Listing of Polar Bears as Threatened under the US Endangered Species Act

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--Nichole Hoskin 13:56, 24 July 2008 (EST)

Related Links:
Polar Bears
Polar Bear Specialist Group of the IUCN Meetings
U.S. Geological Survey Reports on Polar Bear Population Status in the U.S. and Canada

On the February 16 2005, the Center for Biological Diversity filed a petition with the United States Fish and Wildlife Service to list the polar bear as threatened worldwide, under the Endangered Species Act (ESA) and to designate critical habitat.^[1] Throughout the process of evaluating the petition for the listing of polar bears, the USFWS continually delayed making findings within the timeframe required by statute, which led the petitioners to commence litigation in order to compel the USFWS to make findings.^[2] It appears that most petitions for listing of a species as endangered or threatened under the ESA only proceed following litigation by the petitioner.^[3]

On April 28 2008, the US District Court for the Northern District of California orders the Department of Interior and the USFWS to make a final decision on whether or not polar bears should be added to the list of threatened and endangered species by May 15 2008.^[4] On May 14 2008, Secretary Kempthorne announced the listing of polar bears as threatened under the ESA, which was accompanied by a rule that defines the scope of impact the listing decision will have “to protect the polar bear while preventing unintended harm to the society and economy of the United States.”^[5]

Endangered Species Act (ESA):

Under the section 3(20) of the ESA 1973 (US Federal legislation), a threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”^[6] The basis of the decision to list polar bears as threatened, according to the Secretary of the Department of the Interior Kempthorne, was findings that that sea ice is vital to polar bear survival, that sea-ice has dramatically melted in recent decades and that computer models suggest that sea ice is likely to further recede in the future.^[7] Secretary Kempthorne used these findings to conclude, “polar bears are vulnerable to loss of habitat” and “likely to become endangered in the foreseeable future”.^[8]

The USFWS determined that polar bears were within the criteria of s 4(d) of the ESA, which means that the USFWS found that polar bears were a threatened species because of “the inadequacy of existing regulatory mechanisms.”^[9] This means that the listing of polar bears as a threatened species under the ESA resulted from a determination that existing legal mechanisms did not adequately regulate to protect polar bears. In contrast to this determination, the USFWS used section 4(d) to determine that it was "necessary and advisable" to develop a special rule "that specifies prohibitions and authorizations that are tailored to the conservation needs of polar bears".^[10] In the case of polar bears, the USFWS found that existing U.S legislation, such as the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), provided polar bears with extensive protection, when assessing the conservation needs of polar bears.^[11] The extensive protection under existing legislation led the USFWS to develop a special rule that did not require additional authorisation, under USFWS regulations, “if any activity is authorised or exempted under the MMPA or CITES”.^[12]

Secretary Kempthorne announced that the USFWS “was using the authority provided in Section 4(d) of the ESA to develop a rule that states that if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way. The conservation measures provide that the production, interstate sale, and export of native handicrafts by Alaska natives may continue and that the subsistence harvest of polar bears is not affected.”^[13]

According to a senior attorney and a representative of the petitioner, the Center for Biological Diversity, the listing of Polar Bears, under the ESA, is “the first listing rule in which the impacts of global warming are cited as the sole reason for the listing.”^[14] However, Secretary Kempthorne cautions, “while the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting. Any real solution requires action by all major economies for it to be effective. That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.’”^[15]

References

1. United States Fish and Wildlife Service (USFWS), Timeline for Polar Bear Action, p 1.

2. United States Fish and Wildlife Service (USFWS), Timeline for Polar Bear Action, p 1.

3. Brendan R. Cummings and Kassie R. Seigel, ‘Ursus maritimus: Polar Bears on Thin Ice’, Natural Resources and Environment 22(3), 2007-2008, p 4. (Cummings is a senior attorney and Seigel is the Climate Programme Director at the Center for Biological Diversity, the petitioner to the USFWS for the listing of polar bears as threatened under the ESA)

4. United States Fish and Wildlife Service (USFWS), Timeline for Polar Bear Action, p 1.

5. United States Fish and Wildlife Service (USFWS), Remarks by Secretary Kempthorne at Press Conference on Polar Bear Listing, May 14 2008, p 1.

6. Section 3(20) Endangered Species Act 1973, p 6.

7. USFWS, May 14 2008, Remarks by Secretary Kempthorne at Press Conference on Polar Bear Listing, p 1.

8. Section 4(d) Endangered Species Act1973, pp 6-7.

9. Department of the Interior, USFWS, Special Rule for the Polar Bear, p 4.

10. Department of the Interior, USFWS, Special Rule for the Polar Bear, pp 4-5.

11. Department of the Interior, USFWS, Special Rule for the Polar Bear, p 5.

12. Department of the Interior, USFWS, Special Rule for the Polar Bear, p 5.

13. United States Fish and Wildlife Service (USFWS), Secretary Kempthorne Announces Decision to Protect Polar Bears under the Endangered Species Act: Rule will allow continuation of vital energy production in Alaska, pp 2-3.

14. Brendan R. Cummings and Kassie R. Seigel, ‘Ursus maritimus: Polar Bears on Thin Ice’, Natural Resources and Environment (2007-2008) 22(3), p 3. (Cummings is a senior attorney and Seigel is the Climate Programme Director at the Center for Biological Diversity, the petitioner to the USFWS for the listing of polar bears as threatened under the ESA)

15. United States Fish and Wildlife Service (USFWS), Secretary Kempthorne Announces Decision to Protect Polar Bears under the Endangered Species Act: Rule will allow continuation of vital energy production in Alaska, pp 1-2.