[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Rules and Regulations]
[Pages 47490-47491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19895]

[[Page 47490]]



Fish and Wildlife Service

50 CFR Part 17

[Docket ID FWS-R6-ES-2011-0062; 92220-1113-0000; ABC Code: C6]
RIN 1018-AX93

Endangered and Threatened Wildlife and Plants; Reinstatement of 
Listing Protections for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing 
this final rule to comply with a court order that vacates our most 
recent rule and reinstates the regulatory protections under the 
Endangered Species Act of 1973, as amended (Act), for the Preble's 
meadow jumping mouse (Zapus hudsonius preblei) (Preble's) in Wyoming. 
The United States District Court for the District of Colorado, by order 
dated July 7, 2011, vacated and remanded the 2008 Final Rule to Amend 
the Listing for the Preble's Meadow Jumping Mouse To Specify Over What 
Portion of Its Range the Subspecies is Threatened (2008 Amended Listing 
Decision) and reinstated the 1998 Final Rule Listing the Preble's 
Meadow Jumping Mouse as Threatened Throughout Its Range, effective 
August 6, 2011. This rule reinstates the listing of Preble's in 
Wyoming. It also reinstates the special rule that exempts activities 
related to rodent control, ongoing agricultural activities, landscape 
maintenance, existing uses of water, noxious weed control, and ongoing 
ditch maintenance activities from the take provisions of the Act 
throughout the entire range of the Preble's.

DATES: This action is effective August 6, 2011.

ADDRESSES: This final rule and the U.S. District Court decision is 
available on the Internet at http://www.regulations.gov at Docket No. 

FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S. 
Fish and Wildlife Service, Colorado Ecological Services Office, 134 
Union Boulevard, Suite 670, Lakewood, CO 80225; telephone: 303-236-
4773; facsimile: 303-236-4005. Individuals who are hearing-impaired or 
speech-impaired may call the Federal Relay Service at (800) 877-8337 
for TTY.



    On July 10, 2008, we published a final rule amending the listing 
determination for the Preble's to remove protections for the mouse in 
Wyoming (73 FR 39790). In that rule, we determined that the Preble's 
was not threatened throughout all of its range, but the portion of its 
range located in Colorado represented a significant portion of the 
range where the Preble's should retain its threatened status. The 2008 
Amended Listing Decision relied on a March 2007 Memorandum Opinion from 
the Department of the Interior's Office of the Solicitor (Opinion M-
37013) and applied Opinion M-37013's interpretation of the Act's term 
``significant portion of the range'' (SPR) to determine that a 
difference in status was warranted between the Wyoming and Colorado 
portions of the range.
    On June 23, 2009, a petition for review of the 2008 amended listing 
decision was filed in the United States District Court for the District 
of Colorado. Petitioners challenged, among other things, our 
interpretation of SPR as applied to the Preble's decision. In the time 
since that lawsuit was filed, two courts vacated final listing 
decisions that relied on the same statutory interpretation contained in 
Opinion M-37013 and applied in the Preble's 2008 Amended Listing 
Decision. On May 4, 2011, after careful review of the statutory 
interpretation contained in Opinion M-37013 and those two court 
decisions, the Solicitor of the Department of the Interior issued a 
memorandum (``M-37024'') withdrawing Opinion M-37013, and the Service 
announced its intent to propose in the near future, for notice and 
comment, a joint policy with the National Marine Fisheries Service 
(``NMFS'') regarding the interpretation and implementation of the Act's 
statutory phrase ``in danger of extinction throughout all or a 
significant portion of its range'' (``SPR Language''). This 
announcement is available at: http://www.fws.gov/home/feature/2011/pdf/Wolf_Actions_FAQs.pdf.
    The Service determined it necessary to reconsider the Preble's 
status in light of recent court decisions and the subsequent withdrawal 
of Opinion M-37013. Accordingly, the Service filed a motion for 
voluntary remand and vacatur of the Preble's 2008 Amended Listing 
Decision, and requested that the special rule promulgated pursuant to 
Section 4(d) of the Act and published in the Federal Register in 2001 
(66 FR 28125, May 22, 2001), amended in 2002 (67 FR 61531, October 1, 
2002), and extended indefinitely in 2004 (69 FR 29101, May 20, 2004), 
be reinstated throughout the species' range. On July 7, 2011, the 
United States District Court for the District of Colorado granted this 
motion and ordered the 2008 Amended Listing Decision vacated as of 
August 6, 2011 (Center for Native Ecosystems, et al. v. Salazar, et 
al., 09-cv-01463-AP-JLK, 2011 U.S. Dist. LEXIS 72664 (D. Colo. July 7, 
    This court ruling reinstates the 1998 Final Rule listing the 
Preble's as threatened throughout its range (63 FR 26517), effective 
August 6, 2011. Accordingly, Federal protections that were in place 
prior to our 2008 Amended Listing Decision are reinstated for the 
Preble's in Wyoming. Further, the special rule promulgated pursuant to 
section 4(d) of the Act and published in the Federal Register in 2001, 
amended in 2002, and extended indefinitely in 2004, is reinstated 
throughout the species' range (50 CFR 17.40(l)). The Service must 
complete its status review of the Preble's and publish a 12-month 
finding in the Federal Register for two petitions submitted by the 
State of Wyoming and Coloradans for Water Conservation and Development 
to delist the Preble's by the sooner of either 12 months after its 
formulation of the new joint policy with NMFS interpreting 
``significant portion of its range'' language or June 1, 2013.
    We published a statement on our Web site to notify the public of 
the ruling and its impact shortly after the order was released. We 
intend to notify the public again when this notice is published to 
ensure awareness of the ruling.

Administrative Procedure

    This rulemaking is necessary to comply with the July 7, 2011, court 
order. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that 
the agency has good cause to make this rule effective August 6, 2011.

Effects of the Rule

    As of August 6, 2011, the Preble's is again listed as threatened in 
Wyoming (50 CFR 17.11(h)) and the section 4(d) rule is reinstated 
throughout the species' range (50 CFR 17.40(l)). Please see the above-
cited Federal Register publications for more detailed information 
regarding the Preble's listing and the special rule.
    This rule will not affect the status of the Preble's under State 
laws or suspend

[[Page 47491]]

any other legal protections provided by State law.

Lists of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, in order to comply with the court orders discussed 
above, we amend part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, as set forth below.


1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec.  17.11 by revising the entry in the table at paragraph 
(h) for ``Mouse, Preble's meadow jumping'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                     Species                                             Vertebrate
--------------------------------------------------                    population where                              Critical
                                                     Historic range     endangered or     Status     When listed     habitat          Special rules
          Common name            Scientific name                         threatened
                                                                      * * * * * * *
Mouse, Preble's meadow jumping  Zapus hudsonius    U.S.A. (CO, WY)..  Entire..........   T                  636      17.95(a)                  17.40(l)
                                                                      * * * * * * *

3. In Sec.  17.40, revise paragraphs (l)(2)(vi)(E) and (l)(4) to read 
as follows:

Sec.  17.40  Special rules--mammals.

* * * * *
    (l) * * *
    (2) * * *
    (vi) * * *
    (E) Any future revisions to the authorities listed in paragraphs 
(l)(2)(vi)(A) through (D) of this section that apply to the herbicides 
proposed for use within the species' range.
* * * * *
    (4) Where does this rule apply? The take exemptions provided by 
this rule are applicable within the entire range of the Preble's meadow 
jumping mouse.
* * * * *

    Dated: July 27, 2011.
James J. Slack,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-19895 Filed 8-4-11; 8:45 am]