Endangered Species Law & Policy

Last week, the U.S. Fish and Wildlife Service (Service) published three new rules, continuing its flurry of activity from December as we previously noted here and here.  Below are the latest final and proposed rules issued by the Service.

January 16, 2015 – The Service issued a final rule listing the Mexican wolf (Canis lupus baileyi) (pdf) as endangered under the Endangered Species Act (ESA).  The Mexican wolf is a subspecies of the gray wolf that was listed as endangered in the southwestern United States and Mexico in April of 1976.  When the gray wolf was listed as endangered in 1978, it subsumed the Mexican wolf subspecies listing.  The Service proposed to delist the gray wolf in June 2013, which necessitated this final rule.  The Service identified illegal shooting of Mexican wolves as significantly affecting the species.  Additionally, the Service concluded that the species is significantly affected by inbreeding, loss of heterozygosity, loss of adaptive potential, and small population size.

In addition to the final rule listing the Mexican wolf, the Service also published a final rule to revise the regulations (pdf) for the nonessential experimental population of the Mexican wolf under Section 10(j) of the ESA.  The Service: (1) modified the geographic boundaries in which the experimental population of Mexican wolves are managed; (2) modified the management regulations that govern the initial release, translocation, removal, and take of Mexican wolves; and (3) issued a permit under Section 10 of the ESA for management of Mexican wolves both inside and outside of the Mexican Wolf Experimental Population Area.

January 16, 2015 – The Service published a proposed rule (pdf) to create a species-specific rule under authority of section 4(d) of the ESA that provides measures necessary and advisable to provide for the conservation of the northern long-eared bat (Myotis septentrionalis), should the Service determine that the species is a threatened species under the ESA.  Under section 4(d) of the ESA, the Secretary of the Interior has discretion to issues such regulations as she deems necessary and advisable to provide for the conservation of the species.  Although the Service has not yet made a final listing determination for the northern long-eared bat, it proposed the species-specific rule in the event that the final listing determination is to list the species as threatened.  If the Service lists the species as threatened, it intends to publish a final section 4(d) rule concurrent with, and as a component of, the final listing rule.

The proposed rule prohibits purposeful take of the species throughout its range except in instances of removal of northern long-eared bats from human dwellings and authorized capture and handling of northern long-eared bats by individuals permitted to conduct these activities for other listed bats.  The rule would except incidental take of the species from otherwise lawful activities in areas not affected by white nose syndrome (WNS), a disease affecting many U.S. bat populations.  In areas affected by WNS, all incidental take prohibitions would apply, except incidental take attributable to forest management practices, maintenance and limited expansion of transportation utility and rights-of-way, removal of trees and brush to maintain prairie habitat, and limited tree removal projects, provided these activities  protect known maternity roosts and hibernacula.  Removal of hazardous trees for the protection of human life or property are also excepted from the take prohibitions.  The Service also announced that it is reopening the public comment period on its October 2, 2013 proposed rule to list the northern long-eared bat as an endangered species.