The petitioners, the Center for Biological Diversity, Natural Resources Defense Counsel and Greenpeace, Inc. have filed a Motion for Summary Judgment and set it for hearing on May 8th. It requests the Oakland, California, Federal District Court to order Secretary Kempthorne and the US Fish & Wildlife Service to “publish in the Federal Register a final listing determination for the polar bear within seven (7) days of this (the) Order.” It also requests that “if the final listing determination” lists the bear as “threatened or endangered” then it should be made “effective immediately upon publication in the Federal Register,” rather than the usual statutory 30 days after publication. It also asks for the usual award of attorney fees and for the court to retain jurisdiction to ensure compliance with the requested order.
The Secretary and USF&WS had not yet answered the suit, much less responded to this Motion for Summary Judgment, as this was written. The US has not made any appearance in the case yet. In fact, the Scheduling Conference is not set until June 17, but the case may be over by the date of the Conference to schedule the case.
The petitioners argue that the deadline for publication of a final determination is not discretionary and the only real issue remaining “is how long the Court should give the Secretary to come into compliance with the law.” They cite Marbled Murrelet v. Lujan, 1992, where the Court ordered publication three days after the order and other cases where the Court-set deadlines were 5 to 120 days after the date of similar orders. (You may recall that last month we reported that it is not uncommon to miss the deadline.) They argue that the “final determination left the relevant field office more than three months ago,” so it is ready to be published “within seven days of the hearing” of the motion. That allegation is not supported by any affidavit and, of course, the field office material is not a “final determination.” The “field” in this case is far greater than Alaska, where part of the determination was being made. Conservation Force in its comments to the proposal has questioned the obvious bias of those in the Alaska field office and called for oversight from others. That so-called field office is run by the leadership of the IUCN Polar Bear Specialist Group which has its own agenda and little or no knowledge or experience with the Endangered Species Act as such. They surely don’t have the experience and technical know-how with the ESA.
One must also remember that the scheduled May 8 hearing date is not necessarily the date the Order will be signed, starting any court-ordered countdown deadline for publication. There is little doubt that the Court will order publication as soon as possible because the deadline is non-discretionary, but no one is privy to the true status of the final rule at this time to really know how close to ready it is.
The petitioners’ argument that the final rule, if it lists the bear, should be effective immediately instead of the statutory 30 days after publication is based solely upon the fact that all the deadlines have been missed so no further delay should be allowed. That is a wholly untenable position! The 30-day delay serves an entirely unrelated purpose than deadlines. In effect, that would punish and injure innocent US hunters and others who are entitled to reasonable advance notice. Moreover, polar bears are not in imminent risk. It would be unconscionable to override the 30-day effect provision simply because the processing deadlines were missed when the very reason for the fixed deadline was to protect those affected by the determination. It would hurt those the deadlines were intended to protect. The fixed deadlines were adopted after oversight hearings in the 1980s explicitly to afford protection to the stakeholders affected by the uncertainty such as the US hunters, brokers, taxidermists, wildlife managers and Inuits in this instance. If anything, the proposal should be dismissed as a de facto withdrawal if the listing is premature, information is deficient or not sufficient to generate a timely decision.
It should be understood that the petitioners’ motion does not and cannot direct that the bear or any of its sub-populations be listed. The Court can only order the making of a final determination and its publication. The Court is not being asked to make the listing determination itself one way or the other.
There are some allegations in the Motion for Summary Judgment that Conservation Force disputes. One is that polar bears are “completely dependant upon Arctic sea ice for survival.” Only summer sea ice is in issue, not year-round ice. Some healthy and abundant populations have lived for centuries without summer ice, such as in Davis Strait.
Another is a half-truth. The Motion correctly states that the first documented “changes in polar bear parameters such as declining body condition, lowered reproductive rates and reduced cub survival” started in the late 1980s, but then incorrectly states it was “attributed…to climate warming and predicted that they would ultimately lead to population declines.” Petitioners need to get their facts straight. The late 1980s was an extremely cold period and the scientists attributed the change in bear characteristics to it being too cold and/or overpopulation (density), not to warming. This wholly undermines petitioners’ claim that the characteristics of the bear are related to global warming. The origin of those concerns correlates with the cooling of the Arctic and continues to this date in some very limited areas.
Petitioners repeatedly state that global warming and ice melt are occurring at a more drastic rate than the models projected. Petitioners should know full well that the “record” (records date back to 1980) ice melt in 2007 was not due to warming. They disingenuously neglect to state that the Arctic refroze earlier than normal this winter, and that it is now colder than average. According to NASA, the record melt was due to a front that blew off the cloud cover and held it off and exposed the ice to direct sunlight longer than normal, not warming. Warming would increase cloud cover. It has refrozen and exceeds the three year average by four percent.
Conservation Force is preparing an intervention and/or amicus brief to rebut the request that any listing be made effective immediately. We are also researching the merits of a suit to dismiss the listing proposal because the mandatory deadlines for listing have expired. The delay is harming US hunters and Inuits and interfering with their longstanding polar bear conservation system. One of the clear and explicit Congressional purposes of making the deadlines nondiscretionary was to prevent such injuries and damage to those awaiting the outcome. If the information is not adequate to list the bear within the deadline then it should not be listed. It should be dismissed.