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.

Section 4302. Definitions.

Section 4303. Management actions.

(a) Regulations.

(b) In general.

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.

(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.

(d) Subpoenas.

Section 4308. Miscellaneous provisions.

(a) Authorization of appropriations.

(b) Effect on land management plans.

(d) Existing rights.

Section 4309. Savings provision.

(a) Water.

(b) Fish and wildlife.

4310. Establishment of Cave Research Program.

(a) Establishment.

(b) Functions.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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) (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 designated port. The Secretary of the Treasury, by regulation, must require documentation of these conditions and designate one port within each customs region for entry of such Articles.

An importation of fish or wildlife into the U.S. is not in violation of the Act if: the species was lawfully taken and exported from its country of origin; the species is in transit to a country where it may be lawfully imported and received; the owner or exporter gave instructions not to ship the species through the jurisdiction of the U.S., and the circumstances of shipment were beyond the exporter's control; the requirements of CITES have been satisfied; and the importation was not made in the course of commercial activity. The Secretary may authorize the release of an experimental population outside the existing range of the species if this will further the conservation of the species and the population is essential to the continued existence of the species. An experimental population is defined as a population, including offspring that is separated geographically from non-experimental populations of the same species. The experimental population shall be treated as a threatened species, except that, if it is not essential to the continued existence of the species, it is to be treated as a species proposed to be listed, and critical habitat would not be designated. If release of a threatened or endangered species was authorized before October 13, 1982 in a separate geographical area, the Secretary must designate which of these populations are experimental and whether each is essential for the continued existence of the species. § 1539.

Penalties and Enforcement (ESA § 11).

Criminal penalties of up to $50,000 or imprisonment for one year, or both, and civil penalties of up to $25,000 per violation, may be assessed against a person who knowingly violates, or a person engaged in business as an importer or exporter of fish, wildlife or plants who violates, a provision of the Act or its regulations relating to: importing or exporting, taking, possessing, selling, delivering, carrying, transporting, or shipping after taking; participating in interstate or foreign commerce or any commercial activity of any endangered species of fish, wildlife or plants in violation of CITES; engaging in business as an importer or exporter of fish, wildlife, plants, or African elephant ivory, or importing into or exporting from other than a designated port without first obtaining permission of the Secretary; soliciting, attempting to solicit, or causing to be committed any prohibited act. Criminal penalties of up to $25,000, imprisonment of six months, or both, and civil penalties of up to $12,000 per violation, may be assessed against a person who knowingly violates, or a person engaged in business as an importer or exporter who violates, other regulations issued under the Act. A person who otherwise violates a provision of the Act or a regulation, permit or certificate may be assessed a civil penalty of $500 per violation. (The maximum criminal fines noted in this paragraph are those stated in the Endangered Species Act; however, the Sentencing Reform Act of 1984, as amended in 1987, increases the fines that may be imposed.

A federal lease, license, permit or other agreement to import or export fish, wildlife or plants, operate a quarantine station for imported wildlife, or use federal lands (including grazing domestic livestock) may be modified, suspended or revoked by the head of the authorizing federal agency upon a criminal conviction under the Act. The Secretary must suspend for up to one year or cancel the federal hunting or fishing permits of a person convicted of a criminal violation under the Act.

No penalty may be assessed without notice and opportunity for a hearing. No penalty can be assessed if the defendant committed an act in good faith to protect himself or herself, a family member or any other person from bodily harm from a threatened or endangered species. Criminal actions are prosecuted in the federal district courts. The Secretary, who can ask the Attorney General to bring a civil action in district court if the violator fails to pay the penalty imposed, imposes civil penalties.

Using money received as penalties, fines, or forfeitures of property, the Secretary or the Secretary of the Treasury must pay a reward for information leading to arrest, criminal conviction, civil penalty assessment or forfeiture of property for violation of the Act, unless the information was provided by a local, state or federal employee in the performance of official duties. The monies are to be used also to pay reasonable and necessary costs incurred for the care of fish, wildlife or plant pending disposition of the proceedings. When the balance received exceeds $500,000, the Secretary of the Treasury is required to deposit an amount equal to the excess into the cooperative endangered species conservation fund.

The Act directs the Secretary, the Secretary of the Treasury and the Secretary in charge of the Coast Guard to enforce the Act's provisions and any regulations or permits issued pursuant to it. In doing so, they may use the personnel, facilities and services of any other federal or state agency. Persons authorized by the Secretaries may: detain and inspect containers and accompanying documents; make arrests without a warrant, but with reasonable grounds; execute and serve arrest, search or other warrants; search and seize, with or without a warrant, as authorized by law. Seized property may be held pending disposition of the proceedings, forfeiture actions may be instituted, or sureties or bonds may be permitted. Abandoned or forfeited property must be disposed of in a manner consistent with the purposes of the Act. All species obtained or transported in violation of the Act and all property used are subject to forfeiture to the U.S. The Secretaries may promulgate regulations to enforce the Act and may charge reasonable fees connected with permits or certificates and the care of seized specimens and evidentiary items. The Attorney General may seek injunctions for violations of the Act.

All laws relating to seizures, forfeitures, and condemnation and disposition of a vessel for violations of a customs law apply to seizures under this Act, except that the powers, rights and duties imposed on an officer shall be exercised by the Secretary or the Secretary's agent.

Any person may file a civil action: to enjoin a person, including a governmental entity, alleged to be in violation of the Act; to compel the Secretary to apply emergency listing procedures or protective measures against the taking of a resident threatened or endangered species within a state; against the Secretary alleging a failure to determine a species as threatened or endangered, or no longer so, if the determination is not discretionary with the Secretary. The district courts have jurisdiction to enforce the Act's provisions and regulations, or to order the Secretary to perform an act or duty. In a civil action, the district court may compel the Secretary to enforce a prohibition if it finds that an emergency exists. Citizen suits to enjoin a person or to compel the Secretary to declare an emergency listing or take protective measures may not be commenced without a 60-day notice given to the alleged violator. An action may be commenced within the 60-day notification period if the action is alleging that the Secretary is failing to perform a duty respecting an emergency posing a significant risk to the well-being of a species. Suit may be

brought in the judicial district where the violation occurs, and, if the U.S. is not a party, the Attorney General may intervene for the U.S. The court may award attorney fees to any party where appropriate. Injunctive relief does not preclude a party from seeking enforcement or other relief under another statute or common law.

The Secretary and the Secretary of Agriculture must coordinate the administration of the Act with the animal quarantine laws. The Act does not limit or supersede the functions of the Secretary of Agriculture or the Treasury relating to prohibitions or restrictions on importation or possession of wildlife or other animals. § 1540.

Endangered Plants (ESA § 12).

The Act directs the Secretary of the Smithsonian Institution, in conjunction with other affected agencies, to review plant species which are or may become threatened or endangered, and methods adequate to conserve the species. The Secretary was required to report the results of this review to Congress by December 28, 1974, including recommendations for new or amending legislation. § 1541.

Annual Cost Analysis by the U.S. Fish and Wildlife Service (ESA § 15).

By January 15, 1990 and yearly thereafter, the Secretary, acting through the Fish and Wildlife Service, must report to Congress on all reasonably identifiable federal and state grant expenditures made primarily for the conservation of endangered or threatened species. § 1544.

Regulations at 50 CFR 17 - Table of Contents and Search Title 50 Endangered Species Policy Documents provided by the Division of Endangered Species

Source: Musgrave, Ruth. et.al. 1998. Federal Wildlife and Related Laws Handbook. Center for Wildlife Law - Government Institutes Division, 665pp.

Part 37, Subtitle A, Title 43, Code of Federal Regulations

Effective Date: November 1, 1993

PART 37 CAVE MANAGEMENT

Subpart A Cave Management

General Section

37.1 Purpose.

37.2 Policy.

37.3 Authority.

37.4 Definitions.

37.5 Information collection.

Subpart B Cave Designation

37.11 Nomination, evaluation, and designation of significant caves.

37.12 Confidentiality of cave location information.

Authority: 16 U.S.C. 4301-4309; 43 U.S.C. 1740.

Subpart A- Cave Management- General

§ 37.1 Purpose.

The purpose of this part is to provide the basis for identifying and managing significant caves on Federal lands administered by the Secretary of the Interior.

§ 37.2 Policy.

It is the policy of the Secretary that Federal lands be managed in a manner which, to the extent practical, protects and maintains significant caves and cave resources. The type and degree of protection will be determined through the agency resource management planning process with full public participation.

§ 37.3 Authority.

Section 4 of the Federal Cave Resources Protection Act of 1988 (102 Stat. 4546; 16 U.S.C. 4301) authorizes the Secretary to issue regulations providing for the identification of significant caves. Section 5 authorizes the Secretary to withhold information concerning the location of significant caves under certain circumstances.

§ 37.4 Definitions.

(a) Authorized officer means the agency employee delegated the authority to perform the duties described in this part.

(b) Cave means any naturally occurring void, cavity, recess or system of interconnected passages beneath the surface of the earth or within a cliff or ledge, including any cave resource therein, and which is large enough to permit a person to enter, whether the entrance is excavated or naturally formed. Such term shall include any natural pit, sinkhole, or other feature that is an extension of a cave entrance or which is an integral part of the cave.

(c) Cave resources means any materials or substances occurring in caves on Federal lands, including, but not limited to, biotic, cultural, mineralogic, paleontologic, geologic, and hydrologic resources.

(d) Federal lands, as defined in the Federal Cave Resources Protection Act, means lands the fee title to which is owned by the United States and administered by the Secretary of the Interior.

(e) Secretary means the Secretary of the Interior.

(f) Significant cave means a cave located on Federal lands that has been determined to meet the criteria in § 37.11(c).

§ 37.3 Collection of information.

The collections of information contained in this part have been approved by the Office of Management and budget under 44 U.S.C. 3501 et seq. and assigned clearance numbers 1004-0165 (cave nominations) and 1004-0166 (confidential information). The information provided for the cave nominations will be used to determine which caves will be listed as "significant" and the information in the requests to obtain confidential cave information will be used to decide whether to grant access to this information. Response to the call for cave nominations is voluntary. No action may be taken against a person for refusing to supply the information requested. Response to the information requirements for obtaining confidential cave information is required to obtain a benefit in accordance with Section 5 of the Federal Cave Resources Protection Act of 1988 (102 Stat. 4546; 16 U.S.C. 4301).

(b) The public reporting burden is estimated to average 3 hours per response for the cave nomination and one-half hour per response for the confidential cave information request. The estimated response time for both of the information burdens includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Bureau of Land Management Clearance Officer, WO-873, Mail Stop 401 LS, 1849 C Street NW,

Washington, DC 20240; and the Office of Management and Budget, Paperwork Reduction Project 1004-0165/6, Washington, DC 20503.

Subpart B- Cave Designation

§ 37.11 Nomination, evaluation, and designation of significant caves.

(a) Nominations for initial and subsequent listings. The authorized officer will give governmental agencies and the public, including those who utilize caves for scientific, educational, and recreational purposes, the opportunity to nominate potential significant caves. The authorized officer will give public notice, including a notice published in the Federal Register, calling for nominations for the initial listing, including procedures for preparing and submitting the nominations. Nominations for subsequent listings will be accepted from governmental agencies and the public by the agency that manages the land where the cave is located as new cave discoveries are made or as new information becomes available. Nominations not approved for designation during the listing process may be resubmitted if better documentation or new information becomes available.

(b) Evaluation for initial and subsequent listings. The evaluation of the nominations for significant caves will be carried out in consultation with individuals and organizations interested in the management and use of cave resources, within the limits imposed by the confidentiality provisions of § 37.12 of this part. Nominations will be evaluated using the criteria in § 37-11(c).

(c) Criteria for significant caves. A significant cave on Federal lands shall possess one or more of the following features, characteristics, or values.

(1) Biota. The cave provides seasonal or yearlong habitat for organisms or animals, or contains species or subspecies of flora or fauna that are native to caves, or are sensitive to disturbance, or are found on State or Federal sensitive, threatened, or endangered species lists.

(2) Cultural. The cave contains historic properties or archaeological resources (as described in 36 CFR 60.4 and 43 CFR 7.3) or other features that are included in or eligible for inclusion in the National Register of Historic Places because of their research importance for history or prehistory, historical associations, or other historical or traditional significance.

(3) Geologic/ Mineralogic/ Paleontologic. The cave possesses one or more of the following features: Geologic or mineralogic features that are fragile, or that exhibit interesting formation processes, or that are otherwise useful for study. Deposits of sediments or features useful for evaluating past events. (iii) Paleontologic resources with potential to contribute useful educational and scientific information.

(4) Hydrologic. The cave is part of a hydrologic system or contains water that is important to humans, biota, or development of cave resources.

(5) Recreational. The cave provides or could provide recreational opportunities or scenic values.

(6) Educational or Scientific. The cave offers opportunities for educational or scientific use; or, the cave is virtually in a pristine state, lacking evidence of contemporary human disturbance or impact; or, the length, volume, total depth, pit depth, height, or similar measurements are notable.

(d) National Park Service Policy. The policy of the National Park Service, pursuant to its Organic Act of 1916 (16 U.S.C. 1. et seq.) and Management Policies (Chapter 4:20, Dec. 1988), is that all caves are afforded protection and will be managed in compliance with approved resource management plans. Accordingly, all caves on National Park Service-administered lands are deemed to fall within the definition of "significant cave."

(e) Special management areas. Within special management areas that are designated wholly or in part due to cave resources found therein, all caves within the so-designated special management area shall be determined to be significant.

(f) Designation and documentation. If the authorized officer determines that a cave nominated and evaluated under paragraphs (a) and (b) of this section meet one or more of the criteria in paragraph (c), the authorized officer will designate the cave as significant. The authorized officer will designate all caves identified in paragraphs (d) and (e) of this section to be significant. The authorized officer will notify the nominating party of the results of the evaluation and designation. Each agency Field Office will retain appropriate documentation for all significant caves located within its administrative boundaries. At a minimum, documentation shall include a statement of finding, signed and dated by the authorizing officer, and the information used to make the determination. This documentation will be retained as a permanent record in accordance with the confidentiality provision in § 37.12 of this part.

(g) Decision final. Decisions to designate or not designate a cave as significant are made at the sole discretion of the authorized officer and are not subject to further administrative review or appeal under 43 CFR part 4.

(h) If a cave is determined to be significant, its entire extent, including passages not mapped or discovered at the tine of the determination, is deemed significant. This includes caves that extend from lands managed by any Federal agency into lands managed by one or more other bureaus or agencies of the Department of the Interior, as well as caves initially believed to be separate for which interconnecting passages are discovered after significance is determined.

§ 37.12 Confidentiality of cave location information.

(a) Information disclosure. No Department of the Interior employee shall disclose information that could be used to determine the location of any significant cave or cave under consideration for determination, unless the authorized officer determines that the disclosure will further the purposes of the Act and will not create a substantial risk to cave resources of harm, theft, or destruction.

(b) Requesting confidential information. Notwithstanding paragraph (a) of this section, the authorized officer may make confidential cave information available to a Federal or State governmental agency, bona fide educational or research institute, or individual or organization assisting the land managing agency with cave management activities. To request confidential cave information; such entities shall make a written request to the authorized officer that includes the following:

(1) Name, address, and telephone number of the individual responsible for the security of the information received.

(2) A legal description of the area for which the information is sought.

(3) A statement of the purpose for which the information is sought, and

(4) Written assurances that the requesting party will maintain the confidentiality of the information and protect the cave and its resources.

(c) Decision final. Decisions to permit or deny access to confidential cave information are made at the sole discretion of the authorized officer and are not subject to further administrative review or appeal under 5 U.S.C. 552 or 43 CFR parts 2 or 4.

Bob Armstrong

Assistant Secretary of the Interior

July 23, 1993

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Reference: Federal Register, Vol. 58, No. 189, October 1, 1993, pp.

51550-51555.