Yesterday, the nation’s leading legal watchdog for property rights, Pacific Legal Foundation, announced their intent to sue the federal government over its May 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA).

In a 60-day notice letter sent to the U.S. Fish and Wildlife Service, the group argues that the polar bear listing violates the ESA and the Administrative Procedure Act for a number of reasons, including the fact that the sea ice models that were used as the basis for the listing are not the "best available science" and that the listing is “arbitrary” because the government admits that the polar bear is already protected under the Marine Mammal Protection Act. In a statement made by PLF’s Principal Attorney M. Reed Hopper, he indicated that “the government’s listing decision is based on guesswork about future trends in ice floes and bear population, not solid science . . . . In fact, it contradicts the undisputed fact that polar bear numbers have been increasing, not decreasing. Polar bear numbers have risen from as low as 5,000 fifty years ago to as high as 25,000 today, according to federal estimates.”

Although the legal theories on which the Pacific Legal Foundation plans to bring suit are legitimate, it remains to be seen whether the facts surrounding the polar bear listing will support those legal theories. It is true that the ESA requires the best science available to the U.S. Fish and Wildlife Service to be used in making a listing determination, but the U.S. Fish and Wildlife Service may have discretion as to what the best science available is. Likewise, the U.S. Fish and Wildlife Service is required to consider other governmental efforts--like the Marine Mammal Protection Act--when deciding whether to list a species; however, that does not necessarily mean that it is arbitrary to decide that the polar bear is, or remains, threatened in spite of those efforts. For example, the bald eagle was listed as endangered and protected under other federal laws at the same time. Finally, the fact that polar bear numbers may have increased over the last five decades does not mean that polar bears are not also "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range," which, in fact, is the test for whether a species is "threatened."

This is the latest in legal challenges surrounding the May 14th listing of the polar bear as “threatened” under the Endangered Species Act.

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