Endangered Species Law & Policy

In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.

In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species."  As previously discussed here, the Fish & Wildlife Service took the position in the Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation that "endangered species" means "in imminent danger of extinction," and argued that although the word "imminent" does not appear in the statutory definition, the structure and language in the statute compels such an interpretation.

In a 26-page Memorandum Opinion (PDF), the court concluded that "the statute is either silent or ambiguous with respect to the precise question at issue . . . ," and, contrary to the Fish & Wildlife Service's claim, "[t]he definition of an "endangered species" is . . . inherently ambiguous."  The court also rejected the argument that the legislative history supports the Fish & Wildlife Service's interpretation.

The court therefore remanded the Polar Bear Listing Rule to the Fish & Wildlife Service to provide its agency interpretation, and indicated that if that interpretation is reasonable, the court will be bound to defer to it under the Chevron doctrine.  However, the court cautioned that "should the agency determine upon review that no reasonable interpretation of the statute supports its existing 'threatened' designation for the polar bear, new rulemaking procedures may be warranted."

If the agency determines that to qualify for listing as an endangered species, a species must be in danger of imminent extinction throughout all or a significant portion of its range, it will set a high bar for species to qualify for full protection under the Endangered Species Act.

The Fish & Wildlife Service has until December 23, 2010 to submit the agency's supplemental explanation and supporting materials, if any, and the court set February 23, 2011 as the new hearing date on the pending cross-motions for summary judgment.  In the meantime, the current listing rule and Section 4(d) rule remain in effect.