Kangaroo Rat: From Endangered to Threatened

Nossaman LLP

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail, and a large head. It gets its name, in part, due to its similarity in appearance to the Kangaroo. However, unlike the larger Australian marsupial, the kangaroo rat lives in underground burrows throughout three geographic regions of Southern California. Specifically, its range includes western Riverside County, western San Diego County, and central San Diego County. Its nocturnal habits and limited time above ground have both made kangaroo rat populations difficult to survey, and placed populations in conflict with development in Southern California.

The Service’s proposed rule identifies habitat loss as a factor in both the kangaroo rat’s original listing and in the current proposal to list the kangaroo rat as threatened. However, due to the establishment of eight reserves for the kangaroo rat in Riverside County as part of the Western Riverside Multi-species Habitat Conservation Plan and the Stephens’ kangaroo rat Habitat Conservation Plan, the proposed rule states that significant steps have been taken toward preserving the species. The Service additionally notes that there are efforts underway to develop a similar Habitat Conservation Plan for the kangaroo rat in San Diego County, as well as protections for the kangaroo rat on the three Department of Defense facilities in San Diego County.

The Service’s proposed rule also identifies habitat fragmentation, habitat modification, non-native and invasive plant species, unauthorized use of off-highway vehicles, predation, and rodenticides as additional threats to the species. Based on the increased conservation efforts since the kangaroo rat’s listing, discovery of additional species populations, and the development of additional Habitat Conservation Plans, the Service indicates in the proposed rule that it no longer believes the kangaroo rat is or is likely to become extinct throughout all or a significant portion of its range.

In addition to proposing to downgrade the kangaroo rat’s listing status, the Service proposes to adopt a rule under ESA section 4(d). The proposed 4(d) rule would prohibit “take; possession and other acts with unlawfully taken [kangaroo rats]; delivering, receiving, carrying, transporting, or shipping [kangaroo rats] in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale [kangaroo rats] in interstate or foreign commerce.” This proposed 4(d) rule would be subject to certain exceptions, including exceptions for conservation activities undertaken by state agencies, and activities permitted in cooperation with the Service. The Service’s proposed rule indicates that it will accept comments on the proposed rule until October 19, 2020.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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