Polar Bears: Listing Under the Endangered Species Act

Polar Bears: Listing Under the
Endangered Species Act
Updated September 2, 2008
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
M. Lynne Corn
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Kristina Alexander
Legislative Attorney
American Law Division

Polar Bears: Listing Under the
Endangered Species Act
On May 14, 2008, Interior Secretary Dirk Kempthorne announced the listing of
polar bears as threatened under the Endangered Species Act (ESA). The
controversial decision highlights the intersection of two significant issues currently
before Congress — climate change and species protection. Under the ESA, a listing
decision must rest solely on the best available scientific information concerning the
species. Habitat loss has been a major reason for many decisions to add species to
the list — in this case, loss of Arctic sea ice. The listing itself was praised by some
environmentalists, who nonetheless deplored interim protective regulations for the
polar bear as being too weak. Other parties, who opposed the listing itself, argued
that the science supporting listing was weak, but felt that the regulations mitigated
some of the economic impacts of the listing.
Polar bears depend on Arctic sea ice, which most scientists acknowledge will
be affected by climate change causing, at minimum, an earlier annual or seasonal
thaw and a later freeze of coastal sea ice. Scientists generally agree that in recent
decades, the observed extent of Arctic sea ice has declined significantly as the result
of climate warming: annual ice break-up in many areas is occurring earlier and
freeze-up later. Globally, less than one-third of the 19 known or recognized polar
bear populations are declining, more than one-third are increasing or stable. For the
remaining one-third there is insufficient data to estimate population trends. Two
polar bear populations occur within U.S. jurisdiction. There is considerable
uncertainty in estimates of polar bear population numbers and trends as well as in our
understanding of polar bear habitat.
Polar bears are affected by climate change, environmental contaminants, and
subsistence and sport hunting. Arctic sea ice is experiencing a continuing decline
that may not be reversed easily, and some models project that late summer
(September) sea ice could even disappear completely by mid-century. Controversy
exists over how great a threat the changing climate might be to polar bears and
whether they might be able to adapt to these changing conditions.
Some point out that polar bears today are not coping with changing climate
alone, but also face a host of other human-induced factors — including oil and gas
exploration, shipping, contaminants, and reduced prey populations — that compound
the threat to their continued existence. Three main groups of contaminants threaten
polar bears — petroleum hydrocarbons, persistent organic pollutants, and heavy
metals. The United States has allowed limited subsistence harvest of polar bears by
Alaska Natives. In Canada, Native hunters are permitted to allocate a limited portion
of the subsistence harvest to sport hunters. Under 1994 amendments to the Marine
Mammal Protection Act (MMPA), U.S. citizens may obtain permits to import sport-
harvested polar bear trophies from Canada. However, with ESA listing, polar bear
populations are defined as depleted under MMPA, and therefore entry of these
trophies is prohibited by MMPA.

Background ......................................................1
Polar Bear Life Cycle...........................................2
Effects of Climate Change...................................4
Contaminants .............................................7
Subsistence and Sport Harvest................................8
Other U.S. Laws, Agreements, and Treaties........................10
The Listing Decision: Continuing Controversy..........................11
Protection Efforts.............................................12
Special Rules for a Threatened Species............................14
What Is a Take?..........................................16
Consultation Under Section 7...............................16
Litigation and the Polar Bear........................................18
Center for Biological Diversity..................................19
Other Suits Filed Based on Listing...............................20
Other Suits Filed Based on Oil and Gas Activities’ Impact
on Polar Bears and Other Marine Mammals....................21
Controversies ....................................................22
List of Figures
Figure 1. Distribution of Polar Bear Populations
Throughout the Circumpolar Basin................................3

Polar Bears: Listing Under the
Endangered Species Act
Acting under a court-ordered deadline, on May 14, 2008, Interior Secretary Dirk
Kempthorne announced a decision to list the polar bear as threatened throughout its
range, and to issue special interim final rules for its conservation. The decision to list
the species under the Endangered Species Act (ESA; 16 U.S.C. §§ 1531 et seq.)
highlights the intersection of two significant issues currently before Congress —
climate change and species protection. Listing decisions must rest solely on the best
available scientific understanding of the species. For this species, a major threat is
loss of its primary habitat on the Arctic sea ice, an ecosystem that is changing rapidly.
The polar bear, Ursus maritimus, is the largest terrestrial carnivore and a top
predator, inhabiting circumpolar Arctic regions wherever sea ice is present for a
substantial part of the year. Polar bears are well adapted to the Arctic, where ice
thickness can increase or decrease rapidly as well as differ significantly from year to
year and between regions.1 Nineteen known or identified populations of polar bears
are estimated to total 20,000 to 25,000 animals (Figure 1). Two of these populations
occur within U.S. jurisdiction — the Southern Beaufort Sea population (shared about
equally with Canada), estimated at 1,526 animals;2 and the Chukchi/Bering Seas
population (shared with Russia), estimated at about 2,000 animals.3
Robust data on polar bear populations are difficult to obtain. Globally, less than
one-third of the world’s 19 polar bear populations are known to be declining, and
more than one-third are increasing or stable. In the remaining third, data are
insufficient to estimate population trends and their status has not been assessed.4 In
the United States, the polar bear population shared with Canada in the Southern
Beaufort Sea may be starting to decline. In the Chukchi Sea population, shared with
the Russia, over-harvest on the Russian side is considered a problem. Elsewhere,

1 Seymour Laxon, Neil Peacock, and Doug Smith, “High Interannual Variability of Sea Ice
Thickness in the Arctic Region,” Nature, v. 425 (October 30, 2003): 947-950.
2 E. V. Regehr, S. C. Amstrup, and I. Stirling, Polar Bear Population Status in the Southern
Beaufort Sea, U.S. Geological Survey, Open File Report 1337 (2006).
3 This population estimate, by the Polar Bear Specialist Group, has low statistical
confidence, with no estimate of precision or bias. See Proceedings of the 14th Working
Meeting of the IUCN/SSC Polar Bear Specialist Group, Occasional Paper of the IUCN
Species Survival Commission No. 32 (2006), available at [http://pbsg.npolar.no/
docs/PBSG14proc.pdf]; hereafter referred to as “Polar Bear Specialist Group.”
4 Polar Bear Specialist Group, pp. 34-35.

studies suggest that polar bear numbers are declining in Western Hudson Bay;5 a
multi-year study, following local reports of more bears being seen in the northern
parts of the population range, will determine if the observed decline is the result of
a change in distribution or an actual reduction in abundance.6 Simulations suggest
that polar bear populations are also declining in Baffin Bay, Kane Basin, and
Norwegian Bay. The status of polar bears in the Central Arctic Basin — where there
are transient bears that normally reside in other regional populations — is unknown.
Two of the most southerly polar bear populations, in Southern Hudson Bay7 and
Davis Strait,8 show no evidence of population decline over the past two decades of
decreasing sea ice.
Much of what is known about the polar bear populations and habitat is confined
to regions close to shore that have been studied during long summer days, with little
known about what happens on drifting sea ice far from shore, especially in winter
when there is little or no daylight. Some observers urge caution in interpreting
studies of sea ice change that are based primarily on surveys of nearshore regions,
rather than the drifting sea ice environment in the Central Arctic Basin, where ice
may be thickest. While the Central Arctic Basin currently is marginal habitat for
small numbers of transient bears from other populations, changing climate could
cause this area to become more important as a refugium for polar bears.
Polar Bear Life Cycle
The primary food of this large predator is the ringed seal (Phoca hispida). A
polar bear may stalk a seal by waiting quietly for one to emerge from an opening in
the ice that seals make to breathe or to climb out of the water to rest. Ringed seals
have a circumpolar distribution and are associated with ice for birthing and molting
in the spring. Much of ringed seal habitat (especially in offshore drifting sea ice) has
not been surveyed, leading to much uncertainty regarding population size and status.
Current estimates of the global population numbers for ringed seals range from 2
million to as many as 7 million animals. Other polar bear prey include bearded and
harp seals, juvenile walrus, beluga whales, narwhal, fish, and seabirds and their eggs.
Over most of their range, polar bears remain on the sea ice year-round or spend at
most only short periods on land. In October and November, male polar bears, and
females that are not pregnant, head out onto sea ice where they spend the winter.

5 I. Stirling and C. Parkinson, “Possible Effects of Climate Warming on Selected
Populations of Polar Bears (Ursus maritimus) in the Canadian Arctic,” Arctic, v. 59
(September 2006): 261-275.
6 Government of Nunavut, Submission from the Government of Nunavut, Department of
Environment to the Supervisor, U.S. FWS, April 6, 2007, Appendix A, p. 31. The study was
to be completed in the fall of 2007; final results are not yet available.
7 I. Stirling et al., “Polar Bear Distribution and Abundance on the Southwestern Hudson Bay
Coast During the Open Water Season, in Relation to Population Trends and Annual Sea Ice
Patterns,” Arctic, v. 57 (March 2004): 15-26.
8 Government of Nunavut, Submission from the Government of Nunavut, Department of
Environment to the Supervisor, U.S. FWS, April 6, 2007, p.7.

Figure 1. Distribution of Polar Bear Populations
Throughout the Circumpolar Basin

Source: Polar Bear Specialist Group, Proceedings of the 14th Working Meeting of the
IUCN/SSC Polar Bear Specialist Group, p. 33. SB = Southern Beaufort Sea, NB =
Northern Beaufort Sea, VM = Viscount Melville, NW = Norwegian Bay, LS = Lancaster
Sound, MC = McClintock Channel, GB = Gulf of Boothia, FB = Foxe Basin, WH =
Western Hudson Bay, SH = Southern Hudson Bay, KB = Kane Basin, BB = Baffin Bay,
DS = Davis Strait.
Pregnant females dig large dens in snow where they give birth and spend the9
winter. Females seek denning sites either on the sea ice (“pelagic bears”) or on
mainland areas (“nearshore bears”); some individuals seem to prefer mainland sites.10
Both pelagic and nearshore individuals are known in all subpopulations studied.
Annual rates of population increase for polar bears may be as much as 5%, with
9 U.S. Dept. of the Interior, Fish and Wildlife Service, “Polar Bear Fact Sheet,” available at
[http://www.fws.gov/home/feature/2006/polarbear.pdf], and “Polar Bear Questions and
Answers,” available at [http://www.fws.gov/home/feature/2006/PolarbearFAQ.pdf].
10 Mette Mauritzen, Andrew E. Derocher, and Oystein Wiig, “Space-Use Strategies of
Female Polar Bears in a Dynamic Sea Ice Habitat,” Canadian Journal of Zoology, v. 79
(September 2001): 1704-1713.

mature females reproducing once every three years (commonly twins, more rarely
triplets).11 Large carnivorous mammals are generally considered to be most at risk
of population declines and extinctions,12 and the minimum viable total population of
polar bears has been estimated at 4,961 adults.13
Effects of Climate Change.14 Climate change is widely considered one of15
the most significant contemporary threats to biodiversity worldwide. Studies by the
U.S. Geological Survey (USGS) state that two-thirds of the world’s polar bear16
population could be lost within 50 years. A May 2002 report by the World
Wildlife Fund raised public concern that polar bear populations are threatened by17
climate change. Scientists have observed that, in recent decades, the extent of
Arctic sea ice has declined significantly, and indicate that the reduction results from
climate warming: annual ice break-up in many areas is occurring earlier and freeze-
up later. Arctic sea ice is experiencing a continuing decline that, it is thought, may18
not easily be reversed, and some models project that Arctic late summer
(September) sea ice could disappear completely by mid-century.19 In an analysis of

11 A. E. Derocher, “Polar Bear,” In Encyclopedia of the Arctic, M. Nuttall, ed. (Routledge,

2005), v. 3, p. 1656-1658.

12 M. Cardillo et al., “Multiple Causes of High Extinction Risk in Large Mammal Species,”
Science, v. 309, no. 5738 (August 19, 2005): 1239-1241.
13 D. H. Reed et al., “Estimates of Minimum Viable Population Sizes for Vertebrates and
Factors Influencing Those Estimates,” Biological Conservation, v. 113, no. 1 (September
2003): 23-34. A minimum viable population is “the smallest-size interbreeding group of a
particular species that can sustain itself over time; if the group becomes any smaller, it will
fail to replace itself successfully and slowly die out.” (The Dictionary of Ecology and
Environmental Science, Henry Holt & Co., New York, 1993.) The measurement reflects
especially a need for genetic diversity, and does not directly address major impacts of
habitat loss, disease, etc.
14 For background on climate change generally, see CRS Report RL33849, Climate Change:
Science and Policy Implications, by Jane Leggett.
15 C. D. Thomas et al., “Extinction Risk from Climate Change,” Nature, v. 427, no. 6970
(January 8, 2004): 145-148; Arctic Climate Impact Assessment, Impacts of a Warming
Arctic: Arctic Climate Impact Assessment (Cambridge University Press, 2005), 144 p.
16 USGS studies are available at [http://www.usgs.gov/newsroom/special/polar%5Fbears/].
17 Stefan Norris, Lynn Rosentrater, and Pal Martin Eid, Polar Bears at Risk (World Wildlife
Fund, May 2002), available at [http://www.ngo.grida.no/wwfap/polarbears/risk/PolarBears
18 R. W. Lindsay and J. Zhang, “The Thinning of the Arctic Sea Ice, 1988-2003: Have We
Passed a Tipping Point?” Journal of Climate, v. 18, no. 22 (2005), pp. 4879-4894.
19 Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Science
Basis, Summary for Policymakers (Geneva, Switzerland: February 2007), 21 pp. This
estimate is considered optimistic by some scientists, who argue that the Arctic could be ice-
free in late summer in as soon as 30 years. For example, see Stroeve, J., M. M. Holland, W.
Meier, T. Scambos, and M. Serreze (2007), Arctic sea ice decline: Faster than forecast,
Geophys. Res. Lett., 34, L09501, doi:10.1029/2007GL029703. Available at [http://www.
agu.org/ j ournals/scripts/highlight.php?pid=2007GL029703&cls=edt].

climate models in light of Arctic ice conditions and polar bear impacts, USGS
addressed the uncertainties in the models, but stated:
Climate model simulations are in universal accord that greenhouse gas
increases will cause Arctic sea ice cover to decline, with the greatest reductions
occurring at the end of the summer melt season.... A further consistency in
climate simulations is the uneven latitudinal distribution of global warming,
which always has its greatest simulated impact in the high northern latitudes.
This “polar amplification” and associated sea ice decline have been consistent
climate simulation features at least since the early simulation of Manabe and
Souffer (1980). Since Chapman and Walsh (1993), declines in Arctic sea ice,
with the largest trends in September, have also been consistently reported in20
observa tions....
However, links between climate-model predictions and threats to polar bears are
characterized as tenuous by many scientists, who point to the limitations of
correlational studies and the hypothetical nature of model-based predictions of
environmental conditions decades into the future.21
Distribution patterns of some polar bear populations have changed in recent
years. Greater numbers of bears are being found onshore near the Bering Sea,22 and
in some parts of Canada,23 with Inuit hunters reporting more bears present on land
during summer and fall.24 There may be several reasons for the observed changes,
including changes in sea ice; those who conduct population censuses of polar bears
will need to be cautious in interpreting whether apparent population variations are
indicative of changing habitat use (e.g., greater numbers of bears onshore) or actual
changes in population abundance. Recent studies found that mid-latitude European

20 U.S. Department of the Interior, Geological Survey, “Uncertainty in Climate Model
Projections of Arctic Sea Ice Decline: an Evaluation Relevant to Polar Bears,” 2007, p. 21.
Available at [http://www.usgs.gov/newsroom/special/polar_bears/docs/USGS_PolarBear_
21 D. Berteaux et al., “Constraints to Projecting the Effects of Climate Change on
Mammals,” Climate Research, v. 32 (October 2006): 151-158; D. B. Botkin et al.,
“Forecasting the Effects of Global Warming on Biodiversity,” Bioscience, v. 57 (March
2007): 227-236; C. J. Krebs and D. Berteaux, “Problems and Pitfalls in Relating Climate
Variability to Population Dynamics,” Climate Research, v. 32 (October 2006): 143-149; and
M. G. Dyck, et al., “Polar Bears of Western Hudson Bay and Climate Change: Are Warming
Spring Air Temperatures the ‘Ultimate’ Survival Control Factor?” September 2007,
Ecological Complexity, v. 4, No. 3, p. 73-84.
22 S. L. Schliebe, T. Evans, S. Miller, and J. Wilder, “Fall Distribution of Polar Bears along
Northern Alaska Coastal Areas and Relationship to Pack Ice Position,” in Collection ofth
Scientific Papers from the 4 International Conference of Marine Mammals of the
Holarctic, V. M. Belkovich, ed. (St. Petersburg, Russia: 2006), p. 559.
23 E. K. Parks et al., “Seasonal and Annual Movement Patterns of Polar Bears on the Sea Ice
of Hudson Bay,” Canadian Journal of Zoology, v. 84, no. 9 (September 2006): 1281-1294.
24 Unpublished reports in 2005 by M. Dowsley and M. Taylor, as cited in the FWS polar
bear status assessment report. The polar bear status assessment document is available at
[ http://alaska.fws.gov/ fisheries/ mmm/ p o l a r b e a r / p d f / P o l a r _ B e a r _ % 2 0 S t a t u s _ A s s e s s m e n t .

populations of Arctic fox became extinct at the end of the Pleistocene and did not
track the habitat when it shifted to the north, suggesting that some populations of
Arctic species are unable to track decreases in habitat availability and may be
vulnerable to increases in global temperatures.25
A loss of sea ice could affect survival and reproduction of polar bears by:
!shortening the season during which ice is available to serve as a
platform for hunting ringed seals;26
!increasing the distance between the ice edge and land, thereby
making it more difficult for nearshore female bears that prefer to den
on land to reach preferred denning areas;
!reducing the availability of sea ice dens for gestating pelagic female
!requiring nearshore bears to travel through fragmented sea ice and
open water, which uses more energy than walking across stable ice
formations; 27
!reducing the availability and accessibility of ice-dependent prey,
such as ringed seals, to nearshore populations;28 and
!requiring nearshore bears to spend more time on land, thereby
increasing the potential for adverse human-polar bear interactions.29
In addition to changing sea ice conditions, others have expressed concern that climate
change could affect the integrity of polar bear den sites, as rain can destroy ice dens,
exposing young polar bears to the elements prematurely.30

25 Love Dalen et al., “Ancient DNA Reveals Lack of Postglacial Habitat Tracking in the
Arctic Fox,” Proceedings of the National Academy of Sciences of the United States of
America, v. 104, no. 16 (April 17, 2007): 6726-6729.
26 For every week earlier the sea ice breaks up, bears come ashore 10 kilograms lighter in
weight, on average. See Ian Stirling and A. E. Derocher, “Possible Impacts of Climatic
Warming on Polar Bears,” Arctic, v. 46 (1993): 240-245.
27 Loss of sea ice forces polar bears to cross large expanses of water and increases risk of
drowning. In 2004, scientists documented polar bears swimming as far as 60 miles offshore
and observed 4 drowned bears. See C. Monnett and J. S. Gleason, “Observation of
Mortality Associated with Extended Open-Water Swimming by Polar Bears in the Alaskan
Beaufort Sea,” Polar Biology, v. 29, no. 8 (July 2006): 681-687.
28 I. Stirling and C. L. Parkinson, “Possible Effects of Climate Warming on Selected
Populations of Polar Bears (Ursus maritimus) in the Canadian Arctic,” Arctic, v. 59, no. 3
(September 2006): 261-275; S. H. Ferguson, I. Stirling, and P. McLoughlin, “Climate
Change and Ringed Seal (Phoca hispida) Recruitment in Western Hudson Bay,” Marine
Mammal Science, v. 21, no. 1 (January 2005): 121-135.
29 Marine Mammal Commission. Annual Report to Congress, 2005 (Bethesda, MD: July 15,

2006), p. 52.

30 Stefan Norris, Lynn Rosentrater, and Pal Martin Eid, Polar Bears at Risk (World Wildlife
Fund, May 2002).

Although some scientists predict the extinction of polar bears under potential
climate change scenarios, not all sea-ice changes would harm polar bears. For
example, reduced sea ice thickness and coverage in far northern regions could
improve polar bear habitat, by increasing the availability and accessibility of ice-
dependent prey, such as ringed seals.31 Others remind biologists that climate-related
changes to a species’ distribution may not necessarily lead to changes in abundance.32
Contaminants. Three main groups of contaminants are implicated as
potentially threatening polar bears — petroleum hydrocarbons, persistent organic
pollutants, and heavy metals. Moreover, climate change may alter contaminant
pathways through increased precipitation, increasing the potential threat to polar
bears.33 Polar bears are particularly vulnerable to oil spills, because oil damages
polar bear fur (decreasing the bears’ ability to thermoregulate) and because of oil
ingestion (poisoning) via grooming and/or eating contaminated prey.34 Although
elevated concentrations of some persistent organic pollutants have been discovered
in polar bears, it has been difficult to determine what biological effects these
chemicals might have on polar bears; weakened immune systems and reduced
reproductive success are among the concerns.35 Some persistent organic pollutants
are endocrine disruptors and are thought to cause pseudo-hermaphrodism and
aberrant genital morphology in polar bears.36 Mercury is a particular concern because
of its toxicity at low concentration, and its magnification and accumulation through
the food web. However, polar bears appear able to demethylate (i.e., alter the
chemical form and biological reactivity of) mercury and accumulate somewhat
elevated levels of mercury without harm.37

31 A. E. Derocher, N. J. Lunn, and I. Stirling, “Polar Bears in a Warming Climate,”
Integrative and Comparative Biology, v. 44, no. 2 (April 2004): 163-176.
32 C. J. Krebs and D. Berteaux, “Problems and Pitfalls in Relating Climate Variability to
Population Dynamics,” Climate Research, v. 32 (2006): 143-149.
33 R. W. Macdonald, T. Harner, and J. Fyfe, “Recent Climate Change in the Arctic and Its
Impact on Contaminant Pathways and Interpretation of Temporal Trend Data: Review
Article,” Science of The Total Environment, v. 342, no. 1-3 (April 1, 2005): 5-86.
34 D. J. St. Aubin, “Physiologic and Toxic Effects on Polar Bears,” in Sea Mammals and Oil:
Confronting the Risks, J. R. Geraci and D. J. St. Aubin, eds. (New York, NY: Academic
Press, Inc., 1990), p. 235-239; N. A. Oritsland, et al., Effect of Crude Oil on Polar Bears,
Environmental Studies No. 24, Northern Affairs Program, Northern Environmental
Protection Branch, Indian and Northern Affairs, Canada (1981), 268 pp.
35 J. U. Skarre et al., “Ecological Risk Assessment of Persistent Organic Pollutants in the
Arctic,” Toxicology, v. 181-182 (2002): 193-197.
36 C. M. Fossi and L. Marsili, “Effects of Endocrine Disruptors in Aquatic Mammals,” Pure
and Applied Chemistry, v. 75, nos. 11-12 (November-December 2003): 2235-2247.
37 Arctic Monitoring and Assessment Programme, AMAP Assessment 2002: Persistent
Organic Pollutants in the Arctic (Oslo, Norway: 2005), p. 123.

Subsistence and Sport Harvest. The United States allows limited
subsistence harvest of polar bears by Alaska Natives. According to FWS:
The harvest levels in the Southern Beaufort Sea are managed at sustainable
harvest levels under the Native to Native agreement between the Inupiat (Alaska)
and Inuvialuit (Canada) Agreement. The harvest levels in the Chukchi/Bering
seas for the past 10-15 years (150-200 bears/year), which include the legal
harvest in Alaska and an illegal harvest in Chukotka, Russia, are probably
unsustainable. This harvest level is close to or greater than the harvest levels38
during the sport hunting era prior to 1972 (approximately 178 bears/year).
There is particular concern for the Chukchi/Bering Seas population due to anecdotal
evidence that unregulated harvest by Russian Natives on the Chukotka Peninsula may39
be reaching unsustainable levels.
Some have suggested that habitat alteration from climate change may interact
with subsistence and sport harvest to increase polar bear mortality. For example,
they believe that large adult male bears, more likely to be targeted by hunters, could
also be more at risk from the effect of climate change on prey availability since larger
bears require greater amounts of food. Others counter that habitat conditions and
prey availability for polar bears could improve as climate warms as a result of40
increased marine productivity in regions currently dominated by multi-year ice.
Also, male bears represent a threat to cubs and juvenile bears.41 Consequently, any
factor — such as sport and subsistence hunting (which often target adult males) —
that reduces the population of adult males, may increase cub and juvenile
survivorship and therefore may exert a positive influence should bears become
nutritionally challenged in the future.
Canadian Non-Resident Sport Harvest.42 Some argue that a well-
regulated sport harvest, managed for conservation of the population, can provide
strong incentives to conserve a species, and cite waterfowl conservation as an
example of the beneficial effects of sport hunting. In the case of polar bears, big
game hunters argue that the considerable money spent by hunters in northern Canada
gives local people strong incentives to maintain healthy polar bear populations. In
Canada, Native Inuit hunters are permitted to allocate a limited portion of the

38 Fish and Wildlife Service, Alaska Region. Available at [http://alaska.fws.gov/fisheries/
mmm/ p o l a r b e a r / i s s u e s . h t m] .
39 Marine Mammal Commission, Annual Report to Congress, 2005 (Bethesda, MD: July 15,

2006), pp. 50-51.

40 A. E. Derocher, N. J. Lunn, and I. Stirling, “Polar Bears in a Warming Climate,”
Integrative and Comparative Biology, v. 44 (June 2004): 163-176; I. Stirling and C.
Parkinson, “Possible Effects of Climate Warming on Selected Populations of Polar Bears
(Ursus maritimus) in the Canadian Arctic,” Arctic, v. 59 (September 2006): 261-275.
41 A. E. Derocher and O. Wiig, “Infanticide and Cannibalism of Juvenile Polar Bears (Ursus
maritimus) in Svalbard,” Arctic, v. 52 (September 1999): 302-310.
42 Much of the material in this section was provided by Milton M. R. Freeman, Canadian
Circumpolar Institute, University of Alberta, Edmonton.

subsistence harvest to sport hunters.43 Under 1994 amendments to the MMPA,44 U.S.
citizens may obtain permits to import sport-harvested polar bear trophies from
Canada, if taken under quotas scientifically designed to ensure the maintenance of
the affected population at a sustainable level. The U.S. permit issuance fee for sport-
hunted polar bear trophies is $1,000.45
Although each Canadian jurisdiction manages polar bears in its own territory,
non-resident hunts (i.e., sport hunts) only occur in Nunavut and the Northwest
Territories (NWT). Some of the regional polar bear populations in Nunavut and
NWT are shared with other jurisdictions; harvest sharing is undertaken through inter-
jurisdictional meetings and awareness of neighbors’ hunting needs. The overall
harvest quota for each jurisdiction is based on recommendations made by two
federal-provincial-territorial polar bear committees (the Polar Bear Technical
Committee and the Polar Bear Administrative Committee) made up of appropriate
representatives of the relevant Canadian jurisdictions.
Under ESA, the Secretary is required to take into account foreign polar bear
conservation programs, including hunting programs involving non-local (including
U.S.) hunters. These programs, through carefully controlled sport hunting, can play
a role in providing incentives to conserve a species, as well as funding conservation
programs for the hunted species and its habitat. Before polar bears were listed under
ESA, a provision of the MMPA allowed the importation of sport trophy polar bear
artifacts and skins from regulated hunts in Canada. However, an ESA listing as
“threatened” triggers an automatic designation as a “depleted” species under the
MMPA, and therefore prevents U.S. citizens from importing polar bear products into
the United States, due to a violation of the MMPA. Such an import ban, effectively
stopping U.S. participation in the Canadian conservation-based hunting programs,
would, according to some observers, end the financial assistance derived from the
sport hunt, possibly reduce community support for a sustainable harvest, and perhaps
compromise successful community-based conservation programs.46
Economic Impacts. The NWT and Nunavut governments charge non-
resident hunters (i.e., U.S. or other non-Canadian resident) a Can$750 trophy fee plus
a Can$50 tag fee.47 In addition, the local outfitter charges for his/her services and, as
part of that service, hires guides and assistants, provides transportation (dogs and
skidoos), food, and camping gear, and may provide locally made caribou/wolf skin
clothing (or this can be custom-made and purchased) and accommodations in the
community if bad weather prevents leaving on the hunt. In addition, government
license fees benefit communities indirectly by supporting polar bear research and

43 M. M. R. Freeman and G. W. Wenzel, “The Nature and Significance of Polar Bear
Conservation Hunting in the Canadian Arctic,” Arctic, v. 59, no. 1 (2006): 21-30.
44 P.L. 103-238, §§4, 5; 16 U.S.C. § 1371(a)(1); 16 U.S.C. § 1374(c)(5).
45 MMPA, §104(c)(5)(B).
46 M. M. R. Freeman and G. W. Wenzel, “The Nature and Significance of Polar Bear
Conservation Hunting in the Canadian Arctic,” Arctic, v. 59, no. 1 (2006): 21-30.
47 In June 2008, Can$1.00 was equal to US$1.0021.

monitoring. For example, Nunavut spends about Can$1 million annually on polar
bear research and monitoring.
The federal government collects a 6% goods and services tax (GST) on all
goods and services (except food and certain other exempt items) purchased in
Canada. These monies go to the federal government. Almost all the rest of the
money that enters the local community circulates in the community — even the
purchase of supplies from the local cooperative store results in a dividend paid to co-
op members (i.e., virtually all community households). The disbursement of cash
varies from community to community, but in each case, more than 90% is disbursed
and circulates locally. In 2001, the 74 outfitted hunts in Nunavut were reported to
have generated Can$1.221 million, a figure significantly higher than that derived
annually from all other tourist/private visitor activities.48
Other U.S. Laws, Agreements, and Treaties
Besides ESA, polar bears are protected and managed under other domestic laws
and several international agreements. Because the primary habitat of the polar bear
is sea ice and this species is evolutionarily adapted to life at sea, it is managed as a
marine mammal. In the United States, polar bears are protected under the MMPA,
with the Fish and Wildlife Service (FWS) in the Department of the Interior as the
federal management agency. Marginal benefits are also provided by the Outer
Continental Shelf Lands Act (43 U.S.C. §§ 1331-1356) and the Coastal Zone
Management Act (16 U.S.C. §§ 1451-1464). The Alaska Nanuuq Commission, a
Native organization representing villages in northern and northwestern Alaska, has
a co-management agreement with the FWS to provide input on matters related to the
conservation and sustainable use of polar bears.49
Internationally, the multilateral 1973 Agreement on the Conservation of Polar
Bears50 and the 2000 bilateral Agreement Between the Government of the United
States of America and the Government of the Russian Federation on the
Conservation and Management of the Alaska-Chukotka Polar Bear Population51
provide a basis for cooperation on polar bear management, though over-harvest on
the Russian side is thought to have reduced this population. Alaska and Canada
exercise joint cross-border management through the Inuvialuit-Inupiat Polar Bear
Management Agreement for the Southern Beaufort Sea.52 The International Union
for the Conservation of Nature (IUCN) classifies the polar bear as vulnerable on the

48 This Can$1.2 million is a minimal figure, as the Wenzel and Bourgouin study focused
exclusively on the polar bear hunt; some hunters also hunt for a muskox, caribou, wolf, or
grizzly bear, incurring additional costs when extending the stay in the community for these
additional hunts.
49 See [http://www.nanuuq.info/index.html].
50 Parties to this agreement are Canada, Denmark, Norway, the Russian Federation, and the
United States. See [http://sedac.ciesin.org/entri/texts/polar.bears.1973.html].
51 See [http://alaska.fws.gov/media/pbsigning/agreement.html].
52 See [http://pubs.aina.ucalgary.ca/arctic/Arctic55-4-362.pdf].

IUCN Red List of Threatened Species. The IUCN classification of vulnerable
represents a judgment that the species is facing a high risk of extinction in the wild.53
In addition, polar bears are listed on Appendix II of the Convention on
International Trade in Endangered Species of Fauna and Flora (CITES). Appendix
II lists species not necessarily threatened with extinction but requiring controlled
trade to prevent population declines, as well as other species whose body parts are
difficult to distinguish by visual inspection (the so-called “look-alike” problem, in
this case in controlling trade in bear gall bladders).54 ESA implements CITES
provisions domestically. As such, ESA affords protection to endangered species and
wildlife of global concern. To complement CITES, ESA specifically prohibits
interstate and foreign commerce in ESA-listed species. FWS agents and inspectors
work to control any illegal trade and international movement of ESA-listed species,
since some species found in other countries may be brought into the United States by
activities that could threaten their long-term survival. International provisions of
ESA are applicable to activities within U.S. jurisdiction, as well as activities by U.S.
citizens anywhere, including the high seas.
The Listing Decision: Continuing Controversy
On May 14, 2008, in response to a court-ordered deadline, Interior Secretary
Kempthorne announced a decision to list polar bears as threatened under the ESA.55
The listing decision itself was supported by environmental groups and various
scientific societies; others, including the state of Alaska, opposed it, arguing that the
science supporting listing was weak. (See discussion below.) In addition, the
Secretary announced special rules under § 4(d) of ESA to address how the agency
will handle the consultation that federal agencies must carry out for actions which
“may affect” listed species and how the prohibitions on takings under ESA’s § 9 may
be limited. Here, the situation was reversed: environmental groups decried the rules,
saying that they violated the ESA, and did not sufficiently address recovery of the
species; opponents of listing felt that the special rules would lessen the economic
impact of listing, would help prevent the ESA being used as a lever to force action
on global climate change, and might allow northern economic development greater
freedom. (See discussion below.) Legal challenges both to the listing and to the56
special rules were announced shortly after the announcement of the decision. The

53 This assessment is based on a suspected population decline of more than 30% within three
generations (45 years) due to decline in area of occupancy, extent of occurrence, and habitat
54 For additional background on CITES, see CRS Report RL32751, The Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES): Background
and Issues, by Pervaze A. Sheikh and M. Lynne Corn.
55 Listing: 73 Fed. Reg. 28211-28303, May 15, 2008; 50 C.F.R. § 17.11(h). Special rule:

73 Fed. Reg. 28305-28318, May 15, 2008; 50 C.F.R. § 17.40(q).

56 See “Alaska will try to block polar bear listing”, available at [http://www.eenews.net/
Greenwire/2008/05/22/3]; “Polar Bear Listing Opens Door to New Lawsuits”, available at

actions leading to the listing are described below, followed by an analysis of
litigation concerning polar bears, and of controversies concerning the listing itself
and the special rule.
Protection Efforts
On February 17, 2005, FWS received a petition from the Center for Biological
Diversity requesting that FWS list the polar bear as threatened under ESA throughout
its range and that it designate critical habitat for this species.57 The Natural
Resources Defense Council and Greenpeace, Inc., joined as petitioners on July 5,

2005. On December 15, 2005, the petitioners filed a complaint in federal court,

challenging FWS’s failure to issue a 90-day finding on the petition. On February 7,
2006, FWS announced a finding that the petition presented substantial scientific
information indicating that listing the polar bear might be warranted, and
subsequently announced the initiation of a formal status review.58 Under ESA, the
Secretary of the Interior was to decide whether to list polar bears based solely on the
best available scientific and commercial (i.e., trade) information,59 after an extensive
series of procedural steps to ensure public participation and the collection of relevant
As in other listing decisions, the polar bear decision was to consider information
relating to five factors: habitat destruction, overutilization, disease or predation,
inadequacy of other regulatory mechanisms, and other natural or manmade factors.60
At this point in the ESA process, the Secretary may not consider the economic effects
that listing may have. The listing determination is the only place in ESA where
economic considerations are expressly forbidden; such considerations may enter in
other stages, including critical habitat designation.

56 (...continued)
[http://www.sciencemag.org]; and “Groups take polar bear listing back to court”, available
at [http://www.eenews.net/Greenwire/2008/05/20/1/].
57 A species may be designated as either endangered or threatened, depending on the severity
of its decline and threats to its continued survival. The prohibitions and penalties of ESA
apply to those species listed as endangered. FWS extends the same prohibitions to
threatened species as well unless, under § 4(d) of ESA, the Secretary promulgates special
regulations to address the plight of species listed as threatened. Protections and recovery
measures for a particular threatened species can be tailored to particular situations. 50
C.F.R. § 17.31 also affords threatened species for which a special rule has not been
promulgated the same protections as endangered species. For additional background on
ESA as well as regulatory procedures under this act, see CRS Report RL31654, The
Endangered Species Act: A Primer, by M. Lynne Corn, Eugene H. Buck, and Pamela
58 71 Fed. Reg. 6745 (February 9, 2006). Information on the status of the polar bear was
solicited from the public in this notice and again in 71 Fed. Reg. 28653 (May 17, 2006).
59 16 U.S.C. § 1533(b)(1)(A).
60 16 U.S.C. § 1533(a)(1).

Economic factors cannot be taken into account at this stage because Congress
directed that ESA listing be fundamentally a scientific question: is the continued
existence of the species threatened or endangered? With the listing of a species
under ESA, federal agencies are required to ensure that anything the federal
government authorizes, funds, or carries out that is likely to affect the species or its
habitat will not jeopardize the survival of the species or destroy or adversely modify
its designated critical habitat.
In a settlement agreement to the 2005 lawsuit by environmental groups,
approved on July 5, 2006, FWS agreed to submit a 12-month finding on the petition
by December 27, 2006. On January 9, 2007, FWS announced its 12-month finding
on the petition — concluding that, after a review of scientific and commercial
information, listing the polar bear as a threatened species under ESA was warranted
— and formally proposed such listing.61 This proposed rule did not designate critical
habitat for the polar bear. A 90-day period (through April 9, 2007) was announced
to receive data and comments, with requests for a public hearing accepted for 45 days
(through February 23, 2007). A decision on whether to list polar bears was due from
FWS in early January 2008. However, FWS announced on January 7, 2008, that this
decision was delayed and would be finalized “within the next month.”62 Some
suggested that the delay in listing the polar bear was beneficial to proceeding
unimpeded with the Mineral Management Service’s Chukchi Sea Planning Area Oil
& Gas Lease Sale 193 on February 6, 2008, in Anchorage, Alaska.63 The
Administration held that an ESA listing would have no effect on the lease sale, since
polar bears were already considered in the lease sale, due to their protected status
under the MMPA.64
After additional delays in announcing a listing decision, on March 10, 2008, the
Natural Resources Defense Council, Greenpeace, and the Center for Biological
Diversity filed a lawsuit in U.S. District Court in San Francisco, seeking to compel
FWS to issue a final decision immediately on whether to list polar bears as a
threatened species. On April 28, 2008, Judge Claudia Wilken of the U.S. District
Court, Northern District of California, ruled that the final decision on listing must be
published in the Federal Register no later than May 15, 2008. Secretary Kempthorne

61 72 Fed. Reg. 1064-1099 (January 9, 2007). The polar bear status assessment document
is available at [http://alaska.fws.gov/fisheries/mmm/polarbear/pdf/Polar_Bear_%20Status_
62 News release at [http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=


63 “Bush Administration Set to Offer Chukchi Sea to Oil Industry,” AlaskaWild Update, no.

272 (January 10, 2008) at [http://www.alaskawild.org/alaskawild-update-272-january-10-


64 “Bush admin seeks 10 more weeks for polar bear decision”, by Allison Winter.
Greenwire, April 14, 2008. Available at [http://www.eenews.net/Greenwire/print/ 2008/04/


issued the decision to list the species on May 14.65 Provisions of the decision are
discussed below.
Internationally, in late April 2008, the Committee on the Status of Endangered
Wildlife in Canada (COSEWIC) announced a status assessment of the polar bear in
Canada as a species of “special concern,” with a more detailed official report
scheduled for release in August 2008. After the August COSEWIC report is
received, Canada’s Environment Minister, John Baird, will issue a statement
outlining how the Government of Canada will proceed toward a decision on polar
bear listing under Canada’s Species at Risk Act.66 In addition, the multilateral 1973
Agreement on the Conservation of Polar Bears, signed by the United States and the
other four circumpolar nations, offered some protection from over-harvest, although
the Polar Bear Status assessment noted that over-harvest continues in some areas, and
the agreement lacks provisions for the protection of habitats critical to the species.67
On May 8, 2008, Secretary Kempthorne signed a Memorandum of
Understanding (MOU) with Canadian Environment Minister John Baird on the
conservation of polar bears. Canada is thought to host about two-thirds of the world
population of polar bears. The MOU, which is not binding, reflects the two
countries’ agreement on management of the populations whose ranges cross the
boundaries of the two countries.
Special Rules for a Threatened Species
Under the ESA, an endangered species is entitled to a well-defined set of
protections spelled out in § 4 and § 9 of the act. For threatened species, such as the
polar bear, § 4(d) allows FWS to write special rules tailored very specifically to a
species; these rules are generally less restrictive than those applying to endangered
species. The polar bear is the 64th threatened species with such rules.68
For polar bears, many fear — or hope — that a threatened status will enhance
efforts to address global climate change, or to restrict oil and gas development in the
Arctic, since the effects of climate change or energy development could be argued
to affect this species. Before the listing, some groups voiced their intention to file
lawsuits to effect limits on greenhouse gases (GHGs) or Arctic energy development.69

65 Center for Biological Diversity v. Kempthorne, No. C-08-1339, 2008 Westlaw 1902703
(N.D. Cal. April 28, 2008).
66 See [http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=A4C9B4A9-
67 FWS polar bear status assessment report, pp. 131-132. The polar bear status assessment
document is available at [http://alaska.fws.gov/fisheries/mmm/polarbear/pdf/Polar_Bear_%


68 Listing: 73 Fed. Reg. 28211-28303, May 15, 2008; 50 C.F.R. § 17.11(h). Special rule:

73 Fed. Reg. 28305-28318, May 15, 2008; 50 C.F.R. § 17.40(q).

69 For example, see Katie Howell, “Enviro groups seek to further climate, oil and gas
agendas with polar bear listing.” Energy and Environment Daily, May 15, 2008. Available

The groups supporting such suits argued that a cited purpose of the ESA was to
“provide a means whereby the ecosystems on which endangered species and
threatened species depend may be conserved” (16 U.S.C. § 1531(b)) and therefore
such an effort was an appropriate means of conserving this species — as well as
others that may be listed in the future due to climate change. Opponents of listing,
or at least of using polar bear protection as a means of addressing the larger questions
of climate change and Arctic energy development, held that the ESA constitutes
essentially a blunt and unwieldy instrument for policies best set through existing or
new legislation.70
A focus on protecting polar bears from the effects of global climate change in
some of the lawsuits already announced is ESA’s requirement under § 7 that federal
agencies, carrying out actions which “may affect” a listed species, must consult with
FWS on the actions.71 FWS then issues a biological opinion (BiOp) that analyzes the
action, and assesses whether it might jeopardize the species or adversely modify
designated critical habitat. If jeopardy or adverse modification would occur, FWS
offers reasonable and prudent alternatives within the authority of the action agency,
that would permit the action to go forward without jeopardy or adverse
modification.72 Key questions in the FWS consultation process are the severity of
the effects of the proposed action, and the number of polar bears that would be
affected. These requirements are in the statute, and adoption of a special rule under
§ 4(d) cannot modify them. Critics of the special rule argue that polar bear
conservation cannot be addressed without addressing climate change, since loss of
Arctic sea ice is acknowledged as one of the chief threats to the species. Opponents
of addressing climate change in efforts to recover the polar bear hold that the ESA
was not intended to serve as a lever for addressing climate change, and that in any
case, FWS is not equipped to handle the myriad consultations that would result.
The discussion of the special rule for polar bears addresses a variety of other
issues, as well as consultation under §7 and takings under § 9.73 These issues include
subsistence handicrafts, international imports and exports, imports of sport-hunted
trophies, takes in self-defense, incidental takes during fishing and other legitimate
activities, and interaction with military activities. The discussion below focuses on

69 (...continued)
at [http://www.eenews.net/EEDaily/print/2008/05/15/1].
70 “The Threatened Polar Bear”, editorial, Washington Post, May 15, 2008, p. A14.
Available at [http://www.washingtonpost.com/wp-dyn/content/article/2008/05/14/
AR2008051403241.html ].
71 “Polar Bear Listing Opens Door to New Lawsuits”, available at [http://www.sciencemag.
org]; and “Groups take polar bear listing back to court”, available at [http://www.eenews.
72 In the very rare case that no reasonable and prudent alternative within the authority of the
action agency can be found, the action agency has three options: to abandon the action, to
seek a formal exemption under §7 of the ESA, or to proceed and risk a citizen suit under the
broad provisions of § 11(g).
73 73. Fed. Reg. 28305-28318. May 15, 2008.

takings and consultation, which have received the widest attention since issuance of
the special rule.
What Is a Take? The term “take” under the ESA means “to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in
any such conduct.”74 (Harassment and harm are further defined by regulation at 50
C.F.R. § 17.3.) Taking is prohibited under 16 U.S.C. § 1538. There has been
controversy over the extent to which the prohibition on taking may include habitat75
modification. A 1995 Supreme Court decision held that the inclusion of significant
habitat modification was a reasonable interpretation of the term “harm” in the law.
Under the special rule (50 C.F.R. § 17.40(q)(2)) issued by Secretary
Kempthorne on May 14, the take prohibitions that would normally apply to a
threatened species do not
... apply to any activity conducted in a manner that is consistent with the
requirements of [MMPA] and [CITES], provided that the person carrying out the
activity has complied with all of the terms and conditions that apply to that
activity under the provisions of the MMPA and CITES and their implementing
The Secretary stated at the press conference announcing the decision that “polar bears
are already protected under the Marine Mammal Protection Act, which has more
stringent protections for polar bears than the Endangered Species Act does.... If an
activity is permissible under the stricter standards imposed by the [MMPA], it is also
permissible under the [ESA] with respect to the polar bear.”76
Under § 9(a)(1)(G) of ESA, takings of threatened species which “violate any
regulation pertaining to ... any threatened species” are illegal. Some environmental
groups filed notice of an intent to sue, claiming that limiting ESA’s protections
against takings to no more than those available under the MMPA was illegal and that
“take” under ESA offers more habitat protection than MMPA.77
Consultation Under Section 7. In a consultation, FWS must determine
whether the agency’s actions would jeopardize the continued existence of the species,
or adversely modify habitat that has been designated as critical. An agency action
is defined in 50 C.F.R. § 402.02 as “all activities and programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal agencies in the
United States or upon the high seas.” The same provision includes, as examples of

74 16 U.S.C. § 1532.
75 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995)
(“Sweet Home”). See CRS Report 95-778 A, Habitat Modification and the Endangered
Species Act: The Sweet Home Decision, by Pamela Baldwin.
76 Secretary Kempthorne’s remarks at press conference of May 14, 2008. Available at
[ ht t p: / / www.f ws.gov/ home/ f eat ur e/ 2008/ pol ar bear 012308/ pdf / p r e s s -c o n f e r e n ce-r e ma r ks.
77 See “Environmental Groups Seek Full Protection for Polar Bear”, available at
[http://www.biologicaldiversity.or g/ news/press_releases/2008/pol ar-bear-05-20-2008.html ].

such actions, “the promulgation of regulations,” the “granting of leases, easements,
and rights-of-way,” and “actions directly or indirectly causing modifications to the
land, water, or air.” Under §7, as the special rule notes,
... the determination of whether consultation is triggered is narrow; that is, the
focus of the effect analysis is on the discrete effect of the proposed agency
action.... [The] Federal agency evaluates whether consultation is necessary by
analyzing what will happen to the listed species or critical habitat ‘with and
without’ the proposed action.
For some actions (e.g., plants that would be inundated in a new reservoir, or nests
that would be removed in a timber sale), the affected area is obvious. In other cases,
including effects on a species or its habitat some distance away, FWS must consider
the effects caused by the action under consultation that are “reasonably certain to
occur” (50 C.F.R. § 402.02).
Some argue that all power plant emissions should be considered when dealing
with the impacts of climate change on polar ice. In discussing the breadth of the
consultation requirement vis-a-vis emission of GHGs, the special rule states that the
need for a causal connection between the federal action and an effect on polar bears
“narrows section 7 consultation requirements to listed species and critical habitat in
the ‘action area’ rather than to all listed species or all designated critical habitats.”
This interpretation, according to the special rule, avoids the possibility that every
agency action that would produce greenhouse gases would result in consultation.
While this provision in the special rule could limit the number of consultations
regarding polar bears, it is less clear that it would limit their breadth. For example,
if an agency were issuing permits relating to emissions of GHG at a specific site, the
rule’s discussion states
There is currently no way to determine how the emissions from a specific project
under consultation both influence climate change and then subsequently affect
specific listed species or critical habitat, including polar bears. As we now
understand them, the best scientific data currently available does [sic.] not draw
a causal connection between GHG emissions resulting from a specific Federal
action and effects on listed species or critical habitat by climate change, nor are
there sufficient data to establish the required causal connection to the level of
reasonable certainty between an action’s resulting emissions and effect on
species or critical habitat.
The rule suggests that the action agency need not consult on the permit on the
grounds that the causal link between the agency’s action and an effect on polar bears
is too weak. However, if the agency were developing regulations that applied to
emissions for all such sites or emitters, one might argue that implementation of the
regulations “may affect” polar bears and their habitat. Consultation would appear to
be necessary in that case, since the causal link between regulations for all of the
permitted GHG emissions and effects on polar bears might be stronger.
In addition, while the causal connection between emissions of a single GHG
source and polar bear habitat loss is currently tenuous or de minimis, according to
“the best scientific data currently available,” what might happen if scientific analysis

and improved data were to make that causal chain stronger? If that link were forged
in the future, then consultation might be needed, even if the special rule is
Litigation and the Polar Bear
The lawsuit by the Center for Biological Diversity (CBD) that forced the listing
of the polar bear under the ESA was neither the first nor the last lawsuit pertaining
to the bear. This section discusses different legal actions brought under several
different laws that affect the polar bear: ESA, MMPA, the National Environmental
Policy Act (NEPA; 42 U.S.C. § 4321 et seq.), and the Administrative Procedure Act
(5 U.S.C. § 551 et seq.).
The polar bear was listed under the ESA as a result of a petition filed by the
Center for Biological Diversity (CBD). The petition was filed in February 2005, and
when the 90-day finding deadline came and went without response by FWS, CBD78
filed suit to force compliance with the statute. The 90-day finding was published
February 9, 2006, and pursuant to an agreement reached by CBD and FWS, the 12-
month finding was published January 9, 2007. Another lawsuit was filed in January
2008 when the one-year deadline for a final listing determination passed. The
District Court for the Northern District of California directed FWS to issue a final
listing determination on or before May 15, 2008, and to make that determination
effective immediately, instead of allowing 30 days for the decision to become
effective.79 On May 15, 2008, the polar bear listing was published.
The ESA allows “any person” to bring suit against the United States, with some80
restrictions. One restriction is that potential plaintiffs must file a notice with the
offending agency 60 days before filing suit. The 60-day notice requirement is to
allow the agency to correct any omission prior to going to court or to show that it is
already diligently prosecuting the violation. The citizen suit provision allows any
person to seek an injunction against a person or the United States to stop a violation
of the act, and allows suits against FWS or NMFS specifically for those actions that81
are non-discretionary, such as missed deadlines. Suits based on the ESA but not
falling into those categories are not subject to citizen suit under this provision, but82
might be raised under the Administrative Procedure Act (APA).
However, ESA is not the only law on which lawsuits regarding the polar bear
are based. Challenges have also been made under the MMPA and NEPA, using the

78 Center for Biological Diversity v. Kempthorne, No. 05-5191 JSW (N.D. Cal. filed
December 15, 2005).
79 Center for Biological Diversity v. Kempthorne, No. C 08-1339 CW (N.D. Cal. April 28,


80 16 U.S.C. § 1540(g).
81 16 U.S.C. § 1540(g)(1)(A)-(C).
82 Bennett v. Spear, 520 U.S. 154 (1997).

APA as a vehicle to gain access to the courts, as neither of those laws permits citizen
suits. Suits filed under these statutes do not need 60 days’ notice.
Center for Biological Diversity
CBD has amended its existing suit regarding listing the polar bear to introduce
claims that FWS violated NEPA and the APA. CBD’s argument is that the polar
bear special rules (also known as § 4(d) rules, after the part of the ESA in which they
are found) were issued pursuant to a rulemaking and should have been issued with
a notice and comment period under the APA. Also, CBD claims that, as a major
federal action, the special rules should have undergone a NEPA review. There is
little case law on this issue. The CBD lost an argument for a NEPA review of § 4(d)
rules in the same district court for a different animal in 2005.83 Also worth noting,
however, is that the National Marine Fisheries Service (NMFS) prepares NEPA
reviews for its § 4(d) rules, even though FWS does not.
CBD is planning to amend that suit further. CBD filed a 60-day notice of suit
disputing the listing, arguing that the polar bear should have been listed as
endangered, rather than threatened, and claiming that critical habitat should have
been designated. FWS had indicated in its 90-day finding that any critical habitat
determination would be made in a rule subsequent to the listing determination.84
Once the 60 days passes, the claims will be amended into the original suit in the
Northern District of California.
On June 9, 2008, CBD filed a separate 60-day notice of suit with FWS and the
Minerals Management Service (MMS) arguing that the oil and gas industry activities
in the Beaufort and Chukchi Seas violated the ESA. CBD argued that ESA required
MMS to consult with FWS prior to taking certain actions regarding oil and gas leases
in the areas. CBD also argued that FWS should be required to consult under the ESA
before issuing incidental take regulations under the MMPA.
The CBD lost a different lawsuit against FWS for issuing incidental take
regulations for marine mammals under the MMPA in the Beaufort Sea.85 CBD had
argued that the oil and gas industry actions would have more than the negligible
impact allowed by the MMPA on Beaufort Sea polar bears. CBD also argued that
the incidental take regulations were intended to allow only “specified activities,” not
all activities of the oil industry — exploration, development, and production — as
had been approved by FWS. The court found for defendants.
CBD had filed another suit under the MMPA against FWS claiming the agency
did not conduct required stock assessments under the act.86 The parties reached a
settlement in May 2008, wherein FWS agreed to prepare draft stock assessment

83 Center for Biological Diversity v. Kempthorne, No. C04-04324 WHA, 2005 WL 2000928
(N.D. Cal. 2005).
84 71 Fed. Reg. 6745, 6746 (January 9, 2006).
85 Center for Biological Diversity v. Kempthorne, No. 3:07-cv-0141-RRB (D. Alaska).
86 MMPA § 117, 16 U.S.C. § 1386.

reports for the Bering/Chukchi Sea stock of the polar bear, the Beaufort Sea stock of
the polar bear, and the Pacific walrus stock by January 2009.87
Other Suits Filed Based on Listing
Other plaintiffs have sued FWS based on the polar bear listing. Safari Club
International brought suit based on the § 4(d) rules that accompanied the listing. Its
suit was filed under the MMPA and the APA. Safari Club objected to the decision
that said permits to import sport-hunted polar bear trophies from Canada were
nullified by the listing. The plaintiff claimed that the specific language in the MMPA
allowing the import permits superseded the more general language that declared
imports were prohibited if a species became listed as threatened or endangered. Also,
Safari Club argued that at least 11 of its members had permits in the approval process
for bears killed in early 2008 that would no longer be allowed for import.88
Safari Club International also served a 60-day notice on FWS, arguing that
listing the polar bear as a threatened species was erroneous. The notice of June 12,

2008, disputes that 45 years is the correct amount of time for the “foreseeable future,”

and argues that FWS should have established distinct population segments (DPS) and
made separate listing decisions for each DPS. Safari Club is also filing an amicus
brief in the CBD suit.89
The State of Alaska filed suit under the ESA, claiming that the best science
available was not used because the number of polar bears has been increasing;
therefore the population could not be threatened.90 Alaska also argued that existing
protections for the bear were enough, which is one of the five factors FWS was
required to consider when listing a species.91 FWS discussed this issue in the listing
notice. After stating that loss of habitat was the reason for listing the species, FWS
discussed the existing regulatory mechanisms: “While we note that efforts are being
made to address climate change, we are unaware of any programs currently being
shown to effectively reduce loss of polar bear ice habitat at a local, regional, or
Arctic-wide scale.”92
On July 23, 2008, the Pacific Legal Foundation filed a 60-day notice disputing
the science behind the listing decision.

87 Center for Biological Diversity v. Kempthorne, C 07-5109 PJH (N.D. Cal. May 19, 2008).
88 Safari Club International v. Kempthorne, No. 1:08-cv-00881-EGS (D.D.C. filed May 23,


89 Center for Biological Diversity v. Kempthorne, No. 4:08-cv-01339-CW (N.D. Cal. May

13, 2008) (order allowing Safari Club International to file an amicus brief).

90 State of Alaska v. Kempthorne, No. 1:08-cv-01352-EGS (D.D.C. August 4, 2008).
91 ESA § 4(a)(1), 16 U.S.C. § 1533(a)(1).
92 73 Fed. Reg. 28247 (May 15, 2008).

Other Suits Filed Based on Oil and Gas Activities’ Impact
on Polar Bears and Other Marine Mammals
Other lawsuits addressed polar bear protection by challenging the oil and gas
permits in the polar bear’s U.S. habitat: the Chukchi and Beaufort Seas. One of the
earliest suits seeking judicial relief was that brought by subsistence hunters against
MMS for issuing oil and gas leases in the Beaufort Sea that the plaintiffs claimed
would harm whales and polar bears. Their suit was brought under NEPA, arguing
that MMS should have prepared a supplemental environmental impact statement for
the 2007 leases. Instead, MMS prepared an environmental assessment. The court
found in favor of MMS.93
Two lawsuits were filed in 2008 against the Department of the Interior with the
Native Village of Point Hope as the named plaintiff. The first was filed in January

2008.94 In addition to the named plaintiff, 11 other parties, mostly environmental95

groups, are plaintiffs. The suit challenges the MMS decision to offer 29.4 million
acres of outer continental shelf public land in the Chukchi Sea for oil and gas leasing.
It alleges NEPA, APA, and ESA violations pertaining to the polar bear, and to
endangered bowhead, humpback, fin, and right whales, and threatened Steller’s and
spectacled eiders.
The second lawsuit headed by the Native Village of Point Hope seeks to enjoin
the MMS decision to issue permits for seismic surveys in Chukchi and Beaufort96
Seas. Five other plaintiffs joined to claim these permits violate NEPA, MMPA, and
the APA.97 MMS is preparing a programmatic EIS to determine effects of
low-frequency, high-intensity noise from seismic testing on the environment. The
draft was issued in 2007, but the final statement is not completed.98 In the meantime,
MMS will continue to issue permits based on EAs. The EA for the Beaufort Sea
included all activities associated with oil and gas operations over the entire Beaufort
Sea and lands within 25 miles of the coast (excepting the Arctic National Wildlife
Refuge). In the same suit, the plaintiffs named NMFS as defendant for issuing
incidental harassment authorization for taking seals and whales. The applicant for

93 North Slope Borough v. MMS, No. 3:07-cv-0045-RRB, 2008 WL 110889 (D. Alaska
January 8, 2008).
94 Native Village of Point Hope v. Kempthorne, case number unknown (D. Alaska filed
January 31, 2008).
95 City of Point Hope, Inupiat Community of the Arctic Slope, Alaska Wilderness League,
CBD, NRDC, National Audubon Society, Northern Alaska Environmental Center, Oceana,
Pacific Environment, Resisting Environmental Destruction on Indigenous Lands (REDOIL),
Sierra Club, and the Wilderness Society.
96 Native Village of Point Hope v. MMS, case number unknown (D. Alaska filed May 5,


97 Resisting Environmental Destruction on Indigenous Lands (REDOIL), Pacific
Environment, NRDC, CBD, and Alaska Wilderness League.
98 See 72 Fed. Reg. 17117 (April 8, 2007), announcing draft programmatic EIS for seismic
surveys in the Beaufort and Chukchi Seas.

the authorization had estimated that the seismic surveys would take by harassment
1,460 beluga whales, 2,167 bowhead whales, and 34,832 ringed seals, the primary
food source of polar bears.
Supporters of increased protection for polar bears argue that polar bears are the
most iconic Arctic species, representing the Arctic as lions represent Africa. They
further assert that it would be irresponsible to let the polar bear become extinct as a
result of human action, and would be a terrible blow to the psyche of humankind.
However, some critics suggest that listing polar bears as threatened is premature,
with this species being used as a “poster child” for the evils of climate change by the
popular press in recognition of polar bears’ charismatic appeal. Some believe that
other species, such as the less-glamorous walrus, could be facing similar or greater99
immediate risk.
Some scientists also point out that, since polar bears have survived at least two
major warming periods over the last 10,000 years, including the intense warming
event that ended the Last Glacial Maximum about 8,000 to 9,000 years ago (when
temperatures were believed to have been much warmer than now), polar bears and
other Arctic mammals could be capable of adjusting, adapting, and coping with the
current climatic change. At the end of the last Ice Age, the Northern Hemisphere
entered an extended period of rapid warming, with temperatures in Arctic regions
eventually reaching levels several degrees warmer than today. At that time, the sea
ice above North America is known to have retreated substantially, allowing Arctic
species such as bowhead whales and walrus to move northward into areas of the
Canadian Arctic that they cannot reach today. The Mid-Holocene Warm Period
peaked about 11,000-9,000 years ago near Alaska and about 8,000-5,000 years ago
near Greenland and Northern Europe. In both areas, temperatures rose rapidly 10°-

15° Celsius (18°-27°F) to a point significantly warmer than present (about 2.5°

Celsius warmer (4.5°F); but less than the temperatures projected by the
Intergovernmental Panel on Climate Change for 2100), and about 5°-10° Celsius (9°-100

18°F) of that warming took place within 30 years or less.

Another significant but shorter warm period occurred about 1,000 years ago,
when Arctic temperatures were slightly warmer than today. This warming also

99 Natalie Angier, “Ice Dwellers Are Finding Less Ice to Dwell On,” New York Times, May

20, 2008, available at [http://www.nytimes.com/2008/05/20/science/20count.html?_r=1&

ref=science&oref=slogi n].
100 D. S. Kaufman et al., “Holocene Thermal Maximum in the Western Arctic (0-180
Degrees W,” Quaternary Science Reviews, v. 23, nos. 18-19 (October 2004): 2059-2060;
Arthur S. Dyke, et al., “The Late Wisconsinan and Holocene Record of Walrus (Odobenus
rosmarus) from North America: A Review with New Data from Arctic and Atlantic
Canada,” Arctic, v. 52, no. 2 (June 1999): 160-181; Arthur S. Dyke and James M. Savelle,
“Holocene History of the Bering Sea Bowhead Whale (Balaena mysticetus) in its Beaufort
Sea Summer Grounds off Southwestern Victoria Island, Western Canadian Arctic,”
Quaternary Research, v. 55 (2001): 371-379.

triggered sea ice reductions in Arctic regions and was accompanied by significant
reductions in Greenland glaciers, creating so much arable land that Viking settlers
established farms on the west coast of Greenland that were occupied for about 400
There is no evidence to suggest that ice in the Arctic Basin disappeared entirely
during either of these warm periods, which were of equal or greater warming than
predicted by the Intergovernmental Panel on Climate Change’s climate-warming
models, nor did any ice-dependent species become extinct.102 Polar bears and their
primary prey existed before the last Ice Age, and significant populations of them
remain today. The tight association of polar bears and their prey species with moving
sea ice may give them a flexibility that land-based carnivores do not have.
Critics, however, counter that polar bears today are not coping with changing
climate alone, but also face a host of other human-induced factors — including
shipping, oil and gas exploration, contaminants, and reduced prey populations — that103

compound the threat to their continued existence.
101 Willie Soon and Sallie Baliunas, “Proxy Climatic and Environmental Changes of the Past

1000 Years,” Climate Research, v. 23 (January 31, 2003): 89-110.

102 D. B. Botkin et al., “Forecasting the Effects of Global Warming on Biodiversity,”
Bioscience, v. 57 (March 2007): 227-236.
103 A. Shi, A. M. Bell, and J. L. Kerby, “Two Stressors are Far Deadlier Than One,” Trends
in Ecology and Evolution, v. 19 (2004): 274-276.