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Mar 012013

The D.C. Circuit Court of Appeals has rebuffed an industry effort to remove the polar bear from the list of threatened and endangered species (In Re: Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation - MDL- No. 1993, 11-5219).

Who moved the ice? (Photo by Daniel J. Cox)

Here's an excerpt from page 3 of the opinion:

The appellate court’s task in a case such as this is a “narrow” one. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking. It is significant that Appellants have neither pointed to mistakes in the agency’s reasoning nor adduced any data or studies that the agency overlooked. In addition, Appellants challenge neither the agency’s findings on climate science nor on polar bear biology. Rather, the principal claim advanced by Appellants is that FWS misinterpreted and misapplied the record before it. We disagree.

Then, on page 15, the court said:

As we discuss below, several of Appellants’ challenges rely on portions of the record taken out of context and blatantly ignore FWS’s published explanations. Others, as the District Court correctly explained, “amount to nothing more than competing views about policy and science,” on which we defer to the agency. In re Polar Bear, 794 F. Supp. 2d at 69; see also Am. Wildlands, 530 F.3d at 1000 (reviewing courts must “avoid[] all temptation to direct the agency in a choice between rational alternatives”).

Senior Circuit Judge Harry Edwards wrote the opinion, in which he was joined by Chief Circuit Judge Merrick Grland and Circuit Judge Janice Rogers Brown. The court affirmed a decision by U.S. District Judge Emmet G. Sullivan.

Editor's note: More coming from the opinion after we've read it.

Apr 272012

Polar Bears International says recent media reports about increasing polar bear numbers in Western Hudson Bay present a highly misleading picture of the actual situation.

The stories "stem[] from a press release on a preliminary study of the Western Hudson Bay population that relied on a different methodology (aerial vs. capture-recapture) and larger geographic survey area than previous studies," PBI said.

The aerial survey was conducted for the government of Nunavut in Canada. The Inuit population in Nunavut is concerned that the hunting quota in Western Hudson Bay will be lowered.

An article in the Toronto Globe & Mail said the survey "shows the bear population in a key part of northern Canada is far larger than many scientists thought, and might be growing."

“The bear population is not in crisis as people believed,” Drikus Gissing, Nunavut’s director of wildlife management, told the Globe & Mail. “There is no doom and gloom.”

The Globe & Mail story, by reporter Paul Waldie, provided context.

There’s much at stake in the debate. Population figures are used to calculate quotas for hunting, a lucrative industry for many northern communities. Hunting polar bears is highly regulated but Inuit communities can sell their quota to sport hunters, who must hunt with Inuit guides. A polar-bear hunting trip can cost up to $50,000. Demand for polar-bear fur is also soaring in places like China and Russia and prices for some pelts have doubled in the past couple of years, reaching as high as $15,000.

The Nunavut hunting quota in the western Hudson Bay area fell to 8 from 56 after the 2004 report from Environment Canada. The Nunavut government increased it slightly last year but faced a storm of protest. Over all, about 450 polar bears are killed annually across Nunavut. Mr. Gissing said a new quota is expected to be announced in June.

The article also quoted longtime polar bear scientist Andrew Derocher, who questioned the validity of the survey's conclusions.

Instead of the survey's estimate that 1,013 bears are living in the area, PBI chief scientist Steven Amstrup said the more important piece of information is the number of yearlings seen from the air -- 22, or 3 percent of the 701 bears "actually counted."

"By comparison, in Alaska during the good ice years of the 1980s, about 15 percent of the animals observed were yearlings," PBI said in an email sent out April 26. (See below for the text.)

The brief (eight-page) report from Nunavut notes the paucity of young bears. "Relatively few cubs of the year (50) and yearlings (22) were observed in [Western Hudson Bay] in comparison to the recent polar bear surveys in Foxe Basin in 2009 and 2010. Additionally, average litter sizes were the lowest recorded in recent years amongst the 3 Hudson Bay sub-populations suggesting that reproductive output in WH was poor in 2011."

MediaMatters, a nonprofit watchdog group (yes, it's a "liberal" watchdog group) took a look at the story earlier in April, citing Amstrup's criticisms.

More links

Here's the reprint from the PBI email:

The Truth About Polar Bear Numbers April 2012      
Nearing BearYou may have seen recent headlines stating that the Western Hudson Bay polar bear population--widely considered the most endangered--is, in fact, "healthy and abundant."Sadly, that's not the case. So what's going on? The media flurry stems from a press release on a preliminary study of the Western Hudson Bay population that relied on a different methodology (aerial vs. capture-recapture) and larger geographic survey area than previous studies. Dr. Steven C. Amstrup, PBI's chief scientist, says that media reports have made the serious mistake of comparing the aerial survey--with a point estimate of 1,013 polar bears--to a capture-recapture study from 2004 showing 934 bears. "It's not a meaningful comparison," he says. "It's reasonable to expect there would be more polar bears in a larger geographic area than a smaller one. But even if the new aerial survey focused on exactly the same geographic area, it wouldn't be surprising to derive a slightly different population estimate when using a different survey method." He adds that from the standpoint of population welfare, it's the trend in numbers that is critical, not a single survey from one point in time--so the aerial count will become meaningful only after several years of data are available. "A single point estimate of population size says nothing about whether the trend is up, down, or stable. Trend can only be addressed by multiple point estimates collected over time."Dr. Amstrup says the new aerial survey does, however, include a piece of information relevant to trend: Of the 701 polar bears actually counted during the survey, only 22 (or about 3%) were yearlings--a very low percentage. By comparison, in Alaska during the good ice years of the 1980s, about 15% of the animals observed were yearlings."If that 3% figure is even close to the number of surviving yearlings out there now, it's not at all clear to me how the Hudson Bay population could be sustaining itself," he says. "This observation is very much in line with the previously published indications that survival--especially of young--is declining."Mom and cub on backThe release in question was issued by a Nunavut group interested in increasing polar bear hunting quotas.Scientists who study polar bears emphasize that their concern about polar bears is focused on the future. Because polar bears rely on the sea ice to reach their prey, sea ice losses from a warming Arctic threaten their survival.

"The available data from Hudson Bay indicate declining condition and survival," says Amstrup. "But in the bigger picture, whether any one population is currently declining, stable, or increasing is beside the point. Ultimately, all polar bears will disappear from their current ranges if we do not mitigate the rise in greenhouse gases."

Photo Credits:

Bear Photos by Daniel J. Cox/;

Survey Photo by BJ Kirschhoffer

Apr 192012

Activities outside the range of the polar bear, including emissions of greenhouse gases, won't be considered in determining the "take" of the bears under the Endangered Species Act, if a Fish and Wildlife Service proposal published April 19 becomes final.

"None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear," the proposed regulatory language says

Here's the explanation of that paragraph (Paragraph 4) in the proposal, which summarizes the service's thinking:

[W]e find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear's range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be unaffected by Alternative 2 for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear (including some areas within the State of Alaska) would be consistent with the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.

Environmental groups expressed their displeasure with the proposal.

"The proposed rule severely undermines protection for polar bears by exempting from portions of the Endangered Species Act all activities that occur outside of the bears’ range. But the species is endangered precisely because of activities occurring outside the Arctic — namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice," the Center for Biological Diversity said in a news release (linked above).