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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 may no longer
be imported from sport-hunts in Canada, under that MMPA exception. Approximately 80 bears a
year were permitted for import under this program.
Another 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. The FWS has agreed to designate critical habitat by June 30, 2010; therefore, that
environmental protection would be available then. The ESA requires another system that might
protect the bear—establishing a recovery plan—but the FWS 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.
Special Rules may be created under Section 4(d) of the ESA for threatened species. The Special
Rules for the polar bear describe when the MMPA applies and when the ESA applies,
harmonizing some provisions of the two laws, a possible benefit for MMPA permit holders. The
polar bear Special Rules also eliminate some protections that the ESA might have provided—
such as those relating to incidental takes, subsistence users, or citizen suits—by continuing the
MMPA protections. The Special Rules also add a different standard for certain military actions.
Had the polar bear been listed as an endangered species, rather than threatened, there would be no
Special Rules. Arguably, polar bears would have been more protected.
The Omnibus Appropriations Act of 2009 (P.L. 111-8) gave the Secretary of the Department of
the Interior discretion to withdraw or reissue the Special Rules within 60 days.
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Protections ....................................................................................................................................... 1
Prohibitions ..................................................................................................................................... 1
Special Rules ................................................................................................................................... 2
Exceptions ....................................................................................................................................... 3
Sport-Hunted Polar Bears ......................................................................................................... 4
Incidental Takes in General....................................................................................................... 4
Special Rules for Polar Bears .......................................................................................................... 5
Incidental Takes......................................................................................................................... 6
Climate Change Issues Related to Incidental Takes............................................................ 6
Incidental Takes and Military Actions ................................................................................ 7
Citizen Suits .............................................................................................................................. 7
Subsistence Users...................................................................................................................... 8
Section 7 Consultations ................................................................................................................... 8
Habitat and Critical Habitat............................................................................................................. 9
Recovery Plans ...............................................................................................................................11
Difference If Listed As Endangered ...............................................................................................11
Conclusion..................................................................................................................................... 12
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Author Contact Information .......................................................................................................... 13
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n May 15, 2008, the Fish and Wildlife Service (FWS) listed the polar bear as a threatened
species under the Endangered Species Act (ESA).1 Some have questioned the need to use
O 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 FWS considered existing regulatory protections before listing the polar bear. That is one of
the five factors ESA requires when making a listing determination.3 The 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. The FWS found that the bear was likely to become
endangered in the foreseeable future.
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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
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
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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 Take also includes
harass, meaning an action likely to injure by significantly disrupting normal behavioral patterns.9
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).
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.
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Under the MMPA the term take includes “harass, hunt, capture, or kill, or attempt to do those
activities.10 Harass means an act with “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 regulatory definition of harm has been interpreted to mean habitat disturbance by itself
can function as a take, although courts have not uniformly agreed on this. The courts’
disagreement centers on whether a species must be injured or killed before the statute has been
violated. The Ninth Circuit (whose jurisdiction includes Alaska, the bear’s U.S. habitat) has
interpreted taking broadly as it applies to habitat modification. The court 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 ESA 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
and that “habitat modification or degradation, standing alone, is not a taking pursuant to section
9.”12
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The ESA allows the 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 listing15 and made final in
December 2008.16 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.17 They are discussed in more detail later in this report.
Only four other species protected under the MMPA are also listed as threatened under the ESA:
the eastern population of the stellar sea lion, the Guadalupe fur seal, and the northern and
10 MMPA § 3(13), 16 U.S.C. § 1362(13).
11 Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir.1995); see also Marbled Murrelet v.
Babbitt, 83 F.3d 1060, 1064 (9th 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).
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.”
16 73 Fed. Reg. 76249 (Dec. 16, 2008) (effective January 15, 2009).
17 73 Fed. Reg. at 76251 (Dec. 16, 2008) (“if an activity is authorized or exempted under the MMPA or CITES, we will
not require any additional authorization under the ESA regulations associated with that activity”).
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southern sea otters. Of these, only the northern sea otter has special rules, which apply only to one
distinct population of the species.18
Congress authorized the Secretary of the Interior to “withdraw or reissue” the Special Rules
within 60 days of the Omnibus Appropriations Act of 2009 (Omnibus Act).19 Public notice and
comment were waived by the Omnibus Act. If the Special Rules are withdrawn, it seems that the
polar bear would be regulated under the general regulations that apply to all threatened species.20
Holders of existing MMPA permits may also need an ESA permit, something the Special Rules
had ruled was unnecessary.
It is not clear whether the statutory term reissue in Section 429 of the Omnibus Act means the
Secretary may revise the Special Rules without undergoing the public notice and comment period
that otherwise would be required by the Administrative Procedure Act. The remainder of Section
429 refers only to withdraw and says nothing about reissue.21 Reissue could be literal: the exact
Special Rules would be promulgated again (presumably after some time to consider them by the
current Administration). Or reissue could refer to reissuing some special rules in general, but not
necessarily the identical version. It is not clear why the Secretary would need special authority to
issue identical rules that it had already promulgated, suggesting that the alternative interpretation
of permitting revised regulations was what was intended. If that is the case, the Omnibus Act
gives the Secretary authority to draft regulations for a very controversial topic without any public
input.22
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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.23
Both have provisions for incidental takes.24 Both have exceptions for national security.25 Only the
MMPA, however, provides for issuing permits to take marine mammals for public display; for
photography, educational, or commercial purposes; and to import polar bear parts from bears
18 50 C.F.R. § 17.40(p).
19 P.L. 111-8, Tit. IV, § 429 (March 11, 2009).
20 50 C.F.R. Part 17, Subpart D. According to P.L. 111-8, if the Special Rules are withdrawn, the Secretary will
implement such regulations that were in effect prior to the Special Rules. Because there were no prior regulations
specific to the polar bear before its listing, the generally applicable regulations would appear to apply to the bear.
21 The Explanatory Statement submitted by Chairman Obey, which was intended to be a “joint explanatory statement of
a committee of conference,” indicates that Section 429 allows the Secretary to “withdraw the final rule” relating to the
polar bear, but says nothing about reissuing the rule. 155 Cong. Rec. H1653, H2115 (Feb. 23, 2009).
22 Sen. Mark Begich expressed concern on this point in a letter to Chairman Inouye, saying “the existing legislative
history of the Omnibus Bill does not explain how Congress intends the term ‘reissue’ to be interpreted. This lack of
clarity will only cause more legal uncertainty.” 155 Cong. Rec. H2650 (Feb. 25, 2009).
23 ESA § 10, 16 U.S.C. § 1539(a)(1)(A); MMPA § 101(a)(1), 16 U.S.C. § 1371(a)(1).
24 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).
25 ESA: 16 U.S.C. 1536(j) (allows a special committee to exempt agency actions deemed necessary for reasons of
national security by the Secretary of Defense); MMPA: 16 U.S.C. § 1371(f) (allows the Secretary of Defense to exempt
actions deemed necessary for national defense after conferring with the Services).
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sport-hunted in Canada.26 Some limits apply to those MMPA permits. The MMPA also provides
specific incidental take permit standards for military readiness activities.27
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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 eliminated
the MMPA permit for importing polar bear trophies from Canada.28 Approximately 80 permits a
year were issued under this program. That is one way in which the May 15, 2008, listing
increased protection of the bears.
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As stated above, both the ESA and the MMPA allow incidental takes of species protected under
the acts.29 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.30 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.31 All have statutory
authorization, but the details are in the regulations.
Ordinarily, ESA incidental takes for threatened species are governed under regulations found at
50 C.F.R. § 17.32. 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 the
FWS.32
Permission for an MMPA incidental take requires an applicant to submit data about the project
and the impacted animals, and to suggest mitigation.33 The agency is required to review the
26 MMPA § 101(a)(1), 16 U.S.C. § 1371(a)(1).
27 16 U.S.C. § 1371(a)(5)(ii).
28 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).
29 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.”
30 ESA § 10, 16 U.S.C. § 1539; ESA § 7, 16 U.S.C. § 1536.
31 MMPA § 101, 16 U.S.C. § 1371.
32 50 C.F.R. § 17.32(b)(1)(iii)(C).
33 50 C.F.R. § 18.27(d).
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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).34 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.35 Similar permission may be provided for one-year periods for
activities that incidentally harass small numbers of marine mammals.36 Another difference
between the incidental take permit under the ESA and 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.
The two acts diverge regarding military activities that could result in an incidental take. The
MMPA exempts activities “necessary for national defense”37 from the permitting process. The
exemption is limited to a two-year period, which can be renewed. There is also a separate
standard for military readiness activities seeking incidental take authorizations.38 That standard
provides that when determining whether such an activity will have the “least practicable adverse
impact” on a species, the Service will consider “personnel safety, practicality of implementation,
and impact on the effectiveness” of the activity. Under the ESA, a special committee may exempt
military actions deemed by the Department of Defense (DOD) as necessary for national
security.39 The exemption applies only to a specific action, and not to a category of actions as
allowed under the MMPA.
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For the most part, the Special Rules for the polar bear establish that the MMPA, not the ESA,
governs. They address incidental takes, subsistence users, military exemptions, and citizen suits.
In contrast, the Special Rules for the distinct population segment of the northern sea otter
pertained only to use of sea otter parts in native handicrafts.
34 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).
35 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).
36 MMPA § 101(a)(5)(D), 16 U.S.C. § 1371(a)(5)(D).
37 16 U.S.C. § 1371(f).
38 16 U.S.C. § 1371(a)(5)(A)(ii).
39 16 U.S.C. § 1536(j).
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The incidental take provisions of Section 17.32 generally apply to threatened species, but because
there are Special Rules under Section 4(d) for the polar bears, that regulation does not apply.
Instead the special rules provide the process. In those rules the FWS states that there will be no
change for incidental takes of polar bears now that the species is listed under the ESA. The rules
for taking polar bears will be the same as they were under the MMPA. The FWS states: “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 incidental take regulations, we will not
require an incidental take permit issued in accordance with 50 CFR 17.32(b).”40
The FWS states that the standard under the MMPA is more restrictive. According to the FWS, the
MMPA 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”41 is “a more protective standard than [the ESA] requirement.”42
Based on this representation by the FWS, following the ESA would not increase protections for
the polar bear.
Having an MMPA incidental take authorization instead of the ESA equivalent could provide an
advantage for applicants: no HCP has to be negotiated and approved. The HCP application
process can be involved—the FWS recommends creating steering committees to develop the
scope of the HCP and mitigation programs, and has issued a handbook to guide applicants.43
However, it is not clear if this provides additional protection of the bear. The HCP is one way in
which the ESA protects habitat of listed species. HCPs are intended to provide for the restoration
and protection of the listed species’ habitat.44 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.
MMPA Incidental Take Authorizations (ITAs) are currently valid for the oil and gas industry in
polar bear habitat. An ITA has been in place for oil and gas activities in the Beaufort Sea since
1993. The most recent ITA for Beaufort Sea was issued in 2006.45 An ITA for the Chukchi Sea is
effective from June 11, 2008, to June 11, 2013.46
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The Special Rules alter how climate change may be considered in the context of the polar bear in
two ways: limiting the areas in which private actions may be liable for a taking of a bear; and
limiting the ability of citizens to sue. Some believed listing the polar bear under the ESA would
40 73 Fed. Reg. 28306, 28310 (May 15, 2008).
41 50 C.F.R. § 18.27(c).
42 73 Fed. Reg. at 28311.
43 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.
44 50 C.F.R. § 17.3.
45 71 Fed. Reg. 43926 (August 2, 2006).
46 73 Fed. Reg. 33212 (June 11, 2008).
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allow challenges to actions that adversely affected the climate.47 The theory was that projects that
would increase greenhouse gas emissions, such as power plant operations or automobile emission
standards, would adversely affect the bear by contributing to habitat loss. The FWS addresses this
theory in the Section 4(d) rules, at 50 C.F.R. § 17.40(q)(4). Specifically, under the Special Rules,
if an incidental take of polar bears results from activities outside of the current range of the polar
bear, that act is not prohibited by the ESA.48 This suggests that operating a power plant, for
example, in any state but Alaska would not require an incidental take permit for harming polar
bears because that activity is outside of the polar bear’s current range.
However, this exclusion applies only to private parties. The Special Rules explicitly state “the
special rule does not remove or alter in any way the consultation requirements under section 7 of
the ESA.”49 Section 7, of course, is the process by which federal agencies obtain permission for
incidental takes. Federal agencies would have the same consultation requirements for their
actions in Alaska as outside of Alaska.
However, the Special Rules limit citizen suit challenges against the federal government for
actions that may harm polar bears. The Special Rules limit citizen suits for takings to actions that
occur in the current range of the polar bear. This appears to bar citizen suits against the federal
government for issuing a permit for a power plant outside of Alaska, for example.
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Because the Special Rules categorize incidental takes as being governed by the MMPA, the
exemption available to the military will apply to actions affecting the polar bear. The ESA
equivalent exemption is more limited in that it applies to only one action, not a category of
actions. As mentioned above, two types of military actions are addressed by the MMPA: activities
“necessary for national defense,”50 which are exempted; and military readiness activities, which
have separate standards for incidental take authorizations.51
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The ESA contains an enforcement provision that the MMPA does not; however, the Special Rules
limit its reach. The ESA allows citizens to take action against other citizens to halt violations of
the act.52 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 the end of 60 days, a civil suit may be filed to
enjoin the violation. In practice, however, the citizen suit provision primarily is used against
federal agencies and rarely against anybody else. Citizens may bring suit against a federal agency
for violations of the MMPA by using the Administrative Procedure Act (APA).
47 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.
48 73 Fed. Reg. at 76251.
49 Id.
50 16 U.S.C. § 1371(f).
51 16 U.S.C. § 1371(a)(5)(A)(ii).
52 ESA § 11(g), 16 U.S.C. § 1540(g).
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The Special Rules limit the citizen suit provision by recategorizing many possible incidental take
claims as an MMPA issue. According to the FWS, the citizen suit provision would apply in two
circumstances: 1) claims not based on incidental takes; or 2) claims based on incidental takes
where the activity occurred within Alaska.53 This means that only the government could enforce
MMPA violations regarding an unauthorized take based on an activity outside of the current range
of the polar bear.54
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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 regarding
subsistence users. The FWS says that the MMPA rule is more restrictive and that under the
Special Rules it will treat compliance with the MMPA as compliance with the ESA,55 in essence
neutralizing any additional protections the ESA may have provided. Both laws provide
exemptions for Alaskan Natives to take species for subsistence purposes.56 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, the ESA also allows non-native
permanent residents of an Alaska native village to take for subsistence use under Section 10(e).57
On the other hand, the ESA allows only subsistence use in its exception, while the MMPA also
permits Alaskan natives to use polar bears for commercial sale of traditional handicrafts made of
polar bear parts.58
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The Section 7 consultation provision under the ESA has no parallel in the MMPA. Under Section
7 federal agencies must consult with the FWS before committing significant resources toward an
action that may jeopardize a listed species or harm its critical habitat.59 This requirement is known
as a Section 7 consultation. There is no similar separation of federal and private actions in the
MMPA.
The Section 7 consultation can be a time-consuming and litigious activity. A look at 51 cases
since 2001 in which a court found that the FWS or NMFS did not comply with the ESA shows
that 15 of those cases involved Section 7 consultations. It is a primary reason given by the State
of Alaska for its lawsuit against the FWS for listing the polar bear under the ESA.60 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.61
53 73 Fed. Reg. at 76255.
54 Id.
55 73 Fed. Reg. 28305, 28307 (May 15, 2008).
56 ESA § 10, 16 U.S.C. § 1539(e); MMPA § 101(b), 16 U.S.C. § 1371(b).
57 See 73 Fed. Reg. 28282, 28300 (May 15, 2008).
58 MMPA § 101(b)(2), 16 U.S.C. § 1371(b)(2); 50 C.F.R. § 216.23.
59 ESA § 7, 16 U.S.C. § 1536.
60 Governor Sarah Palin, State to Sue Over Polar Bear Listing, Press Release No. 08-076 (May 21, 2008).
61 Id.
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Under the ESA, federal agencies are required to consult with the 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.62 The FWS indicated the Special Rules do not alter Section 7
consultations:
These requirements under the ESA remain unchanged under this rule regardless of whether
the action occurs inside or outside the current range of the polar bear. This special rule does
not negate the need for a Federal action agency to consult with the Service to ensure that any
action being authorized, funded, or carried out is not likely to jeopardize the continued
existence of the polar bear.63
As for existing MMPA incidental take authorizations for federal actions relating to the oil and gas
industry, the FWS says 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 site-specific mitigation measures contained in authorization issued under the
MMPA.64
Similarly, the 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.”65
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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.66 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;
62 ESA § 7, 16 U.S.C. § 1536(a)(2).
63 73 Fed. Reg. at 76252. The consultation regulations were revised in 2008, limiting how effects from “global
processes” such as climate change would be considered in the Section 7 process. For an analysis of the revised
regulations, see CRS Report RL34641, Changes to the Consultation Regulations of the Endangered Species Act (ESA),
by Kristina Alexander and M. Lynne Corn.
64 73 Fed. Reg. 28305, 28311 (May 15, 2008).
65 73 Fed. Reg. 28305, 28312 (May 15, 2008).
66 Agreement on the Conservation of Polar Bears, T.I.A.S. No. 8409, 27 U.S.T. 3918 (November 15, 1973).
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• to give special attention to habitat components such as denning and feeding sites
and migration patterns; and
• to 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 parties planning actions that could result in
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 when federal agencies must consult with
a Service regarding the effects of its actions on critical habitat. 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.”67 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 the FWS to designate areas of critical habitat and to make that designation
based on the best scientific data available after taking into consideration the economic impact.68
Critical habitat has not been designated for every listed species, however.69 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 species.70
Beginning with its 90-day finding for the polar bear in 2006, the FWS has said that it would make
its critical habitat designation separately from the listing.71 The Center for Biological Diversity
sued the FWS for not designating critical habitat at the time of listing.72 Pursuant to a settlement
agreement, the FWS agreed to make its final designation of critical habitat by June 30, 2010.73
67 ESA § 3(5)(A), 16 U.S.C. § 1532(5)(A).
68 ESA § 4(b)(2), 16 U.S.C. § 1533(b)(2).
69 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.
70 ESA § 7, 16 U.S.C.§ 1536(a)(2).
71 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”).
72 Center for Biological Diversity v. Kempthorne, No. C 08-1339 CW (N.D. Cal. 2008).
73 Center for Biological Diversity v. Kempthorne, No. C. 08-1339 CW (N.D. Cal. stipulated partial settlement
agreement filed October 6, 2008).
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A recovery plan provides recovery goals for listed species and is required by the ESA.74 The 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.”75 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 the plan’s goal.76 The FWS and
NMFS are required to report to Congress every two years on recovery plans they have 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.
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There would be 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, the
endangered listing would mean no Special Rules. Without the Special Rules, there would be no
harmonization of the incidental take permission, military exemptions, citizen suits, and
subsistence users, possibly causing confusion as to which law applied. Incidental takes would
require development of HCPs, which would focus 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 in determining harm. Without the Special Rules, there
would be no special standard for military readiness activities. Without the Special Rules, citizen
suits would not be limited in scope beyond what was provided by the ESA. 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.
Also, an endangered listing could enhance international protection of the bear. 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
74 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.
75 ESA § 4(f)(1)(A), 16 U.S.C. § 1533(f)(1)(A).
76 ESA § 4(f)(1)(B)(iii), 16 U.S.C. § 1533(f)(1)(B)(iii).
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available to an Appendix I species. A country cannot unilaterally place a species on either list.
However, the United States’ determination that the polar bear was in danger of extinction would
likely be persuasive in changing the bear’s status from Appendix II to Appendix I, providing the
additional trade protections afforded to Appendix I species.
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The polar bear was already protected under the MMPA before the FWS listed it as threatened
under the ESA, but some additional protections would inure to the polar bear’s benefit by being
covered by the ESA. 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 to be imported. The ESA protects the bear and its habitat, meaning that some
protection may accrue if habitat destruction is prosecuted. Otherwise, there appears to be little
additional protection provided by the listing. 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.
Moreover, some of the protections the ESA may have added were obviated by the creation of
Special Rules. For example, the Special Rules end any difference between incidental takes of
polar bears under the ESA and under the MMPA by declaring that compliance under the MMPA
would be evidence of compliance with the ESA. This could clarify the permitting process by
showing only one permit was required, possibly benefitting current and future permit holders.
The Special Rules allow categories of military activities to be exempted, rather than an action-by-
action review as required under the ESA. The Special Rules limit takes to activities occurring in
Alaska, and allow the MMPA ITA process to control, which could be argued as being less
protective of polar bear habitat. The citizen suit provision was an ESA tool that could be used to
halt activities that harmed the bear, but was limited in scope by the Special Rules. The Special
Rules also declare that the MMPA rules for subsistence users apply, ending any distinction that
might have protected the polar bear had just the ESA been used.
The Omnibus Appropriations Act of 2009 allows the Secretary of the Interior to “withdraw or
reissue” the Special Rules without having to undergo the rulemaking procedures required by the
Administrative Procedure Act.77 The Secretary must act by May 11, 2009. If the Special Rules are
revoked, the general rules that apply to all threatened species would likely regulate the polar bear,
in which case none of the exceptions created by the Special Rules would apply.
77 P.L. 111-8, Tit. IV, § 429(a)(2).
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Kristina Alexander
Legislative Attorney
kalexander@crs.loc.gov, 7-8597
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