alaska

with specific responses to the State’s comments pursuant to 16

U.S.C. § 1533(i). See ARL 11361-11408. Plaintiff State of

Alaska nonetheless contends that FWS failed to comply with

Section 4(i) because its responses to five particular comments

did not adequately “justify” the agency’s actions. Alaska Mot.

at 7-15.

The ESA recognizes that states play a crucial role in the

listing process, and their advice and involvement “must not be

ignored.” See Alaska Mot. at 6 (citing S. Rep. No. 97-418, at

12 (1982)). Here, Alaska argues that FWS “effectively ignored”

the State’s concerns, Alaska Mot. at 10, by failing to provide

an adequate response to the following comments:

- 110 - 1. Comments on deficiencies in the USGS Carrying Capacity Model (Alaska Mot. at 7-10); 2. Comments on deficiencies in the USGS Bayesian Network Model (Alaska Mot. at 10-11); 3. Comments on the status of the Southern Beaufort Sea polar bear population (Alaska Mot. at 11-13); 4. Comments on the agency’s inappropriate choice of 45 years as the “foreseeable future” (Alaska Mot. at 13-14); and 5. Comments on uncertainty in climate change modeling (Alaska Mot. at 14-15). 58

In support of its position, State of Alaska cites San Luis

& Delta-Mendota Water Auth. v. Badgley, the only legal precedent

that deals with a claim under ESA Section 4(i). 136 F. Supp. 2d

1136 (E.D. Cal. 2000). In that case, regional water authorities

challenged the listing of a fish species as threatened, and the

NMFS failed to respond to the authorities’ comments with any

kind of written justification. Id. at 1150-51. The court

subsequently reversed the NMFS’s listing decision (on other

grounds, in addition to the 4(i) violation) and remanded to the

agency. Id. at 1151-52. Alaska contends that this Court should

do the same. Alaska Mot. at 9-10.

The federal defendants respond that FWS fully complied with

Section 4(i) of the ESA when it provided Alaska with its written

58 The content of Alaska’s comments is identical to the substantive claims raised by the Joint Plaintiffs, which have been discussed at length above. The Court therefore will not recount the substance of Alaska’s comments and the agency’s responses thereto.

- 111 - justification on June 17, 2008. 59 The federal defendants point

out that all of Alaska’s comments were addressed, including the

five at issue here, in the final Listing Rule itself as well as

in the agency’s response to the State. See Fed. Def. Mot. at

59 As a threshold matter, the defendants contend that the substance of the agency’s letter is not reviewable, for two reasons: (1) the letter of written justification does not constitute “final agency action,” as is required for APA review (5 U.S.C. § 704); and (2) the agency’s response to comments is committed to 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 (1997) (“The APA, by its terms, provides a right to judicial review of all ‘final agency action for which there is no other adequate remedy in a court,’ and applies universally ‘except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”)) (internal citations omitted). Alaska responds that, at a minimum, the Service’s letter is reviewable as part of a review of the final Listing Rule, pursuant to section 704 of the APA. Alaska Reply at 9 (citing 5 U.S.C. § 704 (a “procedural . . . agency action . . . not directly reviewable is subject to review on the review of the final agency action”)).

Case law provides little guidance on this question. Indeed, the only case that addresses a failure to comply with ESA Section 4(i) is one where FWS failed to provide any response whatsoever, a clear violation of Section 4(i). See San Luis, 136 F. Supp. 2d at 1151. The Court agrees with Alaska’s assessment that the agency’s justification letter is a procedural step that becomes reviewable upon review of the final agency action (here, the Listing Rule). The ESA mandates that the FWS “shall” submit an explanatory written justification to a state or state agency if it issues a regulation that conflicts with the state’s comments. See Bennett, 520 U.S. at 175 (“[A]ny contention that the relevant provision of 16 U.S.C. § 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative ‘shall.’”). “It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.” Id. at 172. The Court is persuaded, however, that the standard of review set out in Section 4(i) is not a rigorous one.

- 112 - 126. While Alaska may have preferred a different or a more

detailed explanation, the defendants contend that none is

required.

This Court agrees. Section 4(i) requires only that FWS

provide a “written justification for [the Secretary’s] failure

to adopt 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 responded in writing to two sets of

comments from the State of Alaska. Moreover, FWS specifically

addressed each of the issues identified by Alaska, both in its

response letter and in the response to comments that appears in

the Listing Rule itself. See, e.g., ARL 11394-95 (carrying

capacity model); 60 ARL 11405-08 (Bayesian Network model); ARL

11389, 11399-404 (Southern Beaufort Sea population); ARL 11365-

66, 11382-84 (“foreseeable future”); ARL 11363-70, 11395-98

(scientific uncertainty and climate change modeling). Indeed,

Alaska’s own pleadings make clear that FWS did at least attempt

to respond to each of the State’s concerns. Having carefully

60 The Court was unable to locate many of the specific concerns that Alaska purports to have raised in its comments with regard to the carrying capacity model. The Court therefore notes that FWS was not obligated to respond 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 (1978) (agency proceedings “should not be a game or forum to engage in unjustified obstructionism by making cryptic and obscure references to matters,” and then seeking to invalidate agency action on grounds that the agency failed to consider the matters). - 113 - reviewed the parties’ arguments, the State’s comments, and the

agency’s responses, the Court is satisfied that FWS did not

ignore any of Alaska’s concerns. Accordingly, the Court

concludes that FWS fulfilled its duty to respond to Alaska’s

comments under ESA Section 4(i).

2. Plaintiff CF’s Claim that FWS Failed to Respond to Significant Comments

In its supplemental motion for summary judgment, plaintiff

CF contends that FWS also failed to respond to certain

“significant” comments which “if true, would require a change in

the proposed rule.” See CF Mot. at 20 (citing Am. Mining Cong.

v. EPA, 907 F.2d 1179, 1188 (D.C. Cir. 1990)). 61 Plaintiff CF

61 CF identifies nine concerns which it purports to have raised in comments on the proposed rule and which, it claims, were never addressed. Specifically, CF highlights:

1. The agency’s failure to consider the role of sun spot cycles as a primary climate factor; 2. The agency’s failure to consider literature on the dynamics of solar irradiation; 3. The agency’s failure to explain why it relied so heavily on a declining trend among the Western Hudson Bay polar bear population when that trend is offset by gains in polar bear numbers in other populations; 4. The agency’s failure to objectively review data; 5. The agency’s failure to specify the degree and nature of impacts to polar bears from receding sea ice; 6. The agency’s failure to explain how a decline in the Western Hudson Bay polar bear population is attributable to global warming; 7. The agency’s failure to address why the polar bear survived two historical warming periods; - 114 - did not, however, pursue this claim in its reply brief.

Accordingly, because plaintiff CF appears to have abandoned this

procedural claim, the Court 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) (declining to rule on a claim that “petitioners

appear to have dropped”). 62

IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motions for summary

judgment are hereby DENIED, the federal defendants’ cross-motion

for summary judgment is hereby GRANTED and the defendant-

intervenors’ cross-motions for summary judgment are hereby

GRANTED. An appropriate Order accompanies this Memorandum

Opinion.

8. The agency’s failure to explain projected declines in the Southern Beaufort Sea polar bear population when reports indicate “no correlation between demographic changes and ice melt” in that region; and 9. The agency’s failure to consider that warming will actually improve polar bear habitat in the northernmost Arctic region.

See CF Mot. at 20-22. 62 Even if this claim were not abandoned, for the reasons set out in the federal defendants’ response brief and on the basis of the administrative record the Court is persuaded that FWS adequately addressed plaintiff CF’s comments, to the extent any response was required. See Fed. Def. Mot. at 133-37.

- 115 - SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 30, 2011

- 116 -