9th Circuit Upholds USFWS Designated Critical Polar Bear Habitats

Summary: The 9th Circuit upholds USFWS designated critical polar bear habitats in a ruling issued Monday, Feb. 29.

Polar bear cubs (Ursus maritimus) "emerge from their den in the spring and head to the ocean in search of food," Wednesday, Nov. 10, 2010: USFWS Alaska Region, Public Domain, via US Fish and Wildlife Service National Digital Library

A ruling issued Monday, Feb. 29, 2016, by the 9th Circuit Court of Appeals in San Francisco upholds the USFWS designated critical polar bear habitats of more than 120 million acres (187,000 square miles) along Alaska’s northern coast.

“This case is about polar bear habitat in Alaska,” writes the 9th Circuit’s Chief Judge, Mary M. Schroeder, in the introduction to her opinion on an appeal filed by Alaska Oil and Gas Association and 13 plaintiffs-appellees.

Secretary of the Interior Sally Jewell, US Fish and Wildlife Service Director Daniel M. Ashe and the U.S. Fish and Wildlife Service are listed as defendants-appellants. The Center for Biological Diversity, Defenders of Wildlife and Greenpeace Inc. join as intervenor-defendants.

A steadily declining polar bear population prompts the United States Fish and Wildlife Service (USFWS) to list the Arctic Circle native as a threatened species under the Endangered Species Act (ESA) of 1973. The determination of threatened status is published Thursday, May 15, 2008, in the Federal Register.

“We find, based upon the best available scientific and commercial information, that polar bear habitat  -- principally sea ice -- is declining throughout the species’ range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range," states the USFWS's Final Rule.

The Endangered Species Act requires designation of conservation-critical habitats within one year of listing. In 2009, three habitat units are proposed for the mandatory USFWS designated critical polar bear habitats. The sea ice habitat comprising Unit 1 accounts for 95.9 percent of the total USFWS designated critical polar bear habitats. Unit 2’s terrestrial denning and Unit 3’s barrier islands make up the remaining 4.1 percent of the total USFWS designated critical polar bear habitats.

The 14 plaintiffs-appellees dispute the inclusions of Units 2 and 3 in the USFWS designated critical polar bear habitats. Their challenge to the USFWS designated critical polar bear habitats questions the habitats’ allegedly unjustifiable largeness and claims failure by the USFWS to observe procedures identified by the Endangered Species Act.

“The proposal drew fire from oil and gas trade associations, several Alaska Native corporations and villages, and the State of Alaska (‘Plaintiffs’), all of which seek to utilize the natural resources in Alaska’s waters and North Slope that make up much of the designated habitat,” explains Judge Schroeder.

The Endangered Species Act defines critical habitat as specific biological and physical elements, known as primary constituent elements (PCEs), that are found within species-occupied geographical areas and that are essential for species survival. Biological sites, such as den, food or nest sites, and physical elements, such as geological formations and water quantity, represent primary constituent elements according to the Endangered Species Act's examples.

“Polar bears (Ursus maritimus) are scattered throughout the ice-covered waters of the Arctic Circle. Two relatively distinct polar bear populations occur within the United States: the southern Beaufort Sea population, which extends into Canada, and the Chukchi-Bering Seas population, which extends into Russia,” notes Judge Schroeder.

The 9th Circuit's three-member panel finds that rational reliance upon the best available scientific data -- not arbitrary capriciousness -- informs the USFWS designated critical polar bear habitats. Radio-telemetry data on female polar bears between 1982 and 2009 identifies Unit 2 as the location for 95 percent of all “confirmed and probable polar bear dens.” Unit 3’s barrier islands not only provide historical denning habitats but also serve as migration corridors and offer refuge from “human disturbance.”

Circuit Judges Mary M. Schroeder, Johnnie B. Rawlinson and Mary H. Murguia find that the total area of the USFWS designated critical polar bear habitats is not unjustifiably large for the roaming requirements of polar bears. The panel refers to a study tracking the activity of three bears in different years throughout Unit 2’s terrestrial denning habitats.

“The study documented that annually, the active range of a female polar bear is an average of 92,584 square miles. The habitat designation of a total of approximately 187,000 miles cannot be legitimately characterized as ‘excessive.’”

young polar bears (Ursus maritimus), Barter Island, off the 1002 area of the Arctic National Wildlife Refuge, North Slope of the Brooks Range, Alaska, October 2011; photo by Steven Kazlowsky/Nature Picture Library: UCLA IoES @UCLAIoES, via TwitterMarch 1, 2016

Acknowledgment

My special thanks to talented artists and photographers/concerned organizations who make their fine images available on the internet.

Image credits:

Polar bear cubs (Ursus maritimus) "emerge from their den in the spring and head to the ocean in search of food," Wednesday, Nov. 10, 2010 (date of original 2010-11-10): USFWS Alaska Region, Public Domain, via US Fish and Wildlife Service National Digital Library @ http://digitalmedia.fws.gov/cdm/singleitem/collection/natdiglib/id/11127/

young polar bears (Ursus maritimus), Barter Island, off the 1002 area of the Arctic National Wildlife Refuge, North Slope of the Brooks Range, Alaska, October 2011; photo by Steven Kazlowsky/Nature Picture Library: UCLA IoES @UCLAIoES, via Twitter March 1, 2016, @ https://twitter.com/UCLAIoES/status/704751890496532480

For further information:

"Alaska Oil and Gas Association, et al. v. Sally Jewell, et al.: Opinion by Judge Schroeder." United States Court of Appeals for the Ninth Circuit. No. 13-35619. Filed Feb. 29, 2016.
Available @ https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/29/13-35619.pdf

"Endangered and Threatened Wildlife and Plants: Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range." Federal Register, Part II, vol. 73, no. 95 (Thursday, May 15, 2008): 28211-28303.
Available @ http://www.fws.gov/alaska/fisheries/mmm/polarbear/pdf/Polar_Bear_Final_Rule.pdf

UCLA IoES @UCLAIoES. "Fed. court restores 120M acres #polarbear habitat." Twitter. March 1, 2016.
Available @ https://twitter.com/UCLAIoES/status/704751890496532480