In Re Polar Bear Endangered Species Act Listing
818 F. Supp. 2d 240
D.D.C.2011Background
- May 15, 2008, FWS listed polar bear as threatened under ESA; polar bear deemed depleted under MMPA as of Listing Rule.
- MMPA 104(c)(5) allows sport-hunted polar bear trophy imports from Canada but depletion status imposes restrictions.
- Listing Rule stated imports would end under 104(c)(5) due to depletion, and the Service subsequently closed pending permit applications.
- Plaintiffs SCI, Hershey, Kreider, and Atcheson challenged the rule/permits under MMPA and APA; cross-motions followed.
- Court held polar bear depleted by ESA listing; import ban valid; denial of Hershey/Kreider permits upheld; Atcheson enhancement denial upheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 104(c)(5) trump depletion restrictions? | SCI argues 104(c)(5) authorizes imports from Canada despite depletion. | Defendants say depletion status governs; 104(c)(5) is subordinate. | 104(c)(5) yields to depletion ban. |
| Was the polar bear properly designated as depleted? | SCI contends designation not properly triggered by ESA listing. | Court adopts depletion via ESA listing; designation not duplicative. | Polar bear is depleted by ESA listing. |
| Did the Listing Rule provide adequate notice of depletion effect? | SCI asserts inadequate notice on depletion impact. | Notice was sufficient; commenters responded. | No procedural flaw; adequate notice. |
| Does depletion ban apply to bears taken before listing? | SCI/Hershey/Kreider contend pre-listing takings may be eligible. | Depletion ban applies to all designated depleted bears. | Ban applies to all, regardless of taking date. |
| Does the Atcheson enhancement provision permit import? | Atcheson argues sport hunting enhances survival/recovery; should permit. | Agency reasonably denied enhancement permits; benefits not significant. | Enhancement permits denied; action upheld. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency interpretations upheld if reasonable)
- United States v. Mead Corp., 533 U.S. 218 (2001) (Chevron step-two admissible deference when agency interprets statute)
- Sierra Club v. EPA, 759 F.2d 436 (D.C. Cir. 1983) (improper to read exemptions from a list into a general prohibition)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review standard for agency actions)
- Overton Park v. Volpe, 401 U.S. 402 (1971) (narrow review; deference to agency expertise)