No. 42031 (Emergency Rule): Rule R657-19. Taking Nongame Mammals

DAR File No.: 42031
Filed: 08/17/2017 02:38:26 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this emergency rule is to regulate the taking of Nongame mammals.

Summary of the rule or change:

The proposed revisions to this rule make it consistent with new guidelines issued by the federal Fish and Wildlife Service in regards to the management of Utah Prairie Dogs. (EDITOR'S NOTE: The 120-day (emergency) filing for Rule R657-70 that is effective as of 08/17/2017 is under Filing No. 42032 in this issue, September 15, 2017, of the Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: The Utah Prairie Dog is listed as "threatened" under the Endangered Species Act, and its management has been the subject of ongoing litigation in the case People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, et al. and Friends of Animals (Case No. 2:13-cv-00278). In November 2014, Judge Dee Benson issued a decision declaring that the species could not be listed under the Endangered Species Act on non-federal lands, and as such the State of Utah held management authority in those circumstances. This prompted the development of a specific rule for management of Utah prairie dogs (Rule R657-70) and modification of the Division of Wildlife Resources' nongame rule (Rule R657-19). The 10th Circuit Court of Appeals recently overturned the district court decision returning full management authority to the federal government. As some provisions of Rule R657-70 may violate terms of the Endangered Species Act, repealing that rule is necessary. Rule R657-19 will largely be restored to the format it was in prior to the issuance of the district court decision, with two substantive changes: one in Subsection R657-19-7(5) and one in Subsection R657-19-7(6). These changes are necessary to be consistent with the federal rules regulating the taking of Utah Prairie Dogs. The first specifies the dates of allowable taking for Utah Prairie Dogs, and the second specifies the totals for range-wide take of Utah Prairie Dogs. The remaining differences between this version of Rule R657-19 and its format prior to the issuance of the district court decision are nonsubstantive, i.e. changes in zip codes, but are necessary to ensure proper administration of the rule and associated permits.

Statutory or constitutional authorization for this rule:

• Section 23-13-3
• Section 23-14-19
• 16 U.S.C. 1531 et seq.
• Section 23-14-18
• 50 CFR 17.40(g)

Anticipated cost or savings to:

the state budget:

The emergency rule is necessary to align the state rule to a recent court decision and applicable federal laws. The Division of Wildlife Resources (DWR) determines that this emergency rule will not create any cost or savings impact to the state budget or DWR's budget, and all changes in workload can be carried out within their existing budget, however changes to federal Law may have a financial impact which is unknown at this time.

local governments:

The emergency rule is necessary to align the state rule to a recent court decision and applicable federal laws. While this emergency rule alone does not create any direct cost impact to local governments, it is anticipated that the transition to federal management authority mandated by the district court decision may increase costs and burdens on local government.

small businesses:

The emergency rule is necessary to align the state rule to a recent court decision and applicable federal rules. While the emergency rule alone does not create any direct cost impact to small businesses, it is anticipated that the transition to federal management authority necessitating the emergency rule may increase costs and burdens on local governments and citizens affected by Utah Prairie Dogs.

persons other than small businesses, businesses, or local governmental entities:

The emergency rule is necessary to align the state rule to a recent court decision and applicable federal rules. While the emergency rule alone does not create any direct cost impact to other persons, it is anticipated that the transition to federal management authority necessitating the emergency rule may increase costs and burdens on local governments and citizens affected by Utah Prairie Dogs.

Compliance costs for affected persons:

The federal management authority has oversight and costs for federal compliance is unknown at this time.

Comments by the department head on the fiscal impact the rule may have on businesses:

The federal management authority has oversight and costs for federal compliance is unknown at this time.

Michael R. Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Staci Coons at the above address, by phone at 801-538-4718, by FAX at 801-538-4709, or by Internet E-mail at [e-mail]

This rule is effective on:

08/17/2017

Authorized by:

Mike Fowlks, Deputy Director

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-19. Taking Nongame Mammals.

R657-19-1. Purpose and Authority.

(1) Under authority of Sections 23-13-3, 23-14-18 and 23-14-19, this rule provides the standards and requirements for taking and possessing nongame mammals.

(2) A person capturing any live nongame mammal for a personal, scientific, educational, or commercial use must comply with R657-3 Collection, Importation, Transportation and Subsequent Possession of Zoological Animals.

 

R657-19-2. Definitions.

(1) Terms used in this rule are defined in Section 23-13-2.

(2) In addition:

(a) "Immediate family" means the landowner's or lessee's spouse, children, son-in-law, daughter-in-law, father, mother, father-in-law, mother-in-law, brother, sister, brother-in-law, sister-in-law, stepchildren, and grandchildren.

(b) "Nongame mammal" means:

(i) any species of bats;

(ii) any species of mice, rats, or voles of the families Heteromyidae, Cricetidae, or Zapodidae;

(iii) opossum of the family Didelphidae;

(iv) pikas of the family Ochotonidae;

(v) porcupine of the family Erethizontidae;

(vi) shrews of the family Soricidae; and

(vii) squirrels, prairie dogs, and marmots of the family Sciuridae, excluding Utah prairie dogs, Cynomys parvidens.

 

R657-19-3. General Provisions.

(1) A person may not purchase or sell any nongame mammal or its parts.

(2)(a) The live capture of any nongame mammals is prohibited under this rule.

(b) The live capture of nongame mammals species may be allowed as authorized under Rule R657-3.

(3) Section 23-20-8 does not apply to the taking of nongame mammal species covered under this rule.

 

R657-19-4. Nongame Mammal Species - Certificate of Registration Required.

(1) A certificate of registration is required to take any of the following species of nongame mammals:

(a) bats of any species; and

(b) pika - Ochotona princeps.

(2) A certificate of registration is required to take any shrew - Soricidae, all species.

(3) A certificate of registration is required to take a Utah prairie dog, Cynomys parvidens, as provided in Sections R657-[70.]19-6, R657-19-7, R657-19-8 and R657-19-9.

(4) A certificate of registration is required to take any of the following species of nongame mammals in Washington County:

(a) cactus mouse - Peromyscus eremicus;

(b) kangaroo rats - Dipodomys, all species;

(c) Southern grasshopper mouse - Onychomys torridus; and

(d) Virgin River montane vole - Microtus montanus rivularis, which occurs along stream-side riparian corridors of the Virgin River.

(5) A certificate of registration is required to take any of the following species of nongame mammals in San Juan and Grand counties:

(a) Abert squirrel - Sciurus aberti;

(b) Northern rock mouse - Peromyscus nasutus; and

(c) spotted ground squirrel - Spermophilus spilosoma.

(6) The division may deny a certificate of registration to any applicant, if:

(a) the applicant has violated any provision of:

(i) Title 23 of the Utah Code;

(ii) Title R657 of the Utah Administrative Code;

(iii) a certificate of registration;

(iv) an order of the Wildlife Board; or

(v) any other law that bears a reasonable relationship to the applicant's ability to safely and responsibly perform the activities that would be authorized by the certificate of registration;

(b) the applicant misrepresents or fails to disclose material information required in connection with the application;

(c) taking the nongame mammal as proposed in the application violates any federal, state or local law;

(d) the application is incomplete or fails to meet the issuance criteria set forth in this rule; or

(e) the division determines the activities sought in the application may significantly damage or are not in the interest of wildlife, wildlife habitat, serving the public, or public safety.

 

R657-19-5. Nongame Mammal Species - Certificate of Registration Not Required.

(1) All nongame mammal species not listed in Section R657-19-4 as requiring a certificate of registration, may be taken:

(a) without a certificate of registration;

(b) year-round, 24-hours-a-day; and

(c) without bag or possession limits.

(2) A certificate of registration is not required to take any of the following species of nongame mammals, however, the taking is subject to the provisions provided under Section R657-19-10:

(a) White-tailed prairie dog, Cynomys leucurus; and

(b) Gunnison prairie dog, Cynomys gunnisoni.

 

R657-19-6. Utah Prairie Dog Provisions.

(1)(a) A person may not take a Utah Prairie dog, Cynomys parvidens, without first obtaining a certificate of registration from the division.

(b) A certificate of registration for taking Utah prairie dogs may be issued as provided in Subsection (i) or Subsection (ii), or Subsection (iii), if the taking will not further endanger the existence of the species:

(i) in cases where Utah Prairie dogs are causing damage to agricultural lands as provided in the rules of the U.S. Fish and Wildlife Service; or

(ii) as provided in a valid Incidental Take permit issued by the U.S. Fish and Wildlife Service under an approved Habitat Conservation Plan; or

(iii) as provided under a valid Incidental Take permit issued by the U.S. Fish and Wildlife Service allowing take of Utah prairie dogs on specified private lands as part of an approved conservation agreement enacted between the U.S. Fish and Wildlife Service and the owner of those private lands.

(c) A person may apply for a certificate of registration at the division's southern regional office, 1470 North Airport Road, Suite 1, Cedar City, Utah 84721.

(d) A landowner, lessee, or their immediate family member, or an employee on a regular payroll and not hired specifically to take Utah prairie dogs, may apply for a certificate of registration.

(e)(i) A person, other than those listed in Subsection (d), may apply for a certificate of registration to take Utah prairie dogs as a designee of the landowner or lessee provided the application includes:

(A) an explanation of the need for the certificate of registration to be issued;

(B) justification for utilization of the designee; and

(C) the landowner or lessee's signature.

(ii) A maximum of two designee certificates of registration may be issued per landowner or lessee.

(iii) Each designee application shall be considered individually based upon the explanation and justification provided.

(f) An application for a certificate of registration must include:

(i) full name;

(ii) complete mailing address;

(iii) phone number;

(iv) date of birth;

(v) weight and height;

(vi) gender;

(vii) color of hair and eyes;

(viii) social security number;

(ix) driver's license number, if issued;

(x) proof of hunter education certification if the applicant was born after December 31, 1965; and

(xi) the township, range, section and 1/4 section of the agricultural lands where the prairie dogs will be taken.

(g) An applicant must be at least 14 years of age at the time of application and must abide by the provisions for children being accompanied by adults while hunting with a weapon pursuant to Section 23-20-20.

(h) After review of the application, a certificate of registration may be issued.

(i) A maximum of four certificates of registration may be issued to any landowner or lessee, including those issued to the landowner or lessee's designees.

(j) A certificate of registration shall be issued on an individual basis and shall be valid only for the person to whom the certificate of registration is issued.

(k) A certificate of registration is not transferrable and must be signed by the holder prior to use.

(l) If the application and permitting process is accomplished by U.S. Mail, the certificate of registration shall only become valid after a copy of the signed certificate of registration is received by the division's southern regional office.

(2)(a) A person may take Utah prairie dogs with a firearm during daylight hours or by trapping as specified on the certificate of registration.

(b) A person may not use any chemical toxicant to take Utah prairie dogs.

(c) In addition to the requirements of this rule, any person taking Utah prairie dogs must comply with state laws, and local ordinances and laws.

(d) A person at least 14 years of age and under 16 years of age who takes Utah Prairie dogs must be accompanied by an adult with a valid certificate of registration to take Utah Prairie dogs on the same property.

 

R657-19-7. Areas Open to Taking Utah Prairie Dogs -- Dates Open --Limits on Number of Utah Prairie Dogs Taken.

(1) A person who obtains a valid certificate of registration may take Utah prairie dogs only on private lands within the following counties:

(a) Beaver;

(b) Garfield;

(c) Iron;

(d) Kane;

(e) Millard;

(f) Piute;

(g) Sanpete;

(h) Sevier;

(i) Washington; and

(j) Wayne.

(2) Taking of a Utah prairie dog on any land or by any method, other than as provided in the valid certificate of registration, including any public land, is a violation of state and federal law.

(3) Any person, who is specifically named on a valid certificate of registration, may remove Utah prairie dogs, as provided in the certificate of registration.

(4) The taking of any Utah prairie dog outside the areas provided in this section is prohibited, except by division employees while acting in the performance of their assigned duties.

(5) The taking of Utah prairie dogs is limited to the dates designated on the certificate of registration. All dates are confined to June 15 through December 31, except as provided in Subsection R657-19-6(1)(b)(iii).

(6)(a) A person may take only the total number of Utah prairie dogs designated in the certificate of registration, except as provided in Subsection R657-19-6(1)(b)(iii).

(b) The total annual range-wide take of Utah prairie dogs and the total annual take of Utah prairie dogs on agricultural lands is governed by federal law.

(c) If the division determines that taking Utah prairie dogs has an adverse effect on conservation of the species, taking shall be further restricted or prohibited.

 

R657-19-8. Monthly Reports of Take of Utah Prairie Dogs.

(1) The following information must be reported to the division's southern regional office, 1470 North Airport Road, Suite 1, Cedar City, Utah 84721, every 30 days:

(a) the name and signature of the certificate of registration holder;

(b) the person's certificate of registration number;

(c) the number of Utah prairie dogs taken; and

(d) the location, method of take, and method of disposal of each Utah prairie dog taken during the 30-day period.

(2) Failure to report the information required in Subsection (1), within 30 days, may result in the denial of future applications for a certificate of registration to take Utah prairie dogs.

 

R657-19-9. Unlawful Possession of Utah Prairie Dogs.

A person may not possess a Utah prairie dog or its parts, without first obtaining a valid certificate of registration and a federal permit.

 

R657-19-10 . White-tailed and Gunnison Prairie Dogs.

(1)(a) A license or certificate of registration is not required to take either white-tailed or Gunnison prairie dogs.

(b) There are no bag limits for white-tailed or Gunnison prairie dogs for which there is an open season.

(2)(a) White-tailed prairie dogs, Cynomys leucurus, may be taken in the following counties from January 1 through March 31, and June 16 through December 31:

(i) Carbon County;

(ii) Daggett County;

(iii) Duchesne County;

(iv) Emery County;

(v) Morgan;

(vi) Rich;

(vii) Summit County;

(viii) Uintah County, except in the closed area as provided in Subsection (2)(b)(i);

(ix) Weber; and

(x) all areas west and north of the Colorado River in Grand and San Juan counties.

(b) White-tailed prairie dogs, Cynomys leucurus, may not be taken in the following closed area in order to protect the reintroduced population of black-footed ferrets, Mustela nigripes:

(i) Boundary begins at the Utah/Colorado state line and Uintah County Road 403, also known as Stanton Road, northeast of Bonanza; southwest along this road to SR 45 at Bonanza; north along this highway to Uintah County Road 328, also known as Old Bonanza Highway; north along this road to Raven Ridge, just south of US 40; southeast along Raven Ridge to the Utah/Colorado state line; south along this state line to point of beginning.

(3) The taking of White-tailed prairie dogs, Cynomys leucurus, is prohibited from April 1 through June 15, except as provided in Subsection (5).

(4)(a) The taking of Gunnison prairie dogs, Cynomys gunnisoni, is prohibited in all areas south and east of the Colorado River, and north of the Navajo Nation in Grand and San Juan counties from April 1 through June 15.

(b) Gunnison prairie dogs may be taken in the area provided in Subsection (4)(a) from June 16 through March 31.

(5) Gunnison prairie dogs and White-tailed prairie dogs causing agricultural damage or creating a nuisance on private land may be taken at any time, including during the closed season from April 1 through June 15.

 

R657-19[-7.]11. Violation.

(1) Any violation of this rule is a Class C misdemeanor as provided in Section 23-13-11(2).

(2) In addition to this rule any animal designated as a threatened or endangered species is governed by the Endangered Species Act and the unlawful taking of these species may also be a violation of federal law and rules promulgated thereunder.

(3) Pursuant to Section 23-19-9, the division may suspend a certificate of registration issued under this rule.

 

KEY: wildlife, game laws

Date of Enactment or Last Substantive Amendment: August 17, 2017

Notice of Continuation: August 5, 2013

Authorizing, and Implemented or Interpreted Law: 23-13-3; 23-14-18; 23-14-19

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