In Re: Polar Bear Endangered Species

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2012 Decided March 1, 2013

No. 11-5219

IN RE: POLAR BEAR ENDANGERED SPECIES ACT LISTING AND

SECTION 4(d) RULE LITIGATION – MDL NO. 1993,

SAFARI CLUB INTERNATIONAL, ET AL.,

APPELLANTS

v.

KENNETH LEE SALAZAR, ET AL.,

APPELLEES

CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,

INTERVENORS-APPELLEES

Consolidated with 11-5221, 11-5222, 11-5223

Appeals from the United States District Court

for the District of Columbia

(No. 1:08-mc-00764)

Murray D. Feldman argued the cause for appellants.

With him on the briefs were Bradley E. Meyen, Assistant

Attorney General, Office of the Attorney General for the State

of Alaska, John J. Jackson III, Douglas S. Burdin, Anna M.

Seidman, M. Reed Hopper, Theodore Hadzi-Antich, Damien

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S. Schiff, Marcy G. Glenn, and Christina F. Gomez. Craig D.

Galli entered an appearance.

Murray D. Feldman and Bradley E. Meyen were on the

brief for appellant State of Alaska.

Steven J. Lechner was on the brief for amicus curiae

Mountain States Legal Foundation in support of joint

appellants.

Katherine W. Hazard, Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the brief

were Meredith Flax and David C. Shilton, Attorneys.

Rebecca J. Riley, Brendan Cummings, Kassia Siegel,

Jason Rylander, and Howard M. Crystal were on the brief for

intervenor-appellees Center for Biological Diversity, et al.

Eric R. Glitzenstein and Benjamin H. Longstreth entered

appearances.

Before: GARLAND, Chief Judge, BROWN, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

EDWARDS, Senior Circuit Judge: In 2005, the Center for

Biological Diversity petitioned the Secretary of the Interior

and the Fish and Wildlife Service (“FWS” or “agency”) to list

the polar bear under the Endangered Species Act (“ESA” or

“Act”). When a species such as the polar bear is listed as

either “threatened” or “endangered” under the Act, it is then

subject to a host of protective measures designed to conserve

the species. After a three-year rulemaking process, FWS

found that, due to the effects of global climate change, the

polar bear is likely to become an endangered species and face

the threat of extinction within the foreseeable future. See

generally Determination of Threatened Status for the Polar

Bear (Ursus maritimus) Throughout Its Range (“Listing

Rule”), 73 Fed. Reg. 28,212 (May 15, 2008). The agency thus

3

concluded that the polar bear should be listed as a threatened

species. Id.

A number of industry groups, environmental

organizations, and states challenged the Listing Rule as either

overly restrictive or insufficiently protective of the polar bear.

These challenges were consolidated as a Multidistrict

Litigation case in the U.S. District Court for the District of

Columbia. After a hearing on the parties’ submissions, the

District Court granted summary judgment to FWS and

rejected all challenges to the Listing Rule. See generally In re

Polar Bear Endangered Species Act Listing and § 4(d) Rule

Litigation, 794 F. Supp. 2d 65 (D.D.C. 2011). Joint

Appellants filed a timely appeal to contest the District Court’s

judgment. They contend that the Listing Rule is arbitrary and

capricious under the Administrative Procedure Act (“APA”),

5 U.S.C. § 706(2)(A), and that FWS’s action should be

reversed because of a series of deficiencies in the rulemaking

process and the Listing Rule itself.

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.

In rejecting this appeal, we are guided by the Supreme

Court’s admonition that “a court is not to substitute its

judgment for that of the agency,” id., particularly in cases

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where the issues “require[] a high level of technical

expertise,” Marsh v. Or. Natural Res. Council, 490 U.S. 360,

377 (1989). Given these considerations and the evident

thoroughness and care of FWS’s explanation for its decision,

we can only conclude, as did the District Court, that

Appellants’ challenges “amount to nothing more than

competing views about policy and science.” In re Polar Bear,

794 F. Supp. 2d at 69. Accordingly, we affirm the judgment

of the District Court.

I. Background

The District Court’s opinion contains an extensive

summary of the factual and procedural record, see id. at 71-

79, so it is unnecessary for us to recite all of that information

here. Instead, we offer the following background statement

for convenience and clarity.

A. The Endangered Species Act

Congress passed the ESA in 1973 “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.” 16 U.S.C. § 1531(b). “The term

‘endangered species’ means any species which is in danger of

extinction throughout all or a significant portion of its

range . . . .” Id. § 1532(6). “The term ‘threatened species’

means any species which is likely to become an endangered

species within the foreseeable future throughout all or a

significant portion of its range.” Id. § 1532(20). The

Secretaries of Interior and Commerce are obligated to publish

and maintain a list of all species determined to be endangered

or threatened. Id. § 1533(c)(1). The Secretaries have

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delegated this authority to FWS and the National Marine

Fisheries Service, depending on the species at issue. 50 C.F.R.

§ 402.01(b).

The ESA empowers an “interested person” to petition the

appropriate agency for the listing of any species. 16 U.S.C.

§ 1533(b)(3)(A). Upon receiving such a petition, the agency

“determine[s] whether [the] species is an endangered species

or a threatened species because of any of the following

factors: (A) the present or threatened destruction,

modification, or curtailment of its habitat or range; (B)

overutilization for commercial, recreational, scientific, or

educational purposes; (C) disease or predation; (D) the

inadequacy of existing regulatory mechanisms; or (E) other

natural or manmade factors affecting its continued existence.”

Id. § 1533(a)(1) (emphasis added). The agency makes a

listing determination “solely on the basis of the best scientific

and commercial data available . . . after conducting a review

of the status of the species and after taking into account those

efforts, if any, being made by any State or foreign nation . . .

to protect such species.” Id. § 1533(b)(1)(A).

B. The Listing Rule

On February 16, 2005, the Center for Biological

Diversity petitioned the Secretary of the Interior to list the

polar bear as threatened under the ESA because of the effects

of global climate change on polar bear habitat. In re Polar

Bear, 794 F. Supp. 2d at 72. On December 21, 2006,

following peer review and multiple opportunities for public

comment, FWS completed a 262-page Status Review. See

generally SCOTT SCHLIEBE ET AL., RANGE-WIDE STATUS

REVIEW OF THE POLAR BEAR (URSUS MARITIMIS)

(Dec. 21, 2006). (The Status Review is posted on FWS’s

website at http://www.fws.gov/.) Shortly thereafter, on

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January 9, 2007, FWS published a proposed rule to list the

species as threatened; this action triggered a 90-day public

comment period. See generally 12-Month Petition Finding

and Proposed Rule to List the Polar Bear (Ursus maritimus) as

Threatened Throughout Its Range, 72 Fed. Reg. 1064 (Jan. 9,

2007).

During the course of the rulemaking process, FWS

sought the assistance of the U.S. Geological Survey

(“USGS”) in “collecting and analyzing scientific data and

developing models and interpretations that would enhance the

base of scientific data for [FWS’s] use in developing the final

decision.” Listing Rule, 73 Fed. Reg. at 28,235. USGS

produced “nine scientific reports that analyze and integrate a

series of studies on polar bear population dynamics, range-

wide habitat use, and changing sea ice conditions in the

Arctic.” Id. These reports were also subject to public

comment.

FWS published the final Listing Rule on May 15, 2008.

The Listing Rule concludes that “the polar bear is likely to

become an endangered species within the foreseeable future

throughout all of its range” and should therefore be listed as

threatened. Id. at 28,212.

The Listing Rule explains in detail the taxonomy,

evolution, and population of the species. Some of the

principal findings are as follows:

Polar bears evolved in sea ice habitats and as a result

are evolutionarily adapted to this habitat.

****

Over most of their range, polar bears remain on the

sea ice year-round or spend only short periods on land.

However, some polar bear populations occur in

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seasonally ice-free environs and use land habitats for

varying portions of the year.

****

Although polar bears are generally limited to areas

where the sea is ice-covered for much of the year, they

are not evenly distributed throughout their range on sea

ice. They show a preference for certain sea ice

characteristics, concentrations, and specific sea ice

features. Sea-ice habitat quality varies temporally as well

as geographically. Polar bears show a preference for sea

ice located over and near the continental shelf, likely due

to higher biological productivity in these areas and

greater accessibility to prey in near-shore shear zones and

polynyas (areas of open sea surrounded by ice) compared

to deep-water regions in the central polar basin. Bears are

most abundant near the shore in shallow-water areas, and

also in other areas where currents and ocean upwelling

increase marine productivity and serve to keep the ice

cover from becoming too consolidated in winter.

****

Polar bears are distributed throughout the ice-

covered waters of the circumpolar Arctic, and rely on sea

ice as their primary habitat. Polar bears depend on sea ice

for a number of purposes, including as a platform from

which to hunt and feed upon seals; as habitat on which to

seek mates and breed; as a platform to move to terrestrial

maternity denning areas, and sometimes for maternity

denning; and as a substrate on which to make long-

distance movements.

****

The total number of polar bears worldwide is

estimated to be 20,000-25,000. Polar bears are not evenly

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distributed throughout the Arctic, nor do they comprise a

single nomadic cosmopolitan population, but rather occur

in 19 relatively discrete populations. The use of the term

“relatively discrete population” in this context is not

intended to equate to the Act’s term “distinct population

segments.” Boundaries of the 19 polar bear populations

have evolved over time and are based on intensive study

of movement patterns, tag returns from harvested

animals, and, to a lesser degree, genetic analysis. The

scientific studies regarding population bounds began in

the early 1970s and continue today. [The Listing Rule

adopts] the use of the term “population” to describe polar

bear management units consistent with their designation

by the World Conservation Union-International Union

for Conservation of Nature and Natural Resources

(IUCN), Species Survival Commission (SSC) Polar Bear

Specialist Group (PBSG) with information available as

of October 2006, and to describe a combination of two or

more of these populations into “ecoregions.” . . .

Although movements of individual polar bears overlap

extensively, telemetry studies demonstrate spatial

segregation among groups or stocks of polar bears in

different regions of their circumpolar range. These

patterns, along with information obtained from survey

and reconnaissance, marking and tagging studies, and

traditional knowledge, have resulted in recognition of 19

relatively discrete polar bear populations. Genetic

analysis reinforces the boundaries between some

designated populations while confirming the existence of

overlap and mixing among others.

Id. at 28,212-15 (citations omitted).

The Listing Rule also explains that studies of the nineteen

polar bear populations have divided the species into four

“physiographically different functional groups or ‘ecoregions’

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in order to forecast future polar bear population status on the

basis of current knowledge of polar bear populations, their

relationships to sea ice habitat, and predicted changes in sea

ice and other environmental variables.” Id. at 28,217. The

Listing Rule then discusses the Archipelago, Seasonal Ice,

Divergent, and Convergent ecogregions in some depth. Id. at

28,217-19.

FWS cited three principal considerations in determining

that polar bears should be listed as a threatened species. First,

the polar bear depends on sea ice for its survival. Id. at

28,214. Second, sea ice is declining. On this point, the Listing

Rule states:

Polar bears evolved to utilize the Arctic sea ice niche and

are distributed throughout most ice-covered seas of the

Northern Hemisphere. We find, based upon the best

available scientific and commercial information, that

polar bear habitat – principally sea ice – is declining

throughout the species’ range, that this decline is

expected to continue for the foreseeable future, and that

this loss threatens the species throughout all of its range.

Therefore, we find that the polar bear is likely to become

an endangered species within the foreseeable future

throughout all of its range.

Id. at 28,212. Third, climatic changes have and will continue

to reduce the extent and quality of Arctic sea ice. See id. at

28,244.

FWS concluded that these findings satisfied two of the

statutory listing factors: (A) the threatened destruction of the

species’ habitat or range, id. at 28,275-77, and (D) the

inadequacy of existing regulatory mechanisms to preserve the

species, id. at 28,288.

10

In aggregating data on climate change and sea ice, FWS

relied on a variety of published studies and reports, including

those of the Intergovernmental Panel on Climate Change

(“IPCC”). See id. at 28,212. FWS explained that

[t]he rapid retreat of sea ice in the summer and overall

diminishing sea ice throughout the year in the Arctic is

unequivocal and extensively documented in scientific

literature. Further extensive recession of sea ice is

projected by the majority of state-of-the-art climate

models, with a seasonally ice-free Arctic projected by the

middle of the 21st century by many of those models.

Id. at 28,292. Noting that sea ice had reached a record low in

the summer of 2007, FWS also explained that “[t]he

observational record indicates that current summer sea ice

losses appear to be about 30 years ahead of the ensemble of

modeled values, which suggests that a transition towards a

seasonally ice-free Arctic might occur sooner than the models

indicate.” Id. at 28,234.

The agency’s assessment of the species’ dependence on

sea ice derives from peer reviewed studies on polar bear

biology and behavior, observed polar bear demographics, and

population modeling. As noted above, FWS explained that the

bears are highly dependent on sea ice, “including as a

platform from which to hunt and feed upon seals; as habitat

on which to seek mates and breed; as a platform to move to

terrestrial maternity denning areas, and sometimes for

maternity denning; and as a substrate on which to make long-

distance movements.” Id. at 28,214. The Listing Rule

anticipates that changes to the polar bear’s habitat will soon

pose an existential threat to the species:

Productivity, abundance, and availability of ice seals, the

polar bear’s primary prey base, would be diminished by

the projected loss of sea ice, and energetic requirements

11

of polar bears for movement and obtaining food would

increase. Access to traditional denning areas would be

affected. In turn, these factors would cause declines in the

condition of polar bears from nutritional stress and

reduced productivity. As already evidenced in the

Western Hudson Bay and Southern Beaufort Sea

populations, polar bears would experience reductions in

survival and recruitment rates. The eventual effect is that

polar bear populations would decline. The rate and

magnitude of decline would vary among populations,

based on differences in the rate, timing, and magnitude of

impacts. However, within the foreseeable future, all

populations would be affected, and the species is likely to

become in danger of extinction throughout all of its range

due to declining sea ice habitat.

Id. at 28,292-93.

C. The District Court’s Decision

Soon after publication of the Listing Rule, nearly a dozen

challenges were filed to contest FWS’s action. See In re Polar

Bear, 794 F. Supp. 2d at 77-78. Several plaintiffs argued that

the listing was unwarranted because the agency failed to

establish a foreseeable risk of extinction. Others argued the

opposite – that the species should have been listed as

endangered because it faced an imminent risk of extinction.

These actions were consolidated before the District Court as a

Multidistrict Litigation case.

The litigants filed cross-motions for summary judgment.

On October 20, 2010, the District Court held an initial hearing

on the parties’ cross-motions for summary judgment.

At that hearing, the [District] Court focused only on a

threshold question: whether it must review the agency’s

12

interpretation of the ESA listing classifications under

step one or step two of the familiar framework set forth

in Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). In a Memorandum

Opinion issued on November 4, 2010, the [District]

Court held that FWS had improperly relied on an

erroneous plain-meaning reading of the definition of an

endangered species that could not be upheld under step

one of Chevron. In re Polar Bear Endangered Species

Act Listing and § 4(d) Rule Litigation, 748 F. Supp. 2d

19, 29 (D.D.C. 2010). Finding that the term “endangered

species” under the ESA is instead ambiguous, the Court

remanded the Listing Rule to the agency “to treat the

statutory language as ambiguous.” Id.

In response to the [District] Court’s remand order, on

December 22, 2010, the federal defendants submitted the

agency’s memorandum of supplemental explanation. In

their Supplemental Explanation, FWS concluded that,

even treating the phrase “in danger of extinction” in the

definition of an endangered species as ambiguous, the

administrative record does not support a finding that the

polar bear qualified for endangered status at the time of

listing. Because the agency determined that the species is

likely to become endangered within the foreseeable

future, however, FWS reiterated that the polar bear met

ESA’s . . . definition of a threatened species at the time

of listing.

In re Polar Bear, 794 F. Supp. 2d at 79 (citations omitted).

The District Court held another hearing on February 23,

2011, after which it granted summary judgment in favor of

FWS. The District Court rejected all of the challenges to the

Listing Rule. See generally id. After a lengthy review of

Appellants’ arguments, the District Court concluded that it

was “simply not persuaded that [FWS’s] decision to list the

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polar bear as a threatened species under the ESA was arbitrary

and capricious.” Id. at 81. Appellants challenge this decision

and several conservation groups have intervened on behalf of

FWS.

II. Analysis

Appellants’ principal claim on appeal is that FWS

misapplied the statutory criteria for a listing decision by

ignoring or misinterpreting the record before it and failing to

articulate the grounds for its decision. In particular,

Appellants contend that: (1) FWS failed to adequately explain

each step in its decisionmaking process, particularly in linking

habitat loss to a risk of future extinction; (2) FWS erred by

issuing a single, range-wide determination; (3) FWS relied on

defective population models; (4) FWS misapplied the term

“likely” when it determined that the species was likely to

become endangered; (5) FWS erred in selecting a period of 45

years as the “foreseeable future”; (6) FWS failed to “take into

account” Canada’s polar bear conservation efforts; and (7)

FWS violated Section 4(i) of the ESA by failing to give an

adequate response to the comments submitted by the State of

Alaska regarding the listing decision. For the reasons

discussed below, we find these arguments meritless.

A. Standard of Review

We will uphold an agency action unless we find it to be

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). This standard

applies to our review of ESA listing decisions. See Am.

Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir.

2008). Under the arbitrary and capricious standard, the

reviewing court determines whether the agency “considered

14

the factors relevant to its decision and articulated a rational

connection between the facts found and the choice made.”

Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009). “The

Supreme Court has explained that an agency acts arbitrarily or

capriciously if it ‘has relied on factors which Congress has not

intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision

that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.’” Am. Wildlands, 530

F.3d at 997-98 (quoting State Farm, 463 U.S. at 43). “The

scope of review under the ‘arbitrary and capricious’ standard

is narrow and a court is not to substitute its judgment for that

of the agency.” State Farm, 463 U.S. at 43. Deference is

especially warranted where the decision at issue “requires a

high level of technical expertise.” Marsh, 490 U.S. at 377. “In

a case like the instant one, in which the District Court

reviewed an agency action under the APA, we review the

administrative action directly, according no particular

deference to the judgment of the District Court.” Holland v.

Nat’l Mining Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002).

B. The Agency’s Decision

The Listing Rule rests on a three-part thesis: the polar

bear is dependent upon sea ice for its survival; sea ice is

declining; and climatic changes have and will continue to

dramatically reduce the extent and quality of Arctic sea ice to

a degree sufficiently grave to jeopardize polar bear

populations. See Listing Rule, 73 Fed. Reg. at 28,212. No part

of this thesis is disputed and we find that FWS’s conclusion –

that the polar bear is threatened within the meaning of the

ESA – is reasonable and adequately supported by the record.

15

The Listing Rule is the product of FWS’s careful and

comprehensive study and analysis. Its scientific conclusions

are amply supported by data and well within the mainstream

on climate science and polar bear biology. Thirteen of the

fourteen peer reviewers to whom FWS submitted the

proposed rule found that it generally “represented a thorough,

clear, and balanced review of the best scientific information

available from both published and unpublished sources of the

current status of polar bears” and that it “justified the

conclusion that polar bears face threats throughout their

range.” Listing Rule, 73 Fed. Reg. at 28,235. Only one peer

reviewer dissented, “express[ing] concern that the proposed

rule was flawed, biased, and incomplete, that it would do

nothing to address the underlying issues associated with

global warming, and that a listing would be detrimental to the

Inuit of the Arctic.” Id.

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”).

Significantly, Appellants point to no scientific findings or

studies that FWS failed to consider in promulgating the

Listing Rule. At oral argument, Appellants’ counsel

acknowledged that Appellants do not claim that FWS failed to

use the “best scientific and commercial data available” as

required by 16 U.S.C. § 1533(b)(1)(A). See Oral Argument at

25:22. Rather, “Appellants merely disagree with the

implications of the data for the species’ continued viability.”

Br. of Appellees at 14.

16

Where, as here, the foundational premises on which the

agency relies are adequately explained and uncontested,

scientific experts (by a wide majority) support the agency’s

conclusion, and Appellants do not point to any scientific

evidence that the agency failed to consider, we are bound to

uphold the agency’s determination. Therefore we affirm the

District Court’s decision to uphold the Listing Rule.

We now address in turn each of Appellants’ seven

principal claims that the Listing Rule is arbitrary and

capricious.

1. Adequacy of FWS’s Explanation

Appellants argue that FWS violated the APA and ESA by

inadequately explaining how the predicted decrease in habitat

would likely lead to such a dramatic population decline

causing the species to be endangered within the next 45 years.

See, e.g., Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227,

241 (D.C. Cir. 2008) (holding that agency failed to justify its

rulemaking with “a discernible path [of reasoning] to which

the court may defer”). In particular, Appellants contend that

FWS did not explain how the projected habitat loss would put

the polar bear “in danger of extinction” in the foreseeable

future or how great a decrease in the current population would

constitute endangerment. Appellants rely on Defenders of

Wildlife v. Norton, which held that “the loss of a

predetermined percentage of habitat or range would [not]

necessarily qualify a species for listing,” in part because “[a]

species with an exceptionally large historical range may

continue to enjoy healthy population levels despite the loss of

a substantial amount of suitable habitat.” 258 F.3d 1136, 1143

(9th Cir. 2001). Therefore, “the percentage of habitat loss that

will render a species in danger of extinction or threatened

with extinction will necessarily be determined on a case by

case basis.” Id.

17

Appellants’ claim fails because FWS clearly explained

how the anticipated habitat loss renders this particular species

likely to become endangered. The agency considered and

explained how the loss of sea ice harms the polar bear. See,

e.g., Listing Rule, 73 Fed. Reg. at 28,275 (as a result of ice

loss, “polar bears will face increased competition for limited

food resources, increased open water swimming with

increased risk of drowning, increasing interaction with

humans with negative consequences, and declining numbers

that may be unable to sustain ongoing harvests”). The agency

also considered the observed demographic trends in the areas

where habitat loss has been most severe. For example, the

Western Hudson Bay population – which “occurs near the

southern limit of the species’ range” in an area without year-

round sea ice – has been in decline. Id. at 28,267. Numerous

experts predict that the sea ice loss in that area will soon

weaken female polar bears to the point where reproduction

levels become negligible. Id. at 28,266-67. And climatologists

anticipate that climatic changes will eventually affect all

Arctic sea ice, causing FWS to predict “reduced numbers and

reduced distributions of polar bears range-wide.” Id. at

28,276.

The agency’s decision was thus nothing like the situation

described in Defenders of Wildlife. Here the agency carefully

and clearly explained how this particular habitat loss leaves

this particular species likely to become endangered. The

Listing Rule not only provides “a discernible path” of

decisionmaking to which we must defer, Am. Radio, 524 F.3d

at 241, but it also firmly “articulate[s] a rational connection

between the facts found and the choice made.” Keating, 569

F.3d at 433.

2. Species’ Status Range-wide

Two of the Joint Appellants also argue that even if

certain polar bear populations are threatened, FWS was wrong

18

to conclude that the species is threatened throughout its range.

They point to the agency’s description of the Archipelago and

Convergent ecoregions, both of which, FWS notes, are

somewhat insulated from seasonal melting by various

geophysical features. The ice in the far-northern Archipelago

ecoregion is protected by “the buffering effects of the island

archipelago complex, which lessens effects of oceanic

currents and seasonal retractions of ice and retains a higher

proportion of heavy more stable, multi-year sea ice.” Listing

Rule, 73 Fed. Reg. at 28,276. The Convergent ecoregion,

because of generalized ice drift, “accumulates ice . . . as it is

moved from the polar basin Divergent Ecoregion.” Id. at

28,218. As a result, this area “is characterized by heavy multi-

year ice.” Id. Consequently, polar bear populations in both

regions are not forecasted to decline as precipitously as those

in the two more vulnerable ecoregions. Id. at 28,248.

Appellants seize on these projections to argue that the agency

overreached by listing the entire species.

The agency considered comments along those lines and

provided an adequate response. See, e.g., id. at 28,240-41.

FWS acknowledged that receding sea ice may affect some

polar bear populations later than others. Id. However, the

agency also explained that much of this region is

limited . . . in its ability to sustain a large number of polar

bears because: (1) changes in the extent of ice and

precipitation patterns are already occurring in the region;

(2) the area is characterized by lower prey

productivity (e.g., lower seal densities); and (3) polar

bears moving into this area would increase competition

among bears and ultimately affect polar bear survival. In

addition, a small, higher-density population of polar bears

in the Canadian Arctic would be subject to increased

vulnerability to perturbations such as disease or

accidental oil discharge from vessels.

19

Id.

Moreover, FWS explained that “accepted climate

models” predict sea ice loss throughout the Arctic and

anticipate that all polar bear populations will be affected. Id.

at 28,248-49. The undisputed record indicates that sea ice is

declining and is projected to continue declining throughout

the range, and the projected decline includes the Archipelago

and Convergent ecoregions. See id. at 28,240-41, 28,248-49,

28,271, 28,275-76. In 2007, sea ice losses in the Archipelago

and Convergent ecoregions were unprecedented. See id. at

28,220-21, 28,271, 28,276. “Arctic sea ice receded so much in

2007 that the so-called ‘Northwest Passage’ through the

straits of the Canadian Arctic Archipelago completely opened

for the first time in recorded history.” Id. at 28,220. FWS

found that, as a result of such developments, Arctic sea ice

declines were outstripping climate model projections. See id.

at 28,220, 28,271, 28,276. FWS explained that the 2007

record sea ice declines “are an extension of an accelerating

trend of minimum sea ice conditions and further support the

concern that current sea ice models may be conservative and

underestimate the rate and level of change expected in the

future.” Id. at 28,276.

The Listing Rule also indicates that, “[a]lthough climate

change may improve conditions for polar bears in some high

latitude areas where harsh conditions currently prevail, these

improvements will only be transitory. Continued warming

will lead to reduced numbers and reduced distribution of polar

bears range-wide.” Id. Relying on projections regarding sea

ice declines, FWS concluded that “the most northerly polar

bear populations will experience declines in demographic

parameters similar to those observed in the Western Hudson

Bay population, along with changes in distribution and other

currently unknown ecological responses.” Id. In light of this

record, FWS determined that, “ultimately, all polar bear

20

populations will be affected within the foreseeable future, and

the species will likely become in danger of extinction

throughout all of its range.” Id. The best available science

suggests that some polar bear populations will remain at mid-

century; however, this does not undermine FWS’s decision to

list the species as threatened, but rather supports the agency’s

decision not to list it as endangered.

Appellants further argue that FWS should have divided

the species into Distinct Population Segments for the purposes

of this listing decision. See 16 U.S.C. § 1532(16) (“species”

includes “any distinct population segment of any species”). In

assessing polar bear populations, FWS applied its Policy

Regarding the Recognition of Distinct Vertebrate Population

Segments Under the Endangered Species Act (“DPS Policy”),

61 Fed. Reg. 4722 (Feb. 7, 1996). Appellants do not challenge

this policy. Instead, they merely argue that FWS misapplied it

in this case. Appellants carry a heavy burden in advancing

this claim because the agency’s interpretation of its own

regulations “must be given controlling weight unless it is

plainly erroneous or inconsistent with the regulation.” Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).

The DPS Policy establishes three criteria for a Distinct

Population Segment, which the agency must assess

sequentially:

(1) Discreteness of the population segment in

relation to the remainder of the species to which it

belongs;

(2) The significance of the population segment to the

species to which it belongs; and

(3) The population segment’s conservation status in

relation to the Act’s standards for listing (i.e., is the

21

population segment, when treated as if it were a species,

endangered or threatened?).

DPS Policy, 61 Fed. Reg. at 4725. “Discreteness” requires

that the population segment be either “markedly separated

from other populations of the same taxon as a consequence of

physical, physiological, ecological, or behavioral factors” or

“delimited by international governmental boundaries within

which differences in control of exploitation, management of

habitat, conservation status, or regulatory mechanisms exist

that are significant.” Id. FWS considered whether any of the

nineteen polar bear populations or four ecoregions satisfied

the terms of the DPS Policy and concluded that they did not.

In addressing the “markedly separated” criterion,

Appellants point to parts of the record that discuss some

differences between the relevant populations and ecoregions

in an effort to show that they are legally discrete. As FWS

explained, however,

there are no morphological or physiological differences

across the range of the species that may indicate

adaptations to environmental variations. Although polar

bears within different populations or ecoregions . . . may

have minor differences in demographic parameters,

behavior, or life history strategies, in general polar bears

have a similar dependence upon sea ice habitats, rely

upon similar prey, and exhibit similar life history

characteristics throughout their range.

Listing Rule, 73 Fed. Reg. at 28,294.

FWS also found only “small genetic differences” among

polar bears in different areas, indicating “extensive population

mixing associated with large home ranges and movement

patterns.” Id. Comment 51 in the Listing Rule asserts that

“[t]he 19 populations [FWS] has identified cannot be thought

22

of as discrete or stationary geographic units, and polar bears

should be considered as one Arctic population.” Id. at 28,248.

In response, FWS stated:

We agree that the boundaries of the 19 populations are

not static or stationary. Intensive scientific study of

movement patterns and genetic analysis reinforces

boundaries of some populations while confirming that

overlap and mixing occur among others. Neither

movement nor genetic information is intended to mean

that the boundaries are absolute or stationary geographic

units; instead, they most accurately represent discrete

functional management units based on generalized

patterns of use.

Id. The bottom line is that the Listing Rule reasonably

concludes that physiology, demographics, behavior, and life

history strategies of the species are “not sufficient to

distinguish population segments under the DPS Policy.” Id. at

28,294.

Appellants also argue that the “international

governmental boundaries” criterion is satisfied because the

polar bear’s range encompasses several Arctic countries with

distinct management programs. Here too, the agency offered a

reasonable explanation that refutes Appellants’ contention:

Given that the threats to the polar bear’s sea ice habitat is

[sic] global in scale and not limited to the confines of a

single country, and that populations are being managed

collectively by the range countries (through bi-lateral and

multilateral agreements), we do not find that differences

in conservation status or management for polar bears

across the range countries is sufficient to justify the use

of international boundaries to satisfy the discreteness

criterion of the DPS Policy.

23

Id.

While Appellants may disagree with FWS’s decision,

there is nothing in the record to suggest that the agency’s

decision to make a single, range-wide listing determination

was “plainly erroneous or inconsistent with” the DPS Policy.

Thomas Jefferson Univ., 512 U.S. at 512. Therefore, we reject

this challenge and hold that FWS’s conclusion that the species

warranted listing throughout its range was not arbitrary and

capricious.

3. The USGS Population Models

Appellants additionally challenge FWS’s reliance on two

polar bear population models developed by USGS. USGS

submitted nine scientific reports to assist FWS in developing

the Listing Rule. One of these reports presented two models

of projected polar bear population trends. See STEVEN C.

AMSTRUP ET AL., FORECASTING THE RANGE-WIDE STATUS OF

POLAR BEARS AT SELECTED TIMES IN THE 21ST CENTURY

(“AMSTRUP REPORT”) (2007). One model was “a

deterministic Carrying Capacity Model (CM) that applied

current polar bear densities to future . . . sea ice projections to

estimate potential future numbers of polar bears in each of the

4 ecoregions.” Listing Rule, 73 Fed. Reg. at 28,272. The other

was “a Bayesian Network Model (BM), [which] included the

same annual measure of sea ice area as well as measures of

the spatial and temporal availability of sea ice. In addition, the

BM incorporated numerous other stressors that might affect

polar bear populations that were not incorporated in the

carrying capacity model.” Id.

Citing these models’ limitations, Appellants argue that

FWS erred in relying on them. Appellants’ chief criticism of

the CM is its assumption that polar bear density will remain

constant over time, which USGS itself conceded was “almost

certainly not valid.” AMSTRUP REPORT at 12. Appellants

24

argue that the BM was also unreliable, pointing to FWS’s

own characterization of the BM “as an ‘alpha’ level prototype

that would benefit from additional development and

refinement.” Listing Rule, 73 Fed. Reg. at 28,274.

“While courts routinely defer to agency modeling of

complex phenomena,” the agency must “explain[] the

assumptions and methodology used in preparing the model

and provide[] a complete analytic defense should the model

be challenged.” Appalachian Power Co. v. EPA, 249 F.3d

1032, 1053-54 (D.C. Cir. 2001) (per curiam); see also

Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 923

(D.C. Cir. 1998) (“If . . . the model is challenged, the agency

must provide a full analytical defense.”). Appellants contend

that FWS has not done so here. This argument is plainly

meritless.

“That a model is limited or imperfect is not, in itself, a

reason to remand agency decisions based upon it.”

Appalachian Power, 249 F.3d at 1052. FWS explained the

methodology of the models within the Listing Rule itself, see

73 Fed. Reg. at 28,272-75, and FWS made available the full

Amstrup Report for public comment before the final rule was

promulgated, see id. at 28,235. The Listing Rule

acknowledges the limitations of these two models and

repeatedly explains that the agency only used them for the

limited purpose of confirming “the general direction and

magnitude” of the population trends already forecast on the

basis of other record evidence. Id. at 28,276. This is wholly

unlike Appalachian Power and Columbia Falls, where the

agency failed to explain how those models’ shortcomings did

not undercut the challenged rules. See Appalachian Power,

249 F.3d at 1053; Columbia Falls, 139 F.3d at 923.

It is also noteworthy that Appellants’ stance on these

models is self-contradictory. Despite challenging the models’

reliability, elsewhere in their briefs Appellants highlight

25

USGS’s criticism that FWS did not rely on the models

enough. See Appellants’ Joint Br. at 21. Ironically, Appellants

cite to a USGS statement that says: “[w]hat we found to be

missing is a clear linkage between the [models’] forecasted

decline and the finding.” Id. (quoting General and Technical

Comments from USGS on the Draft Final Rule (Aug. 13,

2007)). In offering this citation, however, Appellants tellingly

omit USGS’s conclusion that

the outcomes from the [BM] are that polar bear

populations living in the Seasonal and Divergent

ecoregions are most likely extinct within the foreseeable

future.

General and Technical Comments from USGS on the Draft

Final Rule (Aug. 13, 2007). In other words, USGS was of the

view that the disputed models supported a stronger position

than FWS was prepared to take. Appellants’ claim, that FWS

blindly embraced the models and ignored their limitations, is

clearly false.

We hold that FWS’s narrow reliance on the USGS

population models was not arbitrary and capricious. FWS

understood and explained the models’ limitations and

carefully explained why its limited reliance on the models

was justified. As noted above, FWS only used the USGS

population models for the limited purpose of confirming “the

general direction and magnitude” of the population trends

already forecast on the basis of other record evidence. Listing

Rule, 73 Fed. Reg. at 28,276. In other words, it is absolutely

clear that the models were not central to FWS’s listing

decision.

4. FWS’s Standard of Likelihood

Appellants further claim that FWS imported into the

ESA’s listing standard, and then failed to apply, the IPCC’s

26

definition of “likely.” The Act defines a threatened species as

“any species which is likely to become an endangered species

within the foreseeable future throughout all or a significant

portion of its range.” 16 U.S.C. § 1532(20) (emphasis added).

However, the term “likely” is not defined in the Act or by

regulation.

The IPCC defines “likely” as 67-to-90 percent certainty.

See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE:

FOURTH ASSESSMENT, SUMMARY FOR POLICYMAKERS 3 n.6

(2007). Appellants claim that FWS relied on this definition in

determining that the polar bear is likely to become an

endangered species. In support of this claim, Appellants point

to one place in the Listing Rule where FWS referenced the

IPCC definition in response to a peer review question. The

section to which Appellants point says: “The IPCC [Fourth

Assessment Report] assigns specific probability values to

terms such as ‘unlikely,’ ‘likely,’ and ‘very likely.’ We have

attempted to use those terms in a manner consistent with how

they are used in the IPCC [Fourth Assessment Report].”

Listing Rule, 73 Fed. Reg. at 28,237. Appellants contend that,

based on this limited reference to the IPCC, FWS embraced

the IPCC’s definition of “likely,” then ignored it, failed to

apply it to its assessment of the polar bear, and thus issued an

arbitrary and capricious decision. We disagree.

When the disputed section is read in context, Appellants’

argument is facially implausible. FWS’s reference to the

IPCC’s definition of “likely” seems related only to the

agency’s confidence in the climate forecasts, not to forecasts

on the species’ survival. The paragraph above the disputed

section is focused on “information on climate observations

and projections” and the views of “climate change scientists.”

Id. And the sentence immediately following the disputed

reference to the IPCC refers only to climate modeling. See id.

(“We have taken our best effort to identify the limitations and

27

uncertainties of the climate models and their projections used

in the proposed rule.”). Furthermore, Appellants point to

nothing else in the Listing Rule to support their claim that

FWS relied on the IPCC definition in determining that the

polar bear is likely to become an endangered species.

In its brief to this court, FWS reasonably explains that the

agency interpreted the statutory reference to “likely” as

having its “ordinary meaning” or “dictionary definition.” Br.

of Appellees at 45-46. FWS essentially argues that there is

nothing in the Listing Rule to indicate that the agency bound

itself to the IPCC definition and thus meant to conclude that

“likely” means 69-to-90 percent certainty. We agree.

“A fundamental canon of statutory construction is that,

unless otherwise defined, words will be interpreted as taking

their ordinary, contemporary, common meaning.” Perrin v.

U.S., 444 U.S. 37, 42 (1979). FWS’s implicit understanding

of “likely” is consistent with the word’s ordinary definition.

Therefore, we do not accept the claim that FWS meant to

apply anything other than the commonplace definition of

“likely.”

Appellants argue in the alternative that FWS arbitrarily

and capriciously failed to apply any standard of “likelihood”

at all. This argument also fails. In a rulemaking an agency is

free to rely on common English usage without adopting

specialized definitions. The agency made a reasoned

determination that the species is “likely to become an

endangered species within the foreseeable future.” 16 U.S.C.

§ 1532(20). Appellants have not presented us with a single

case in which a court has struck down an ESA listing decision

because the agency declined to separate out and specially

define the term “likely.” Nor do we believe that FWS’s

decision not to expressly define “likely” has impeded our

ability to review the agency’s decisionmaking process. We

hold that the Listing Rule does not misapply the statutory

28

term “likely,” as that term is commonly understood, and that

the agency action was not arbitrary and capricious on these

grounds.

5. FWS’s Standard of Foreseeability

The Act defines a threatened species as “any species

which is likely to become an endangered species within the

foreseeable future.” 16 U.S.C. § 1532(20) (emphasis added).

FWS considered the particular circumstances of this listing

decision and concluded that 45 years was the appropriate

foreseeable time period. See Listing Rule, 73 Fed. Reg. at

28,253-55. Appellants argue that FWS failed to justify its

definition of “foreseeable” as a 45-year period.

The term “foreseeable” is not defined by statute or

regulation. FWS determines what constitutes the

“foreseeable” future on a case-by-case basis in each listing

decision. See, e.g., 12-Month Finding on a Petition to List the

Siskiyou Mountains Salamander (Plethodon stormi) and Scott

Bar Salamander (Plethodon asupak) as Threatened or

Endangered, 73 Fed. Reg. 4380, 4381 (Jan. 24, 2008)

(defining the foreseeable future as 40 years based on FWS’s

ability to accurately anticipate threats to the species).

Appellants apparently reject FWS’s case-by-case approach

and claim that “‘the foreseeable future’ is the furthest period

of time in which [FWS] can reliably assess, based on

predicted conditions, whether the listing factors indicate that

the species likely will become ‘endangered.’” Appellants’

Joint Br. at 44. Appellants cite no legal authority suggesting

that FWS was bound to follow their preferred definition. In

any event, we conclude that, even applying Appellants’

formulation, FWS’s definition of foreseeability is reasonable.

FWS explained that “[t]he timeframe over which the best

available scientific data allows us to reliably assess the effect

of threats on the species is the critical component for

29

determining the foreseeable future.” Listing Rule, 73 Fed.

Reg. at 28,253. “In the case of the polar bear, the key threat is

loss of sea ice, the species’ primary habitat.” Id. FWS looked

at the most widely accepted climate models, as compiled by,

among others, the IPCC. It found that there was general

agreement in these models about warming and sea ice trends

until about mid-century, at which point they diverge on the

basis of uncertainties about, inter alia, population growth,

technological improvements, and regulatory changes. See id.

(different models’ projections are fairly consistent until mid-

century “because the state-of-the-art climate models used in

[the IPCC’s Fourth Assessment Report] have known physics

connecting increases in [greenhouse gas concentrations] to

temperature increases through radiation processes, and the

[greenhouse gas] levels used in the [models’] emissions

scenarios follow similar trends until around 2040-2050”).

Appellants do not challenge the data underlying FWS’s

listing decision, but only FWS’s interpretation of that data.

That Appellants might have chosen a different period of

foreseeability is of no moment so long as the agency’s

decision was justifiable and clearly articulated. Here, we find

that FWS has not “relied on factors which Congress has not

intended it to consider, entirely failed to consider an important

aspect of the problem, [or] offered an explanation for its

decision that runs counter to the evidence before the agency,”

nor is the agency’s explanation “so implausible that it could

not be ascribed to a difference in view or the product of

agency expertise.” Am. Wildlands, 530 F.3d at 997-98

(quoting State Farm, 463 U.S. at 43).

Appellants also challenge FWS’s discussion of polar bear

biology as an alternative justification for the 45-year period of

foreseeability. Listing Rule, 73 Fed. Reg. at 28,254. We need

offer no opinion on the merits of Appellants’ scientific

critique because we conclude that the agency’s reliance on

30

climate projections was sufficient to support their definition

of foreseeability. See id. (explaining that polar bear biological

considerations, such as reproductive cycles, were “not relied

on as the basis for determining ‘foreseeable future,’” even

though they provided “greater confidence for this listing

determination”).

6. Canada’s Polar Bear Conservation Efforts

The Act directs FWS to make listing decisions “solely on

the basis of the best scientific and commercial data

available . . . after conducting a review of the status of the

species and after taking into account those efforts, if any,

being made by any State or foreign nation . . . to protect such

species.” 16 U.S.C. § 1533(b)(1)(A) (emphasis added).

Appellants contend that FWS did not properly “take into

account” Canada’s polar bear conservation practices in

determining whether to list the species.

Appellants’ argument on this point is internally

inconsistent. At times, they construe the agency’s obligation

to “take into account” foreign conservation efforts as part of

its review of the “best scientific and commercial data

available.” See Appellants’ Joint Br. at 58. In other words,

they argue that foreign conservation efforts must be part of

the agency’s five factor analysis under 16 U.S.C.

§ 1533(a)(1). Under this interpretation, successful

international conservation efforts could conceivably offset

domestic habitat destruction, possibly obviating the need for a

listing decision on the basis of 16 U.S.C. § 1533(a)(1)(A).

On this view of the law, FWS clearly satisfied the

requirements of Act. The Listing Rule discusses the Canadian

harvest and export program at several points. See, e.g., Listing

Rule, 73 Fed. Reg. at 28,242. Ultimately, FWS concluded

there were no regulatory mechanisms in place, domestic or

international, that would “effectively address the primary

31

threat to polar bears – the rangewide loss of sea ice habitat.”

Id. at 28,288. The Listing Rule’s discussion of these

conservation efforts and their inability to offset the likely

effects of habitat loss is sufficient for us to conclude that FWS

“considered the factors relevant to its decision and articulated

a rational connection between the facts found and the choice

made.” Keating, 569 F.3d at 433.

Appellants also advance a different argument: that the

agency has an “independent obligation” to “take into account”

foreign conservation efforts in addition to the five factors in

16 U.S.C. § 1533(a)(1). See Appellants’ Joint Br. at 53. FWS

addressed a similar contention in the Listing Rule. Comment

21 suggested that FWS “failed to consider the negative

impacts of listing on the long-term management of polar bears

developed in Canada that integrates subsistence harvest

allocations with a token sport harvest.” Listing Rule, Fed.

Reg. at 28,242. The agency replied in relevant part as follows:

Significant benefits to polar bear management in Canada

have accrued as a result of the 1994 amendments to the

[Marine Mammal Protection Act] that allow U.S. citizens

who legally sport-harvest a polar bear from an MMPA-

approved population in Canada to bring their trophies

back into the United States. These benefits include

economic revenues to native hunters and communities;

enhanced funding a [sic] support for research; a United

States conservation fund derived from permit fees that is

used primarily on the Chukchi Sea population; and

increased local support of scientifically-based

conservation programs. . . . [However] the Service must

list a species when the best scientific and commercial

information available shows that the species meets the

definition of endangered or threatened. The effect of the

listing, in this case an end to the import provision under

Section 104(c)(5) of the MMPA, is not one of the listing

32

factors. Furthermore, the benefits accrued to the species

through the import program do not offset or reduce the

overall threat to polar bears from loss of sea ice habitat.

Id. (emphasis added). Whether or not FWS was required to

consider the negative impacts of its listing decision on

Canadian conservation efforts, the final sentence of the

above-quoted text indicates that it in fact did so. It concluded

that the benefits that accrued to polar bears from continued

importation of polar bear trophies from Canada were not

sufficient to undermine the basis for the listing decision. This

answer was enough, on its own, to dispose of the objection

raised.

7. Written Justification to the State of Alaska

The State of Alaska separately argues that FWS failed to

comply with Section 4(i) of the Act, which requires the

agency to provide a state with “a written justification for [its]

failure to adopt regulations consistent with the [state’s]

comments or petition.” 16 U.S.C. § 1533(i). Alaska submitted

detailed comments in response to both the proposed rule and

the nine USGS reports. On June 17, 2008, FWS responded

with a 45-page letter to Alaska specifically addressing the

State’s concerns. Alaska now maintains that this was

insufficient “written justification” for the agency action.

As a threshold matter, we reject FWS’s argument that

Alaska’s claim under Section 4(i) is not subject to judicial

review as part of the agency action. Like the District Court,

we construe Section 4(i) as “a procedural step that becomes

reviewable upon review of the final agency action (here, the

Listing Rule).” In re Polar Bear, 794 F. Supp. 2d at 115 n.59.

We further agree with the District Court that FWS

satisfied its obligations under Section 4(i) and that Alaska’s

claim plainly lacks merit. Alaska acknowledges that the

33

written justification that it received from FWS was timely, but

asserts that its content was inadequate. The Act does not

indicate what the substance of a written justification must be.

We find, however, that under any reasonable reading of the

Act, FWS committed no error in its response to the concerns

raised by the State of Alaska.

The agency regulations state that:

If a State agency, given notice of a proposed rule . . .

submits comments disagreeing in whole or in part with

a proposed rule, and the Secretary issues a final rule

that is in conflict with such comments, or if the

Secretary fails to adopt a regulation for which a State

agency has made a petition . . . the Secretary shall

provide such agency with a written justification for the

failure to adopt a rule consistent with the agency’s

comments or petition.

50 C.F.R. § 424.18(c). When this regulation was promulgated,

FWS and the National Oceanic and Atmospheric

Administration – the two agencies that jointly administer the

Act – offered the following interpretation to amplify the

statutory requirement:

[A commenter] recommended that any justification

provided a State agency under § 424.18(c) be required

to, “. . . set forth the reasons that the State agency’s

position was rejected, in sufficient detail and with

sufficient supporting data, that the agency may have

an evidentiary basis for comparing its position with

that of the Secretary.” The Services do not believe that

Congress intended to establish such a strict standard

for justifications to State agencies. Rather, the

Services interpret this provision of the Act to provide

that State agencies be adequately informed of the basis

34

for any action that is not in agreement with that

agency’s recommendation.

Amended Procedures to Comply with the 1982 Amendments

to the Endangered Species Act, 49 Fed. Reg. 38,900, 38,906

(Oct. 1, 1984).

The Services’ interpretation of the applicable regulation

commands no deference from this court. As the Supreme

Court has said, “[s]imply put, the existence of a parroting

regulation does not change the fact that the question here is

not the meaning of the regulation but the meaning of the

statute. An agency does not acquire special authority to

interpret its own words when, instead of using its expertise

and experience to formulate a regulation, it has elected merely

to paraphrase the statutory language.” Gonzales v. Oregon,

546 U.S. 243, 257 (2006). In other words, Gonzales indicates

that an agency’s interpretation of a regulation commands no

deference under Auer v. Robbins, 519 U.S. 452, 462 (1997),

or Thomas Jefferson University, 512 U.S. at 512, if the

regulation merely parrots the statute and the interpretation

does not itself carry the force of law warranting deference.

See Gonzales, 546 U.S. at 255-56 (holding that “deference . . .

is warranted only when it appears that Congress delegated

authority to the agency generally to make rules carrying the

force of law, and that the agency interpretation claiming

deference was promulgated in the exercise of that authority,”

and discussing United States v. Mead Corp., 533 U.S. 218,

226-27 (2001), and Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-45 (1984)). An agency

interpretation that commands no deference “is ‘entitled to

respect’ only to the extent it has the ‘power to persuade’.”

Gonzales, 546 U.S. at 256 (quoting Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)).

We find that FWS’s interpretation of Section 4(i) was

eminently reasonable and, thus, “entitled to respect.”

35

Skidmore, 323 U.S. at 140. FWS’s 45-page reply letter to

Alaska shows that “the Agency clearly thought about the

[State’s] objections and provided reasoned replies – all the

APA requires.” City of Portland v. EPA, 507 F.3d 706, 714

(D.C. Cir. 2007).

In its brief to this court, Alaska argues that FWS’s

written justification was deficient because the State disagreed

with the federal agency’s disposition of several substantive

issues in the Listing Rule. FWS’s letter to Alaska amplified

the basis for its positions on the disputed issues and, thus,

effectively addressed Alaska’s comments. Alaska does not

argue that FWS failed to give a timely response to the State’s

comments. Rather, Alaska simply disagrees with the

substantive content of FWS’s response. See, e.g., Alaska’s

Separate Br. at 12. (“[FWS] failed to adequately address these

concerns.”); id. at 13 (“[FWS] failed to adequately

respond. . . .”); id. (“[FWS] failed to provide the ‘adequate

written justification. . . .’”).

In requiring FWS to “submit to the State . . . a written

justification for [its] failure to adopt regulations consistent

with the [State’s] comments or petition,” Section 4(i) does not

mean to ensure that the State will be satisfied with FWS’s

response. Rather, Section 4(i) obviously is designed to allow

states to advance their particular sovereign concerns to ensure

that the federal agency has fully considered the applicable

state interests. Cf. Massachusetts v. EPA, 549 U.S. 497, 519-

20 (2007). FWS’s lengthy response to Alaska makes it clear

that the federal agency was fully aware of the State’s interests

and concerns and addressed them. That is all the Act required.

Indeed, even Alaska acknowledges that Section 4(i) is a

“procedural” rule, nothing more. See Alaska’s Separate Br. at

20. Thus, in assessing whether FWS satisfied the procedural

requirements of Section 4(i), we do not analyze the

sufficiency of FWS’s responses to Alaska’s comments. Cf.

36

City of Portland, 507 F.3d at 714. Any challenges that Alaska

has to the substantive Listing Rule can be – and, indeed, were

– made in a challenge to the Listing Rule itself.

In sum, we hold that FWS plainly satisfied its duties

under Section 4(i) in responding to the State of Alaska. We

therefore affirm the judgment of the District Court on this

point.

III. Conclusion

For the reasons discussed above, we affirm the judgment

of the District Court.