Case 1:21-cv-00791 Document 1 Filed 03/25/21 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`Case No.:
`
`
`
`
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`1411 K St. NW, Suite 1300
`Washington, D.C. 20005,
`
`
`Plaintiff,
`
` v.
`
`U.S. FISH AND WILDLIFE SERVICE,
`1849 C Street, NW
`Washington, D.C. 20240,
`
`MARTHA WILLIAMS, in her official
`capacity as acting Director of the U.S. Fish
`and Wildlife Service,
`1849 C Street, NW
`Washington, D.C. 20240,
`
` and
`
`SECRETARY OF THE U.S. DEPARTMENT
`OF THE INTERIOR,
`1849 C Street, NW
`Washington, D.C. 20240,
`
`
`Defendants.
`
`
`INTRODUCTION
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`1.
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`This action challenges federal defendants’ unlawful reclassification of the
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`
`
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`
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`American burying beetle under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C. §§
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`1531–1544, from “endangered” to “threatened.” See “Reclassification of the American Burying
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`Beetle from Endangered to Threatened with a Section 4(d) Rule, 85 Fed. Reg. 65,241 (Oct. 15,
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`2020) (“Down-Listing Rule” and “4(d) Rule”). Defendants’ reclassification eliminates key
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`substantive protections for this species, which is still endangered, survives in a small portion of
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`its vast historic range, faces the same dire threats that led to its listing in 1989, and is now at even
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`Case 1:21-cv-00791 Document 1 Filed 03/25/21 Page 2 of 23
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`greater risk of extinction due to climate change. As the defendants acknowledged, one of few
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`surviving populations of the species will likely be gone from the southern Great Plains, a focus
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`of recovery efforts and a significant portion of the species’ range, within just 19 years.
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`2.
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`The American burying beetle (also hereinafter “the beetle”) was “once
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`ubiquitous” across 35 eastern U.S. states and three Canadian providences. 54 Fed. Reg. 29,652
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`(July 13, 1989) (“1989 Listing Rule”). However, during the early-to-mid-20th century, the
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`species disappeared from over 90 percent of its range.
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`3.
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`This drastic decline, recognized by the federal government as “one of the most
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`disastrous” of any insect, prompted defendant U.S. Fish and Wildlife Service (“the Service”) to
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`list the American burying beetle as an “endangered species” in 1989. Endangered status afforded
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`the species the full scope of the ESA’s substantive protections. At the time, only two disjunct
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`natural populations were known to exist in Oklahoma and Rhode Island.
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`4.
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`Once it gained protection as an endangered species, the American burying beetle
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`was able to survive the extinction threat, but this threat has not dissipated. Increased recovery
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`efforts led to surveys that located some additional populations. However, as the Service has also
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`acknowledged, those additional populations are just as precarious. The additional populations
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`face the same threats that led to the species’ listing as endangered, which are being exacerbated
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`by the existential threat of climate change.
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`5.
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`In 2015, the Independent Petroleum Association of America (also known as the
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`“IPAA”) petitioned to de-list the America Burying Beetle, citing delays and restrictions to the oil
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`and gas industry due to the presence of the beetle.
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`6.
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`In response to the IPAA’s de-listing petition, the Service published a proposed
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`rule to down-list (and not de-list) the American burying beetle from endangered to threatened, as
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`“all populations [remain] exposed to a combination of risk factors” and thus the species had not
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`recovered. 84 Fed. Reg. 19,013, 19,024 (May 3, 2019). Even as the agency implicitly
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`acknowledged that the species remained at risk, the Service proposed to reduce protections for
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`the beetle based on false claims that threats to the species have been reduced or eliminated. The
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`down-listing was opposed as premature by American burying beetle experts.
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`7.
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`Despite the opposition from the scientific community, the Service reclassified the
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`American burying beetle as “threatened” in 2020 and issued the 4(d) Rule. 85 Fed. Reg. 65,241.
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`8.
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`The 4(d) Rule eliminates key substantive protections that have helped the beetle
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`stave off extinction and survive the ongoing destruction and fragmentation of the species’
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`dwindling habitat.
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`9.
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`The American burying beetle remains “in danger of extinction throughout all or
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`significant portion of its range,” 16 U.S.C. § 1532(6), and thus the Down-Listing Rule and 4(d)
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`Rule violate the ESA and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”). To
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`remedy these violations, plaintiff asks this Court to order defendants to vacate the Down-Listing
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`Rule and 4(d) Rule and reinstate the beetle’s proper and lawful status as a fully protected,
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`“endangered” species under the ESA.
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`JURISDICTION AND VENUE
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`10.
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`Plaintiff brings this action pursuant to the ESA citizen-suit provision, 16 U.S.C. §
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`1540(g), which waives defendants’ sovereign immunity. As required by 16 U.S.C. § 1540(g),
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`plaintiff provided defendants with its notice of intent to sue, which was received by defendants
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`on January 22, 2020. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question
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`jurisdiction); 28 U.S.C. §§ 2201-2202 (declaratory judgments and further relief); 16 U.S.C. §
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`1540(c) (district court jurisdiction), 16 U.S.C. § 1540(g)(1)(C) (action arising under the ESA
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`citizen-suit provision), and 5 U.S.C. § 702 (Administrative Procedure Act).
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`11.
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`Venue in this Court is proper pursuant to 16 U.S.C. § 1540(g)(3)(A) and 28
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`U.S.C. § 1391(e) because this civil action is brought against agencies of the United States, and
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`against officers and employees of the United States acting in their official capacities under the
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`color of legal authority; because a substantial part of the events giving rise to the claim occurred
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`in the District of Columbia; and because no real property is involved in this action. Plaintiff also
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`maintains an office in this judicial district.
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`PARTIES
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`12.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”) is a non-
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`profit organization that is dedicated to the protection of native species and their habitats through
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`science, policy, and environmental law. The Center is incorporated in California and
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`headquartered in Tucson, Arizona, with additional offices in California, Colorado, Florida,
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`Hawai’i, Nevada, New York, North Carolina, Oregon, Virginia, Washington, Washington, D.C.,
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`and La Paz, Mexico. The Center has more than 84,000 active members, including members
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`within the American burying beetle’s current and historic range. The Center and its members
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`have a long-standing interest in conserving native species and have consistently advocated for
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`the conservation and protection of native species, including the American burying beetle.
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`13.
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`Plaintiff, both organizationally and on behalf of its members, has deep and long-
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`standing interests in the preservation and recovery of imperiled species, including the American
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`burying beetle. To further these goals, plaintiff supports strong and effective protections for the
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`species and has participated in various administrative and legal proceedings and public comment
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`opportunities to protect and recover the American burying beetle.
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`14.
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`Plaintiff has members who live near and/or visit areas in and around: the Red
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`River in the southern Great Plains; the Arkansas River in the Great Plains; the Flint Hills in
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`Oklahoma; Block Island in Rhode Island; and Loess Canyons, the Sandhills, and the Niobrara
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`River in Nebraska. Plaintiff’s members engage in these areas for their recreational, scientific, and
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`aesthetic interests, including viewing and photographing American burying beetles in their
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`natural habitat. Plaintiff’s members have interests in the recovery of the American burying
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`beetle, which are being and will be negatively impacted by the reclassification of the American
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`burying beetle from endangered to threatened. Plaintiff’s members have visited and plan to
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`continue to visit in the future areas where the American burying beetle still survives in the Red
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`River in Oklahoma. Plaintiff’s members plan to pursue their interests in conservation and
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`recovery of the American burying beetle.
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`15.
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`Plaintiff’s interests in conserving and recovering the American burying beetle are
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`harmed by defendants’ reclassification of the beetle as a “threatened species.” Specifically,
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`plaintiff’s professional, spiritual, aesthetic, and recreational interests have been and will continue
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`to be injured as the American burying beetle will continue to decline without full protection as an
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`endangered species under the ESA. As such, the Down-Listing Rule and 4(d) Rule diminish the
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`opportunities of plaintiff and its members to view and otherwise enjoy the American burying
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`beetle.
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`16.
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`Plaintiff also has an interest in the effective and lawful implementation of the
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`ESA. Plaintiff is injured by defendants’ premature reclassification of the American burying
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`beetle as a threatened species and by the arbitrary-and-capricious 4(d) Rule, which undermine
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`both the agency’s effective and lawful implementation of the ESA as well as the conservation of
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`endangered and threatened species.
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`17.
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`For these reasons, defendants’ Down-Listing Rule and 4(d) Rule have harmed and
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`will continue to harm plaintiff’s interests. The injuries described above are actual, concrete
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`injuries presently suffered by plaintiff and its members and they will continue to occur unless
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`this Court grants relief. These injuries are directly caused by defendants’ actions, and the relief
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`sought herein would redress those injuries. Plaintiff has no other adequate remedy at law.
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`18.
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`Defendant UNITED STATES FISH AND WILDLIFE SERVICE is a federal
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`agency within the Department of Interior. The Service has been delegated the responsibility for
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`administering the ESA for terrestrial wildlife including the American burying beetle, meeting
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`nondiscretionary obligations under the ESA, and otherwise complying with the ESA.
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`19.
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`Defendant MARTHA WILLIAMS is the acting Director of the United States Fish
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`and Wildlife Service and is charged with ensuring agency decisions comply with the law. Acting
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`Director Williams is sued in her official capacity.
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`20.
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`Defendant Secretary of the United States Department of the Interior has the
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`ultimate responsibility for implementation of the ESA, and supervisory authority for the Service.
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`The Secretary is sued in her official capacity.
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`STATUTORY BACKGROUND
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`I.
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`The Endangered Species Act
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`21.
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`Congress enacted the ESA in 1973 to provide a “program for the conservation of
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`. . . endangered species and threatened species” and “a means whereby the ecosystems upon
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`which endangered species and threatened species depend may be conserved.” 16 U.S.C. §
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`1531(b). To receive the ESA’s substantive protections, a species must first be listed as
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`“endangered” or “threatened” under Section 4 of the ESA. 16 U.S.C. § 1533.
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`22.
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`The ESA delegates responsibility for administering the ESA to two cabinet-level
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`Secretaries: Interior and Commerce. 16 U.S.C. § 1532(15). The Secretary of the Interior has, in
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`turn, delegated authority for terrestrial species including the beetle to the Service. 50 C.F.R. §
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`402.01(b).
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`23.
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`In making decisions to list or reclassify the status of a species, the ESA requires
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`the Service to “determine whether the species is an endangered species or a threatened species”
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`based on the following statutory factors:
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`(A) the present or threatened destruction, modification, or curtailment of its
`habitat or range;
`(B) overutilization for commercial, recreational, scientific, or educational
`purposes;
`(C) disease or predation;
`(D) the inadequacy of existing regulatory mechanisms; or
`(E) other natural or manmade factors affecting its continued existence.
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`16 U.S.C. § 1533(a)(1). A species may be listed based on any one or a combination of these five
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`“listing factors.”
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`24.
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`The ESA defines an “endangered species” as one that is “in danger of extinction
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`throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6).
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`25.
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`A “threatened species” is a species that is “likely to become an endangered
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`species within the foreseeable future throughout all or a significant portion of its range.” 16
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`U.S.C. § 1532(20); 50 C.F.R § 424.11(d). The term “foreseeable future” in the definition of
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`“threatened” means “so far into the future as the Service can reasonably determine that both the
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`future threats and the species' responses to those threats are likely.” 50 C.F.R § 424.11(d). The
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`Service must apply the “best available data” to construe the “foreseeable future” for a particular
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`species, and consider “the species' life-history characteristics, threat-projection timeframes, and
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`environmental variability.” Id.
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`26.
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`The ESA and its implementing regulations protect species that are listed as
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`“endangered” or “threatened” in several ways. For instance: (1) Section 4(f) requires the
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`Secretary, through the Service, to develop a “recovery plan” for each listed species, 16 U.S.C. §
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`1533(f); and (2) Section 7 requires federal agencies (a) to carry out their programs for the
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`“conservation” of listed species, id. § 1536(a)(1), and (b) to avoid activities that are likely to
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`“jeopardize” listed species’ continued existence, id. § 1536(a)(1)-(2).
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`27.
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`However, the ESA provides more stringent substantive protections for endangered
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`species than for threatened species. Endangered species generally receive higher priority for the
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`preparation and implementation of recovery plans, and the Service is more likely to determine
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`that particular actions jeopardize the continued existence of endangered species, leading to better
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`conservation measures under Section 7(a)(2) of the Act.
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`28.
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`Also, the ESA prohibits any “person,” meaning any individual, corporation,
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`federal agency, State official, or other entity subject to the Court’s jurisdiction, id. § 1532(13),
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`from engaging in activities that cause the “take” of any member of an endangered species
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`without a permit. “Take” means any act which will directly or indirectly “harass, harm, pursue,
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`hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
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`Id. § 1532(19).
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`29.
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`Section 9(a)(1)(B) applies the “take prohibition” to all endangered fish and
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`wildlife species, but the take prohibition currently applies to threatened species only by special
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`regulation promulgated by the Service under Section 4(d) of the Act. See id. §§ 1538(a)(1)(B),
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`1533(d).
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`30. When classifying a species as “threatened,” Section 4(d) of the ESA requires the
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`Service to assess whether the ESA’s take prohibition is “necessary and advisable to provide for
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`the conservation” a threatened species. Id. § 1533(d). If so, the Service “shall issue such
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`regulations” as needed for the conservation of that threatened species and to regulate specific
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`activities as take. Id.
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`31. When making listing determinations or reclassifying the status of a listed
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`species—whether a determination to “down-list” from endangered to threatened, or to “up-list”
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`from threatened to endangered—the Service must do so “solely on the basis of the best scientific
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`and commercial information regarding a species’ status,” without reference to possible economic
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`or other impacts of such determination. 50 C.F.R. § 424.11(b) (emphasis in original).
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`32.
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`A species may be down-listed when it has met the objectives for reclassification
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`in a recovery plan, 16 U.S.C. § 1533(f)(1)(B)(ii), or when the best available scientific and
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`commercial data warrants its reclassification as threatened based on the five listing factors. 50
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`C.F.R. § 424.11(c).
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`33.
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`The Service may not de-list a species altogether until the species has recovered
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`“to the point at which listing is no longer appropriate” under the listing factors, 50 C.F.R. §
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`402.02, because “threats to the species as analyzed under [the listing factors] have been
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`removed,” 51 Fed. Reg. 19,926, 19,935 (June 3, 1986), and de-listing criteria in the species’
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`recovery plan have been met. 16 U.S.C. § 1533(f)(1)(B)(ii).
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`II. The Administrative Procedure Act
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`34.
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`The APA provides the relevant standard for judicial review for plaintiff’s ESA
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`citizen-suit claims. 5 U.S.C. § 706(2)(A). That standard of review provides that a reviewing
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`court shall hold unlawful and set aside agency action found to be arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with the law. Id. The APA also provides an
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`alternative right to judicial review of agency action that does not fall within the ESA’s citizen-
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`suit provision.
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`FACTUAL BACKGROUND
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`The American burying beetle is the largest carrion beetle in North America and is
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`35.
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`recognizable by orange and black markings on its back.
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`36.
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`The American burying beetle is named for its unique reproductive behavior of
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`burying vertebrate carcasses (carrion) in soil, coating them in anal secretions, then feeding them
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`to larvae during early development. Both parents participate in the preparation of the carrion and
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`the rearing of their offspring, a rare trait in the insect world.
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`37.
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`The beetle once existed in 35 eastern states in the United States and three
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`southeastern Canadian provinces. However, during the early to mid-20th century, as native
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`prairie grasses were converted to crops, pastures, and industrial and urban development, and as
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`the passenger pigeon, which may have been a primary source of carrion, was lost to extinction,
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`the beetle was lost from over 90 percent of its range.
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`Endangered Listing and Recovery Plan
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`Citing this vast curtailment of the species’ historic range as a primary factor, the
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`38.
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`Service listed the American burying beetle as an endangered species in 1989. 54 Fed. Reg.
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`29,652. At the time, the Service believed that only two small populations existed: one in New
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`England and another in eastern Oklahoma. Id.
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`39. When it listed the beetle as endangered, the Service recognized that search efforts
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`may result in the discovery of additional populations, but it cautioned that “the extent of the
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`species decline suggests that any newly discovered populations are also vulnerable to whatever
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`factors have caused their disappearance elsewhere.” 54 Fed. Reg. at 29,653.
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`40.
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`In a 1991 recovery plan for the beetle, the Service set two “recovery objectives”
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`for the beetle. American Burying Beetle (Nicrophorus americanus) Recovery Plan 31 (1991)
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`(“Recovery Plan”).
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`41.
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`First, the Service sought to “reduce the immediacy of the threat of extinction” to
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`the beetle, an objective to be satisfied when “the extant eastern and western populations are
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`sufficiently protected and maintained” and “at least two additional self-sustaining populations of
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`500 or more beetles are established” in each of the eastern and western parts of the beetle’s
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`historic range (“Objective 1”). Id.
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`42.
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`Second, the Service sought to improve the beetle’s status so that the species may
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`be reclassified from endangered to threatened (“Objective 2”), id. at 32, to be satisfied when: (1)
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`three populations of at least 500 adult individuals are “established (or discovered)” within each
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`of four geographical areas, i.e., the Northeast, Southeast, Midwest, and the Great Lake areas; (2)
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`each population is “self-sustaining for 5 consecutive years,” and; (3) “ideally, each primary
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`population contains several satellite populations.” Id. The Service predicted that if these criteria
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`were met, reclassification might be warranted starting in 2012. Id.
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`2008 5-Year Review
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`After the Service classified the American burying beetle as endangered in 1989,
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`43.
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`the Service engaged in extensive surveys which eventually documented additional populations in
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`Oklahoma, Nebraska, and South Dakota. 85 Fed. Reg. at 65,242. However, in a “five-year
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`review” of the beetle prepared in 2008 to satisfy Section 4(c)(2) of the ESA, 16 U.S.C. §
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`1533(c)(2), the Service cautioned that these discoveries were the result of “better knowledge,”
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`not “repatriation of previously unoccupied habitat.” U.S. Fish and Wildlife Service, American
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`Burying Beetle (Nicrophorus americanus): 5-Year Review 30 (2008) (“5-Year Review”). These
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`efforts also did not locate or re-establish additional extant occurrences of at least 500 beetles in
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`the eastern and western populations as required under Objective 1. Recovery Plan at 31.
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`44.
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`In the 5-Year Review, the Service assessed the beetle’s status and determined that
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`except for one recovery area (the Midwest), criteria for Objective 2 had not been met, as “the
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`species presumably remains extirpated in most of its historic range,” and therefore the Service
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`concluded reclassification of the beetle as “threatened” was not warranted. 5-Year Review at 5.
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`45.
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`In the 5-Year Review, the Service determined that habitat loss, alteration and
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`fragmentation, reduced carrion availability, and increased competition are the overriding cause
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`of the species’ decline; that these factors continue to suppress extant beetle populations across
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`the species’ range; and that agriculture and grazing will likely render the majority of remaining
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`habitat unsuitable. 5-Year Review at 27. Moreover, the Service emphasized, the beetle remains
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`extirpated throughout most of its historic range, and habitat loss and fragmentation—from new
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`pipelines, access roads, drill pads, and other industrial facilities associated with petroleum and
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`natural gas drilling, development, and transportation—continue to threaten the beetle in its
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`remaining habitat. Id.
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`46.
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`Oklahoma, where the Southern Plains recovery area is located, is the third-largest
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`gas-producing state in the nation. Id. In the 5-Year Review, the Service disclosed that thousands
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`of acres of American burying beetle habitat in the Southern Plains are affected by oil and gas
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`development. Id. Approximately 4,545 acres of land are disturbed annually from new pipelines
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`in Oklahoma and this number is increasing. Id.
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`47.
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`For these reasons, the Service determined in the 5-Year Review that the beetle
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`should retain its status as “endangered,” emphasizing that endangered status would retain
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`important regulatory safeguards and protect local populations from extirpation. Id. at 32.
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`2019 Species Status Assessment
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`48.
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`Threats to the beetle have not abated since the Service’s 2008 5-Year Review, and
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`in fact, threats to the beetle’s survival have increased.
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`49.
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`In 2019, the Service prepared a “species status assessment” for the species and
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`found that the beetle remains extirpated throughout most of its historic range, primarily because
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`habitat loss and fragmentation are ongoing and threaten the beetle in the Southern Plains and
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`Northern Plains recovery areas. The Service attributed habitat loss to agriculture and intensive
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`grazing; logging; fire suppression; and pipelines, access roads, drill pads, and industrial facilities
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`for petroleum and natural gas drilling, development, and transportation. U.S. Fish and Wildlife
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`Service, Species Status Assessment Report for the American Burying Beetle (Nicrophorus
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`americanus) 27 (2019) (“SSA”).
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`50.
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`New and significant threats to the American burying beetle have emerged since
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`2008. For instance, wind energy development is a growing threat, as is urban development. Also,
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`invasive fire ants are increasingly competing with beetles for available carrion in the
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`southeastern United States, “mak[ing] restoration and recovery of [American burying beetle]
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`populations there difficult.” Id. at 33.
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`51.
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`Additionally, climate change now poses a grave and existential threat to the
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`species.” Id at 157.
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`52.
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`The beetle is most at risk from climate change in the Southern Plains, which
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`accounts for about 60 percent and a “significant portion” of the beetle’s remaining range,
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`according to the Service. 85 Fed. Reg. at 65,254.
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`53.
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`Average soil temperatures in the Southern Plains now exceed temperatures
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`beyond which the species cannot successfully reproduce, and monitoring data shows
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`corresponding population declines. SSA at 76. In the Red River area in southern Oklahoma,
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`average temperatures have already eviscerated any resiliency the beetle might have in this area.
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`Id. at 158.
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`54.
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`The Service found in its SSA that temperatures in this area will “likely extirpate
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`all Nicrophorus species in the Southern Plains” as soon as 2040—less than 20 years from now.
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`Id. at 160.
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`55.
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`As soon as 2070, the Service has predicted, all but the New England population of
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`the American burying beetle could be lost due to climate change. SSA at 167.
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`56.
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`The loss of the American burying beetle from the Southern Plains would mean its
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`elimination from what has been an important recovery area and, until now, a stronghold for the
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`species. The Service has acknowledged that the likely loss of the Southern Plains population
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`within two decades would “limit our ability to recover the species,” especially if the Northern
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`Plains population is also gone. 85 Fed. Reg at 65,254.
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`57.
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`In addition to climate change, the Service has acknowledged the American
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`burying beetle continues to be exposed to the same threats that led to its listing as endangered in
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`1989.
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`
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`2020 Down-Listing Rule
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`58.
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`Despite the acknowledged exposure to increased threats, in 2020 the Service
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`abandoned recovery and down-listed the American burying beetle from “endangered” to
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`“threatened.” 85 Fed. Reg. 65,241.
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`59.
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`The down-listing was a result of pressure from the oil and gas industry. In 2015,
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`the Independent Petroleum Association of America and other organizations opposed to
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`protecting the American burying beetle under the ESA petitioned the Service to de-list the
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`Case 1:21-cv-00791 Document 1 Filed 03/25/21 Page 15 of 23
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`American burying beetle. The IPAA based its request for de-listing the beetle on what it
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`considered to be inconvenient regulatory protections for the beetle that interfere with land
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`development, transportation, and pipeline and utility operations. The petitioners argued that de-
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`listing the beetle would be beneficial because it would remove these inconvenient regulatory
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`hurdles and allow for unrestricted exploration and production activities to proceed.
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`60.
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`After receiving the IPAA’s de-listing petition, the Service prepared the 2019
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`Species Status Assessment and subsequently published a listing determination and a proposed
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`rule to down-list the beetle’s status from “endangered” to “threatened.” 84 Fed. Reg. 19,013.
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`However, pointing to ongoing threats to the beetle from increasing temperatures and ongoing
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`land use activities, the Service did not propose to de-list the beetle altogether as the petitioners
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`had requested.
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`61.
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`In the Proposed Rule, and ultimately the Final Rule, the Service once again
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`acknowledged that habitat loss and fragmentation and reduced carrion resources remain primary
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`threats to the beetle. 84 Fed. Reg at 19,019, 19,020; 85 Fed. Reg. at 65,246. Yet the Service
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`concluded, without explanation, that it now considers those threats “relatively minor”—thus
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`abandoning its oft-repeated prior position that habitat loss and fragmentation is a primary,
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`ongoing threat to the beetle’s survival. 84 Fed. Reg. at 19,020. The Service based this change in
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`position on the speculation that additional suitable habitat may become available in the Southern
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`Plains at some point, and would buffer the effects from ongoing and projected land use changes.
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`Id.; 85 Fed. Reg. at 65,254. Yet at the same time, the Service acknowledged that large areas of
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`this potential habitat in Southern Plains will become uninhabitable due to climate change within
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`two decades.
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`Case 1:21-cv-00791 Document 1 Filed 03/25/21 Page 16 of 23
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`62.
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`Recognizing the ongoing threats to the beetle and its habitat, the Service proposed
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`and issued a 4(d) Rule for the beetle. The 4(d) Rule regulates soil-disrupting activities that cause
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`take of beetles in the Northern Plains. Yet, the Service did not apply these same conservation
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`measures in the Southern Plains, where habitat destruction and fragmentation from soil-
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`disturbing activities also threaten the beetle’s survival and recovery, just as in the Northern
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`Plains.
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`63.
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`Several American burying beetle scientists submitted comments opposing the
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`down-listing.
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`64.
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`One of these experts was the Service’s lead biologist on the recovery team for the
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`American burying beetle from 1989 to 2009. In his comments on the proposed down-listing, Mr.
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`Michael J. Amaral—who coordinated and prepared the 1991 Recovery Plan and 5-Year
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`Review—characterized the Service’s conclusion that the beetle is no longer endangered as
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`“inconsistent with the scientific analyses that are presented” and based on “several inherent
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`contradictions and misleading findings.” Comments from other American burying beetle experts
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`echoed these concerns.
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`65.
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`On the other hand, commenters from the oil and gas industry welcomed the
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`proposed down-listing and 4(d) Rule, many of them emphasizing that the beetle’s endangered
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`status has hindered their investment opportunities—particularly in Oklahoma, the Southern
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`Plains recovery area.
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`66.
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`The Service acknowledged that the recovery plan objectives and criteria had not
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`been met, but simply decided that they should no longer apply. 85 Fed. Reg at 65,244.
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`67.
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`The Service instead decided to base the decision to down-list the beetle on the
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`rationale that the beetle’s current range is “much larger than originally thought,” and on that
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`basis, declared that the risk of extinction has been averted. 85 Fed. Reg at 65,254.
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`68.
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`In determining whether the American burying beetle is endangered in the
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`Southern Plains, a significant portion of the species’ remaining range, the Service reasoned that
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`the “bulk of the impact” of climate change to the species’ survival in the Southern Plains will not
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`be felt until 20 to 49 years in the future, as it will be that point in time when the future
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`consequences of climate change—the result of human activities and choices that occurring
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`now—will cause the extinction of the species in this area. 85 Fed. Reg at 65,256.
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`69.
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`The Service down-listed the beetle, concluding that the species is not at imminent
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`risk of extirpation, meaning that its existence there is not at risk at this precise moment, even
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`though it predicted that it may take only 20 years for the beetle to disappear from the Southern
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`Plains. Id.
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`70.
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`Thus, the Service simultaneously relied on what has been the beetle’s relative
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`stability and potential new habitat in the Southern Plains to rationalize the decision to down-list
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`the species, even as the agency predicted that beetle will be lost from the Southern Plains within
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`20 years. Id.
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`71.
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`On this illogical basis, the Service determined that the species is not currently
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`endangered in the Southern Plains, a “significant portion” of the beetle’s dwindling range. Had
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`the Service concluded it was, it would have no option but to maintain the species’ status as
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`“endangered.”
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`72. With its decision to reclassify the beetle as threatened, the Service issued a 4(d)
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`Rule under Section 4(d) of the E