Does the Endangered Species Act (ESA) Listing Provide More Protection of the Polar Bear?

Does the Endangered Species Act (ESA) Listing
Provide More Protection of the Polar Bear?
Updated October 16, 2008
Kristina Alexander
Legislative Attorney
American Law Division

Does the Endangered Species Act (ESA) Listing
Provide More Protection of the Polar Bear?
Summary
The polar bear has been protected under the Marine Mammal Protection Act
(MMPA) since 1972, meaning that it is illegal to kill or harass the bear or to transport
or trade its parts (with a few exceptions). The Endangered Species Act (ESA) also
prohibits killing or harming listed species. Some ask: If it was already illegal to kill
or harm the bear when the U.S. Fish and Wildlife Service placed the polar bear on
the list of protected species on May 15, 2008, what protections were provided by the
listing?
One example of increased protection is that being listed as a threatened species
categorized the polar bear as a depleted species under the MMPA, meaning that polar
bear trophies could no longer be imported from sport-hunts in Canada, under that
MMPA exception. Approximately 80 bears a year are permitted for import under this
program.
Perhaps the more significant protection offered by the ESA listing is habitat
protection. The ESA has several provisions that function to protect not just the bear,
but its habitat. While the MMPA has habitat protection as a purpose, it does not
require any habitat conservation measures or punish habitat destruction. FWS has
agreed to designate critical habitat by June 30, 2010, and so that environmental
protection will be available then.
The citizen suit provision of the ESA could protect the bear, if litigants use its
terms to challenge not just government actions but those by private parties. The ESA
requires another system that might protect the bear — establishing a recovery plan
— but the Fish and Wildlife Service has not completed the process. At a time a
recovery plan is prepared, it would establish recovery goals and trigger congressional
monitoring of the polar bear’s progress.
Areas in which the ESA might have provided additional protections — such as
for incidental takes or subsistence users — were eliminated by the Special Rules that
accompanied the listing, which defined those protections as no more extensive than
the MMPA. Had the polar bear been listed as an endangered species, rather than
threatened, there would be no special rules, and arguably, the protection would have
increased.

Contents
Protections ...................................................1
Prohibitions ..................................................2
Special Rules.................................................3
Exceptions ...................................................3
Sport-Hunted Polar Bears...................................3
Subsistence Users..........................................4
Incidental Takes in General..................................4
Special Rules for Polar Bears................................5
Section 7 Consultations.........................................6
Habitat and Critical Habitat......................................8
Recovery Plans................................................9
Citizen Suits.................................................10
Difference If Listed As Endangered...............................10
Conclusion ..................................................11

Does the Endangered Species Act (ESA)
Listing Provide More Protection
of the Polar Bear?
On May 15, 2008, the Fish and Wildlife Service (FWS) listed the polar bear as¹
a threatened species under the Endangered Species Act (ESA). Some have
questioned the need to use the ESA to protect the bear, citing other treaties, statutes,
and regulations that protect polar bears, primarily the Marine Mammal Protection Act
(MMPA).² This report discusses what additional protections are provided by the
ESA listing that were not available before.
The Fish and Wildlife Service (FWS) considered existing regulatory protections
before listing the polar bear. That is one of the five factors ESA requires when³
making a listing determination. FWS found that “potential threats to polar bears
from direct take, disturbance by humans, and incidental or harassment take are, for
the most part, adequately addressed through international agreements, national, State,
Provincial or Territorial legislation, and other regulatory mechanisms.”⁴ However,
the polar bear was listed because the bear’s primary habitat of sea ice was threatened
with destruction due to global climate change. FWS found that the bear was likely
to become endangered in the foreseeable future.
Protections
The ESA and the MMPA have similar provenances. Both appeared during the
high tide of environmental legislation of the late 1960s and early 1970s. Both are
written to protect species and their habitats. The Endangered Species Act has a broad
purpose. It is intended to “provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, [and] to
provide a program for the conservation of such endangered species and threatened
species....”⁵

¹ 73 Fed. Reg. 28212 (May 15, 2008). P.L. 93-205; 16 U.S.C. §§ 1531-1544, as amended.
For a detailed discussion of the polar bear listing process and related litigation, see CRS
Report RL33941, Polar Bears: Listing Under the Endangered Species Act, by Eugene H.
Buck, M. Lynne Corn, and Kristina Alexander.
² P.L. 92-522; 16 U.S.C. §§ 1361 et seq., as amended.
³ ESA § 4(a)(1), 16 U.S.C. § 1533(a)(1).
⁴ 73 Fed. Reg. 28212, 28288 (May 15, 2008).
⁵ ESA § 2(b); 16 U.S.C. § 1531(b).

Similarly, the MMPA addresses both habitat and individual protection: “efforts
should be made to protect essential habitats, including the rookeries, mating grounds,
and areas of similar significance for each species of marine mammal from the
adverse effect of man’s actions.”⁶
Prohibitions
Both the MMPA and the ESA prohibit taking or transporting species protected
under the acts.⁷ The ESA definition of take includes harm, which means killing or
injuring wildlife including significant habitat disruption that impairs essential
behavioral patterns.⁸ It also includes harass, meaning an action likely to injure by
significantly disrupting normal behavioral patterns.⁹ Under the MMPA the term take
includes “harass, hunt, capture, or kill, or attempt to do those activities.¹⁰ Harass
means acts that have “the potential to injure a marine mammal” (Level A
harassment), or “has the potential to disturb a marine mammal ... by causing
disruption of behavioral patterns” (Level B harassment). By being listed under both
statutes, the bear enjoys the protections of both.
The ESA regulation has been interpreted to mean habitat disturbance by itself
can function as a take, although courts have not uniformly agreed on this. The
dispute centers on whether a species must be injured or killed before the statute has
been violated. The Ninth Circuit has interpreted taking broadly as it applies to
habitat modification, which includes Alaska, the bear’s U.S. habitat. The court has
held that if an injury to wildlife occurs as a result of the habitat change, either in the
past, present, or future, the definition’s injury requirement is satisfied.¹¹ This could
be an advantage to polar bear protection, as the MMPA does not directly prohibit
habitat destruction.
However, not all courts will find a take based on habitat destruction without an
actual injury. For example, one district court said that an injury must occur before
a prohibited taking may be found:
Although some of the comments specifically argued that habitat modification
alone is a prohibited taking under section 9, in the opinion of the Service,
Congress expressed no such intent.... In response to the broad misperception of
the intent of the rule, an additional sentence has been added which is similar to
the original definition’s language. This additional language makes it clear that

⁶ MMPA § 2(2), 16 U.S.C. § 1361(2).
⁷ ESA § 9, 16 U.S.C. § 1538(a)(1); MMPA § 101, 16 U.S.C. § 1371(a).
⁸ 50 C.F.R. § 17.3. See Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 515 U.S. 687 (1995) (upholding the regulation).
⁹ 50 C.F.R. § 17.3.
¹⁰ MMPA § 3(13), 16 U.S.C. § 1362(13).
¹¹ Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9^th Cir.1995); see
also Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1064 (9^th Cir. 1996) (evidence of a threat
of future harm to the threatened marbled murrelet supports a permanent injunction; evidence
of past harm is not required), cert. denied, 117 S. Ct. 942 (1997).

habitat modification or degradation, standing alone, is not a taking pursuant to¹²
section 9.
Special Rules
The ESA allows FWS to issue Special Rules for species listed as threatened
where the agency deems it “necessary and advisable to provide for the conservation
of such species.”¹³ They are known as Section 4(d) rules or Special Rules. Special
Rules supplant the general regulations that apply to all threatened species, and can
reduce those protections.¹⁴ The rules apply just to that one species. Special Rules
were issued for the polar bear at the time of the listing.¹⁵ In essence, the polar bear
Special Rules harmonize the requirements of the MMPA and the ESA, saying that
compliance with the MMPA will be treated as compliance with the ESA. They are
discussed in more detail later in this report.
Exceptions
Both statutes have exceptions to their prohibitions. Permits may be issued under
either the ESA or the MMPA for taking a species for scientific purposes or to
enhance the survival of the species.¹⁶ Both have provisions for incidental takes.¹⁷
Only the MMPA, however, provides permits to take marine mammals for public
display, or for photography for educational or commercial purposes, and to import
polar bear parts from bears sport-hunted in Canada.¹⁸ Some limits apply to those
MMPA permits.
Sport-Hunted Polar Bears. Under Section 1371(a)(3)(B) of the MMPA,
once a species is designated as depleted under the act, no permits may be issued for
importing sport-hunt trophies. Being listed as a threatened species is one way a
species is declared to be depleted. Accordingly, the ESA listing has eliminated the

¹² Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F. Supp. 2d 529,

553 (D.N.J. 1998).

¹³ ESA § 4(d), 16 U.S.C. § 1533(d).
¹⁴ Several environmental groups have submitted comments to FWS stating that the Special
Rules fail to “provide for the conservation of the species,” as is required by Section 4(d).
See Letter from Center for Biological Diversity, NRDC, and Greenpeace, to FWS Public
Comments Processing, “Comments on the Interim Final Section 4(d) Rule for the Polar
Bear,” (July 14, 2008); Letter from Marine Mammal Commission to Lyle Laverty (July 14,

2008).

¹⁵ 73 Fed. Reg. 28305 (May 15, 2008). The rule was effective immediately as an “interim
final rule” and public comments were accepted until July 14, 2008.
¹⁶ ESA § 10, 16 U.S.C. § 1539(a)(1)(A); MMPA § 101(a)(1), 16 U.S.C. § 1371(a)(1).
¹⁷ ESA § 10(a)(1)(B), 16 U.S.C. § 1539(a)(1)(B); MMPA § 101(a)(2), 16 U.S.C. §
1371(a)(2)(for commercial fishing), and MMPA § 101(a)(5), 16 U.S.C. § 1371(a)(5)(for
other activities).
¹⁸ MMPA § 101(a)(1), 16 U.S.C. § 1371(a)(1).

MMPA permit for importing polar bear trophies from Canada.¹⁹ Approximately 80
permits a year were issued under this program. That is one way in which the May 15
listing protected bears.
Subsistence Users. The two acts have different provisions regarding how
Native Alaskans may take polar bears. It is not clear that the ESA listing provides
additional protections for the polar bear. The FWS says that the MMPA rule is more
restrictive and that it will treat compliance with that act as compliance with the²⁰
ESA, in essence neutralizing any additional protections the ESA may have
provided. Both laws provide exemptions for Alaskan Natives to take species for²¹
subsistence purposes. The definition of subsistence users is more restrictive in the
MMPA than the ESA. Both allow Indians, Aleuts, and Eskimos to kill polar bears
for subsistence use. However, Section 10(e) of the ESA also allows non-native
permanent residents of an Alaska native village to take for subsistence use.²² On the
other hand, the ESA allows only subsistence use in its exception, while the MMPA
also permits Alaskan natives to take polar bears for commercial sale of traditional²³
handicrafts made of polar bear parts.
Incidental Takes in General. As stated above, both the ESA and the
MMPA allow incidental takes of species protected under the acts.²⁴ There are
differences between the two programs. Under the ESA, incidental takes are divided
into two categories: Section 10 takes by citizens, which are authorized by incidental
take permits; and Section 7 consultations for takes by federal agencies, which are
authorized by incidental take statements.²⁵ The MMPA has two types of takes based
on the severity of the action: incidental take authorizations (ITAs), also known as
Letters of Authorization, for killing or injuring animals; and incidental harassment
authorizations, for lesser takes.²⁶ All have statutory authorization, but the details are
in the regulations.

¹⁹ Safari Club International has filed suit against FWS arguing that general prohibition
regarding depleted species does not supersede the specific authorization for import permits.
See Safari Club International v. Kempthorne, No. 1:08-cv-00881-EGS (D.D.C. filed May

23, 2008).

²⁰ 73 Fed. Reg. 28305, 28307 (May 15, 2008).
²¹ ESA § 10, 16 U.S.C. § 1539(e); MMPA § 101(b), 16 U.S.C. § 1371(b).
²² See 73 Fed. Reg. 28282, 28300 (May 15, 2008).
²³ MMPA § 101(b)(2), 16 U.S.C. § 1371(b)(2); 50 C.F.R. § 216.23.
²⁴ The terms are defined slightly differently by the regulations of each act. In the MMPA,
incidental, but not intentional, taking is defined as “takings which are infrequent,
unavoidable, or accidental.” 50 C.F.R. § 18.27(c). In the ESA incidental taking is defined
as “any taking otherwise prohibited, if such taking is incidental to, and not the purpose of,
the carrying out of an otherwise lawful activity.” 50 C.F.R. § 17.3 The ESA definition
essentially leaves the definition of incidental to the dictionary, which, according to
Webster’s New Collegiate Dictionary, means “occurring merely by chance or without
intention; or being likely to ensue as a chance or minor consequence.”
²⁵ ESA § 10, 16 U.S.C. § 1539; ESA § 7, 16 U.S.C. § 1536.
²⁶ MMPA § 101, 16 U.S.C. § 1371.

Ordinarily, ESA incidental takes for threatened species are governed under
regulations found at 50 C.F.R. § 17.22. An incidental take permit is issued. The
rules require that applicants for such a permit include a description of the activity, the
names and numbers of the species, and a habitat conservation plan (HCP). The HCP
requires the applicant to describe the steps it will take to monitor, minimize, and
mitigate any impacts to the threatened species; alternative actions and why they are
not being used; and any other necessary and appropriate measures imposed by
FW S .²⁷
Permission for an MMPA incidental take requires an applicant to submit data
about the project and the impacted animals, and to suggest mitigation.²⁸ The agency
is required to review the application using the best scientific evidence. The MMPA
requires monitoring and reporting during the time the take is authorized.
Even though both statutes allow incidental takes, the steps to obtain those
permits are different. Under the ESA, the incidental take permits are issued to an
individual (which can be a corporation).²⁹ Under MMPA the incidental take
authorizations are issued for an activity, instead. The language of the MMPA allows
U.S. citizens to seek authorization for specified activities to allow the incidental take
of “small numbers of marine mammals” for five-year periods, provided that the
taking will have a negligible impact on such species and will not overdeplete animals
available to subsistence users.³⁰ Similar permission may be provided for one-year
periods for activities that incidentally harass small numbers of marine mammals.³¹
One difference in the incidental take permit under the ESA over the MMPA
equivalent is that the ESA permit can be valid for decades, even 100 years. The
MMPA authorization is valid for five-year periods, although it can be renewed. It is
not clear if this difference protects the polar bear, however.
Special Rules for Polar Bears. The incidental take provisions of Section
17.22 ordinarily apply to threatened species, but the Section 4(d) rules for the polar
bears alter this. In one section of the special rule, FWS establishes that the rules for
taking polar bears will be the same under the ESA as they were under the MMPA.
FWS stated: “if incidental take has been authorized under section 101(a)(5) of the
MMPA, either by the issuance of an Incidental Harassment Authorization or through

²⁷ 50 C.F.R. § 17.32(b)(1)(iii)(C).
²⁸ 50 C.F.R. § 18.27(d).
²⁹ 50 C.F.R. § 17.22(b)(1). Person is defined in the ESA to include individuals, corporations,
partnerships, and officers, employees, agents, departments, or instrumentalities of a federal,
state, or local government. ESA § 3(13), 16 U.S.C. § 1532(13).
³⁰ MMPA § 101(a)(5)(A), 16 U.S.C. § 1371(a)(5)(A). Citizens of the United States is
defined broadly to include corporations organized under U.S. law, and even federal, state,
and local agencies. 50 C.F.R. § 18.27(c).
³¹ MMPA § 101(a)(5)(D), 16 U.S.C. § 1371(a)(5)(D).

incidental take regulations, we will not require an incidental take permit issued in
accordance with 50 CFR 17.32(b).”³²
FWS states that the standard under MMPA is more restrictive. It says that the
definition of negligible impact, which is defined as “an impact that cannot be
reasonably expected to, and is not reasonably likely to, adversely affect the species
through effects on annual rates of recruitment or survival”³³ is “a more protective
standard than 50 CFR 17.32’s requirement.”³⁴ Based on this representation by FWS,
the ESA listing would not increase protections for the polar bear.
One advantage for applicants in having an MMPA incidental take authorization
over the ESA equivalent, is that no HCP has to be negotiated and approved. The
HCP application process can be involved — FWS recommends creating steering
committees to develop the scope of the HCP and mitigation programs, and issued a
handbook to guide applicants.³⁵ However, the HCP is one way in which the ESA
protects habitat of listed species. An HCP is to provide for the restoration and
protection of the listed species’ habitat.³⁶ No such plan is required by the MMPA,
and no habitat protection or restoration is required, although applicants are required
to discuss methods to make the least impact on the species and habitat. This
difference appears to be an advantage to applicants, by saving substantial time in
assembling a take application. It is not clear that it is to the polar bear’s advantage.
Section 7 Consultations
Based on the above, it seems that the protections under the two acts are nearly
identical, and most differences in the prohibitions have been equalized. One area in
which there is still a distinction between the acts is how federal agencies are
authorized to take listed species. The ESA requires federal agencies taking actions
that may harm a polar bear to consult with the FWS before committing significant
resources toward that action.³⁷ This requirement is known as a Section 7 consultation.
The Section 7 consultation can be a time-consuming and litigious activity. A
look at 51 cases since 2001 in which a court found FWS or NMFS did not comply
with the ESA shows that 15 of those cases involved Section 7 consultations. It is a

³² 73 Fed. Reg. 28306, 28310 (May 15, 2008). Incidental take authorization is currently valid
for oil and gas activities in the Beaufort Sea (and has been since 1993). The most recent
ITA for Beaufort Sea was issued in 2006. 71 Fed. Reg. 43926 (August 2, 2006). An ITA
for the Chukchi Sea is effective from June 11, 2008, to June 11, 2013. 73 Fed. Reg. 33212
(June 11, 2008).
³³ 50 C.F.R. § 18.27(c).
³⁴ 73 Fed. Reg. at 28311.
³⁵ FWS and NMFS, Habitat Conservation Planning and Incidental Take Permit Processing
Handbook (November 4, 1996), online at [http://www.fws.gov/Endangered/pdfs/HCP/
HCPBK3.PDF].
³⁶ 50 C.F.R. § 17.3.
³⁷ ESA § 7, 16 U.S.C. § 1536.

primary reason given by the State of Alaska for its lawsuit against the FWS for listing
the polar bear under the ESA.³⁸ Alaska fears that the oil and gas industry will forgo
exploration and development in the state due to the extra requirements that the ESA
imposes.³⁹
Under the ESA, federal agencies are required to consult with FWS or NMFS to
ensure that federal actions are not likely to jeopardize the continued existence of a
listed species or result in the adverse modification of habitat.⁴⁰ FWS indicated there
was no interaction between a Section 7 consultation and the Section 4(d) rules:
“requirements to authorize incidental take associated with a Federal action are set
under section 7 of the ESA and would not be affected by this special rule.”⁴¹
Agencies are required to consult to see if their actions may jeopardize the continued
existence of the polar bear.
The Special Rules address Section 7 consultations with regard to climate
change. Some believed listing the polar bear under the ESA would allow challenges
to actions that adversely affected climate change as takes against the polar bear.⁴²
The theory was that projects that would increase greenhouse gas emissions, such as
power plant authorizations, or automobile emission standards, would adversely affect
the bear by contributing to habitat loss. FWS has treated this in the Section 4(d)
rules, at 50 C.F.R. § 17.40(q)(4). That rule states that incidental takes apply only to
activities within Alaska. Effects that occur “beyond the footprint of the action”
would be considered only “if there is a causal connection between the proposed
action and a discernible effect to the species or critical habitat that is reasonably
certain to occur.”⁴³ This applies to Section 7 consultations, and the incidental take
permits discussed above.
As for existing MMPA incidental take authorizations for federal actions relating
to the oil and gas industry, FWS has said that it believes the ITAs are harmonious
with ESA consultation requirements and that no additional measure would be
required:
to the extent that any Federal actions comport with the standards for MMPA
incidental take authorization, we would fully anticipate any such section 7
consultation under the ESA would result in a finding that the proposed action is
not likely to jeopardize the continued existence of the polar bear. In addition, we
anticipate that any such proposed action(s) would augment protection and
enhance agency management of the polar bear through the application of

³⁸ Governor Sarah Palin, State to Sue Over Polar Bear Listing, Press Release No. 08-076
(May 21, 2008).
³⁹ Id.
⁴⁰ ESA § 7, 16 U.S.C. § 1536(a)(2).
⁴¹ 73 Fed. Reg. at 28311 (May 15, 2008).
⁴² For details on this, see CRS Report RS22906, Use of the Polar Bear Listing to Force
Reduction of Greenhouse Gas Emissions: The Legal Arguments, by Robert Meltz.
⁴³ 73 Fed. Reg. 28305, 28312 (May 15, 2008).

site-specific mitigation measures contained in authorization issued under the⁴⁴
MMPA.
Similarly, FWS anticipates no additional administrative burden for federal
actions related to commercial fisheries: “[we anticipate that] a consultation on
commercial fishery activities in Alaska would result in a ‘no effect’ determination
under section 7 of the ESA.”⁴⁵
Habitat and Critical Habitat
The polar bear was listed as a threatened species because the loss of its habitat
made it likely to become endangered. Habitat protection, therefore, is significant to
the bear. The United States committed by treaty to protect the habitat of the polar
bear. In 1973, the United States, Canada, Denmark, Norway and the former Union
of Soviet Socialist Republics entered an international agreement to protect polar
bears.⁴⁶ The United States ratified the Agreement on the Conservation of Polar Bears
in 1976. In addition to prohibiting the take of polar bears, the Agreement also
requires actions to protect their habitat. Article II requires the Parties to:
^!take appropriate action to protect the ecosystem of which polar bears
are a part;
^!give special attention to habitat components such as denning and
feeding sites and migration patterns; and
^!manage polar bear populations in accordance with sound
conservation practices based on the best available scientific data.
In addition to the international obligation to protect polar bear habitat, the ESA
prohibits habitat destruction that injures an animal, and requires incidental takes to
develop plans to protect habitat. Additional habitat protections under the ESA apply
at a time critical habitat is designated for a species. No critical habitat has been
designated for the polar bear.
The ESA defines critical habitat as “the specific areas within the geographical
area occupied by the species, at the time it is listed ... on which are found those
physical or biological features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection.”⁴⁷ It also
includes areas outside the geographical area occupied by the species if those areas are
deemed essential for the conservation of the species. There is no similar provision
in the MMPA.
The ESA requires FWS to designate areas of critical habitat, and to make that
designation based on the best scientific data available, after taking into consideration

⁴⁴ 73 Fed. Reg. 28305, 28311 (May 15, 2008).
⁴⁵ 73 Fed. Reg. 28305, 28312 (May 15, 2008).
⁴⁶ Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918
(November 15, 1973).
⁴⁷ ESA § 3(5)(A), 16 U.S.C. § 1532(5)(A).

the economic impact.⁴⁸ Critical habitat has not been designated for every species,
however.⁴⁹ The advantage to a species of having critical habitat designated is that the
Section 7 consultation for federal agencies requires them to ensure their actions do
not destroy or adversely modify critical habitat in addition to not jeopardizing
speci es.⁵⁰
Beginning with its 90-day finding for the polar bear in 2006, FWS has said that
it would make its critical habitat designation separately from the listing.⁵¹ The Center
for Biological Diversity sued FWS for not designating critical habitat at the time of
listing.⁵² Pursuant to a settlement agreement, FWS agreed to make its final
designation of critical habitat by June 30, 2010.⁵³
Recovery Plans
A recovery plan provides recovery goals for listed species, and is required by the
ESA.⁵⁴ FWS is required to produce a plan with public input (which may include
teams to prepare the plan) that identifies by specific, measurable criteria when a
species has recovered, showing when it can be removed from listing. A recovery
plan is intended to provide for the conservation and survival of listed species, giving
priority to those species most likely to benefit from such a plan “particularly those
species that are, or may be, in conflict with construction or other development
projects or other forms of economic activity.”⁵⁵ It would appear the polar bear would
be such a priority.
A recovery plan is one of the areas under the ESA where expense is considered
— a recovery plan must provide estimates of the time and money needed to achieve

⁴⁸ ESA § 4(b)(2), 16 U.S.C. § 1533(b)(2).
⁴⁹ According to FWS, as of July 3, 2008, it has listed between 1927 and 1985 species
(depending on which FWS website is used), and designated critical habitat for 508 of those
species. (Compare FWS websites at [http://ecos.fws.gov/tess_public/CriticalHabitat.do?
nmfs=1] with [http://ecos.fws.gov/tess_public/SpeciesReport.do] and [http://ecos.fws.gov/
tess_public/SpeciesReport.do].) In some cases the agency can determine that the public
designation of habitat could put the species in danger, but that is an exception to the rule of
naming the area.
⁵⁰ ESA § 7, 16 U.S.C.§ 1536(a)(2).
⁵¹ 71 Fed. Reg. 6745, 6746 (February 6, 2006) (“If we determine in our 12-month finding
that listing the polar bear is warranted, we will address the designation of critical habitat in
a subsequent proposed rule”).
⁵² Center for Biological Diversity v. Kempthorne, No. C 08-1339 CW (N.D. Cal. 2008).
⁵³ Center for Biological Diversity v. Kempthorne, No. C. 08-1339 CW (N.D. Cal. stipulated
partial settlement agreement filed October 6, 2008).
⁵⁴ ESA § 4(f), 16 U.S.C. § 1533(f). Approximately two-thirds of the listed species have such
plans. See [http://ecos.fws.gov/tess_public/Boxscore.do].
⁵⁵ ESA § 4(f)(1)(A), 16 U.S.C. § 1533(f)(1)(A).

the plan’s goal.⁵⁶ FWS and NMFS are required to report to Congress every two years
on recovery plans prepared and the status of the species in those plans. While the
MMPA has a reporting requirement in conjunction with monitoring efforts under the
ITAs, there is no similar requirement for identifying any success in protecting
species.
In some instances a recovery plan is issued at the time of the listing. No plan
for the polar bear has been issued. Upon completion of a plan, Congress would
receive biennial updates on the polar bear’s status.
Citizen Suits
The ESA has an enforcement provision that the MMPA does not. The ESA
allows citizens to take action against other citizens to halt violations of the act.⁵⁷ The
citizen suit provision could provide additional protection for the polar bear, if citizen
enforcers use it. It allows “any person” to give 60 days’ written notice of a violation
to an alleged violator and the FWS. If the FWS or the United States has not begun
an action to redress the violation or otherwise punish the violator by then, a civil suit
may be filed to enjoin the violation. In practice, however, the citizen suit provision
primarily is used against federal agencies and very rarely against anybody else.
Additionally, the Special Rule’s limitation of takings to actions within Alaska,
combined with the geographical remoteness of polar bears, may inhibit this tool’s
use. Citizens may bring suit for violations of the MMPA only against a federal
agency by using the Administrative Procedure Act (APA).
Difference If Listed As Endangered
There would be slightly different protections if the polar bear had been listed as
an endangered species, rather than a threatened one. However, as it was already
forbidden to kill, harm, or harass the bear under the MMPA, an endangered status
would not improve that protection. Primarily, with an endangered listing, there
would be no Special Rules. Without the Special Rules, there would be no
homogenization of the incidental take permission. Incidental takes would require
development of HCPs, focusing more attention on habitat restoration and protection.
Takes of the polar bear would not be limited to actions in Alaska, and takings based
on climate change could be more of a factor. Also, without the Special Rules, there
would not be an exception allowing the killing of polar bears for commercial sale of
handicrafts by subsistence users.
The Convention on International Trade in Endangered Species of Wild Flora
and Fauna (CITES) provides additional trade protections for those species threatened
with extinction, known as Appendix I species. The polar bear is listed as an
Appendix II species, meaning that it does not have all of the protections available to
an Appendix I species. A country cannot unilaterally place a species on those lists.
However, the United States’ listing the polar bear as being in danger of extinction

⁵⁶ ESA § 4(f)(1)(B)(iii), 16 U.S.C. § 1533(f)(1)(B)(iii).
⁵⁷ ESA § 11(g), 16 U.S.C. § 1540(g).

would likely be persuasive in changing the bear’s status from Appendix II to
Appendix I.
Conclusion
The polar bear was already protected under the MMPA before the FWS listed
it as threatened under the ESA, but some additional protections inure to the polar
bear’s benefit. Being listed as a threatened species meant permits for importing sport-
hunted polar bear parts from Canada were discontinued — a practice that permitted
approximately 80 bears per year for import. The ESA protects the bear and its habitat,
meaning that some protection may accrue if habitat destruction is prosecuted. The
citizen suit provision is a tool that could be used to halt activities that are harming the
bear, but it is seldom used to challenge anything but government actions. Otherwise,
there appears to be little additional protection provided by the listing.
While there may have been some differences between the incidental take
permissions under the ESA versus the MMPA (and FWS says the MMPA is stricter),
those differences were ended by the Special Rules that declared compliance under the
MMPA would be evidence of compliance with the ESA. The Special Rules also
declared that the MMPA rules for subsistence users apply, ending any distinction that
might have protected the polar bear had just the ESA been used. Finally, the Special
Rules limited takes to actions occurring in Alaska, circumscribing the scope of
citizen suits. Critical habitat designation and recovery plans are two areas in which
the ESA provides protection, but the MMPA does not. However, as neither was
prepared at the time of the listing, the potential for such additional protections
remains unaddressed.