Court of Appeals Hears Oral Argument on Polar Bear Listing
Juneau, Alaska – Attorneys for the State of Alaska today argued the appeal of the listing of the polar bear under the Endangered Species Act (ESA) in the U.S. Circuit Court of Appeals for the District of Columbia.
The appeal by the State and other appellants challenges the 2008 decision by the U.S. Fish and Wildlife Service (USFWS) to list the polar bear as a threatened species under the ESA, a decision that was upheld by the U.S. District Court for the District of Columbia in June 2011. The USFWS listed the polar bear as threatened based on projected future threats to the bears’ sea ice habitat. The USFWS relied upon predictive models that were incomplete and rested on invalid underlying assumptions. Consequently, the listing depended on uncertain speculations of future threats of habitat loss, rather than on any observed range-wide polar bear population declines. The decision failed to adequately address the continued growth over the past 40 years of the worldwide polar bear population from a low of 8,000 to 10,000 bears to its current high level of 20,000 to 25,000 animals. This overall population has not decreased despite documented sea ice loss over the past decade. The State does not believe that polar bears are at risk of extinction in the foreseeable future.
Despite the flaws in their predictive habitat models and the comments of state scientists, the USFWS nonetheless concluded that the polar bear qualified as a threatened species, meaning the species is likely to be on the brink of extinction throughout all of its range in the foreseeable future. The decision violated the ESA. The USFWS failed to adequately show how the uncertain projections of future declines in sea ice habitat would result in the polar bear likely becoming endangered by mid-century, particularly given current widespread polar bear populations worldwide and given the results of the USFWS’ own flawed models that show a substantial number of bears and habitat remaining at mid-century. The USFWS also failed to provide an adequate justification for adopting a listing rule that was in conflict with Alaska’s comments, especially where Alaska is the only state containing polar bears and polar bear habitat.
Alaska will continue its efforts to address the impacts of the polar bear listing decision, both in the pending appeal and by challenging, in a separate case, the ESA designation of vast acreage as polar bear critical habitat. This unprecedented designation encompasses 187,157 square miles of Alaska’s North Slope and the adjacent United States Outer Continental Shelf. A decision on the critical habitat case is expected soon from the U.S. District Court for the District of Alaska.