Principal Parker Moore (Washington, DC) was quoted in a January 13 article in Law360 titled “Legal Fight Looms After Industry Wins Big On FWS Bat Rule .” The article discusses the U.S. Fish and Wildlife Service’s (FWS) final rule that significantly broadened the activities that may be conducted within the northern long-eared bat’s 37-state range.

Parker explained the strategy that industry stakeholders used to address the listing of the bat under the Endangered Species Act (ESA) and subsequently to narrow restrictions on project development on account of the listing decision using a 4(d) rule, which exempts certain activities from the ESA’s prohibition on taking threatened species. “Fish and Wildlife Service started out considering the northern long-eared bat for emergency endangered listing," he said. "So first we had to move them away from that, and then move them off of its proposed endangered listing to get it to threatened so that it could issue a 4(d) rule in the first place.” 

He further explained that, after an interim 4(d) rule for the bat was issued last year that covered only a few specific activities, affected industries collaborated to develop the data necessary to demonstrate to the Fish and Wildlife Service that the interim 4(d) rule could be expanded to cover a broader range of activities without posing a conservation risk to the species. “We showed that these industry activities were of so little impact that they could coexist with the Service’s conservation efforts.”

Parker predicted that environmental groups likely will challenge the threatened listing for the bat in the coming months but that the Service’s listing decision should withstand judicial review in light of the comprehensive record underlying the decision that was developed by the agency and interested stakeholders. “That record was developed by stakeholders with an eye toward the Fish and Wildlife Service being able to defend against a challenge that we expected to come from an environmental group. The goal was to produce a bulletproof administrative record that would support Fish and Wildlife Service’s decision.”

Click here for the full article (subscription required).