LEGAL PROTECTION OF CAVES AND BATS AT THE TURN OF THE MILLENNIUM
A COMPREHENSIVE PAPER BY TOM LERA
Thomas LeraA SUMMARY OF LEGISLATION AND ORGANIZATIONS INVOLVED IN THE PRESERVATION OF CAVES AND BATS
Abstract:
The conservation of bats and caves in our national parklands has come a long way since the National Park Service was founded in 1916. Awareness of the importance of bats, not only to park ecosystems, but also to surrounding areas, is much greater today. Speleologists should have a working knowledge of the National Park Services Act of 1916, Federal Cave Resources Protection Act of 1988, the Endangered Species Act of 1973, as amended, the National Environmental Protection Act of 1969, the Lechuguilla Cave Protection Act of 1993 and the National Cave and Karst Research Institute Act of 1998. These Acts specifically protect caves on Federal Lands for perpetual use, enjoyment and benefit of all people.
There are 27 states with cave protection laws and Texas is the only state with a specific bat protection law. The definition of a cave varies widely by state and ranges from a "historic site", as defined in Vermont, to Kentucky's definition of "any naturally occurring void, cavity, recess, or system of interconnecting passages beneath the surface of the earth containing a black zone including natural subterranean water and drainage systems, but not including any mine, tunnel, aqueduct, or other man-made excavation, which is large enough to permit a person to enter."
There are many national and international organizations dedicated to the preservation and management of bats and caves. This paper outlines the federal and state statutes and describes the organizations and their involvement in the preservation of caves and bats.
LEGISLACIÓN Y ORGANIZACIONES DEDICADAS A LA CONSERVACIÓN DE CAVIDADES Y MURCIÉLAGOS EN LOS EEUU
Resumen (Traducción: Grupu d’Espeleoloxía Gorfolí, Asturies):
La conservación de los murciélagos y las cavidades en nuestros Parques Nacionales ha seguido una larga trayectoria desde que el Servicio de Parques Nacionales fue fundado en 1916. La conciencia por la importancia de los murciélagos, no sólo para los ecosistemas de los Parques, sino también para las áreas de influencia de éstos, es mucho mayor hoy en día. Los espeleólogos deberían conocer medianamente la Ley del Servicio de Parques Nacionales, de 1916 (National Park Services Act); la Ley Federal de Protección de los Recursos Espeleológicos, de 1988 (Federal Cave Resources Protection Act); la Ley de Especies en Peligro, de 1973, con sus enmiendas (Endangered Species Act); la Ley Nacional de Protección Ambiental, de 1969 (National Environmental Protection Act); la Ley de Protección de la Cueva de Lechuguilla, de 1993 (Lechuguilla Cave Protection Act); y la Ley del Instituto Nacional de Investigación Espeleológica y del Karst, de 1998 (National Cave and Karst Research Institute Act). Estas leyes protegen de forma específica cavidades enclavadas en terreno federal para el uso, disfrute y beneficio perpetuo de todo el mundo.
Existen 27 Estados que disponen de leyes de protección de cavidades y Texas es el único Estado con una Ley específica de conservación de los murciélagos. La definición de "cavidad" varía mucho según el Estado y oscila entre un "sitio histórico", como es definida en Vermont, a la definición dada por Kentucky, como "cualquier oquedad de carácter natural, cavidad, abrigo, o sistema de conductos interconectados bajo la superficie de la tierra, con una zona de oscuridad y con tamaño suficiente para permitir el paso de una persona, incluyendo aguas naturales subterráneas y sistemas de drenaje, pero no cualquier mina, túnel, acueducto u otra excavación realizada por el hombre".
Existen muchas organizaciones nacionales e internacionales dedicadas a la conservación y gestión de los murciélagos y las cavidades. Este trabajo expone los estatutos federales y estatales y describe las organizaciones y su implicación en la preservación de las cavidades y los murciélagos.
A Summary of Legislation and Organizations Involved in the Preservation of Caves and Bats
The establishment of Yellowstone National Park was one of the true miracles in American History. We quietly set aside an area the size of one of our original states to be preserved in perpetuity, an act which led to the establishment of the National Park System and has been emulated by over a one hundred nations. President Grant signed the Yellowstone National Park Act on March 1, 1872. The key words in this act of only six hundred words are: "Yellowstone Park… is hereby reserved and withdrawn from settlement, occupancy or sale under the laws of the United States, and dedicated and set apart as a public park or pleasuring ground for the benefit and enjoyment of the people…(and) such regulations shall provide for the preservation from injury or spoliation of all timber, mineral deposits, natural curiosities, or wonders within said park, and retention in their natural condition." (Source S. 392, H.R. 464, 42nd Cong., 2nd Session, Stat 17,32.)
The National Park Services Act was enacted in 1916 (Public Law 64 – 235) and established the National Park Service followed by the creation of the Fish & Wildlife Service. Together these two organizations administer over 149 public laws with their associated rules, regulations and guidelines, and are under the domain of the Secretaries of Interior and Commerce. (http://www.fws.gov/laws/digest/reslaws/laws.html)
Today, there are 374 areas within the National Park System alone, covering more than 80 million acres in every state except Delaware, and including American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands. (http://www.nps.gov/parklists/byname.htm) The Park Service exists to conserve these lands — and the wildlife that lives within - preserving them for future generations, while still providing for human enjoyment of these special places. The diverse habitats of our parklands, at least 55 of which have significant cave and karst features, abound with wildlife including bat populations — making their homes in caves, historic abandoned mines, rock crevices, trees, and even in old park buildings.
Federal guidelines form the basis for management of these natural and historical resources, but each park also creates its own plan to address the management of its unique features and wildlife. Most park visitors view these lands as places where all resources are treasured and protected, but this has, unfortunately, not always been the case, especially for bats and their habitats.
The importance of caves to surrounding ecosystems — to say nothing of the importance of bats - was little understood by early park naturalists. In the past, many park managers perceived caves more as potential hazards to visitors than as valuable resources. The exception was if a cave had enough notable features to warrant being developed for tourism. When fences around non-commercial caves and mine openings didn't work as a safety measure to keep visitors out, parks often resorted to blocking the entrance by other means resulting in some major bat populations having been lost on national parklands.
Half of the National Parks were once National Monuments established by presidential proclamation rather than by an Act of Congress. The intent of the national monument enabling act, The National Antiquities Act (Public Law 59 - 509), was to allow the president to act quickly in saving archaeological sites on public lands before they could be plundered. The Act as written, however, applied to any area of historic or scientific interest, including caves.
FEDERAL LAWS
Speleologists should have a working knowledge of the National Park Services Act of 1916, Federal Cave Resources Protection Act of 1988, the Endangered Species Act of 1973, as amended, the National Environmental Protection Act of 1969, the Lechuguilla Cave Protection Act of 1993 and the National Cave and Karst Research Institute Act of 1998 and the proposed Puerto Rico Land and Water Conservation Act of 2000. These Acts specifically protect caves on Federal Lands for perpetual use, enjoyment and benefit of all people. (See Appendix 1 for details of these laws)
The NPS rules and regulations are found in U.S. Code Title 16, Chapter 1, National Parks, Military Parks, Monuments and Seashores. This Chapter has 123 subchapters and a Table of Contents which is 59 pages long. Subchapters of importance are Subchapter 15 - Wind Cave, Subchapter 47 - Mammoth Cave and Subchapter 50 - Carlsbad Caverns. A complete listing of this chapter is found at (http://www4.law.cornell.edu/uscode/16/ch1.text.html).
The Federal Cave Resource Protection Act of 1988 (Public Law 100 – 691) is the responsibility of the Department of Interior. The Act defines caves as "any naturally occurring void, cavity, recess, or system of interconnected passages which occurs beneath the surface of the earth or within a cliff or ledge [including any cave resource therein, but not including any vug (a small cavity in a rock), mine, tunnel, aqueduct, or other manmade excavation] which is large enough to permit an individual to enter, whether or not the entrance is naturally formed or man-made. Such term shall include any natural pit, sinkhole, or other feature, which is an extension of the entrance."
The implementing rules are found in Part 37, Subtitle A, Title 43 and are listed in Appendix 1. These rules establish criteria to be considered in the identification of significant caves. They also integrate cave management into existing planning and management processes and protect cave resource information to prevent disturbance of significant caves and vandalism. Primary impact lies with lands administered by the Bureaus of Indian Affairs, of Land Management, and Reclamation, as well as the National Park and the U.S. Fish and Wildlife Services.
Some key aspects of the significant cave determination process include provisions that:
Long before the enactment of The Endangered Species Act, 1973 (Public Law 93 – 205)(ESA), the Fish and Wildlife Service and it's predecessor, the Biological Survey, were taking specific actions to save, manage and restore America's imperiled natural resources, including caves.
Expanding upon the preceding Endangered Species Preservation Act of 1966, the ESA sought to stop the extinction of many species of wild animals and plants in the United States, other nations and at sea. (Lera, 1978) The Endangered Species Act is the responsibility of the U.S. Fish and Wildlife Service/U.S. Department of the Interior and the National Marine Fisheries Service/U.S. Department of Commerce and is one of the most comprehensive wildlife statutes ever enacted. The Secretaries of the Interior and Commerce administer the ESA. As a general rule, the majority of species listed are under the authority of the USFWS. The goal of the ESA is to bring about the recovery of listed species so they no longer need protection.
The ESA provides two levels of protection. Listed as endangered, and provided the most significant protection, are any species of plants or animals considered to be in danger of extinction throughout all or a significant portion of its range. Species likely to become endangered in the foreseeable future are listed as threatened, and protected by somewhat less restrictive regulations. With limited exceptions, the Act prohibits the using, taking, possessing, selling, or advertising for sale or trade of listed species in the U.S. and abroad, unless authorized by permit.
A species can be listed as threatened or endangered for one or more of the following reasons: current or threatened destruction, modification, or reduction of habitat or range; overuse for commercial, recreational, scientific, or educational purposes; disease or predation; ineffective protection regulations; and other natural forces or human activities affecting chances for survival. Once a listing is confirmed, critical habitat must also be designated. Critical habitat is defined as the geographic area that is essential to, or requires special protection for, the conservation of a species.
If the Secretary of the Interior finds it is not possible to designate habitat at the time of listing, it must be determined within one year. The economic as well as other relevant impacts are taken into consideration when specifying critical habitat. The Act also requires the Secretary of the Interior to develop and implement recovery plans for listed species. Recovery teams formulate recovery criteria and site-specific management plans.
Table 1 lists the US Fish & Wildlife Service's Endangered and Threatened Species of Bats by State. (http://endangered.fws.gov/mammals1.html)
The National Environmental Policy Act, 1969 (Public Law 91 – 184) (NEPA) is a landmark legislation that requires all Federal Government agencies that interpret and administer United States policies, regulations, and public laws to follow nine rules. The rules require agencies to use a systematic, interdisciplinary approach to environmental decision-making; to develop procedures for assigning values to environmental concerns, which can be directly compared to economic and technical concerns; and to provide detailed reports regarding any proposed projects that may significantly affect the quality of the environment (commonly called Environmental Impact Statement (EIS)). The EIS for a proposed project must include the expected environmental impact, any unavoidable negative impact, possible alternatives to the project, and an analysis of short-term versus long-term benefits.
The remaining NEPA rules require Federal agencies to monitor and evaluate environmental impact statements prepared by state agencies to: help create programs designed to maximize international environmental cooperation; serve as an information resource on a variety of environmental topics; research alternatives to unresolved environmental conflicts; use appropriate ecological information in planning and development; and, assist the Council on Environmental Quality.
The Lechuguilla Cave Protection Act of 1993 (Public Law 103 – 169) states that Congress found that Lechuguilla Cave and adjacent public lands have internationally significant scientific, environmental and other values, and should be retained in public ownership and protected against adverse effects of mineral exploration and development, as well as other activities presenting threats to the areas. The cave has multiple layers of protection under the Wilderness Act of 1978 (Public Law 95 – 237) and the National Park Services Act of 1916, as well as the Federal Cave Resources Act and the Lechuguilla Cave Protection Act. (Huppert, 1995)
Another important act is the National Cave and Karst Research Institute Act of 1998 (Public. Law. 105-325) whose purpose is to:
(1) further the science of speleology;
(2) centralize and standardize speleological information;
(3) foster interdisciplinary cooperation in cave and karst research programs;
(4) promote public education;
(5) promote national and international cooperation in protecting the environment for the benefit of cave and karst landforms; and
(6) promote and develop environmentally sound and sustainable resource management practices.
The Federal Cave Resources Protection Act (FCRPA) and the Endangered Species Act (ESA) each has provisions for taking (permitting) and for land acquisition with specific guidelines to follow with penalties for violations. The FCRPA penalty is a fine up to $10,000 and/or up to one-year imprisonment with subsequent penalties being stricter. For violating the ESA the criminal penalty is up to $50,000 and/or up to one-year imprisonment, and civil penalty a fine up to $25,000 per violation.
STATE LAWS
There are 27 states with cave protection laws and Texas has a specific bat protection law in addition to a cave protection law. The definition of a cave varies widely by state and ranges from a "historic site", as defined in Vermont, to Kentucky's definition of "any naturally occurring void, cavity, recess, or system of interconnecting passages beneath the surface of the earth containing a black zone including natural subterranean water and drainage systems, but not including any mine, tunnel, aqueduct, or other man-made excavation, which is large enough to permit a person to enter." Therefore a Kentucky "cave" includes or is synonymous with cavern and covers everything and more than contained in the Federal definition.
Penalties for vandalism, removing any materials found in caves, killing or removing plant and animal life, breaking or tampering with doors or gates are classified in every state as a misdemeanor ranging from Class A/Class 1 to a Class E/Class 5. The penalty is either criminal or civil and ranges from $50 to $2,000 and/or up to one-year imprisonment. A subsequent violation either increases the penalty or becomes a criminal felony.
Table 2 lists States with Cave Protection Laws and the Penalty for Violations. Appendix 2 summarizes the statutes in each state. The italic at the end of the text is from the State Criminal Code regarding the definition of misdemeanor. The laws have been tested and a recent example can be found in "A Summary of the Langhorn Cave Vandalism Case" found in the April 1999, issue of the NSS NEWS. The vandal received 40 hours of community service, served 4 weekends in jail and received a small fine.
Each state has some form of endangered species protection act that includes species found on their own state's list as well as on the federal list. It is beyond the scope of this paper to list all the different state laws and state threatened and endangered species. An excellent web site for an introduction to state wildlife laws is found at (http://ipl.unm.edu/cwl/statbook/intro.html).
NATIONAL ORGANIZATIONS
There are many organizations dedicated to the preservation and management of bats and caves.
The National Speleological Society (NSS) is the world's largest organization dedicated to the exploration, conservation and study of caves. Founded in 1941 and located in Huntsville, AL, its members have discovered, explored and studied more than 40,000 caves in the United States, as well as conducted extensive research and exploration in caves throughout the world. The NSS includes more than 11,000 active members with interests ranging from recreation to research, and whose efforts have contributed extensively to understanding our nation's cave resources. (http://www.caves.org)
The National Speleological Society's Policy for Cave Conservation (from the NSS Board of Governors Manual) states that: caves have unique scientific, recreational, and scenic values; these values are endangered by both carelessness and intentional vandalism; these values, once gone, cannot be recovered; and the responsibility for protecting caves must be assumed by those who study and enjoy them.
Accordingly, the intention of the Society is to work for the preservation of caves with a realistic policy supported by effective programs for: the encouragement of self-discipline among cavers; education and research concerning the causes and prevention of cave damage; and special projects, including cooperation with other groups similarly dedicated to the conservation of natural areas. Specifically:
Scientific collection should be professional, selective and minimal. The collecting of mineral or biological material for display purposes, including previously broken or dead specimens, is never justified as it encourages others to collect and destroys the integrity of the cave.
The NSS encourages projects such as: establishing cave preserves; placing entrance gates where appropriate; opposing the sale of speleothems; supporting effective protective measures; cleaning and restoring over-used caves; cooperating with private cave owners by providing knowledge about their cave and assisting them in protecting the cave and their property from damage during cave visits; and encouraging commercial cave owners to make use of the opportunity to aid the public in understanding caves and the importance of their conservation.
Where there is reason to believe that publication of cave locations will lead to vandalism before adequate protection can be established, the NSS will oppose such publication.
It is the duty of every NSS member to take personal responsibility for spreading a consciousness of the cave conservation issue to each potential user of caves. Without this, the beauty and value of our caves will not long remain with us.
There are Memorandums of Understanding between the NSS and the Bureau of Land Management, Fish and Wildlife Service, National Park Service, the Forest Service, the American Cave Conservation Association (http://www.cavern.org/acabout.html), Bat Conservation International (http://www.batcon.org), The Nature Conservancy (http://www.tnc.org), Project Underground, Inc. and Karst Waters Institute (http://www.karstwaters.org). These memorandums were entered in agreement between June 1984 and April 2000 and are continually revised. The MOUs will help carry out the responsibilities under the 1988 Federal Cave Resources Protection Act to preserve our nation's significant caves, and to improve cooperation between cavers, cave researchers, and the Federal Government.
An important provision of the Federal Cave Resources Protection Act mandates an inventory of all significant federally owned caves, many of which have not been fully explored and thus could be threatened with harm from surface activities. Participation by the NSS will lead to the successful completion of this nationwide inventory effort.
The NSS also has a Cave Vandalism Deterrence Award ranging from $ 250.00 to $ 1,000.00 for information leading to the conviction of any person vandalizing a cave. (See Appendix 3 for details of the Memorandums and Award Policy)
The American Cave Conservation Association (ACCA) is a nonprofit organization formed in 1977 for the purpose of protecting caves and karst lands. ACCA is committed to developing public education programs and professional services that promote land use planning and proper stewardship of underground natural resources. In 1986, ACCA moved its headquarters from Richmond, Virginia to Horse Cave, Kentucky with the goal of building a unique, national educational center to address cave, karst and groundwater problems. ACCA raised more than $1.4 million from grants and donations in order to open the Center in 1993. This Center included the American Cave Museum.
ACCA has designed more than 100 cave gates for protection of endangered species and archaeological sites. Training seminars have taught hundreds of land managers how to effectively take care of caves. For nearly two decades, ACCA has worked in partnership with agencies and organizations such as the National Park Service, the U.S. Forest Service, the U.S. Fish and Wildlife Service, the Nature Conservancy and the NSS to protect some of the most significant cave ecosystems in America. (http://www.cavern.org/acabout.htm)
Bat Conservation International's (BCI) mission is to protect bats and restore their habitats worldwide. BCI is committed to:
BCI's philosophy is that there must be a balance between the needs of wildlife and the needs of humans. Increasing populations, poverty, and agricultural practices must be considered in meeting the organization's goals. Safeguarding the future of bats and their habitats, BCI helps to ensure the preservation of our planet’s biodiversity, thus creating a healthier environment for both wildlife and people.
The major areas of influence in furthering this philosophy are in the following programs: The North American Bat Conservation Partnership with BLM, the Latin America Bat Conservation Initiative (PCMM), the North American Bats and Mines Project, the North American Bat House Research Project, the Bats and Buildings Project, and in Workshops, Education and Public Outreach Programs. The NSS is an active partner in all BCI activities and programs. (http://www.batcon.org)
The Nature Conservancy, headquartered in Arlington, Virginia, is a nonprofit organization incorporated in 1951 for scientific and educational purposes. Its mission is "to preserve plants, animals, and natural communities that represent the diversity of life on earth by protecting the lands and water they need to survive." To date, the Nature Conservancy has been responsible for the protection of more than 6.3 million acres in the United States and Canada, and has partner organizations to preserve land in Latin America and the Caribbean. The Nature Conservancy owns more than 1,300 preserves, making it the largest private system of nature sanctuaries in the world. (http://www.tnc.org)
A key objective of Nature Conservancy programs is to integrate economic growth with environmental protection. The Conservancy launched the Natural Heritage Program and Conservation Data Center Network (the Heritage Network), a system that has resulted in the world's most comprehensive inventory of rare species and ecosystems. The network consists of 82 data centers across the Western Hemisphere, operated by both public and private institutions. Each center employs experts to collect information on local plants and animals that are stored in a communal computer system, currently holding more than 400,000 records on various species. Of the more than 5,600 plants and animals identified as rare by the Heritage Network in the U.S., only about 8% have been listed under the Endangered Species Act.
The Karst Waters Institute (KWI)is a 501 (c)(3) non-profit institution whose mission is to improve the fundamental understanding of karst water systems through sound scientific research and the education of professionals and the public. The institute is governed by a Board of Directors and does not have or issue memberships. Institute activities include the initiation, coordination, and conduct of research, the sponsorship of conferences and workshops, and occasional publication of scientific works. KWI supports these activities by acting as a coordinating agency for funding and personnel, but does not supply direct funding or grants to individual researchers.
As one way of increasing public awareness of karst and cave protection, the Institute publishes a list of the Top 10 endangered karst environments in the world. The third annual list is now available.(http://www.karstwaters.org)
INTERNATIONAL ORGANIZATIONS
The World Wildlife Fund (WWF) has organizations in nearly 40 countries. WWF is the largest private organization working worldwide to protect endangered wildlife and its habitat. Since its formation in 1961, WWF has supported 2,068 projects in 116 countries and has spent over $62 million on conservation efforts. The organization is committed to protecting natural areas and wild populations of plants and animals, including endangered species; supporting sustainable approaches to the use of renewable natural resources; promoting more efficient use of resources and energy; and working for the maximum reduction of pollution. (http://www.wwf.org)
The International Union for the Conservation of Nature and Natural Resources (IUCN)/World Conservation Union is the only worldwide conservation organization. Established in 1948 and based in Gland, Switzerland, it links together government and non-governmental agencies, and independent states to encourage a worldwide approach to conservation. In 1993, its membership included 655 organizations, representing 103 countries. The IUCN/World Conservation Union endorses captive breeding in addition to habitat protection to maintain viable populations in the wild. Its mission is "to provide leadership and promote a common approach for the world conservation movement in order to safeguard the integrity and diversity of the natural world, and to ensure that human use of natural resources is appropriate, sustainable, and equitable."
Each year the IUCN, the world's largest independent conservation organization, updates its Red Data Book, which lists worldwide plant and animal species known to be endangered, vulnerable or rare. Out of approximately 986 species of bats in the world (Nowak, 1994), the 1996 Red Data Book places 499 bat species in these one of three categories — 50.6 % of the total bat population.
How does the IUCN/World Conservation Union categorize animals? The term "threatened" is used to describe animals protected by the IUCN/World Conservation Union, and divides them into categories, which are listed in the 1996 Red Book. Table 3 lists by categories bat families that are on the Red Book list and Table 4 breaks out this list for those bat families found in the United States. Table 5, "Bat Species in the Continental United States", lists all of the bats found in the Continental United States and identifies 7 species listed as endangered by the Fish and Wildlife Service, and 11 species listed by the IUCN.
Conservation biologists recently have suggested that constructing these red lists has been a major tactical error. (Diamond, 1988) The mere existence of such lists can lead to the assumption that if a species is not listed, it is not in jeopardy. A great many species not on any threatened or endangered list should be, but we do not know enough about them. A major problem is that to be included, the extent and rate of decline must be documented. However, in many cases, past populations have not been studied, and this data is often not available. To correct this problem, it has been suggested rather than putting together red lists, we should construct "green lists." Green lists would index species known to be secure. Thus, the burden of proof would be shifted to those who maintain all is well with a species.
The text below gives summary definitions of the categories (number of bats in each category). (Appendix 4 details each category)
A. EXTINCT (EX)-(13)
B. EXTINCT IN THE WILD (EW)-(0)
C. CRITICALLY ENDANGERED (CR)-(26)
D. ENDANGERED (EN)-(32)
E. VULNERABLE (VU)-(173)
F. LOWER RISK (LR)-(212)
1. Conservation Dependent (cd)-(2)
2. Near Threatened (nt)-(210)
3. Least Concern (lc) (0)
G. DATA DEFICIENT (DD)-(43)
H. NOT EVALUATED (NE)-(0)
(http://www.wcmc.org.uk/species/animals/table1.html)
As part of the Endangered Species Act, Congress directed the Department of the Interior to convene an international convention to conserve endangered species. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), an international assembly convened in 1973 in Washington, D.C. and the resulting treaty became effective on July 1, 1975. The United States and 140 other nations are parties, which have ratified the agreement (only four nations have succeeded from the organization to the agreement) is required to meet and discuss wildlife trade issues at least once every two years. CITES recognizes that unrestricted commercial exploitation is a major threat to species' survival. It establishes worldwide controls over trade in certain species of endangered and threatened wildlife and plants. (http://www.wcmc.org.uk/CITES/index.shtml)
CITES categorizes plants and animals in one of three Appendices.
Table 6 lists the bats (by Family) that are listed in the CITES Appendixes. A "D" on the table means the species has been deleted from the list. There are currently 67 bats on the list and 10 bats have been deleted.
Can We Save Them All?
Let's start with the proposition that we want to save as many endangered bats and caves as possible. The question is, how? We first need to clearly understand the basic problem--that is, why are they endangered? Next we must look at how well efforts to save endangered species have worked to date. If they haven't worked, we need to understand why not. Finally, we must look at other fields to see what tools we can apply that may be more successful.
There are several ways of looking at a species decline. The standard ecological view blames disappearing species on habitat loss. But the question still remains, why is there habitat loss?
Habitat Degradation
With our ignorance as a perspective, consider some of what we do know about the status of bats— particularly, North American bats. Among the 45 species, cave roosting sites are essential for 24 of them, and occasionally some of the remaining 21. Nineteen of the 24 utilize caves year-round, both for reproduction and as winter roosts. The other five rely on caves only for hibernation, and roost elsewhere during the reproductive season. (Barbour, 1969)
Bats have rates of population growth far lower than those of other small mammals. Many females do not begin reproducing until their second year, and most species give birth to only a single pup annually. Bats typically have long life spans (10 to more than 30 years). Consequently, their populations are built up over a long span of time, thus reducing the rate and probability of recovery from severe losses.
Bats have other characteristics that contribute to their vulnerability. One of the most significant is they roost in large aggregations, concentrated into a few roost sites. Mexican free-tailed bats (Tadarida brasiliensis) are an excellent example. Single-cave roosts of these bats can contain tens of millions, therefore the loss of even one such roost would impact a significant portion of the species, hence the protection of Bracken Bat Cave in Texas.
Wherever bats concentrate they are vulnerable to a variety of human-caused disturbances. At least three endangered species (Indiana, Gray and Sanborn's long-nosed bats) have abandoned traditional roost sites because of cave disturbance or expansion of urbanization. (Humphrey, 1978; Wilson, 1985; Tuttle, 1979) Others lose their caves entirely during quarrying operations and vandalism. In the temperate zone, bats typically encountered by cave explorers are either hibernating or rearing young. Disturbances as seemingly trivial as merely entering a roost area or shining a light can result in decreased chances for survival, outright death, or abandonment of the roost site.
Problems caused by disturbing hibernating bats also relate to energy requirements. During winter, bats in hibernation go for long periods without eating, allowing their body temperatures to drop often to near freezing. The energy reserves they accumulate prior to hibernation may be only slightly more than what is needed to survive the winter. Disturbance during hibernation can arouse bats prematurely, elevating body temperatures and utilizing stored energy. They may return to a state of torpor after a disturbance, but without sufficient energy to survive until spring.
General habitat alteration and degradation can be important. For instance, two North American long-nosed bats on the IUCN red list, are being disturbed in their cave roosts, as well as threatened by declining food resources. The bats live in desert regions of the southwestern United States and Mexico, they feed on the nectar of desert flowers, particularly wild agaves. But these plants have been severely reduced by cattle grazing and by moon-shiners who harvest them for making tequila. As long-nosed bats decline, their loss in turn threatens organ pipe, saguaro and other giant cacti, attributable, in large part, to the decline of their bat pollinators. (Wilson, 1985)
Insecticides have had a negative impact on many bat populations. (Stebbings, 1985) At least two likely effects are direct poisoning and changes in the food resource base of insectivorous bats. Direct poisoning by DDT (now banned for use in the United States) and other organochlorine pesticides has been widely implicated in the declines of many populations. (Lukins, 1964; Geluso, 1981) While pesticide poisoning has clearly been a factor in bat population decline, there has been a tendency to over-emphasize its importance, distracting attention from other, more significant, causes. (McCracken, 1986) This does not exonerate pesticides, but rather points to what are often even more important causes of bat population decline: roost site interference and the reduction of feeding habitat.
Habitat Protection
From what we know about the impact of human activities on bat populations, roost site disturbance, vandalism and habitat destruction have all had severe effects, particularly on cave-dwelling bats. People, who visit caves, both professionally and/or for recreation, need to be acutely aware of the potential damage they can do to the resident bats.
Bats select cave sites because they fulfill very specific requirements involving cave structure, air circulation patterns, temperature profiles and location relative to feeding sites. (Tuttle, 1979) Since these requirements are highly specific, suitable caves are relatively rare. For many bat populations, there may be only one or two acceptable roost sites, making these sites absolutely essential to their survival.
There are caves which should be designated as "red caves" with no or limited visitation. Designated "green caves" would not be important to bats or other endangered animals, and could be open to visitation any time. (McCracken, 1988) The major problem is determining which caves belong on the "green" versus the "red" list. One obvious "red list" criterion is whether the cave is a major hibernation and/or maternity roost of endangered bats or those of unknown status. Caves not currently occupied by bats, and for which there is no evidence of prior occupancy, could be green-listed. Judgments will have to be made, often with only limited information.
Listing caves for no access or restricted use can be controversial. In the United States, several local grottos of the National Speleological Society already have constructed such lists and are in the process of evaluating them.
Conclusion
The conservation of bats and caves in our national parklands has come a long way since the National Park Service was founded in 1916. Awareness of the importance of bats, not only to park ecosystems, but also to surrounding areas, is much greater today.
But while many parks have in recent years become more sensitive to protecting bats and caves, funding to erect special bat gates or to conduct surveys can be difficult to find and remains at the bottom of the priority list. While protective gates are a proven help in the recovery of bat populations, the process is very slow. Some bat colonies may be lost before they are protected.
However, our National Park System continues to add new lands with significant bat habitat. Samoa National Park was established in 1988 in American Samoa to protect flying foxes and their unique rain forest habitat. The Samoan flying foxes (Pteropus samoensis) are currently being evaluated for endangered or threatened listing. (Lera, 2000)
Unlike most other park mammals, bats know no boundaries. They may go home in the morning to a particular park, but can also provide tremendous ecological benefits far beyond their park's borders. Parks are increasingly living up to their mission of conserving habitat for all their wildlife, including bats. But park visitors too must change their attitudes and learn to respect the homes of these animals. With as much beauty as we have in our national parks, there is still plenty for visitors to explore rather than disturb the fragile habitat where bats live.
Through the local grottos, the NSS contributes key information about the location and character of undeveloped and developed caves. Knowledge of these caves and increased cooperation with caving groups and federal agencies will result in better management and protection of these valuable resources.
Today, sustainability is the keyword for environmentalists, or, for that matter, anyone who cares about the future of the planet. We want to preserve as much of the natural world as possible. The question long ago stopped being about the existence of national parks, but about the ongoing quality of these parks. Federal and state laws provide remedies and cures, land acquisition and preservation methods. The NSS and other national organizations provide volunteers to help make these laws work.
Footnote: This paper and all of the appendices and tables can be found on the NSS Conservation and Management Section’s website located at:
http://www.caves.org/section/ccms/. Look for the Cave and Bat Protection Law Site.
References
Barbour, R.W. and W.H. Davis. 1969. Bats of America. Univ. of Kentucky Press. 305pp.
Diamond, J.M. 1988. Red books for green lists? Nature, 332:304-305.
Imboden, C. 1988. Green lists instead of red books? World Birdwatch, 9(2):2.
Geluso, K.N., J.S. Altenbach, and D.E. Wilson. 1981. Organochlorine residues in young Mexican free-tailed bats from several roosts. Amer. Midl.Nat. 105:249-257.
Humphrey, S.R. 1978. Status, winter habitat, and management of the endangered Indiana bat, Myotis sodalis. Florida Science, 41:65-76.
Huppert, G.N. 1995. Legal Protection for caves in the United States, Environmental Geology, 26:121-123.
Lera, T. 1978. U.S. EPA Report 905 / 3-78-001, "Bat Management in the United States: A Survey of Legislative Actions, Court Decisions and Agency Interpretations," 49 pp.
Lera, T. 2000. A National Park for Bats. Topical Times. Manuscript accepted for publication.
Luckens, M.M. and W.H. Davis. 1964. Bats: sensitivity to DDT. Science, 146:948.
Musgrave, Ruth. Et.al. 1998. Federal Wildlife and Related Laws Handbook. Center for Wildlife Law - Government Institutes Division, 665pp.
McCracken. G.F. 1986. Why are we losing our Mexican free-tailed bats? BATS, 3(3): 1-2 & 4.
McCracken, G.F. 1988. Who is endangered and what can we do? BATS, 6(3): 5-9.
Nowak, Ronald M. 1994. Walker’s Bats of the World. 287pp.
Stebbings, R.E. 1988. Conservation of European Bats, Christopher Helm, London, 246 pp.
Tuttle, M.D. 1979. Status, causes of decline, and management of endangered gray bats. J. Wildlife Management., 43:1-17.
Wilson, D.E. 1985. Status Report: Leptonycteris sanborni, Hoffmeister. Sanborn's long-nosed bat. Report to U.S. Fish and Wildlife Service.
Internet References:
Fish and Wildlife Public Laws: (http://www.fws.gov/laws/digest/reslaws/laws.html)
National Parks Locations: (http://www.nps.gov/parklists/byname.htm)
NPS Rules and Regulations U. S. Code Title 16, Conservation:
(http://www4.law.cornell.edu/uscode/16/ch1.text.html)
Fish and Wildlife Endangered Species: (http://endangered.fws.gov/mammals1.html)
State Wildlife Laws: http://ipl.unm.edu/cwl/statbook/intro.html
National Speleological Society: (http://www.caves.org)
The Nature Conservancy: (http://www.tnc.org)
The World Wildlife Fund: (http://www.wwf.org)
Bat Conservation International: (http://www.batcon.org)
American Cave Conservation Association: (http://www.cavern.org/acabout.html)
Karst Waters Institute (http://www.karstwaters.org)
The International Union for the Conservation of Nature and Natural Resources:
(http://www.wcmc.org.uk/species/animals/table1.html)
The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES): (http://www.wcmc.org.uk/CITES/index.shtml)
The NSS Conservation and Management Section’s Website: http://www.caves.org/section/cms/
Additional Reading:
Bradshaw, E. 1982, "Cave Laws of the United States", National Cave Management Symposia Proceedings for 1978 and 1980, editors, Ronald Wilson and Julian Lewis, Pygmy Dwarf Press, Oregon City, Oregon, pp. 214-227.
Huppert, G.N. and B.J. Wheeler, 1982, "State legislation concerning the protection of caves', National Cave Management Symposia Proceedings for 1978 and 1980, editors, Ronald Wilson and Julian Lewis, Pygmy Dwarf Press, Oregon City, Oregon, pp. 45-47.
LaMoreaux, P.E., W.J. Powell and H.E. LeGrand, 1997, "Environmental and legal aspects of karst areas", Environmental Geology, Vol. 29,No. 1/2, January, pp.23-36.
Power, C.L., 1974, A Handbook on Cave Conservation Legislation, Conservation Committee of the National Speleological Society, Huntsville, Alabama, unpaged.
Stitt, R.R., 1976, "State cave protection law and their enforcement", 1975 National Cave Management Symposium, Speleobooks, Albuquerque, New Mexico, pp. 91-97.
APPENDIX I
FEDERAL LAWS AND REGULATIONS PERTAINING TO CAVES AND ENDANGERED SPECIES
16 USC CHAPTER 63 - FEDERAL CAVE RESOURCES PROTECTION
TITLE 16 - CONSERVATION
CHAPTER 63 - FEDERAL CAVE RESOURCES PROTECTION
Section 4301. Findings, purposes, and policy.
(a) Findings.
(b) Purposes.
(c) Policy.
Section 4302. Definitions.
Section 4303. Management actions.
(a) Regulations.
(b) In general.
(c) Planning and public participation.
Section 4304. Confidentiality of information concerning nature and location of significant caves.
(a) In general.
(b) Exceptions.
Section 4305. Collection and removal from Federal caves.
(a) Permit.
(b) Revocation of permit.
(c) Transferability of permits.
(d) Cave resources located on Indian lands.
(e) Effect of permit.
Section 4306. Prohibited acts and criminal penalties.
(a) Prohibited acts.
(b) Punishment.
Section 4307. Civil penalties.
(a) Assessment.
(b) Judicial review.
(c) Collection.
(d) Subpoenas.
Section 4308. Miscellaneous provisions.
(a) Authorization of appropriations.
(b) Effect on land management plans.
(c) Fund.
(d) Existing rights.
Section 4309. Savings provision.
(a) Water.
(b) Fish and wildlife.
4310. Establishment of Cave Research Program.
(a) Establishment.
(b) Functions.
(c) Emphasis.
Section. 4301. Findings, purposes, and policy
(a) Findings
The Congress finds and declares that -
(1) significant caves on Federal lands are an invaluable and irreplaceable part of the Nation's natural heritage; and
(2) in some instances, these significant caves are threatened due to improper use, increased recreational demand, urban spread, and a lack of specific statutory protection.
(b) Purposes
The purposes of this chapter are:
(1) to secure, protect, and preserve significant caves on Federal lands for the perpetual use, enjoyment, and benefit of all people; and
(2) to foster increased cooperation and exchange of information between governmental authorities and those who utilize caves located on Federal lands for scientific, education, or recreational purposes.
(c) Policy
It is the policy of the United States that Federal lands be managed in a manner which protects and maintains, to the extent practical, significant caves.
(Public Law 100-691, Sec. 2, Nov. 18, 1988, 102 Stat. 4546.)
Section. 4302. Definitions
For purposes of this chapter:
(1) Cave - The term ''cave'' means any naturally occurring void, cavity, recess, or system of interconnected passages which occurs beneath the surface of the earth or within a cliff or ledge (including any cave resource therein, but not including any vug, mine, tunnel, aqueduct, or other manmade excavation) and which is large enough to permit an individual to enter, whether or not the entrance is naturally formed or manmade. Such term shall include any natural pit, sinkhole, or other feature, which is an extension of the entrance.
(2) Federal lands - The term ''Federal lands'' means lands the fee title to which is owned by the United States and administered by the Secretary of Agriculture or the Secretary of the Interior.
(3) Indian lands - The term ''Indian lands'' means lands of Indian tribes or Indian individuals which are either held in trust by the United States for the benefit of an Indian tribe or subject to a restriction against alienation imposed by the United States.
(4) Indian tribe - The term ''Indian tribe'' means any Indian tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims settlement (FOOTNOTE 1) Act (43 U.S.C. 1601 et seq.).(FOOTNOTE 1) So in original. Probably should be capitalized.
(5) Cave resource - The term ''cave resource'' includes any material or substance occurring naturally in caves on Federal lands, such as animal life, plant life, paleontological deposits, sediments, minerals, speleogens, and speleothems.
(6) Secretary - The term ''Secretary'' means the Secretary of Agriculture or the Secretary of the Interior, as appropriate.
(7) Speleothem - The term ''speleothem'' means any natural mineral formation or deposit occurring in a cave or lava tube, including but not limited to any stalactite, stalagmite, helictite, cave flower, flowstone, concretion, drapery, rimstone, or formation of clay or mud.
(8) Speleogen - The term ''speleogen'' means relief features on the walls, ceiling, and floor of any cave or lava tube which are part of the surrounding bedrock, including but not limited to anastomoses, scallops, meander niches, petromorphs and rock pendants in solution caves and similar features unique to volcanic caves.
(Pub. L. 100-691, Sec. 3, Nov. 18, 1988, 102 Stat. 4546.)
REFERENCES IN TEXT
The Alaska Native Claims Settlement Act, referred to in par. (4), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended, which is classified generally to chapter 33 (Sec. 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43and Tables.
Section. 4303. Management actions
(a) Regulations
Not later than nine months after November 18, 1988, the Secretary shall issue such regulations, as he deems necessary to achieve the purposes of this chapter. Regulations shall include, but not be limited to, criteria for the identification of significant caves. The Secretaries shall cooperate and consult with one another in preparation of the regulations. To the extent practical, regulations promulgated by the respective Secretaries should be similar.
(b) In general
The Secretary shall take such actions as may be necessary to further the purposes of this chapter. Those actions shall include (but need not be limited to):
(1) identification of significant caves on Federal lands:
(A) The Secretary shall prepare an initial list of significant caves for lands under his jurisdiction not later than one year after the publication of final regulations using the significance criteria defined in such regulations. Such a list shall be developed after consultation with appropriate private sector interests, including cavers.
(B) The initial list of significant caves shall be updated periodically, after consultation with appropriate private sector interests, including cavers. The Secretary shall prescribe by policy or regulation the requirements and process by which the initial list will be updated, including management measures to assure that caves under consideration for the list are protected during the period of consideration. Each cave recommended to the Secretary by interested groups for possible inclusion on the list of significant cave shall be considered by the Secretary according to the requirements prescribed pursuant to this paragraph, and shall be added to the list if the Secretary determines that the cave meets the criteria for significance as defined by the regulations.
(2) regulation or restriction of use of significant caves, as appropriate;
(3) entering into volunteer management agreements with persons of the scientific and recreational caving community; and
(4) appointment of appropriate advisory committees.
(c) Planning and public participation
The Secretary shall:
(1) ensure that significant caves are considered in the preparation or implementation of any land management plan if the preparation or revision of the plan began after November 18, 1988; and
(2) foster communication, cooperation, and exchange of information between land managers, those who utilize caves, and the public.
Section. 4304. Confidentiality of information concerning nature and location of significant caves
(a) In general
Information concerning the specific location of any significant cave may not be made available to the public under section 552 of Title 5 unless the Secretary determines that disclosure of such information would further the purposes of this chapter and would not create a substantial risk of harm, theft, or destruction of such cave.
(b) Exceptions
Notwithstanding subsection (a) of this section, the Secretary may make available information regarding significant caves upon the written request by Federal and State governmental agencies or bona fide educational and research institutions. Any such written request shall, at a minimum:
(1) describe the specific site or area for which information is sought;
(2) explain the purpose for which such information is sought; and
(3) include assurances satisfactory to the Secretary that adequate measures are being taken to protect the confidentiality of such information and to ensure the protection of the significant cave from destruction by vandalism and unauthorized use.
-SOURCE-
(Pub. L. 100-691, Sec. 5, Nov. 18, 1988, 102 Stat. 4548.)
Section. 4305. Collection and removal from Federal caves
(a) Permit
The Secretary is authorized to issue permits for the collection and removal of cave resources under such terms and conditions as the Secretary may impose, including the posting of bonds to insure compliance with the provisions of any permit:
(1) Any permit issued pursuant to this section shall include information concerning the time, scope, location, and specific purpose of the proposed collection, removal or associated activity, and the manner in which such collection, removal, or associated activity is to be performed must be provided.
(2) The Secretary may issue a permit pursuant to this subsection only if he determines that the proposed collection or removal activities are consistent with the purposes of this chapter, and with other applicable provisions of law.
(b) Revocation of permit
Any permit issued under this section shall be revoked by the Secretary upon a determination by the Secretary that the permittee has violated any provision of this chapter, or has failed to comply with any other condition upon which the permit was issued. Any such permit shall be revoked by the Secretary upon assessment of a civil penalty against the permittee pursuant to section 4307 of this title or upon the permittee's conviction under section 4306 of this title. The Secretary may refuse to issue a permit under this section to any person who has violated any provision of this chapter or who has failed to imply with any condition of a prior permit.
(c) Transferability of permits
Permits issued under this chapter are not transferable.
(d) Cave resources located on Indian lands
(1) (A) Upon application by an Indian tribe, the Secretary is authorized to delegate to the tribe all authority of the Secretary under this section with respect to issuing and enforcing permits for the collection or removal of any cave resource, or to carrying out activities associated with such collection or removal, from any cave resource located on the affected Indian lands.
(B) In the case of any permit issued by the Secretary for the collection or removal of any cave resource, or to carry out activities associated with such collection or removal, from any cave resource located on Indian lands (other than permits issued pursuant to subparagraph (A)), the permit may be issued only after obtaining the consent of the Indian or Indian tribe owning or having jurisdiction over such lands. The permit shall include such reasonable terms and such Indian or Indian tribe may request conditions as.
(2) If the Secretary determines that issuance of a permit pursuant to this section may result in harm to, or destruction of, any religious or cultural site, the Secretary, prior to issuing such permit, shall notify any Indian tribe which may consider the site as having significant religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 4304 of this title.
(3) A permit shall not be required under this section for the collection or removal of any cave resource located on Indian lands or activities associated with such collection, by the Indian or Indian tribe owning or having jurisdiction over such lands.
(e) Effect of permit
No action specifically authorized by a permit under this section shall be treated as a violation of section 4306 of this title.
-SOURCE-
(Pub. L. 100-691, Sec. 6, Nov. 18, 1988, 102 Stat. 4548.)
Section. 4306. Prohibited acts and criminal penalties
(a) Prohibited acts
(1) Any person who, without prior authorization from the Secretary knowingly destroys, disturbs, defaces, mars, alters, removes or harms any significant cave or alters the free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intention of committing any act described in this paragraph shall be punished in accordance with subsection (b) of this section.
(2) Any person who possesses, consumes, sells, barters or exchanges, or offers for sale, barter or exchange, any cave resource from a significant cave with knowledge or reason to know that such resource was removed from a significant cave located on Federal lands shall be punished in accordance with subsection (b) of this section.
(3) Any person who counsels, procures, solicits, or employs any other person to violate any provisions of this subsection shall be punished in accordance with section (FOOTNOTE 1) (b) of this section.(FOOTNOTE 1) So in original. Probably should be ''subsection''.
(4) Nothing in this section shall be deemed applicable to any person who was in lawful possession of a cave resource from a significant cave prior to November 18, 1988.
(b) Punishment
The punishment for violating any provision of subsection (a) of this section shall be imprisonment of not more than one year or a fine in accordance with the applicable provisions of title 18, or both. In the case of a second or subsequent violation, the punishment shall be imprisonment of not more than 3 years or a fine in accordance with the applicable provisions of title 18, or both.
-SOURCE-
(Pub. L. 100-691, Sec. 7, Nov. 18, 1988, 102 Stat. 4549.)
Section. 4307. Civil penalties
(a) Assessment
(1) The Secretary may issue an order assessing a civil penalty against any person who violates any prohibition contained in this chapter, any regulation promulgated pursuant to this chapter, or any permit issued under this chapter. Before issuing such an order, the Secretary shall provide such person written notice and the opportunity to request a hearing on the record within 30 days. Each violation shall be a separate offense, even if such violations occurred at the same time.
(2) The amount of such civil penalty shall be determined by the Secretary taking into account appropriate factors, including (A) the seriousness of the violation; (B) the economic benefit (if any) resulting from the violation; (C) any history of such violations; and (D) such other matters as the Secretary deems appropriate. The maximum fine permissible under this section is $10,000.
(b) Judicial review
Any person aggrieved by an assessment of a civil penalty under this section may file a petition for judicial review of such assessment with the United States District Court for the District of Columbia or for the district in which the violation occurred. Such a petition shall be filed within the 30-day period beginning on the date the order assessing the civil penalty was issued.
(c) Collection
If any person fails to pay an assessment of a civil penalty:
(1) within 30 days after the order was issued under subsection(a) of this section, or
(2) if the order is appealed within such 30-day period, within 10 days after court has entered a final judgment in favor of the Secretary under subsection (b) of this section, the Secretary shall notify the Attorney General and the Attorney General shall bring a civil action in an appropriate United States district court to recover the amount of penalty assessed (plus costs, attorney's fees, and interest at currently prevailing rates from the date the order was issued or the date of such final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of such penalty shall not be subject to review.
(d) Subpoenas
The Secretary may issue subpoenas in connection with proceedings under this subsection compelling the attendance and testimony of witnesses and subpoenas duces tecum, and may request the Attorney General to bring an action to enforce any subpoena under thissection. The district courts shall have jurisdiction to enforce such subpoenas and impose sanctions.
-SOURCE-
(Pub. L. 100-691, Sec. 8, Nov. 18, 1988, 102 Stat. 4550.)
Section. 4308. Miscellaneous provisions
(a) Authorization of appropriations
There are authorized to be appropriated $100,000 to carry out the purposes of this chapter.
(b) Effect on land management plans
Nothing in this chapter shall require the amendment or revision of any land management plan the preparation of which began prior to November 18, 1988.
(c) Fund
Any money collected by the United States as permit fees for collection and removal of cave resources; received by the United States as a result of the forfeiture of a bond or other security by a permittee who does not comply with the requirements of such permit issued under section 4306 of this title; or collected by the United States by way of civil penalties or criminal fines for violations of this chapter shall be placed in a special fund in the Treasury. Such moneys shall be available for obligation or expenditure (to the extent provided for in advance in appropriation Acts) as determined by the Secretary for the improved management, benefit, repair, or restoration of significant caves located on Federal lands.
(d) Existing rights
Nothing in this chapter shall be deemed to affect the full operation of the mining and mineral leasing laws of the United States, or otherwise affect valid existing rights.
-SOURCE-
(Pub. L. 100-691, Sec. 9, Nov. 18, 1988, 102 Stat. 4550.)
REFERENCES IN TEXT
The mining laws of the United States, referred to in subsec. (d), are classified generally to Title 30, Mineral Lands and Mining. Mineral leasing laws of the United States, referred to in subsec.(d), have been defined in sections 351, 505, 530, and 541e of Title30, to mean acts Oct. 20, 1914, ch. 330, 38 Stat. 741; Feb. 25,1920, ch. 85, 41 Stat. 437; Apr. 17, 1926, ch. 158, 44 Stat. 301; and Feb. 7, 1927, ch. 66, 44 Stat. 1057. The act of Oct. 20, 1914,was repealed by Pub. L. 86-252, Sec. 1, Sept. 9, 1959, 73 Stat. 490. The act of Feb. 25, 1920, is known as the Mineral Leasing Act and is classified generally to chapter 3A (Sec. 181 et seq.) of Title 30. The act of Apr. 17, 1926, is classified generally to subchapter VIII (Sec. 271 et seq.) of chapter 3A of Title 30. The act of Feb. 7, 1927, is classified principally to subchapter IX (Sec. 281 et seq.) of chapter 3A of Title 30. For complete classification of these Acts to the Code, see Tables.
Section. 4309. Savings provision
(a) Water
Nothing in this chapter shall be construed as authorizing the appropriation of water by any Federal, State, or local agency, Indian tribe, or any other entity or individual. Nor shall any provision of this chapter:
(1) affect the rights or jurisdiction of the United States, the States, Indian tribes, or other entities over waters of any river or stream or over any ground water resource;
(2) alter, amend, repeal, interpret, modify, or be in conflict with any interstate compact made by the States; or
(3) alter or establish the respective rights of States, the United States, Indian tribes, or any person with respect to any water or water-related right.
(b) Fish and wildlife
Nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the States with respect to fish and wildlife.
(Pub. L. 100-691, Sec. 10, Nov. 18, 1988, 102 Stat. 4551.)
Section. 4310. Establishment of Cave Research Program
(a) Establishment
In order to provide for needed research relating to cave resources on certain lands in the United States, the Secretary of the Interior, acting through the Director of the National Park Service shall establish and administer a Cave Research Program (hereinafter in this section referred to as the ''Program''). The Program shall include the orderly and scholarly collection, analysis, and dissemination of research material related to caves in lands managed by the National Park Service including, but not limited to, Carlsbad Caverns National Park and the Capitan Reef area.
(b) Functions
The Program shall produce educational and interpretive information and materials vital to public understanding of cave geology, assist students and researchers, and provide for a comprehensive evaluation of cave resources and measures needed for their protection.
(c) Emphasis
The program (FOOTNOTE 1) shall be directed primarily toward lands managed by the National Park Service, but the Secretary of the Interior may enter into cooperative agreements with other agencies or entities as may be appropriate to carry out the purposes of this section.
(FOOTNOTE 1) So in original. Probably should be capitalized.
(Pub. L. 101-578, title II, Sec. 202, Nov. 15, 1990, 104 Stat. 2859.)
REFERENCES IN TEXT
This section, referred to in subsecs. (a) and (c), was in the original ''this title'' meaning title II of Pub. L. 101-578, Nov.15, 1990, 104 Stat. 2859, which enacted this section and provisions set out as notes below. For complete classification of title II to the Code, see Tables.
FEDERAL LAWS AND REGULATIONS PERTAINING TO CAVES AND ENDANGERED SPECIES
LECHUGUILLA CAVE PROTECTION ACT
Public Law 103-169, Dec. 2, 1993, 107 Stat. 1983, provided that:
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Lechuguilla Cave Protection Act of 1993.
SECTION. 2. FINDING.
Congress finds that Lechuguilla Cave and adjacent public lands have internationally significant scientific, environmental, and other values, and should be retained in public ownership and protected against adverse effects of mineral exploration and development and other activities presenting threats to the areas.
SECTION. 3. LAND WITHDRAWAL.
(a) Withdrawal. - Subject to valid existing rights, all Federal lands within the boundaries of the cave protection area described in subsection (b) are hereby withdrawn from all forms of entry, appropriation, or disposal under the public land laws; from location, entry, and patent under the United States mining laws; and from disposition under all laws pertaining to mineral and geothermal leasing, and all amendments thereto.
(b) Land Description. - The cave protection area referred to in subsection (a) shall consist of approximately 6,280 acres of lands in New Mexico as generally depicted on the map entitled 'Lechuguilla Cave Protection Area' numbered 130/80,055 and dated April 1993.
(c) Publication, Filing, Correction, and Inspection. - (1) As soon as practicable after the date of enactment of this Act (Dec. 2, 1993), the Secretary of the Interior (hereinafter referred to as the 'Secretary') shall publish in the Federal Register the legal description of the lands withdrawn under subsection (a) and shall file such legal description and a detailed map with the Committee on Energy and Natural Resources of the United States Senate and the Committee on Natural Resources of the United States House of Representatives.
(2) Such map and legal description shall have the same force and effect as if included in this Act except that the Secretary may correct clerical and typographical errors.
(3) Copies of such map and legal description shall be available for inspection in the appropriate offices of the Bureau of Land Management.
SECTION. 4. MANAGEMENT OF EXISTING LEASES.
(a) Suspension. - The Secretary shall not permit any new drilling on or involving any Federal mineral or geothermal lease within the cave protection area referred to in section 3(a) until the effective date of the Record of Decision for the Dark Canyon Environmental Impact Statement, or for 12 months after the date of enactment of this Act (Dec. 2, 1993), whichever occurs first.
(b) Authority To Cancel Existing Mineral or Geothermal Leases. Upon the effective date of the Record of Decision for the Dark Canyon Environmental Impact Statement and in order to protect Lechuguilla Cave or other cave resources, the Secretary is authorized to:
(1) cancel any Federal mineral or geothermal lease in the cave protection area referred to in section 3(a); or
(2) enter into negotiations with the holder of a Federal mineral or geothermal lease in the cave protection area referred to in section 3(a) to determine appropriate compensation, if any, for the complete or partial termination of such lease.
SECTION. 5. ADDITIONAL PROTECTION AND RELATION TO OTHER LAWS.
(a) In General. - In order to protect Lechuguilla Cave or Federal lands within the cave protection area, the Secretary, subject to valid existing rights, may limit or prohibit access to or across lands owned by the United States or prohibit the removal from such lands of any mineral, geological, or cave resources: Provided, That existing access to private lands within the cave protection area shall not be affected by this subsection.
(b) No Effect on Pipelines. - Nothing in this title (Act) shall have the effect of terminating any validly issued right-of-way, or customary operation, maintenance, repair, and replacement activities in such right-of-way; prohibiting the upgrading of and construction on existing facilities in such right-of-way for the purpose of increasing capacity of the existing pipeline; or prohibiting the renewal of such right-of-way within the cave protection area referred to in section 3(a).
(c) Relation to Other Laws. - Nothing in this Act shall be construed as increasing or diminishing the ability of any party to seek compensation pursuant to other applicable law, including but not limited to the Tucker Act (28 U.S.C. 1491), or as precluding any defenses or claims otherwise available to the United States in connection with any action seeking such compensation from the United States.
SECTION 6. AUTHORIZATION OF APPROPRIATIONS.
There is hereby authorized to be appropriated such sums as may be necessary to carry out this Act: Provided, That no funds shall be made available except to the extent, or in such amounts as are provided in advance in appropriation Acts.
FEDERAL LAWS AND REGULATIONS PERTAINING TO CAVES AND ENDANGERED SPECIES
NATIONAL CAVE AND KARST RESEARCH INSTITUTE
Public. Law. 105-325, Oct. 30, 1998, 112 Stat. 3038, provided that:
SECTION 1. SHORT TITLE.
This Act may be cited as the 'National Cave and Karst Research Institute Act of 1998'.
SECTION. 2. PURPOSES.
The purposes of this Act are -
(1) to further the science of speleology;
(2) to centralize and standardize speleological information;
(3) to foster interdisciplinary cooperation in cave and karst research programs;
(4) to promote public education;
(5) to promote national and international cooperation in protecting the environment for the benefit of cave and karst landforms; and
(6) to promote and develop environmentally sound and sustainable resource management practices.
SECTION. 3. ESTABLISHMENT OF THE INSTITUTE.
(a) In General. - The Secretary of the Interior (referred to in this Act as the 'Secretary'), acting through the Director of the National Park Service, shall establish the National Cave and Karst Research Institute (referred to in this Act as the 'Institute').
(b) Purposes. - The Institute shall, to the extent practicable, further the purposes of this Act.
(c) Location. - The Institute shall be located in the vicinity of Carlsbad Caverns National Park, in the State of New Mexico. The Institute shall not be located inside the boundaries of Carlsbad Caverns National Park.
SECTION. 4. ADMINISTRATION OF THE INSTITUTE.
(a) Management. - The Institute shall be jointly administered by the National Park Service and a public or private agency, organization, or institution, as determined by the Secretary.
(b) Guidelines. - The Institute shall be operated and managed in accordance with the study prepared by the National Park Service pursuant to section 203 of the Act entitled 'An Act to conduct certain studies in the State of New Mexico', approved November 15, 1990 (Public Law 101-578; 16 U.S.C. 4310 note).
(c) Contracts and Cooperative Agreements. - The Secretary may enter into a contract or cooperative agreement with a public or private agency, organization, or institution to carry out this Act.
(d) Facility:
(1) Leasing or acquiring a facility. - The Secretary may lease or acquire a facility for the Institute.
(2) Construction of a facility. - If the Secretary determines that a suitable facility is not available for a lease or acquisition under paragraph (1), the Secretary may construct a facility for the Institute.
(e) Acceptance of Grants and Transfers. - To carry out this Act, the Secretary may accept:
(1) a grant or donation from a private person; or
(2) a transfer of funds from another Federal agency.
SECTION. 5. FUNDING.
(a) Matching Funds. - The Secretary may spend only such amount of Federal funds to carry out this Act as is matched by an equal amount of funds from non-Federal sources.
(b) Authorization of Appropriations. - There are authorized to be appropriated such sums as may be necessary to carry out this Act.
CONGRESSIONAL FINDINGS
Section 201 of Pub. L. 101-578 provided that: The Congress makes the following findings:
(1) The World's most exposed fossil reef, Capitan Reef, in southern New Mexico that includes Carlsbad Caverns, contains over 300 caves, including 75 identified caves in Carlsbad Caverns National Park and 22 caves in Guadalupe Mountains National Park.
(2) Recent explorations of Lechuguilla Cave at Carlsbad Caverns National Park have provided much new information about the wonders of this cave including the fact that it is the second deepest cave in the United States and contains outstanding world-class cave features such as gypsum crystal chandeliers and gypsum flowers.
(3) The Lechuguilla Cave is described by cave researchers as possibly the finest cave in America.
(4) The interest and excitement of cave researchers throughout the world have been focused on Carlsbad Caverns National Park.
(5) Cave researchers could use this research institute as an operational base for study of caves in other regions and as a focal point for storage of data on cave geology and speleology.
(6) The Congress, with the passage of Public Law 100-691, the Federal Cave Resources Protection Act of 1988 (16 U.S.C. 4301 et seq.), recognized the significance of cave resources on Federal lands and established the policy that Federal lands be managed in a manner which protects and maintains, to the extent practicable, significant cave resources.
CAVE RESEARCH INSTITUTE STUDY
Section 203 of Public Law 101-578 directed Secretary of the Interior, not later than one year after Nov. 15, 1990, to prepare and transmit to Congress a study on the feasibility of establishing a Cave Research Institute.
AUTHORIZATION OF APPROPRIATIONS
Section 204 of Title II of Pub. L. 101-578 provided that: There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this title (enacting this section and provisions set out as notes above).
FEDERAL LAWS AND REGULATIONS PERTAINING TO CAVES AND ENDANGERED SPECIES
ENDANGERED SPECIES ACT: Summary from Federal Wildlife Laws Handbook
ENDANGERED SPECIES ACT OF 1973
16 U.S.C. §§ 1531-1544, December 28, 1973, as amended 1976-1982, 1984 and 1988.
Overview.
The Endangered Species Act provides broad protection for species of fish, wildlife and plants that are listed as threatened or endangered in the U.S. or elsewhere. Provisions are made for listing species, as well as for recovery plans and the designation of critical habitat for listed species. The Act outlines procedures for federal agencies to follow when taking actions that may jeopardize listed species, and contains exceptions and exemptions. The Endangered Species Act also is the enabling legislation for the Convention on International Trade in Endangered Species of Wild Fauna and Flora, commonly known as CITES. Criminal and civil penalties are provided for violations of the Act and the Convention.
Findings/Policy (ESA § 2).
Congress found that various species of fish, wildlife and plants in the U.S. have been rendered extinct and others depleted to the point of being in danger of or threatened with extinction. Congress declared that: depleted species are of aesthetic, ecological, educational, historical, recreational and scientific value; the U.S. has pledged to conserve various species facing extinction pursuant to several international treaties and agreements; encouraging states and other interested parties, through federal financial assistance and a system of incentives, to develop conservation programs meeting national and international standards is a key to meeting international commitments and to safeguarding the nation's heritage in fish, wildlife and plants.
The purposes of the Act are to: provide a means of conserving the ecosystems upon which endangered and threatened species depend; provide a program for conserving those species; take steps necessary to achieve the purposes of the international treaties and conventions. The policy of Congress is that federal agencies must seek to conserve endangered and threatened species and use their authorities in furtherance of the Act's purposes. § 1531.
Selected Definitions (ESA § 3).
Conserve: the use of all necessary methods and procedures to bring any endangered or threatened species to the point at which the measures under the Act are no longer necessary. This includes, but is not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping or transplantation, and, in the extraordinary case where population pressures within an ecosystem cannot be otherwise relieved, may include regulated taking. Convention (or CITES): Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and its appendices.
Critical habitat for a threatened or endangered species:
(i) the specific areas within the geographical area occupied by the species, at the time it is listed as threatened or endangered, on which are found physical or biological features essential to the conservation of the species, and which may require special management considerations or protection; and
(ii) specific areas outside the geographical areas occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Critical habitat may be established for species now listed as threatened or endangered for which no critical habitat has been established. Except in circumstances determined by the Secretary, critical habitat shall not include the entire geographical area, which can be occupied by the threatened or endangered species.
Endangered species: any species, which is in danger of extinction throughout all or a significant portion of its range, other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the Act would present an overwhelming and overriding risk to man.
Fish or wildlife: any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.
Plant: any member of the plant kingdom, including seeds, roots and other parts thereof.
Secretary: except as otherwise provided, the Secretary of the Interior or the Secretary of Commerce, who is responsible for fish and other marine species under Reorganization Plan No. 4 of 1970 and under this Act. With respect to enforcement of the provision of the Act and the Convention regarding importation or exportation of terrestrial plants, the term also means the Secretary of Agriculture.
Species: includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife, which interbreeds when mature. Take: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Threatened species: any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. § 1532.
Determination of Endangered and Threatened Species (ESA § 4).
The Act requires the Secretary of the Interior to list species as endangered or threatened because of any of a number of factors, including habitat destruction, over utilization, disease or predation, inadequacy of regulatory mechanisms, or other natural or man-made factors. In the case of marine plants, fish or wildlife, the Secretary of Commerce determines whether the Secretary of the Interior will list a species or change the status of a species from threatened to endangered.
Listing determinations must be made solely on the basis of the best scientific and commercial data available, after a review of the status of the species and taking into account any efforts being made to protect such species by a state, foreign nation or political subdivision of a state or foreign nation. The Secretary must give consideration to species designated as requiring protection by a foreign nation or pursuant to an international agreement, or identified as in danger of extinction by a state or foreign agency.
A regulation designating critical habitat for the species being listed must be published at the same time as the listing. The Act requires the Secretary to designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impact and any other relevant impact of specifying a particular area. An area may be excluded if it is determined that the benefits of exclusion outweigh the benefits of designation, unless the Secretary determines that exclusion will result in extinction of the species. A final regulation designating critical habitat does not have to be published simultaneously with the listing if the Secretary finds that it is essential to the species' conservation to publish the listing promptly. If critical habitat is not then determinable, the Secretary may have up to an additional year to publish the final regulation.
To the maximum extent practicable, within 90 days of receiving a petition of an interested person to add or delete a species from the listings, the Secretary must make a finding as to whether the petition presents substantial scientific or commercial information indicating that action may be warranted. If so, the Secretary must commence a review of the status of the species promptly, and publish findings in the Federal Register within 12 months of receiving the petition. The Secretary must find either that the petitioned action is not warranted, that it is warranted, or that it is warranted but that other action is being pursued. Similar procedures apply for petitions to revise a designation of critical habitat.
Provisions are made for the publication of proposed regulations to implement a listing or critical habitat determination, designation or revision; a public hearing must be held upon request of any person within 45 days of publication. Final regulations and withdrawals are to be published in the Federal Register within a year of publication of proposed regulations. The one-year period may be extended if the Secretary finds substantial disagreement regarding the sufficiency or accuracy of available data. Emergency listing is allowed if an emergency exists posing a significant risk to the well-being of any species, if the regulation gives detailed reasons why it is necessary and actual notice is given to the state agency in each state where the species occurs. Emergency regulations take effect immediately upon publication and are effective for 240 days.
When any proposed or final regulation is published in the Federal Register, the publication must include a summary of the data upon which the Secretary relied. In the case of critical habitat designation, the summary must include a description and evaluation of activities which may adversely modify the habitat or be affected by the designation.
The Act requires the Secretary to publish lists of all species determined to be endangered or threatened, the range over which they are endangered or threatened, and their critical habitats. The Secretary must revise lists periodically to reflect recent actions and is required to review the list at least every five years to determine the need for removal or change in status.
The Secretary may treat an unlisted species as listed if: it so closely resembles a listed species that enforcement personnel would have substantial difficulty in attempting to differentiate between the species; the effect of this difficulty is an additional threat to the listed species; this treatment will substantially facilitate enforcement and further the Act's policy.
Regulations must be issued to provide for the conservation of threatened species.
The Secretary must develop and implement recovery plans for the conservation and survival of listed species, unless such plans will not promote species conservation. To the maximum extent practicable, the Secretary must give priority to endangered or threatened species most likely to benefit from recovery plans, especially those species in conflict with development projects or other economic activity. Plans are to include site-specific management actions, measurable criteria which, when met, would result in de-listing, and estimates of time and cost for intermediate and final goals of recovery plans.
Public and private agencies and institutions may be enlisted for a recovery team, which is not subject to the Federal Advisory Committee Act. Notice and opportunity for public review and comment must be provided for recovery plans, and all information presented during the comment period must be considered prior to plan approval.
The Secretary must report to Congress on efforts to develop and implement recovery plans and on the status of all listed species. Species, which have recovered and are de-listed must be monitored in cooperation with the states for at least five years. Emergency listing procedures are available to prevent a significant risk to the well being of a recovered species. The Secretary must establish and publish agency guidelines to insure that the purposes of this section are achieved efficiently and effectively, including procedures for dealing with petitions, criteria for making findings regarding petitions, a ranking system for priority review of species, and a system for developing and implementing recovery plans. If a state agency files comments disagreeing with all or part of a regulation proposed under the authority of this section and a regulation is adopted anyway, or a state agency petition does not result in a regulation, the Secretary must submit a written justification to the state agency. § 1533.
Land Acquisition (ESA § 5).
The Secretary, and the Secretary of Agriculture with respect to the National Forest System, must establish and implement a program to conserve fish, wildlife and plants, including those listed. To carry out the program, the appropriate Secretary is to use land acquisition and other authority under the Fish and Wildlife Act of 1956, the Fish and Wildlife Coordination Act and the Migratory Bird Conservation Act. The Secretary is also authorized to acquire, by purchase, donation or otherwise, lands, waters or interests therein. Funds from the Land and Water Conservation Fund Act of 1965 may be used for acquisitions. § 1534.
Cooperation with the States (ESA § 6).
The Secretary is to cooperate to the maximum extent practicable with the states, including consulting with a state before acquiring land, water or interests for conservation of listed species. The Secretary may enter into agreements with states for administration and management of areas established for conservation of listed species. Cooperative agreements may also be entered into with states, which establish and maintain adequate and active programs for conservation of listed species. For a program to be considered adequate and active, the Secretary annually must find that: the state agency has authority to conserve resident listed species; acceptable conservation programs have been established and provided to the Secretary for all resident listed species; the agency is authorized to determine the status and requirements for survival of resident species of fish and wildlife, and to establish programs, including land or other acquisitions, for conservation of resident listed species; provision is made for public participation in the listing process. Alternatively, the Secretary must find that certain of these requirements are met and that plans are included for immediate attention to listed species most urgently in need of conservation programs. Cooperative agreements also may be entered into for conservation of listed resident plant species.
Provisions are identical to those for fish and wildlife species. Financial assistance may be provided to any state with a cooperative agreement to assist in development of conservation programs or to assist in monitoring candidate species and recovered species. Annual appropriations must be based on consideration of: international commitments of the U.S. to protect endangered or threatened species; readiness of a state to proceed with a conservation program; numbers of listed species within a state; potential for restoration of listed species in a state; relative urgency to initiate a program to save a listed species; importance of monitoring the status of candidate and recovered species within a state.
Cooperative agreements must provide for actions to be taken by the Secretary and the state, benefits expected to be derived for listed species, estimated costs of actions, and the share of costs to be borne by each party. The federal share may not exceed 75 percent of estimated costs, although it may be increased to 90 percent when two or more states have a common interest in a listed species and its conservation may be enhanced by the cooperation of the states. The federal share may be advanced to states by the Secretary, either in money or in property whose value will be determined by the Secretary. The Secretary may review the actions taken under this section no more often than annually.
State laws as to importation or exportation of listed species are void to the extent that they permit anything prohibited by the Act or its regulations, or prohibit actions authorized under exemption or permit under the Act. A state law or regulation may be more but not less restrictive than the Act or its regulations. The prohibitions of § 1533 (ESA § 4) do not apply to the taking of listed species within any state that is a party to a cooperative agreement, except upon request of the state or when the Secretary finds an emergency situation exists posing a significant risk to the well being of the species.
The Secretary may make regulations as appropriate regarding financial assistance to the states. Beginning in fiscal year 1989, 5 percent of the monies credited to the federal aid in wildlife and sport fish restoration funds are to be deposited to a cooperative endangered species conservation fund to carry out the provisions of this section. § 1535.
Interagency Cooperation (ESA § 7).
The Secretary must review other programs within the department and utilize these programs in furtherance of the purposes of the Act. All other federal agencies, in consultation with and with the assistance of the Secretary, also must use their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of listed species.
All federal agencies, in consultation with and with the assistance of the Secretary, must insure that any action authorized, funded or carried out by the agency (agency action) is not likely to jeopardize the continued existence of an endangered or threatened species, or result in destruction or adverse modification of a critical habitat of a species. Agencies are required to use the best scientific and commercial data available to fulfill this charge. Consultation with the Secretary shall be concluded within 90 days or any other period of time mutually agreeable to the Secretary and the agency. If the agency action involves a permit or license, the period may be extended up to 150 days if the Secretary submits to the applicant a statement of reasons, the information needed and the estimated date of completion of consultation. It may be further extended with the consent of the applicant. Once a consultation is initiated, the agency and the applicant may not make an irreversible or irretrievable commitment of resources, which has the effect of foreclosing reasonable and prudent alternative measures.
Agencies must consult with the Secretary on a prospective agency action if requested by a permit or license applicant, if the applicant has reason to believe that a listed species may be present in the project area and is likely to be affected. Consultations are to be concluded within a period agreeable to the Secretary, agency and applicant. Agencies also must confer with the Secretary on any agency action likely to jeopardize the continued existence of any species proposed to be listed, or result in destruction or adverse modification of proposed critical habitat. There is no limitation on the commitment of resources to the project in this case.
Promptly after consultation, the Secretary must provide to the agency and any applicant a written statement of the Secretary's opinion and a summary of the information on which the opinion is based, detailing how the action affects the species or critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest reasonable and prudent alternatives to the agency and the applicant. If, after consultation, the Secretary concludes either that the agency action will not violate the Act or that taking of a listed species will not violate the Act or is otherwise authorized, a written statement will be provided the federal agency and the applicant. The statement will specify the impact of the incidental taking on the species, reasonable and prudent measures necessary or appropriate to minimize the impact and the measures necessary to comply with the law.
For all agency actions for which no construction has begun or contracts for construction entered into, the agency must inquire as to whether any listed or proposed to be listed species is in the area of the proposed action. If, based on the best scientific and commercial data available, the Secretary determines that such species are present; the agency must conduct a biological assessment to identify the species likely to be affected. Assessments must be completed within 180 days unless other provisions are met, and before actual construction or construction contracts are entered into. Assessments may be part of the National Environmental Policy Act (NEPA) compliance by the agency.
The Act establishes an Endangered Species Committee to review applications for exemptions from agency obligations, described in the next paragraph. The seven-member Committee includes: the Secretaries of Agriculture, Army, and the Interior; the Chairman of the Council of Economic Advisors; the Administrators of the EPA and the National Oceanic and Atmospheric Administration; and a Presidential appointment to represent each of the states affected by a particular application. The Secretary of the Interior chairs the Committee. Meetings are held at the call of the Chair or five members, and are open to the public. Any federal agency may assist the Committee or provide information when requested. The Committee may hold hearings, issue subpoenas, take testimony and evidence as it deems advisable, and take any action authorized. The Committee may promulgate rules, regulations and procedures, and may issue orders it deems necessary.
A federal agency, state governor, or permit or license applicant may apply for an exemption from the Act if, after consultation, the Secretary's opinion indicates that an agency action would violate the Act. The Secretary must promulgate regulations for the form and manner of applications for exemption. Applications must include descriptions of the consultation process between the agency and Secretary and why the agency action cannot be modified or altered. They must be submitted no more than 90 days after completion of consultation, or no more than 90 days after the agency takes final action on the permit or license application. The governor of the affected state is to be notified, and notice of the exemption application will be published in the Federal Register. To grant the application, the Secretary must determine within 20 days of receipt of the application or within a time mutually acceptable to the applicant and the Secretary, that the federal agency involved and the applicant have: consulted in good faith and made a reasonable and responsible effort to consider modifications or reasonable and prudent alternatives to the proposed agency action; conducted any required biological assessment; refrained from making any irreversible or irretrievable commitment of resources.
The Secretary must deny the application for exemption if these requirements are not met. This denial is considered a final agency action. If the agency and the exemption applicant have met the requirements, the Secretary, in consultation with the Committee, will hold a hearing on the application. Within 140 days of the determination, or other mutually agreeable time, the Secretary must report to the Committee on: the availability of reasonable and prudent alternatives; the nature and extent of the benefits of the agency action consistent with conserving the species or critical habitat; evidence of whether the agency action is in the public interest and of regional or national significance; reasonable mitigation measures that should be considered by the Committee; whether the agency and exemption applicant refrained from making an irreversible or irretrievable commitment of resources. All meetings and records resulting from an application for exemption are open to the public.
The Act requires the Committee to determine whether to grant an exemption within 30 days after receiving the Secretary's report. The exemption must be granted if, by a vote of at least five of its members, the Committee determines that: there are no reasonable and prudent alternatives; the benefits of the action outweigh the benefits of alternative courses and are consistent with conserving the species or its critical habitat; the action is in the public interest and of regional or national significance; there was no irreversible or irretrievable commitment of resources. For approved exemptions the Committee must establish mitigation and enhancement measures, including live propagation, transplantation, and habitat acquisition and improvement, to minimize the adverse effects of the action. The Committee's determination is considered a final agency action.
An exemption for an agency action is permanent with respect to all endangered and threatened species if a biological assessment was conducted, regardless of whether the species was identified in the assessment, unless the Secretary finds the exemption would result in the extinction of a species that was not the subject of the consultation or identified in the biological assessment. The Committee must decide that the exemption should not be permanent within 60 days of the Secretary's finding. The granting of an exemption is not a major federal action for purposes of NEPA, provided that an environmental impact statement, which discusses the impact upon, endangered or threatened species or their critical habitat was previously prepared for the agency action.
An exemption cannot be granted if the Secretary of State determines that the exemption will violate an international treaty or other international obligation of the U.S. An exemption must be granted if the Secretary of Defense finds that the exemption is necessary for national security. If an area is declared a major disaster area under the Disaster Relief and Emergency Assistance Act, 42 U.S.C.
§ 5121 et seq., the President may grant an exemption for the repair or replacement of a public facility substantially as it existed prior to the disaster.
If an exemption is granted, the Committee must specify the mitigation and enhancement measures to be paid for by the applicant. These measures must be authorized prior to implementation of the agency action and funded concurrently with other project features. The costs of the measures must not be treated as project costs in any cost/benefit analysis for the action. Within one year of being granted an exemption, and annually until all the measures have been completed, the applicant must submit a report to the Council on Environmental Quality describing compliance with the mitigation and enhancement measures. Notice of the public availability of the reports is to be published in the Federal Register. Any person may obtain judicial review of a decision of the Committee granting or not granting an exemption. The 60-day notice requirement for citizen suits does not apply to a determination of the Committee granting an exemption. § 1536.
International Cooperation (ESA § 8).
The President, with the foreign country's consent, may use foreign currencies to provide assistance for any listed endangered or threatened species, which may include acquisition of lands, waters or interests therein. These currencies must be used in preference to funds appropriated under § 1542 of the Act (ESA § 13).
The Secretary, through the Secretary of State, must: encourage foreign countries to provide for the conservation of fish, wildlife and plants, including listed species; enter into bilateral or multilateral agreements for this purpose; encourage and assist foreign persons who take fish, wildlife and plants for import to the U.S. for commercial or other purposes to develop and carry out conservation procedures. Further, the Secretary may provide personnel and financial assistance for the training of foreign personnel and for research and law enforcement, and may conduct law enforcement investigations and research abroad as necessary to carry out the Act. § 1537.
Convention Implementation (ESA § 8a).
For purposes of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Secretary of the Interior is designated as the Management Authority and the Scientific Authority, with the functions of the Authorities to be carried out by the Fish and Wildlife Service. The Secretary must give advice and make determinations under Article IV of CITES based on the best available biological information derived from professionally accepted wildlife management practices, but is not required to make population estimates. If the U.S. votes against including a species under CITES and does not enter a reservation pursuant to CITES, the Secretary of State must submit a report to the appropriate Senate and House committees. The Secretary, in cooperation with the Secretary of State and other Secretaries, represents the U.S. regarding the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (the Western Convention). The Secretary must take steps to implement the Western Convention, including developing personnel resources and programs, identifying species, habitats and cooperative measures to ensure that species of migrating birds will not become threatened or endangered, and identifying measures for the protection of wild plants. The Secretaries were directed to submit a progress report to Congress by September 30, 1985.
These provisions do not affect the authority, jurisdiction or responsibility of the states to manage or regulate resident fish or wildlife. § 1537a.
Prohibited Acts (ESA § 9).
Except as otherwise provided in the Act, with respect to endangered species of fish or wildlife, it is unlawful to: import or export; take within the U.S. or on the seas; possess, sell, deliver, carry, transport or ship any taken species; deliver, receive, carry, transport, shop, sell or offer to sell these species in interstate or foreign commerce; violate any regulation pertaining to a threatened or endangered fish or wildlife species. Except as provided, with respect to endangered species of plants, it is unlawful to: import or export; remove the species from areas under federal jurisdiction or maliciously damage or destroy it in those areas; remove, cut, dig up, damage or destroy the species in any other area in violation of state law or in the course of criminal trespass; deliver, receive, carry, transport, ship, sell or offer for sale in interstate or foreign commerce; violate any regulation pertaining to a threatened or endangered plant species. These prohibitions do not apply to species held in captivity or a controlled environment as of December 28, 1973, or as of the date of publication of the final regulation listing the species, provided that the holding is not in the course of commercial activity. If the violation occurs after a period of 180 days from the publication of the regulation, there is a rebuttable presumption that the fish or wildlife involved is not entitled to an exemption under the Act. The prohibitions also do not apply to any raptor legally held in captivity or a controlled environment on November 10, 1978, or the progeny of those raptors, until the time they are returned to the wild. Proof of these conditions must be submitted to the Secretary upon request.
It is unlawful for a person to trade or possess any specimens traded in violation of CITES. It is not a violation of this Act to import species into the U.S. if: the species is not endangered, but is listed in Appendix II of CITES; taking and exportation are not contrary to CITES and all other Convention requirements are met; the provisions of this section of the Act are met; the importation is not made in the course of a commercial activity. Without previous permission of the Secretary, it is unlawful to conduct business as an importer or exporter of fish (except shellfish and fishery products not listed as threatened or endangered and used for human or animal consumption), wildlife, plants, or any amount of raw or worked African elephant ivory.
Authorized importers and exporters must maintain records of each import and export, allow access to records and place of business, and file reports at the request of the Secretary. Failure to file the requested reports is a violation of the Act. The requirements for obtaining permission to import or export African elephant ivory must be the same regardless of value or amount. The Secretary, by regulation, must designate ports to be used for importation and exportation of fish, wildlife and plants. Use of non-designated ports without permission of the Secretary is prohibited. It is unlawful for a person to attempt to commit, solicit another to commit or cause to be committed any of the offenses in this section. § 1538.
Exceptions (ESA § 10).
The Secretary may permit a prohibited act for scientific purposes, for the establishment and maintenance of experimental populations, or otherwise to enhance the propagation and survival of an affected species. The Secretary, by permit, may allow a taking incidental to an otherwise lawful activity if the applicant submits a conservation plan that addresses the impact of the taking, mitigation measures, funding, alternative actions considered and other measures required by the Secretary as necessary or appropriate. A permit may be issued if the Secretary approves the conservation plan and finds that the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. The permit must be revoked if the permittee does not comply with the terms and conditions of the permit.
If a person enters into a contract with respect to a species before notice of consideration of that species as endangered is published in the Federal Register, and the subsequent listing will cause undue economic hardship, the Secretary may exempt the person from the Act's prohibitions for up to one year from the date of publication. Undue economic hardship is defined as: substantial economic loss due to an inability to perform the contract, or due to a loss of income if, in the year prior to the publication, the person derived a substantial portion of their income from the lawful taking of that species; curtailment of subsistence taking for a person who is dependent to a substantial extent on hunting and fishing for subsistence and is not able to secure other sources of subsistence. The Secretary may further define undue economic hardship as the Secretary deems fit.
The Secretary must publish notice in the Federal Register of each application for exemption or permit and invite the submission within 30 days of written data, views or arguments on the application. These submissions are part of the public record. The Secretary may grant the exceptions only if the Secretary finds that they were applied for in good faith, will not operate to the disadvantage of the endangered species, and are consistent with the purposes and policies of the Act. These findings must be published in the Federal Register. In actions alleging a violation of this section, the holder of the exemption or permit must prove that the exemption or permit is applicable, has been granted, and was in full force and effect at the time of the alleged violation.
An Indian, Aleut, or Eskimo who is a native and resident of Alaska, or a non-native resident of an Alaskan native village, may take or import a threatened or endangered species if the taking is primarily for subsistence and is accomplished in a non-wasteful manner. Non-edible species byproducts made into authentic native clothing or handicrafts may be sold in interstate commerce. If the Secretary determines that such taking materially and negatively affects the species, the Secretary may prescribe, after notice and hearings in the affected judicial district in Alaska, regulations on takings with reference to species, geographical area, seasons and other factors consistent with this Act.
Upon application, the Secretary may exempt a pre-Act endangered species part from the prohibitions on exportation from the U.S. and the use of interstate or foreign commerce, if not in violation of CITES. A pre-Act endangered species part is defined as sperm whale oil or any raw material or finished scrimshaw product lawfully held within the U.S. on December 28, 1973, in the course of commercial activity. Scrimshaw product is an art form with substantial etching or engraving on, or substantial carving from, any bone or tooth of a marine mammal of the order Cetacea. The application for exemption must contain an inventory, documentation and other required information, and must be received within one year after the Secretary's regulations take effect. These regulations may require applicants to register inventories, keep sales records, permit inspections and file reports, and may impose terms and conditions on subsequent purchasers. When issuing an exemption, the Secretary must specify the prohibition that is exempted, the parts to which the exemption applies, the time period the exemption is in effect and other terms and conditions. The prohibitions regarding commerce do not apply to an Article which: is at least 100 years old; is composed in whole or in part of a listed threatened or endangered species; has not been repaired or modified with any part of such species; and is entered in a designat