Service Announces American Burying Beetle Downlisting and 4(d) Rule

Nossaman LLP

The United States Fish and Wildlife Service ("Service") recently released a pre-publication version of its final rule to reclassify the American burying beetle (Nicrophorus americanus) from endangered to threatened under the Endangered Species Act (“ESA”).  The final rule will also include 4(d) rule provisions that specify when the ESA section 9 take prohibitions will apply to the beetle.

The American burying beetle, which gets its name from its tendency to burrow under vegetation or into soil during the daytime and throughout the winter hibernation season, is the largest carrion beetle occurring in North America.  Native to at least thirty-five states, the beetle is believed to have been eradicated from all but nine.  Yet, as discussed in the pre-publication of the, the Service has determined that the species’ current range is much larger than originally thought at the time of listing, and that several large populations exist with relatively good genetic diversity, low current risks, and moderate to high resiliency.  

As a result, the Service has determined the American burying beetle is no longer in danger of extinction and therefore does not meet the definition of an “endangered” species.  However, the Service concluded that the species is still affected by current and ongoing threats such that it does meet the ESA definition of “threatened.”  For instance, increasing temperatures due to climate change, as well as land use changes associated with urbanization and agricultural activities, are projected to impact populations within the foreseeable future.  

Under ESA section 4(d), the Service is authorized to promulgate rules deemed “necessary and advisable to provide for the conservation of a threatened species.”  The American burying beetle final rule categorizes the species’ range into three distinct population analysis areas (the New England, Northern Plains, and Southern Plains analysis areas), and provides different 4(d) rule provisions for each.  In the Southern Plains analysis areas, incidental take is largely exempt from the ESA’s take prohibition.  That is, incidental take is prohibited in the Southern Plains analysis areas only when it occurs on specified “conservation lands” within suitable habitat, unless such incidental take is in compliance with a Service-approved conservation plan.  Conversely, in the New England and Northern Plains analysis areas, incidental take that results from soil disturbance is prohibited, except where take results from ranching and grazing activities.

The final rule and supporting documents will become available online at, under Docket No. FWS–R2–ES–2018–0029, once the final rule is published.  The rule will become effective 30 days after the date of publication in the Federal Register. 

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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