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Environmental Law

: ESA Blawg

Regarding listing decision for polar bear, Federal Judge says delay is over...

By Keith Rizzardi

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Center for Biological Diversity v. Kempthorne, No. C 08-1339 CW, (N.D.Cal., April 29, 2008)

Photo from Defenders of Wildlife Campaign to Save Polar Bears

By Court order, the Federal Government will soon make its decision regarding the listing of the polar bear pursuant to the Endangered Species Act. According to the Order Granting Plaintiffs' Motion for Summary Judgment and Injunction, U.S. District Court Judge Claudia Wilken -- an order issued without even oral argument -- the U.S. Fish & Wildlife Service must publish in the Federal Register the final listing determination for the polar bear on or before May 15, 2008.

EXCERPT: Plaintiffs seek to compel Defendants to perform their mandatory duty under the Endangered Species Act (ESA) timely to publish a final listing determination for the polar bear. Plaintiffs have filed a summary judgment motion seeking an injunction and declaratory judgment. Defendants oppose this motion. The Court has considered all of the papers filed by the parties. Because timeliness is essential, the issues are not complex and the parties are generally in agreement, the Court decides this motion without oral argument. The Court GRANTS Plaintiffs’ motion.

BACKGROUND: On January 9, 2007, pursuant to a settlement agreement, Defendants published in the Federal Register a proposed rule to list the polar bear as a threatened species... On January 7, 2008, Defendants publicly announced that the final listing would occur in thirty days... On January 9, 2008, Plaintiffs sent Defendants a sixty-day notice of intent to sue, pursuant to the ESA. On March 10, 2008, Plaintiffs filed a complaint against Defendants, seeking a declaratory judgment and injunctive relief.

KEY RULING: Defendants have been in violation of the law requiring them to publish the listing determination for nearly 120 days. Other than the general complexity of finalizing the rule, Defendants offer no specific facts that would justify the existing delay, much less further delay. To allow Defendants more time would violate the mandated listing deadlines under the ESA and congressional intent that time is of the essence in listing threatened species.

COMMENTARY: The Court gave the Federal Defendants no further leeway. In fact, in the event that the listing decision is not published on May 15, 2008, as required, the Court ordered the parties to appear for a case management on that day at 2:00 p.m. In addition the rejecting the Federal Government's request for more time, as an equitable matter, the Court also rejected the substantive argument that the Marine Mammal Protection Act already adequately protected the polar bear, finding that "the protections afforded under the ESA far surpass those provided by the MMPA, because the ESA also protects species’ habitat." Instead, the Court the rigid deadline. Fairly soon, the real debate over the meaning of the listing of the polar bear will begin. See ESA blawg, Polar Bears - An Unfortunate Policy Proxy (March 2, 2008), and related law review articles.

Full post as published by ESA Blawg on April 29, 2008 (boomark / email).