On May 3, 2019, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule to downlist the American burying beetle (Nicrophorus americanus) from endangered to threatened. The Service also proposed a rule under section 4(d) of the Endangered Species Act (“ESA”) to allow many routine activities to occur within the range of the species, even if they result in incidental take of the species, in light of the fact that such activities do not affect the overall viability of the American burying beetle.

The American burying beetle is a nocturnal species that has a one year lifespan. The species is known to occur in nine states ranging from South Dakota to Texas to Rhode Island. Historically, it is believed that the species was present in at least 35 states.  In making its determination that reclassification is appropriate the Service noted that “[a]t the time of listing, only two highly disjunct populations of a formerly widespread species were known to be extant, one in New England and one in eastern Oklahoma.”  The Service went on to state “[w]e now know there are more populations over a much wider area relative to the time of listing.”

The Service’s proposed 4(d) rule to accompany the proposed reclassification would prohibit all intentional take of the species occurring within suitable habitat. Beyond that, the rule would be tailored to prohibit incidental take in each of the three “analysis areas” (geographic areas that the American burying beetle is known to occupy).  In two of those areas (New England and the Northern Plains), incidental take would only be prohibited in suitable habitat when the take is the result of soil disturbance including actions such as grading, filling, soil excavating or topsoil stripping. Soil disturbance would also include application of pesticides that make habitat unsuitable. In the Southern Plains analysis area, take would only be prohibited on so-called “conservation lands,” which are defined by the proposed rule as lands included within the existing boundaries of Fort Chaffee in Arkansas, and McAlester Army Ammunition Plant, Camp Gruber and Cherokee Wildlife Management Areas, and the Nature Conservancy Tall Grass Prairie Preserve in Oklahoma. Where take occurs on conservation lands in compliance with a Service-approved incidental take permit, such take would not be prohibited under the proposed rule.

The proposed rule was issued under the terms of a stipulated order between American Stewards of Liberty, the Independent Petroleum Association of America, and the Osage Producers Association, as plaintiffs, and Federal Defendants, including the Service.  The stipulated order resolved a lawsuit brought by plaintiffs in the United States District Court for the Eastern District of Oklahoma.  Nossaman represented plaintiffs in the lawsuit.