On Wednesday morning, October 20, 2010, 35 attorneys gathered in Courtroom 20, the largest courtroom in the Federal District of Columbia. More than 15 of us had been selected to argue components of the polar bear listing case for four hours each with their respective part from eight to 20 minutes in length.
Instead, the Court redirected the course of the case and deferred oral arguments. The Court remanded the cases to the USF&WS to explain its use of the term endangered species as one “imminently” at risk of extinction. The USF&WS had defined “endangered” to be a species in imminent risk of extinction upon the incorrect representation that Congress provided that definition, but the Judge pointed out that the term “imminent” is not in the statute. The Court was perplexed that the USF&WS had made this unchallenged statement without any process. An agency is allowed to prove its interpretation of a statute that it is charged with implementing, but in this instance that had not occurred because the USF&WS had represented it to be in the statute when it was not. If the definition of “endangered” was in question so was that of “threatened” because a threatened species is one likely to become “endangered” in the foreseeable future.
It was such a significant issue to the Court that it remanded the listing rule to the USF&WS to explain and justify its interpretive word choice.
The cross briefing of the new issue has been ordered and the consolidated cases are expected to get back on track by late January. Some view this as a scary indicator that the Judge is sympathetic to the argument of the Center for Biological Diversity that the polar bear should have been listed as endangered because it will eventually be at or near extinction in 200 years, even if not “imminent.” In fact, the Court has given the Government a chance to save itself. There is a difference between threatened and endangered, and that difference may be the first of many issues resolved in this important litigation. Believe me; we have many other issues to raise during this precedent-setting case. – John J. Jackson, III.