Wildlife and People

Alaska Sues Kempthorne Over Polar Bear Listing

On Aug. 4 the State of Alaska filed a Complaint of Declaratory Judgment and Injunctive Relief with the US District Court, District of Columbia, requesting an immediate injunction against the listing of the polar bear as a Threatened Species by the US Dept. of the Interior, Dirk Kempthorne, Secretary, and H. Dale Hall, Director of the US Fish and Wildlife Service.

The Complaint cited violations of the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedures Act.

The full text of the Complaint is [here]. Some excerpts:

32. Polar bears now number 20,000-25,000 worldwide (see 73 Fed. Reg. at 28215) as compared to 8,000-10,000 in 1965-1973. … The current worldwide population has not significantly declined in recent years. …

33. Polar bears existed during and survived through prior Arctic warming periods including the Last Interglacial (115,000-140,000 years before present), and the Holocene Thermal Maximum (4,000-12,000 years before present). There was also a warming period during the Medieval Period (950-1300 A.D.). …

36. The Final Rule recognizes nineteen subpopulations of polar bears for management and research purposes. See 73 Fed. Reg. at 28215.

37. Neither the nineteen subpopulations of polar bears worldwide described by the IUCN, nor the four ecoregions populations described by USGS, could reasonably be considered to represent distinct population segments. Because of ranging behavior, particularly of male polar bears, and resulting gene flow, subpopulations are neither distinct nor significant. Similarly, the ranging behavior of polar bears may prevent the loss of summer habitat from the Southern extreme of its range from representing loss of a significant portion of the range of the polar bear even if the modeling was accepted as a reasonable projection of likely future conditions. …

50. The Service failed to make the listing the polar bear determination based on “the best scientific and commercial data available.” Specifically, among other things, the Service failed to:

(a) consider the best scientific data available regarding whether the polar bear is likely to become an endangered species within the foreseeable future throughout all or a significant proportion of its range;

(b) establish, based the best scientific data available, the “foreseeable future” relevant to its listing determination, and instead relied on an arbitrary 45-year period as the “foreseeable future”;

(c) consider the best scientific data available demonstrating that climate systems have a high level of natural variability and climate change models are unreliable beyond about a decade;

(d) consider the best scientific data available regarding the current healthy status of the species, and instead assumed without reliable scientific data that the species as a whole is in decline or facing direct immediate threats;

(e) consider the best scientific data available to support computer modeling to accurately predict impacts to the polar bear from seasonal ice loss, and instead relied on unreasonable modeling assumptions, uncertain variables, and incomplete information to make predictions regarding seasonal ice loss and carrying capacity; …

(f) consider the best scientific data available which projected overall declines in carrying capacity of only “10 to 22% from present levels by year 45, 22-32% from present levels by year 75, and 20-37% from present levels by year 100,” and which projected declines in optimal habitat loss at only 23-40% at 100 years, according to a 2007 USGS report; and

(g) consider the best scientific data available demonstrating the ability of polar bears to adapt and survive changing climate conditions as demonstrated by their survival through prior warming periods. …

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment providing the following relief:

1. Declare that Defendants violated the ESA, MMPA, and the APA;

2. Declare that Defendant’s actions, as set forth above, are arbitrary and capricious, an abuse of discretion, and not in accordance with the law;

3. Vacate and set aside the Final Rule of May 15, 2008;

4. Enjoin Defendants from relying on or enforcing the threatened status determination under the ESA for the polar bear;

5. Enjoin Defendants from relying on or enforcing the depleted status determination under the MMPA for the polar bear;

6. Award Alaska its attorneys’ fees and costs incurred in bringing and maintaining this action pursuant to Section11(g) of the ESA, 28 U.S.C. Sec 2412, and Equal Access to Justice Act, 28 U.S.C. Sec 2412, and other applicable authorities; and

7. Grant Plaintiff such other and further relief as the Court may deem necessary and appropriate.