[Federal Register: September 6, 2001 (Volume 66, Number 173)]
[Proposed Rules]               
[Page 46575-46595]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 46575]]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH40

Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Sacramento Mountains Checkerspot Butterfly 
and Proposed Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 12-month finding and proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti) as endangered with critical habitat under the authority of 
the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.). This species is restricted to meadows within the mixed-conifer 
forest at approximate elevations between 2,450 and 2,750 meters (m) 
(8,000 and 9,000 feet (ft)) in the vicinity of the Village of 
Cloudcroft, Otero County, New Mexico. The species is threatened by 
destruction and fragmentation of habitat from private and commercial 
development, habitat degradation and loss of host plants from grazing, 
encroachment of conifers and nonnative vegetation into non-forested 
openings, over collection, and, due to its limited range, vulnerability 
to local extirpations from extreme weather events or catastrophic 
wildfire including fire suppression activities. This proposal, if made 
final, would extend the Federal protection and recovery provisions of 
the Act to this species.

DATES: Comments from all interested parties received by November 5, 
2001 will be considered. Public hearing requests must be received by 
October 22, 2001.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal to the Field Supervisor, U.S. Fish 
and Wildlife Service, New Mexico Ecological Services Field Office, 2105 
Osuna NE, Albuquerque, New Mexico, 87113.

Biologist, New Mexico Ecological Services Field Office, at the above 
address (telephone 505/346-2525, ext. 135; facsimile 505/346-2542).



    The Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
(=chalcedona) cloudcrofti) is a member of the brush-footed butterfly 
family (Nymphalidae). The adults have a wingspan of approximately 5 
centimeters (cm) (2 inches (in)) and they are checkered with dark 
brown, red, orange, white, and black spots and lines. The taxon was 
described in 1980 based on 162 adult specimens (Ferris and Holland 
    The Sacramento Mountains checkerspot butterfly inhabits meadows 
within the mixed-conifer forest (Lower Canadian Zone) at an elevation 
between 2,450 and 2,750 m (8,000 and 9,000 ft) in the vicinity of the 
Village of Cloudcroft, Otero County, New Mexico. The adult butterfly is 
often found in association with the larval food plants New Mexico 
penstemon (Penstemon neomexicanus) and valerian (Valeriana edulis), and 
adult nectar sources such as sneezeweed (Helenium hoopesii). New Mexico 
penstemon is a narrow endemic species (Sivinski and Knight 1996), 
restricted to the Sacramento Mountains of south-central New Mexico. 
Other plants that have been documented in butterfly habitat include: 
arrowleaf groundsel (Senecia triangularis), curly-cup gumplant 
(Grindelia squarrosa), figworts (Scrophularia sp.), penstemon 
(Penstemon sp.), skyrocket (Ipomopsis aggregata), milkweed (Asclepias 
sp.), Arizona rose (Rosa woodsii), and Wheeler's wallflower (Erysimum 
capitatum) (U.S. Forest Service (FS) 1999d).
    Adult butterflies apparently lay their eggs on Penstemon 
neomexicanus and perhaps Valeriana edulis, the known larval host 
plants. After hatching, larvae feed on host plants and, during the 4th 
or 5th instar (the period between molts in the larval stage of the 
butterfly), enter an obligatory and extended diapause (maintaining a 
state of extended inactivity), generally as the food plants die back in 
the fall from freezing. Some larvae may remain in diapause for more 
than one year, depending on environmental conditions. During diapause, 
larvae probably remain in leaf or grass litter near the base of shrubs, 
under the bark of conifers, or in the loose soils associated with 
pocket gopher (Thomomys bottae) mounds (Moore 1989; T. Narahashi, 
Lincoln National Forest, pers. comm. 1999; G. Pratt, University of 
California, pers. comm.1998; C. Nagano, Fish and Wildlife Service, 
pers. comm. 1999, E. Hein, Fish and Wildlife Service, pers. obs.). Once 
larvae break diapause, they feed and grow through three or four more 
instars before pupating (entering the inactive stage within a 
chrysalis) and emerging as adults. Diapause is generally broken in late 
spring (March-April) and adults emerge in mid-summer (June-July).
    The extent of the historical range of the Sacramento Mountains 
checkerspot butterfly is not known due to limited information collected 
on this subspecies prior to its description (Ferris and Holland 1980). 
However, based upon the location of its meadow habitat, the general 
trend of commercial and private development in suitable habitat, and 
the encroachment of conifers into suitable habitat due to fire 
suppression on public and private lands, we believe that it once 
occupied a more extensive, but still limited area. This conclusion that 
the butterfly likely had a continuous distribution within currently 
developed areas and that its range was more extensive is further 
supported by the following considerations. First, extensive recent 
searches of apparently suitable habitat failed to locate the species 
(FS 1999d; 2000a; 2000d; Hager and Stafford 1999; Holland 1999; Ferris 
and Holland 1980; Toliver et al. 1994; Cary and Holland 1992; C. 
Nagano, pers. obs.; E. Hein, pers. obs). Second, butterflies in the 
genus Euphydryas are known to be restricted to specific habitats and 
are widely collected and well studied (Ehrlich et al. 1975; Cullenward 
et al. 1979; Murphy and Weiss 1988). If the Sacramento Mountains 
checkerspot butterfly were more widespread and common in areas north of 
the Mescalero Nation or further south of Cloudcroft below the known 
elevational range of the butterfly, we would expect specimens to have 
been collected or reported. However, this has not been the case despite 
the fact that butterflies in this genus are very popular to collect (C. 
Nagano pers. comm. 1999), and lepidopterists have surveyed and 
collected throughout the Sacramento Mountains (Ferris and Holland 1980; 
Cary and Holland 1992; Toliver et al. 1994; Hager and Stafford 1999).
    The type locality for the butterfly is Pines Campground, and its 
description is based upon individuals collected at that location in 
1964, 1976, and 1978. Although the Sacramento Mountains were 
extensively surveyed by lepidopterists, the known range of the 
butterfly in 1980 was described as, 
``* * * an area of perhaps 1-2 square miles (mi) (2.6 to 5.2 square 
kilometers (km)) around the type locality'' (Ferris and Holland 1980). 
Toliver et al. (1994) published all of the known location records, and 
the estimated extent of the range of the butterfly prior to 1997 was 
about 8 hectares (ha) (20 acres (ac)),

[[Page 46576]]

primarily from two campgrounds (Holland 1999). From 1981 to 1996, there 
were no documented surveys for the butterfly (R. Holland, Albuquerque, 
New Mexico, pers. comm. to R. Galeano-Popp Lincoln National Forest 
1997; FS 2000). By 1997, the known range of the species had decreased 
to less than one-half ha (Holland 1999). However, in 1997, the FS and 
Holland conducted limited surveys for the Sacramento Mountains 
checkerspot butterfly. The FS also conducted surveys during 1997, 1998, 
1999, and 2000 to estimate the range of the butterfly (FS 1999d, 2000a, 
2000d). Based on data gathered by the FS during 1997-1999, Holland 
(1999) described the range of the butterfly as, ``* * * now known to 
extend as much as 8 km (5 mi) away from the Village of Cloudcroft'' but 
he still considered the range `` * * * remarkably limited.''
    The subspecies has been documented at 15 general localities (i.e., 
the geographic extent of occupied areas were not delimited and discrete 
populations were not identified) (FS 1999a, 1999b, 1999d, 2000a, 
2000d). The known range of the butterfly is within an 85 square km (33 
square mi) area, within which the distribution of the butterfly is 
patchy and disjunct. The known range of the butterfly is delimited on 
the north by the Mescalero Apache Nation lands, on the west by Bailey 
Canyon at the mouth of Mexican Canyon, on the east by Spud Patch Canyon 
and on the south by Cox Canyon (FS 2000a, 2000d). The potential range 
of the butterfly to the east and west is likely restricted because the 
non-forested areas are below 2,450 m (8,000 ft) in elevation and the 
majority of Sacramento Mountains checkerspot butterflies have been 
consistently documented at higher elevations (FS 1999a 1999b, 1999d, 
2000a, 2000d). We do not know if the range of the butterfly extends 
into the lands owned by the Mescalero Apache Nation because, to our 
knowledge, no surveys have been conducted on their lands. It is also 
unknown whether suitable habitat is present on the lands owned by the 
Mescalero Apache Nation (Holland 2001). Nevertheless, there does not 
appear to be a significant amount of suitable habitat present on the 
lands owned by the Mescalero Apache Nation within the known elevational 
range of the Sacramento Mountains checkerspot butterfly (i.e., between 
2,450 and 2,750 m (8,000 and 9,000 ft)) and proximal (i.e., provides 
connectivity) to butterfly localities. We solicited, but have not 
received, any information or comments from the Mescalero Apache Nation. 
More information would help clarify the status of the butterfly on 
these lands.
    The FS used a Geographic Information System (GIS) to model the 
extent of existing Sacramento Mountains checkerspot butterfly habitat 
(FS 1999b). The model was built using non-forested openings visible on 
1:24,000 scale orthophoto quadrangles, elevation, and known occupied 
locales. Based on the model, the FS estimated there were 2,104 ha 
(5,198 ac) of potential habitat, composed of 1,034 and 1,070 ha (2,553 
and 2,645 ac) on private and FS lands, respectively (FS 1999b).
    Extensive surveys for larvae and the adult butterflies were 
conducted within and outside of the modeled potential butterfly habitat 
during the Sacramento Mountains checkerspot butterfly's seasons of 
activity in 1997, 1998, 1999, and 2000 (FS 1999b, 1999d, 2000a, 2000d). 
These surveys partially ground-truthed the GIS model and documented 
that the distribution of the butterfly within the known range is 
patchy, disjunct, and generally located in non-forested openings along 
drainages, roadways, campgrounds, and valleys. The butterfly was 
documented on both FS and private lands (FS 1999a, 1999b, 1999d, 2000a, 
2000d). We believe the modeled potential habitat is an accurate 
representation of suitable habitat (habitat that can be used by the 
butterfly). Based on GIS maps and the model provided by the FS, about 
46 of 202 ha (114 of 498 ac) and 240 of 813 ha (592 of 2,010 ac) of 
suitable habitat surveyed during 1998 and 1999, respectively, were 
occupied by the butterfly. Seven hundred acres were surveyed during 
2000, but it is unknown what proportion of the suitable habitat is 
currently used by the butterfly (i.e., the data only indicate the total 
acres surveyed and do not differentiate between areas currently used or 
unused by the butterfly) (FS 2000d). Nevertheless, survey areas during 
1999 and 2000 overlapped and went beyond the boundary of the areas 
surveyed in 1998. Therefore, these data represent the best available 
information on the area used by the butterfly (determined by surveys) 
within suitable habitat. Based on these data, it appears that 15 to 35 
percent of suitable habitat is currently used by the Sacramento 
Mountains checkerspot butterfly. Thus, we estimate that 316 to 736 ha 
(780 to 1,819 ac) of the suitable 2,104 ha (5,198 ac) are currently 
used by the Sacramento Mountains checkerspot butterfly.
    Although the surveys conducted by the FS were directed at 
estimating the range of the Sacramento Mountains checkerspot butterfly, 
the individuals seen were also estimated. In 1997 and 1998, 595 adults 
and 114 larval tents (communal webs that contain larvae) were 
documented at 15 general localities, whereas the surveys in 1999 
documented 1,629 adults, 26 post-diapause larvae, 800 pre-diapause 
larvae, and an unknown number of larval tents at generally the same 
localities, and surveys during 2000 documented approximately 1,000 
adults, 26 post-diapause larvae, and 157 larval tents (FS 1999a 1999b, 
1999d, 2000a, 2000d; Pittenger 1999). No new butterfly localities were 
documented during the 2000 field season, although the known range of 
the butterfly was expanded slightly (FS 2000d). Surveys were also 
conducted by the FS on 231 ha (570 ac) within the Smokey Bear Ranger 
District, north of the Mescalero Apache Nation during 1999, but did not 
document any Sacramento Mountains checkerspot butterflies (FS 2000a). 
None of these data provide a basis for estimates of actual population 
size, because no formal population estimation procedures were used. The 
surveys conducted by the FS are the result of one or more surveyors 
walking through suitable habitat and counting or estimating the number 
of individuals observed.
    Because the Sacramento Mountains checkerspot butterfly has a life 
history pattern similar to other butterflies in the genus Euphydryas 
that exist as metapopulations, it is likely that this butterfly has a 
metapopulation structure (Murphy and Weiss 1988; Harrison 1989; Hanski 
and Gilpin 1991). A metapopulation is a set of local populations within 
an area, where typically migration from one local population to other 
areas containing suitable habitat is possible, but not routine. 
Movement between areas containing suitable habitat (i.e., dispersal) is 
restricted due to inhospitable conditions around and between areas of 
suitable habitat. Because many of the areas of suitable habitat may be 
small, and support small numbers of butterflies, local extinction of 
these small populations may be common. A metapopulation's persistence 
depends on the combined dynamics of these local extinctions and the 
subsequent recolonization of these areas by dispersal (Hanski 1999, 
Hanski and Gilpin 1991, 1997, McCullough 1996). We believe habitat loss 
has reduced the size of and connectivity between patches of suitable 
butterfly habitat. The reduction in the extent of meadows and other 
suitable non-forested areas has likely eliminated

[[Page 46577]]

connectivity among some localities and may have increased the distance 
beyond the normal dispersal ability of the Sacramento Mountains 
checkerspot butterfly, making recolonization of some patches following 
local extinction more difficult (Cullenward et al. 1979; Hanski 1999). 
In addition, habitat reduction lowers the quality of remaining habitat 
by reducing the diversity of microclimates and food plants for larvae 
and adult butterflies (Murphy and Weiss 1988; Thomas et al. 1996; 
Hanski 1999).
    Based on available information on topography, soils, and 
vegetation, it is likely that the distribution of the Sacramento 
Mountains checkerspot butterfly was more extensive and continuous prior 
to the increase in commercial and private development, construction of 
roads, overgrazed range conditions, and the encroachment of conifers 
and subsequent decrease in the amount of non-forested lands. Many of 
the remaining Sacramento Mountains checkerspot butterfly populations 
are likely small and/or not viable (i.e., are likely to become 
extirpated in the near future). The isolated localities and limited 
geographic range of the butterfly indicate that the species is 
particularly vulnerable to perturbations (disturbances that impact the 
habitat and host plants associated with the species), which could lead 
to extinction (Ehrlich et al. 1972; Thomas et al. 1996).

Previous Federal Action

    On January 28, 1999, we received a petition from Mr. Kieran 
Suckling of the Southwest Center for Biological Diversity in Tucson, 
Arizona, dated November 1998, which requested that we emergency list 
the Sacramento Mountains checkerspot butterfly as endangered. The 
petitioner stated that the species merits listing because of its 
restricted range, adverse impacts resulting from a proposed FS land 
transfer, improvements to a FS campground, construction of homes and 
other structures, aggressive nonnative weeds that may be affecting the 
larval food plants and adult nectar sources, global climate change, and 
livestock overgrazing. The petitioner requested emergency listing due 
to the perceived immediate threats to the species' continued existence 
from a proposed land transfer between the FS and the Village of 
Cloudcroft in the Sacramento Mountains in Otero County, New Mexico.
    In accordance with section 4(b)(3)(A) of the Act, we published 
notice of our finding in the Federal Register on December 27, 1999 (64 
CFR 72300), that the petitioner presented substantial information 
indicating that listing may be warranted, but that emergency listing 
was not warranted, and commenced a status review. In that notice we 
requested any additional data or scientific information concerning the 
status of the species including additional historical and current 
population data, pertinent information on biology or life history, 
information on habitat requirements, and information on immediate and 
future threats to the butterfly and areas inhabited by the species. 
During the two-month comment period, we received eight comments from 
individuals or agencies. One commentor supported, and four opposed 
listing the species; one requested the references cited; and two 
provided general comments or data on the Sacramento Mountains 
checkerspot butterfly. We received most substantive data relating to 
life history, current range, and threats from the Lincoln National 
Forest. The Sacramento Ranger District in the Lincoln National Forest 
has been instrumental in avoiding or minimizing some recent potential 
impacts to the butterfly on their lands. We incorporated these and 
other pertinent data into this proposal.
    Section 4(b)(3)(B) of the Act requires the Secretary of the 
Interior to reach a final decision on any petition accepted for review 
within 12 months of its receipt. That decision, to be published in the 
Federal Register, must be one of the following findings: (1) The 
petitioned action is not warranted; (2) the petitioned action is 
warranted (a proposed regulation is published); or (3) the petitioned 
action is warranted, but the immediate proposal is precluded by listing 
actions of higher priority. On July 31, 2001, the United States 
District Court for the District of New Mexico, in Center for Biological 
Diversity v. Gale A. Norton, CIV 01-0258 PK/RLP ordered us to complete 
and submit for publication to the Federal Register a 12-month finding 
for the Sacramento Mountains checkerspot butterfly within 30 days. This 
proposed rule constitutes our 12-month petition finding that listing as 
endangered is warranted for the Sacramento Mountains checkerspot 

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), upon publication of this proposed rule in the Federal 
Register, we will solicit expert reviews by at least three specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomic, biological, and ecological information for 
the Sacramento Mountains checkerspot butterfly. The purpose of such a 
review is to ensure that decisions are based on scientifically sound 
data, assumptions, and analyses, including the input of appropriate 
experts. We will send these peer reviewers copies of this proposed rule 
immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed designation of critical habitat.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and regulations (50 CFR 
part 424) promulgated to implement the listing provisions of the Act 
set forth the procedures for adding species to the Federal lists. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to the Sacramento Mountains checkerspot 
butterfly are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The threats that have been identified are commercial and private 
development, FS activities, fire suppression and wildfire, highway and 
forest road reconstruction, recreational impacts, domestic livestock 
grazing, nonnative vegetation, and insect control.
Commercial and Private Development
    Commercial and private development is a significant threat to the 
Sacramento Mountains checkerspot butterfly. Habitat conversion 
activities from commercial and private development have likely already 
reduced many historic Sacramento Mountains checkerspot butterfly 
localities to non-viable states. Approximately fifty percent of all 
lands that might support the butterfly are in private ownership, 
subject to ongoing and future development activities. Much of these 
private lands are currently being developed for residential or 
commercial uses (FS 1986; FS 1997; E. Hein, pers. obs.; Holland 2001). 
Commercial and private development has been and is currently encouraged 
by the Village of Cloudcroft (Southeastern New Mexico Economic 
Development District 1974; Cloudcroft Area Sustainability Team 1995; J. 
Wilson, Lincoln National Forest, pers. comm. 2000). Within the known 
range of the Sacramento Mountains

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checkerspot butterfly, there are two golf courses, at least 12 private 
developments, the Village of Cloudcroft, schools, several recreational 
parks, a ski area, and a network of paved, gravel, or dirt roadways.
    The elevation, habitat, soils, and topography of these developed 
areas appear similar to areas that are known to be used by the 
butterfly and are either fragmenting or near to localities that support 
butterflies. For example, a subdivision on the east side of the Village 
of Cloudcroft is currently developing and eliminating approximately 10 
ac of suitable, and likely currently used, butterfly habitat. This and 
other recent or proposed developments have or will likely fragment the 
distribution of the butterfly and eliminate butterfly localities or 
prevent the Sacramento Mountains checkerspot butterfly from moving 
between areas of suitable habitat (Murphy and Weiss 1988). Therefore, 
we believe that these private and commercial development activities 
have likely eliminated or interrupted dispersal of butterflies between 
suitable habitat patches and thus affected the metapopulation dynamics 
of the Sacramento Mountains checkerspot butterfly.
    The construction of homes, businesses, and associated 
infrastructure in the habitat of the Sacramento Mountains checkerspot 
butterfly could directly affect the species through mortality or result 
in indirect effects, such as the introduction of nonnative plants and 
animals or loss of movement corridors (Holland 2001). Ground 
disturbance and vegetation clearing for commercial or private 
development can disturb soils, remove or eliminate diapause sites 
(i.e., leaf litter and grasses) and larval or adult food plants, and 
kill or injure individuals (Wilcox and Murphy 1985; Murphy and Weiss 
1988; C. Nagano, pers. comm., E. Hein, pers. obs.). We have observed 
non-forested areas of private lands that historically were probably 
suitable butterfly habitat; however, some of these areas currently 
contain thick mats of oat grass (Arrhenatherum elatius), pastures 
devoid of vegetation from livestock grazing, and filled stock ponds 
and/or dammed wetlands that have eliminated suitable habitat of the 
Sacramento Mountains checkerspot butterfly.
    The butterfly likely occupies a significant amount of private lands 
since habitat used by the butterfly occurs on FS land that is 
immediately adjacent to these areas and the elevational and habitat 
characteristics are contiguous (FS 2000a). Based on a GIS model, the FS 
estimated that there were 1,034 ha (2,553 ac) of potential habitat on 
private lands (FS 1999b). Because of the ground-truthing and butterfly 
surveys conducted using the model, we believe that this amount is a 
reasonable approximation of the maximum amount of suitable habitat 
present on private lands. Based upon butterfly and habitat surveys 
conducted by the FS, we have estimated that between 15 to 35 percent of 
suitable habitat is occupied by the Sacramento Mountains checkerspot 
butterfly (E. Hein, pers. obs.). Therefore, 155 to 362 ha (383 to 894 
ac) of private land may be occupied by the butterfly and nearly all of 
the suitable habitat on private land is at risk from commercial and 
private development and the direct or indirect impacts thereof.
    The population of the Village of Cloudcroft and vicinity has 
increased by 34 percent since 1970, and the number of housing units 
that were constructed during this period has increased by 50 percent 
(U.S. Census Bureau 1998; New Mexico Economic Development Department 
1999). Based upon electrical power service and demand, the Village of 
Cloudcroft and surrounding areas within the range of the butterfly have 
sustained population growth of about 2.5 percent per year; these levels 
are projected to increase (FS 1999e). New subdivisions currently are 
being constructed on private land and there are many properties for 
sale ranging from less than 1 ha (2.5 ac) to at least 100 ha (250 ac) 
that appear to contain suitable non-forested habitat. Further, a 9-hole 
golf course is being discussed as a community recreational goal and 
objective for the Village of Cloudcroft in 2005 (Cloudcroft Area 
Sustainability Team 1995). Non-forested lands within the range of the 
Sacramento Mountains checkerspot butterfly are generally preferred by 
commercial and private developers, because these areas are less costly 
to develop (i.e., there are no trees to clear and the land generally 
lacks steep topography and is accessible from roads). This may result 
in a disproportionate impact on butterflies and their habitat. For 
example, Holland (1999, 2001) reported that the butterfly historically 
occurred in two meadows totaling 8 ha (20 ac) in the early 1980s; these 
areas were reduced by private development to less than 0.4 ha (1 ac) by 
July 1997.
    In addition, heavy clearing and mowing activities on improved 
(i.e., with existing structures) or unimproved private lands, to reduce 
the threat of wildfire or improve the residential appearance, could 
eliminate larval or adult food plants and/or localities that are used 
by the Sacramento Mountains checkerspot butterfly. Additionally, the 
conversion of native landscapes to nonnative vegetation (e.g., lawns or 
gardens) could fragment localities, eliminate movement corridors, cause 
additional loss of suitable habitat (Wood and Samways 1991, Holland 
2001). Developing areas reduce blocks of native vegetation to fragments 
that are insularized, creating a matrix of native habitat islands that 
have been altered by varying degrees from their natural state. Given 
the development pressures and history of construction in the vicinity 
of the Village of Cloudcroft, the remaining butterfly localities are at 
risk of extirpation.
FS Activities
    We are aware of FS projects proposed within the known range of the 
butterfly that have the potential to adversely affect the Sacramento 
Mountains checkerspot butterfly. For example, the following projects 
are in various stages of planning or construction: (1) A capital 
improvement project for three campgrounds; (2) a new power line, 
service road, and corridor; (3) livestock grazing activities in several 
allotments, one of which encompasses over 44,921 ha (111,000 ac); and 
(4) a land transfer to the Village of Cloudcroft (FS 1999a, 1999b, 
1999f, 2000; Service 1999, 2001).
    One campground located near the Village of Cloudcroft contains one 
of the greatest known concentrations of the Sacramento Mountains 
checkerspot butterfly. Reconstruction activities in this campground are 
proposed for the year 2003, including replacement of existing or 
construction of new bathroom facilities, traffic control barriers, 
picnic tables, and campfire pits (FS 1999a, 1999b). Similar to 
trampling (see discussion below), these ground disturbance activities 
have the potential to directly (e.g., by crushing larvae) and 
indirectly (e.g., by destroying food plants) impact this species. We 
are providing technical assistance to the FS in an attempt to avoid or 
minimize adverse impacts to the Sacramento Mountains checkerspot 
butterfly. The FS intends to begin work on a management plan to address 
the conservation of the Sacramento Mountains checkerspot butterfly and 
to address future potential impacts in the near future (M. Crites, 
Lincoln National Forest, pers comm. 2000); however, no plan has been 
developed to date.
    The FS is proposing to transfer land pursuant to the Townsite Act 
to the Village of Cloudcroft (FS 1997; 2001a). The proposed land 
transfer would involve 33 ha (81 ac) on 5 different parcels. Sacramento 

[[Page 46579]]

checkerspot butterflies have been observed on three of the five parcels 
(numbers 3, 4, and 5) and in adjacent lands (FS 1997, 1999a, 1999b, 
1999d, 2000, 2001a, E. Hein, pers. obs.). The Village of Cloudcroft and 
the FS agreed to eliminate from the current land transfer proposal 
three other parcels (numbers 6, 7, and 8), in which a number of 
Sacramento Mountains checkerspot butterflies have been observed (FS 
1999a, 1999b, 2001a). The stated purpose for the proposed land transfer 
is to provide additional land for commercial, industrial, educational, 
and recreational expansion and permit controlled growth (Village of 
Cloudcroft 1996). Development of these parcels would be consistent with 
past and current community development policies and objectives of 
encouraging commercial and private development in and around the 
Village of Cloudcroft (Southeastern New Mexico Economic Development 
District 1974; Village of Cloudcroft 1996; J. Wilson, pers. comm. 
2000). A decision on the five parcels will be finalized this fiscal 
year (FS 2001a). If the parcels of land currently used by the butterfly 
are transferred and subsequently developed, habitat used by the 
butterfly could be further degraded or eliminated, suitable habitat 
further fragmented, and the movement of butterflies between local 
populations may be restricted.
    The FS has eliminated some proposed projects (e.g., the 
construction of new administrative building) in habitat used by the 
butterfly. They have also taken some actions to protect and manage the 
Sacramento Mountains checkerspot butterfly, including instituting a 
butterfly closure order (see discussion below), fencing a portion of 
one butterfly locality, and conducting butterfly surveys to determine 
range and occupancy (FS 1999a, 1999b, 1999h, 2000a, 2000d). These 
actions have been beneficial, especially for increasing our knowledge 
of this species. However, we believe that other multiple use priorities 
on FS lands, such as range management, road maintenance, or capital 
improvement projects, may adversely impact this species (e.g., see 
discussion on road maintenance below).
Fire Suppression and Wildfire
    The results of 100 years of fire suppression in the Sacramento 
Ranger District currently threatens the Sacramento Mountains 
checkerspot butterfly. Fire exclusion and suppression have reduced the 
size of grasslands and meadows by allowing the encroachment of 
conifers, and these trends are projected to continue (FS 1995, 1999h). 
Officials on the Lincoln National Forest reported that high forest 
stand densities exist on 35 percent of mixed conifer forests and 22 
percent of ponderosa pine forests, and that insect and dwarf mistletoe 
infestations occur on 57 and 64 percent of their ponderosa pine 
forests, respectively (GAO 1999a). The natural fire regime historically 
maintained non-forested openings and meadows. Prior to 1900, the mean 
natural fire interval for forests in the Sacramento Mountains was about 
4 to 5 years (Kaufmann et al. 1998). These frequent, low-intensity, 
surface fires historically maintained a forest that was more open 
(i.e., more non-forested patches of different size, more large, older 
trees, and fewer dense thickets of evergreen saplings) than it is 
currently (Kaufmann et al. 1998). Such low-intensity fires are now a 
rare event.
    It is likely that fire exclusion and cattle grazing have severely 
altered and increased the threat of wildfire in ponderosa pine (Pinus 
ponderosa) and mixed conifer forests in the semi-arid western interior 
forests, including New Mexico (Belsky and Blumenthal 1997). For 
example, ponderosa pines have increased from 19 to 64 trees per ha (46 
to 158 per ac) from 1911 to 1995, and mixed conifers increased from 92 
to 192 trees per ha (227 to 475 per ac) from 1906 to 1995, in the 
Sacramento District of the Lincoln National Forest (FS 1999h). Further, 
there has been a general increase in the dominance of woody plants, 
with a decrease in the herbaceous (non-woody) ground cover (FS 1995) 
used by the butterfly (FS 2000a). These data indicate that the quality 
and quantity of the available butterfly habitat is decreasing range 
wide. Alternatively, restoration of natural processes and conditions 
may be difficult because of permanent impairment of areas from soil 
loss; the presence or dominance of noxious weeds, and the need to 
protect existing homes and businesses (FS 1995). Therefore, we believe 
that fire exclusion has substantially affected the species and will 
likely continue to significantly degrade the quality and quantity of 
suitable habitat. Additionally, future actions to manage or reduce the 
threat of wildfire will likely be more difficult to implement because 
of continued private development and the risk of fires escaping.
    The Sacramento Mountains checkerspot butterfly is extremely 
vulnerable to catastrophic (i.e., high-intensity and large) wildfires 
in suitable butterfly habitat. Fire has caused the extirpation of 
populations of other butterflies in the genus Euphydryas (Murphy and 
Weiss 1988; 62 FR 2313). Future wildfires within the known range of the 
Sacramento Mountains checkerspot butterfly will likely be large scale, 
and, under current conditions, are imminent (FS 1999h). Large fuel 
accumulations (e.g., the encroachment of conifers into meadows and the 
development of mats of Kentucky blue grass (Poa pratensis) and oat 
grass (Arrhenatherum elatius)) can lead to intense soil heating and 
deep heat penetration, which could be lethal to the food plants and the 
various life stages of the Sacramento Mountains checkerspot butterfly 
(Society of American Foresters 1984). During the last 50 years in the 
Sacramento Mountains, at least nine catastrophic wildfires have burned 
over 34,000 ha (90,000 ac) (Kaufmann et al. 1998). In the next few 
years, the Sacramento Ranger District may have a catastrophic burn that 
eliminates some or all of the remaining butterfly habitat.
    From 1.2 to 14.3 percent of various forest cover types totaling 
about 202,347 ha (0.5 million ac) are predicted to burn between 1994 
and 2005 in the southwestern region of the FS (FS 1995). The Government 
Accounting Office (GAO) (GAO 1999a, 1999b) reported that the FS and 
scientists generally agree that the efforts to reduce the threat of 
large, intense, uncontrollable, destructive wildfire will likely fail 
because funding is inadequate for a cohesive fire management strategy 
to be implemented. In completing its Forest Plan, the Lincoln National 
Forest selected an alternative that had one of the highest overall fire 
risks, because the proposed fire protection and suppression budget 
provided less protection than most of the other alternatives considered 
(FS 1986). The FS concluded that the preferred alternative had one of 
the greatest probabilities of serious uncontrolled wildfires relative 
to other alternatives considered (FS 1986). Whether recent funding 
increases for FS fire risk reduction actions can result in sufficient 
implementation to reduce fire threats to the butterfly over the short-
term is unclear.
    For instance, the threat of wildfire has been recognized as 
significant since the latest Lincoln National Forest Plan (FS 1986). 
The Sacramento Ranger District of the Lincoln National Forest has 
recently approved a long-term fire management plan to reduce the threat 
of catastrophic wildfire in the wildland-urban interface (FS 1999h). 
This plan will treat about 5,666 ha (14,000 ac) of about 202,347 ha 
(0.5 million ac) that were the subject of a fire danger assessment on 
the Sacramento Ranger District. The District's assessment found about 
53,419 ha (132,000 ac) had a high

[[Page 46580]]

risk potential for fire ignitions, and about 89,032 ha (220,000 ac) had 
high fuel characteristics. The project proposes to reduce the high fire 
risk on the District through thinning and prescription burns on about 
15 percent of the 142,452 ha at risk (352,000 ac) (FS 1999h). The FS 
has also recently proposed thinning 97 ha (239 ac) on the western edge 
of the Village of Cloudcroft (FS 2000c). The FS concluded that these 
projects are not expected to change the existing habitat conditions for 
the butterfly, or positively or negatively impact the butterfly (FS 
1999h, G. Garcia, pers. comm. 2000).
    Recently, the Southwestern Region of the FS initiated a program to 
reduce the risk of catastrophic crown fire in the wildland urban 
interface (FS 2000e). This program is designed to reduce fuel loads to 
protect life, property, and natural resources. Approximately 1.9 
million acres are proposed for fuel load reduction within the National 
Forests in Arizona and New Mexico. These treatments are anticipated to 
be implemented slowly, with 20 to 30 projects beginning this fiscal 
year 2001, and the remainder of the projects spread over a 5 to 8 year 
period (J. Agyagos, FS, pers. comm.). The GAO also recently reported 
that Federal agencies are not organized to effectively and efficiently 
implement the national fire plan (GAO 2001). Therefore, it is unknown 
whether the proposed treatments will effectively reduce the risk of 
catastrophic wildfire to the butterfly or its habitat.
    We believe that the reduction of fire risk may be very limited in 
geographic extent; consequently, the only potential for short term 
benefits for the butterfly may be a decrease in the amount of at-risk 
area and/or interrupting or reversing the encroachment of conifers in 
some areas to create or enlarge non-forested areas suitable for the 
butterfly. There are no fire risk reduction projects at nine of the 
known butterfly localities, and the prescriptions near the other six 
localities will be limited. Therefore, we concur with the FS that it is 
highly probable that the overall risk of fire or the encroachment of 
conifers will not be significantly reduced or eliminated by these 
efforts. We are not aware of any other projects to address the risk of 
fire on the Sacramento Ranger District. FS officials agree that when 
catastrophic fires occur, they will likely permanently damage soils, 
habitat, and watershed functioning (FS 1986; GAO 1999a).
    The GAO reported that only 10-25 years remain to resolve the 
increasing threats of catastrophic wildfire before widespread damage 
from uncontrollable wildfires becomes inevitable. A random event, such 
as catastrophic fire, is highly probable and could easily destroy part 
of a Sacramento Mountains checkerspot butterfly locality or entire 
localities, or decrease a locality to so few individuals that risk of 
extirpation from genetic and demographic problems would increase.
    The GAO concluded that the FS will likely not be able to meet its 
goal of reducing the threat of wildfire by 2015 because efforts and 
resources will need to be divided between reducing accumulated fuels on 
high-risk areas and maintaining low-risk conditions on other areas. For 
instance, the budget for fire suppression in the Lincoln National 
Forest plan was nearly double that of hazard protection (FS 1986). The 
GAO concluded that the threats and costs associated with wildfires, 
together with the urgent need to reduce the threats, make them the most 
serious immediate problem related to forest health in the interior 
West. We believe that this risk of wildfire is one of the most 
significant threats facing this species and projects resulting from 
increased fire risk funding will need to be implemented before 
significant risk reduction for the butterfly is achieved.
Highway and Forest Road Reconstruction
    Construction of roadways has historically eliminated or reduced the 
quality or quantity of Sacramento Mountains checkerspot butterfly 
habitat (see also Factor E) (Pittenger 1999; E. Hein, pers. obs.), 
increasing the risk of extinction throughout all or a significant 
portion of the species' range. The reconstruction of forest roads is a 
threat to the Sacramento Mountains checkerspot butterfly, causing 
elimination of larval food and adult host plants, crushing of 
butterflies, and increasing the amount of soil erosion or dust. Because 
roads are usually sited in open non-forested areas, larval food and 
adult nectar plants are frequently found in large concentrations along 
roadways (E. Hein, pers. obs.). These areas can similarly contain 
aggregations of pre- and post-diapause larvae, because bare soils 
provide sites for thermoregulation (maintenance of a constant internal 
body temperature regardless of environmental temperature) (Porter 
1982). Therefore, activities that disturb suitable habitat adjacent to 
roadways can impact very high quality sites, important for the 
development of various life history stages (e.g., pre-diapause instar 
development). We have recently observed road grading activities on FS 
and private lands that cleared at least 1 ha (2.4 ac) of larval and 
adult food plants, and may have directly killed individual larvae 
through crushing (E. Hein, pers. obs.). Butterflies in the adjacent 
non-graded areas may also be indirectly affected by soil erosion or 
dust covering and killing food plants (Farmer 1993). We believe that 
road maintenance activities can cause localized adverse impacts to the 
Sacramento Mountains checkerspot butterfly.
    The New Mexico State Highway and Transportation Department (NMSHTD) 
recently improved portions of an approximately 3.2 km (2 mi) long 
stretch of State Highway 130 between the Village of Cloudcroft and the 
intersection of SH 130 and Sunspot Road (Metric Corporation 1996; Steve 
Reed, NMSHTD, pers. comm. 1999). The project cleared all vegetation by 
scraping and widening the road and shoulders, constructing retaining 
walls, adding drainage ditches and culverts, and reconstructing a 
curve. In 1998 and 1999, Sacramento Mountains checkerspot butterflies 
were located within the construction footprint (FS 1999a, 1999b; 1999d, 
E. Hein, pers. obs.); however, none were observed during surveys in 
2000 and 2001 (E. Hein, pers. obs.). In July 1999, topsoil and 
vegetation were scraped and Sacramento Mountains checkerspot 
butterflies were likely killed (E. Hein, pers. obs.). Some topsoil and 
larval food plants were stockpiled and used in the revegetation when 
the project was completed. However, fewer than 10 New Mexico penstemon 
were replanted in the revegetation effort and the area is currently 
overgrown by noxious weeds (see discussion below). In addition, 
extensive retaining walls and roadsides were constructed with rocks and 
little to no soils may preclude revegetation in some areas that were 
likely used by the Sacramento Mountains checkerspot butterfly as 
corridors (Haddad and Baum 1999; Haddad 1999). The NMSHTD will monitor 
the revegetation areas for the recruitment and survival of larval food 
plants and adult nectar sources, and to determine whether the butterfly 
recolonizes the area. The NMSHTD is also conducting a five-year study 
on the natural history of the butterfly to increase the knowledge of 
the species (NMSHTD 2000; Pittenger 2001).
Recreational Impacts
    Off-highway vehicles (OHVs) pose a threat to the butterfly through 
direct crushing of eggs, larvae, pupae, or thermoregulating adults 
located on bare soils, leaves, or grasses within or adjacent to trails 
and roads. Because each larval web of the butterfly contains from 10 to 
100 pre-diapause larvae (T.

[[Page 46581]]

Narahashi, pers. comm. 1999), hundreds to thousands of individuals 
could potentially be impacted in some localities. Thermoregulation 
sites are chosen by some Euphydryas sp. larvae for their solar 
radiation absorbance characteristics (Porter 1982). This site selection 
behavior is likely to occur with the Sacramento Mountains checkerspot 
butterfly because of relatively low temperatures during spring and 
summer months (E. Hein, pers. obs.). Post-diapause larvae in the genus 
Euphydryas can also be gregarious and cluster in areas of open soils, 
such as trails and roads, to thermoregulate (C. Nagano, pers. obs.; E. 
Hein, pers. obs.; Porter 1982; Weiss et al. 1987; Osborne and Redak 
2000). We know of other butterflies that have also been impacted from 
OHVs (e.g,. Neonympha mitchellii mitchelli, 56 FR 28825; Glaucopsyche 
lygdamus palosverdesensis, Arnold 1987; Apodemia mormo langei, Fish and 
Wildlife Service 1984; Euphydryas editha quino, 62 FR 2313; G. Pratt, 
pers. comm. 1998; M. Elvin, Fish and Wildlife Service, pers. comm. 
    Off-highway vehicle use is increasing in many western states (GAO 
1995), and on the Lincoln National Forest (FS 1986, 1993). The FS 
estimated there were 1,368 km (850 mi) of OHV routes on their lands in 
the Southwestern region, with at least 80 km (50 mi) being added 
annually (FS 1986). OHVs can cause significant environmental damage to 
both vegetation and animals (including butterflies) (Webb and Wilshire 
1983), and are causing vegetation and erosion on FS land, primarily in 
meadows, riparian areas, and steep slopes (FS 1986). The authorized and 
unauthorized use of OHVs can adversely affect Sacramento Mountain 
checkerspot localities (FS 2000a). Executive Orders 11644 and 11989 
were issued in the 1970s to establish policies and procedures for 
regulating OHVs. Compliance with these executive orders has been mixed; 
for example, incomplete inventories of open and closed OHVs routes, 
inadequate mapping and signing of routes, and limited monitoring of the 
effects of OHVs on natural resources have been the primary deficiencies 
(GAO 1995). Similar OHV problems exist on the Sacramento Ranger 
District, where, despite efforts by the FS to alleviate OHV-related 
impacts to the Sacramento Mountains checkerspot butterfly, problems are 
still occurring. For example, the FS recently posted signs indicating 
that OHVs were not allowed in an area that currently supports the 
Sacramento Mountains checkerspot butterfly after noticing OHV tracks 
through a monitoring plot (FS 2000a). Although the Lincoln National 
Forest has closed areas to OHVs in the past, these efforts have not 
been effective in stopping unauthorized OHV use in non-forested areas 
(Fish and Wildlife Service 1994; Forest Guardians 1999), even when the 
area was partially fenced (T. Fiedler-Harper, pers. obs. 1999).
    The Sacramento Mountains checkerspot butterfly may also be 
threatened by impacts from mountain bikes. The butterfly is found along 
and adjacent to several popular mountain biking routes, including 
trails that are traversed in an annual 2-day bike race during mid-May 
when post-diapause larvae are actively thermoregulating in these areas 
(FS 2000a; M. Crites, pers. comm. 1999; E. Hein, pers. obs). This race 
regularly attracts several hundred racers.
    Mountain bikes may be directly or indirectly affecting larval food 
plants, nectar sources, or various life stages of the butterfly through 
the development trail ruts, the loss of residual topsoil and 
vegetation, increased erosion, the creation of stretches of standing 
water or muddy trail/road conditions, the development of parallel 
tracks, and the establishment of unauthorized trails (Cessford 1995). 
For example, following the bike race, we found crushed larval food 
plants along part of the race course that bisects one of the 
campgrounds that currently supports the butterfly (E. Hein, pers. 
obs.). Moreover, a recent study found that 58 percent of National 
Forests surveyed reported evidence of resource damage from mountain 
bikes (Chavez 1996).
    Although the potential impact of mountain biking activities on 
butterflies has been infrequently studied, we know of other 
invertebrates that are impacted by bicycle traffic (e.g. Cicindela 
ohlone) (65 FR 6952). Moreover, mountain bike impacts are similar to 
other recreational impacts, and are likely to result in soil 
compaction, erosion, or the elimination or reduction of vegetation 
(Liddle 1975; Cessford 1995; Trails and Wildlife Task Force 1998). The 
significance of direct mortality on population viability is unknown at 
this time, but is considered a potential threat to the butterfly, 
particularly if bicycle traffic through areas used by the butterfly 
    Hiking and camping pose a threat to the butterfly because of the 
development of trails, barren areas, and trampling, but the potential 
significance of these impacts has not been quantified. The development 
of parallel tracks, muddy trails, and erosion through meadows and non-
forested areas may affect the butterfly through the reduction or 
elimination of larval and adult food plants (Boyle and Samson 1985; 
Kuss 1986; Hampton and Cole 1988). Cole (1995) reported that erect 
vegetation is readily damaged by trampling, with erect forbs, similar 
to the food plants of the butterfly, less resistant than those with 
matted or rosette (circular cluster of plant parts or leaves) growth. 
Meadows or non-forested areas, which may also be suitable habitat or 
support the Sacramento Mountains checkerspot butterfly, are favored 
locations for many campers (Hampton and Cole 1988; Cole 1989 and 
references therein). We observed a variety of these impacts (e.g., 
barren ground, trampled food plants, multiple trails, vehicle tracking, 
etc.) in areas used by larval and adult life stages of the Sacramento 
Mountains butterflies; these impacts are likely reducing the quality or 
quantity of suitable habitat in and around developed campgrounds or 
undeveloped campsites known to support the Sacramento Mountains 
checkerspot butterfly (E. Hein, pers. obs.). The FS indicated they 
would monitor trampling impacts at two campgrounds (FS 1999j). Although 
we have not received any information from the FS regarding trampling, 
we have documented larval webs and food plants within campsites that 
were trampled or crushed (E. Hein, pers. obs.).
    Recreational resource damage and impacts to the Sacramento 
Mountains checkerspot butterfly are likely to increase in the near 
future. For example, the Forest contained 240 km (150 mi) of managed 
trails in 1986; however, the need for future trails is expected to 
increase and at least 25 percent more trail miles are needed to match 
demand (FS 1986). Developed (e.g., campground stays) and dispersed 
recreation (i.e., hiking, backpacking, camping, trail biking) in 1986 
were projected to rise over 2.4 and 1.4 times, respectively, through 
the first quarter of the 21st century (FS 1986). In fact, by the end of 
the projected 50-year period of the Lincoln National Forest Plan 
(2036), the demand for dispersed recreation was expected to continue 
increasing and would exceed the projected capacity by 26 percent (FS 
1986). In fact, the demand for developed recreation, which is generally 
greatest from May through September (the same activity period for the 
Sacramento Mountains checkerspot butterfly), often exceeded capacity in 
1986. Moreover, the FS reported that the amount of recreational use 
left limited opportunity for a site to rest and rehabilitate during 
peak activity and use periods (FS 1986).

[[Page 46582]]

    We are aware of other sensitive butterflies that have been 
similarly impacted in and around developed FS campgrounds (e.g., Pyrgus 
ruralis lagunae, G. Pratt pers. comm. to E. Hein, 1998). Although 
proposed capital improvement projects for several FS campgrounds are 
needed to offset the high demand for developed recreation, these 
projects and the associated recreational impacts also have the 
potential to adversely affect the Sacramento Mountains checkerspot 
butterfly (see discussion under FS activities). We believe impacts to 
the butterfly from these recreational uses is ongoing and will 
Domestic Livestock Grazing
    The Sacramento Mountains checkerspot butterfly has been and 
continues to be adversely affected by domestic livestock grazing. 
Grazing can eliminate or reduce the food plants used by larvae and the 
nectar plants used by adults, compact the soil, and eliminate or reduce 
ground cover by herbaceous plant and litter (Scholl 1989; Fleischner 
1994; Belsky and Blumenthal 1997; Donahue 1999). The effects of grazing 
on the Sacramento Mountains checkerspot butterfly are largely a result 
of range management of domestic livestock. If domestic livestock are 
closely managed to minimize the loss or elimination of native 
vegetation used by the butterfly, then range management will likely 
have a negligible affect on the Sacramento Mountains checkerspot 
butterfly. Overgrazing has occurred in the valleys of the Sacramento 
Ranger District of the Lincoln National Forest over the last several 
decades (Fish and Wildlife Service 1993). Furthermore, overgrazing by 
stock animals has led to extinctions of some butterfly populations in 
the United States, including butterflies in the genus Euphydryas 
(Ehrlich 1989; Murphy and Weiss 1988; Weiss et al. 1991).
    Overgrazing in the Lincoln National Forest has likely eliminated or 
reduced larval host plant and adult nectar sources of the Sacramento 
Mountains checkerspot butterfly. Similarly, overgrazing has compacted 
soils, decreased water infiltration, and increased water runoff, 
erosion, and dense conifer recruitment, severely altering the entire 
forest and meadow landscape in semi-arid western interior forests, 
including those in New Mexico (Belsky and Blumenthal 1997). In fact, 
herbaceous plants and grasses have been effectively removed from the 
Sacramento Ranger District by intensive overgrazing (FS 1995). 
Overgrazing can substantially reduce the availability of native nectar 
plants for some butterfly species and could be contributing to regional 
declines and extinctions (e.g,. Euphydryas editha bayensis; Murphy and 
Weiss 1988; Speyeria zerene myrtleae; Launer et al. 1992). The 
availability of nectar and the amount consumed by female butterflies 
greatly influences the number of eggs produced and subsequent adult 
recruitment and long term population survival (Murphy et al. 1983; 
Boggs and Ross 1993 cited in Launer et al. 1992;).
    We believe that widespread and intensive livestock grazing, leading 
to a reduction or elimination of residual plant or ground cover (i.e., 
little to no leaf or grass litter), has been detrimental for this 
butterfly, because the quality and quantity of larval and adult food 
plants and diapause sites have been reduced or eliminated. For example, 
the only variables that are consistently documented with Sacramento 
Mountains checkerspot butterfly presence are the occurrence of Helenium 
hoopesii (adult nectar source), mesic (neither extremely wet or 
extremely dry) soils, canopy cover less than 5 percent, and greater 
than 70 percent herbaceous cover (FS 2000a). Past and current range 
management within the range of the Sacramento Mountains checkerspot 
butterfly has led to the reduction or elimination of Helenium hoopesii 
and herbaceous ground cover (FS 1995; Belsky and Blumenthal 1997; 
Lincoln National Forest 1999). Trampling, primarily from cattle, can 
also kill butterfly larvae, eggs, and pupae (White 1986; Weiss 1999). 
White (1986) estimated that up to 35 percent of the total population of 
various life stages of butterflies in the genus Euphydryas can be lost 
to crushing in areas where heavy grazing occurs.
    The amount of Helenium hoopesii, an adult nectar source, on range 
allotments in the Sacramento Ranger District is lower than it was in 
the 1970s and 1980s and the current range condition of four cattle 
allotments within the known range of the Sacramento Mountains 
checkerspot butterfly are poor to fair (R. Newman, Lincoln National 
Forest, pers. comm. 1999). Present range conditions within non-forested 
areas are declining (R. Newman, pers. comm. 1999), probably because 
cattle tend to concentrate in these areas (Belsky and Blumenthal 1997). 
Both larval and adult food plants are needed to sustain viable 
butterfly populations. For example, in some areas, if larval food 
plants are present, but nectar sources are absent, the habitats for 
other butterflies in the genus Euphydryas have remained unoccupied for 
at least a decade (Brown and Ehrlich 1980). In the Lincoln National 
Forest, permitted cattle grazing in 1980 exceeded capacity by about 
33,000 AUMs and was projected to continue until about 2026 (FS 1986). 
Similarly, excessive forage utilization has been occurring since at 
least 1991 on the Sacramento allotment, the largest allotment in the 
Sacramento Ranger District (64 FR 24132).
    A low to moderate level of grazing can sometimes be beneficial for 
sensitive butterflies in systems where nonnative grasses are palatable 
to domestic livestock or native ungulates or if native ungulate grazing 
(e.g., elk (Cervus elaphus)) was a component of the historical 
ecosystem (Weiss 1999, Weiss et al. 1991). Grazing levels in the known 
range of the Sacramento Mountains checkerspot butterfly continue to 
degrade the quantity and quality of suitable habitat. However, if a 
decrease in domestic livestock use is offset by an increase in native 
ungulate use, the result may be similarly degraded range conditions. 
This has been observed for at least one allotment within the range of 
the butterfly (R. Newman, pers. comm. 1999). Additionally, cattle must 
be properly managed during drought to avoid adversely affecting 
butterfly populations by overgrazing food plant and nectar sources. The 
lack of range management adjustments on the Lincoln National Forest 
during drought has resulted in extensive resource damage from domestic 
livestock grazing (Kaufmann et al. 1998).
    Cattle grazing currently occurs in allotments where butterflies 
have been observed (FS 1999a, 1999b, 1999d 1999i, 2000a, 2000d). Data 
are lacking on long-term trends for Sacramento Mountains checkerspot 
butterfly localities that are grazed, but a study has recently been 
initiated to determine the effect of grazing on the Sacramento 
Mountains checkerspot butterfly (FS 2001b). Nevertheless, the co-
occurrence of butterflies and domestic livestock does not demonstrate 
that the Sacramento Mountains checkerspot butterfly is not being 
adversely impacted by current range management. It is possible that 
these areas could be population sinks (i.e., areas where the presence 
of butterflies is only being maintained by immigration from other 
source populations) (Boughton 1999). We recently assisted the Forest 
Service in designing an experiment to investigate the influence of 
range management activities on the butterfly and its food plants 
(Service 2001).
Nonnative Vegetation
    Nonnative vegetation threatens the Sacramento Mountains checkerspot 
butterfly by out-competing and reducing

[[Page 46583]]

or eliminating food plants for larvae and nectar plants used by adults 
(FS 1995; Federal Register 62:2313; Weiss 1999). A significant long-
term threat to the Sacramento Mountains checkerspot butterfly is the 
change in community structure due to invasive nonnative plants. On the 
Lincoln National Forest, 12 aggressive nonnative plant species, 
including Russian knapweed (Acroptilon repens), musk thistle (Carduus 
nutans), oat grass, and teasel (Dipsacus sylvestris) have increased by 
30 percent since the early 1990s; this trend is expected to increase 
(GAO 1999a). An estimated 3,238 ha (8,000 ac) of private lands are 
similarly infested with noxious weeds within the Smokey Bear and 
Sacramento Districts, and a minimum of 1,244 ha (3,075 ac) of FS lands 
are infested within the Sacramento District (FS 1996). A 1993 FS survey 
found that approximately 737 ha (1,822 ac) in the vicinity of the 
Village of Cloudcroft had infestations of noxious weeds (FS 1999a). 
Infestations are expanding in non-forested openings and within road 
rights-of-way, with the densities of weeds increasing where they have 
not been treated (FS 1999a). Russian knapweed, musk thistle, oat grass, 
and teasel are found along major roads within rights-of-way or mountain 
meadows, and small openings in the forest, from 2,130 to 2,750 m (7,000 
to 9,000 ft) (Fish and Wildlife Service 1993; FS 1996). These four 
plants are the most common noxious weeds within the range of the 
butterfly in the Lincoln National Forest. Nonnative vegetation has 
caused the extinction of some populations of butterflies in other areas 
(Weiss 1999).
    These nonnative plants can significantly affect the plant community 
structure. For example, Russian knapweed produces compounds that 
suppress the growth of other plant species, allowing it to form dense 
stands (FS 1996). Other species, such as musk thistle and teasel, can 
also reduce grass and native forb production and change meadow/
grassland habitats structurally and compositionally (FS 1995). 
Moreover, nonnative grasses, such as oat grass, can outcompete native 
forbs through the buildup of thatch (Huenneke et al. 1990). Nearly 30 
percent of mountain meadows and over half of some individual meadows 
were dominated by noxious weeds on the Sacramento Ranger District in 
1995 (FS 1995). The Lincoln National Forest treated 992 ha (2,452 ac) 
of noxious weeds annually from 1997 to 1999 (FS 2000b). However, these 
treatments eliminated only 116 ha (287 ac), and another 91 ha (225 ac) 
of noxious weeds were documented (FS 2000b). These data indicate the 
severity of noxious weed infestations within the known range of the 
Sacramento Mountains checkerspot butterfly. These infestations threaten 
the butterfly, primarily through the reduction or elimination of larval 
or adult food plants.
    The application of herbicides to control nonnative vegetation may 
also be a threat to the Sacramento Mountains checkerspot butterfly. The 
NMSHTD and the FS both use herbicides and mowing to control noxious 
weeds. The herbicides Escort and Round-Up have been used by the FS to 
control nonnative plants, primarily Russian knapweed, musk thistle, and 
teasel in canyons and along highway rights-of-way within the range of 
the butterfly. About 1,416 ha (3,500 ac) above 2,450 m (8,000 ft) have 
been treated (FS 1999a). The toxicity of Escort for insects is low to 
moderate, depending on application rate and timing (Dupont 1999). 
Alternatively, control of musk thistle on about 162 ha (400 ac) of 
private lands within the District is accomplished using picloram and/or 
2, 4-D (FS 1996), and musk thistle has also been controlled on FS lands 
using glyphosphate (FS 1993). The herbicide 2,4-D is detrimental to 
native plants and has a moderate toxicity for insects (Cornell 
University 1998c), such as butterflies. Glyphosphate has low toxicity, 
but is a non-selective systemic herbicide (Cornell University 1998d). 
One area, which is proximate to habitat that supports the butterfly, 
was treated with glyphosphate in 1993. In 1999, the area contained 
almost no Sacramento Mountain checkerspot butterflies (FS 2000a). It is 
unknown if this absence is related to the herbicide application. 
Nevertheless, there is a potential for direct and indirect impacts on 
the Sacramento Mountains checkerspot butterfly from the application of 
Insect Control
    The application of carbaryl and Bacillus thuringensis (BT) to 
control insects poses a threat to the Sacramento Mountains checkerspot 
butterfly. The petitioner reported that the entire Douglas-Fir forest 
in the Sacramento Mountains was treated in 1984 with either carbaryl or 
BT to control an outbreak of forest insects. Carbaryl is considered 
moderately to highly toxic and is lethal to many non-target insects, 
whereas BT can kill the larval stage of many insects, including 
butterflies (Cornell University 1998a, 1998b). These insecticides were 
applied during months when butterfly larvae were not in diapause; 
however, the areas which were treated with carbaryl or BT were heavily 
wooded and are not areas that were inhabited by the butterfly. 
Nevertheless, drift of these insecticides into areas used the butterfly 
could have occurred. It is unknown what affect these treatments may 
have had on the Sacramento Mountains checkerspot butterfly because we 
have no pretreatment data for comparison. There has been a recent 
outbreak of tussock moth (Orgyia pseudotsugata) in the Sacramento 
Mountains (G. Garcia, pers. comm. 2000). The FS may attempt to control 
the outbreak using a virus specific to the tussock moth, BT, or an 
application of insecticide (G. Garcia, pers. comm. 2000). Future 
applications of carbaryl or BT may pose a potential risk for the 
viability of Sacramento Mountain checkerspot butterfly localities.
Conclusion for Factor A
    The Sacramento Mountains checkerspot butterfly appears to exhibit 
much of the same behavior, life history, and patchy distribution as 
other well-studied species in this genus. The patchy distributional 
pattern is expected in many butterflies in the genus Euphydryas and 
other species, because they exist as metapopulations and at any instant 
butterflies may be using some areas and not others (Hanski and Gilpin 
1991). Suitable habitat within the range of the species can play a 
pivotal role in maintaining natural metapopulations, especially 
butterflies that may have limited dispersal abilities (Murphy and Weiss 
1988; see discussion below). However, if populations are extirpated and 
the metapopulation becomes so fragmented that individuals are unable to 
disperse between suitable patches, natural recolonization probability 
will not offset the extinction probability, and will result in 
population extinction. Some butterfly localities may be linked by 
linear or open patches of suitable, non-forested areas, such as highway 
rights-of-way (Haddad 1999; Haddad and Baum 1999). If movements through 
these linkages are disrupted or precluded (e.g., by commercial or 
private development), then the stability of the metapopulation (i.e., 
the exchange of individuals between populations) will be affected 
(Murphy and Weiss 1988). Isolation, whether by geographic distance or 
ecological factors, will prevent the influx of new genetic material, 
and can result in inbreeding and extinction (Saccheri et al. 1998; 
Nieminen et al. 2001).
    We believe that some of the butterfly localities consist of very 
small numbers of butterflies that are isolated and

[[Page 46584]]

vulnerable to natural perturbations that could quickly eliminate them. 
Likewise, butterfly populations in the genus Euphydryas are known to 
undergo extreme variations in population size and are subject to 
extinction even when populations are greater than 50,000 individuals in 
preceding years (Weiss 1999). The mechanisms controlling population 
stability among species of butterflies in the genus Euphydryas are not 
well understood and may vary; however, it is known that small 
populations are particularly vulnerable to extinction (Murphy and Weiss 
1988; 62 FR 2313) and some of the highest-density populations at high 
elevations (i.e., 2,000-3,000 m) can be the most susceptible to 
extinction (Thomas et al. 1996).
    Much of the remaining suitable butterfly habitat, and the long-term 
persistence of the species, is threatened by the direct and indirect 
effects of commercial and private development, FS projects (e.g., 
campground reconstruction, powerline construction, road maintenance), 
catastrophic wildfire, fire suppression activities, highway 
reconstruction, off-highway vehicle use, trampling, overgrazed range 
conditions, and nonnative vegetation. Development of private land 
continues to increase within the known range of the butterfly, 
potentially rendering much of the butterfly habitat unsuitable. Village 
of Cloudcroft construction since the mid-1970s and the number of 
housing units has doubled. The limited geographic range of the 
Sacramento Mountains checkerspot butterfly increases the threat of 
extinction for this species given the expected continuing loss and 
degradation of suitable habitat and increased risks of extinction from 
random events, such as catastrophic fire, irreversibly eliminating vast 
amounts of habitat or localities. Considering the magnitude, imminence, 
and irreversibility of threats to habitat and the vulnerability of 
extant localities, we conclude that the Sacramento Mountains 
checkerspot butterfly is now in danger of extinction in all or a 
significant portion of its range.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes. Collecting

    Some collectors likely have high interest in the Sacramento 
Mountains checkerspot butterfly due to its extremely restricted 
distribution and low numbers. Both adult and larval stages of the 
species have been collected for scientific research and, similar to 
other narrowly endemic butterfly species, might be collected for 
recreational cultivation (i.e., raising butterflies for pleasure). We 
know of at least one person who collected an unknown number of 
Sacramento Mountains checkerspot butterfly larvae and others who have 
collected adults or have threatened to collect within the range of this 
species (Ferris and Holland 1980; R. Holland, pers. comm. to R. 
Galeano-Popp 1997; G. Pratt, pers. comm. 1999; FS 1999c). Additionally, 
some collectors prefer to eclose (emergence of an adult butterfly from 
a chrysalis) butterflies in captivity, thus reducing the risk of damage 
to the wings of adults, making for higher-quality individuals, prized 
by collectors. Specimens of other subspecies of the anicia checkerspot 
butterfly have been offered for sale (Kral 1987, 1989; Capps 1991). 
High prices for prized species can provide an incentive for illegal 
take and trade, and is sometimes referred to as market collecting 
(Erhlich 1989). Listing can increase the publicity and interest in a 
species' rarity, and thus may directly increase the value and demand 
for specimens.
    Collecting from small colonies or repeated handling and marking, 
particularly of females in years of low abundance, could seriously 
damage populations through loss of individuals and genetic variability 
(Duffey 1968; Hayes 1981; Singer and Wedlake 1981; Gall 1984b; Murphy 
1988; Hein and Myers 2000). We know of some butterfly populations 
(Mitchell's satyr, Saint Francis' satyr) that have been extirpated by 
collectors, possibly leading to extinction (57 FR 21564; 60 FR 5264).
    The threat of collecting populations to extinction for a butterfly 
species is partly related to capture probability, which is influenced 
by the behavior of larvae or adults (Gall 1984a). Ehrlich et al. (1975) 
reported that adult mortality was not a major factor in population 
dynamics of Euphydryas editha bayensis, but this was probably related 
to the inability to capture more than 5 to 25 percent of the 
population. Yet, in a species such as the Sacramento Mountains 
checkerspot butterfly, individuals thermoregulate in early mornings or 
on cloudy days, making them more susceptible to capture. Throughout the 
day, adults are frequently found nectaring and are sedentary (E. Hein, 
pers. obs.; FS 1999d). We also know of other sensitive species where 
larvae are particularly easy to locate and have been heavily collected 
(Euphydryas editha quino, Euphyes vestris harbisoni, E. Hein, pers. 
obs.; Hesperilla flavescens flavescens, Glaucopsyche lygdamus 
palosverdesensis, T. Longcore, University of California, pers. comm. 
    Thomas (1989) outlined characteristics of butterfly species that 
would place them at risk from collectors. These characteristics include 
closed populations (i.e,. little immigration or emigration), sedentary 
behavior, less than 250 adults in the population, and populations that 
are located in small areas of accessible terrain. The Sacramento 
Mountains checkerspot butterfly fulfills most if not all of these 
traits, suggesting that the species is at risk to over collection. 
Since the known localities of the Sacramento Mountains checkerspot 
butterfly occur in areas frequented by butterfly collectors (Toliver et 
al. 1994) such as in public campgrounds, along public roadways, or in 
other readily accessible areas, the species is easily collected, and 
the limited numbers and distribution of this species make it attractive 
to collectors and vulnerable to over collection.
    In an attempt to limit the threat of overcollection, the FS issued 
a closure order from April 1999 to April 2000 for the collection of any 
butterflies without a permit on the Smokey Bear and Sacramento 
Districts of the Lincoln National Forest (FS 1999a, 1999b). A closure 
order was implemented in April 2000 throughout the same region that 
restricts the collection of the Sacramento Mountains checkerspot 
butterfly without a permit (G. Garcia, Lincoln National Forest, pers. 
comm. 2000). This closure order may offer protection from butterfly 
collecting; however, some butterfly collectors are known to have 
intentionally violated a similar closure order in the Uncompahgre 
National Forest in Colorado in order to collect the endangered 
Uncompahgre fritillary butterfly (Boloria acrocnema) (U. S. Department 
of Justice 1993). Furthermore, there is a perception from some 
lepidopterists who fervently collect (e.g., one individual has greater 
than 25,000 butterfly specimens) that the closure order on the Lincoln 
National Forest or other public lands are overly restrictive and should 
not apply to them (Wells 1996; see also Lep News 1996). Similarly, a 
recent editorial published the location of a butterfly locale, and 
encouraged the public to ``* * * plan a vacation to Cloudcroft and add 
this variation to (your) collection'' (Wood 1999).

C. Disease or Predation

    Wasps of the genus Apanteles and Trichogramma have been documented 
parasitizing the Sacramento Mountains checkerspot butterfly. Spiders, 
pocket gophers, ants, and birds are documented predators for 
butterflies in the genus

[[Page 46585]]

Euphydryas (Ehrlich 1965; Brown and Ehrlich 1980; Moore 1987; Moore 
1989). There are no indications at this time that parasites or 
predators might be a limiting factor for the Sacramento Mountains 
checkerspot butterfly.

D. The Inadequacy of Existing Regulatory Mechanisms

    The Sacramento Mountains checkerspot butterfly occurs on private 
and FS lands. Existing regulatory mechanisms do not fully protect this 
species or its habitat on any of these lands. The FS has the authority 
to manage the land and activities under their administration to 
conserve the butterfly. For example, this species was placed on the 
Regional Forester's Sensitive Species List, and the FS has minimized or 
avoided potentially adverse impacts to the butterfly by altering or 
canceling several recently proposed projects (see discussion above). 
The FS is required to maintain or enhance the viability of species on 
this list by considering species in their project biological 
evaluations and mitigate actions that adversely impact the species. The 
FS currently does not have a management plan that addresses specific 
conservation and recovery needs for the butterfly, nor have they 
developed population viability objectives or management guidelines. The 
development of a management/conservation plan for the Sacramento 
Mountains checkerspot butterfly was scheduled for December 2000, but 
has not yet been completed (FS 2000a).
    Private lands constitute about 50 percent of the estimated range of 
the butterfly (FS 1999b). These lands play a substantial role in the 
Sacramento Mountains checkerspot butterfly's continued existence. There 
are no local or state regulatory mechanisms pertaining to the butterfly 
on State or non-Federal lands. The Sacramento Mountains checkerspot 
butterfly is not listed as threatened or endangered under the New 
Mexico Wildlife Conservation Act, and it receives no formal protection 
for take of individuals or habitat.
    It is unknown whether suitable habitat is present on the Mescalero 
Apache Nation lands. However, there does not appear to be a significant 
amount of contiguous land present with elevations between 2,450 and 
2,750 m (8,000 and 9,000 ft)) and proximal to butterfly localities. 
Nevertheless, these lands are managed by the Mescalero Apache Nation in 
accordance with tribal goals and objectives and within the framework of 
applicable laws. These lands are not Federal public lands or part of 
the public domain. The Mescalero Apache Nation is a sovereign 
government with inherent powers to make and enforce laws and manage and 
control their natural resources. We have initiated contact with the 
Mescalero Apache Nation, but have not had formal Government-to-
Government contact over the status of the Sacramento Mountains 
checkerspot butterfly on their lands.

E. Other Natural or Manmade Factors Affecting its Continued Existence

Extreme Weather
    Periodic droughts (e.g., resulting in little to no snowpack and 
early snow melt), such as those that occurred in recent years in New 
Mexico, or late snow storms or summer frosts, pose a threat to the 
Sacramento Mountains checkerspot butterfly. Drought is known to cause a 
decrease in the size of populations of some butterfly species (C. 
Nagano, pers. obs., 1999) and cause population extinctions (Murphy and 
Weiss 1988; Thomas et al. 1996; Boughton 1999). In addition to killing 
larvae by dessication, drought conditions may--(1) cause the early 
senescence or death of the larvae food plant prior to the completion of 
larval development; (2) result in an early flight season prior to the 
availability of any nectar sources, causing mass starvation; or (3) 
lower the nutritional quality of the host plant (e.g., water content).
    Holland (1999) believes that emergence of butterfly larvae from 
diapause above 2,450 m (8,000 f) might not be directly linked to 
precipitation, but driven more by photoperiodism (the relative periods 
of light and darkness associated with day and night) and warmth; hence, 
early flight seasons probably occur during years of light snow pack, 
increasing the risk of local extirpation and extinction. Moreover, 
almost all adult Sacramento Mountains checkerspot butterflies that were 
observed nectaring used Helenium hoopesii, and this species may not 
reach peak flowering abundance until after rains begin in July (FS 
2000a). If summer rains are delayed or below average, it is highly 
possible that one or all of the above examples could occur. Late snow 
storms, summer frosts, and unusually cold or rainy weather can also 
lead to direct mortality of larval food plants, nectar sources, eggs, 
larvae, pupae, and/or adults (Ehrlich et al. 1972; White 1986; Thomas 
et al. 1996; Boughton 1999). Although the Sacramento Mountains 
checkerspot butterfly has evolved in an environment subject to periodic 
atypical weather events, it is believed that habitat fragmentation has 
increased the species' susceptibility to certain weather extremes. 
Moreover, it appears that New Mexico may be headed into a long-term 
drought (Fleck 2000).
    Dispersal is normally a rare event in the genus Euphydryas, 
possibly resulting from extreme weather events or emigration from high 
density populations. Further, normal daily movements in Euphydryas 
anicia adults probably are less than 300 m (984 ft), suggesting that 
adults are somewhat sedentary and likely do not disperse more than a km 
(Cullenward et al. 1979). Because patches of forests may define the 
boundaries of the habitat, reduce immigration out of an area (M. 
Singer, University of Texas, pers. comm. to G. Pratt 1999), and are not 
readily crossed by butterflies that inhabit open meadows (Kuussaari et 
al. 1996), some Sacramento Mountains checkerspot butterfly localities 
are probably demographically isolated.
    The Sacramento Mountains checkerspot butterfly may be killed by 
vehicles driving through habitat that supports the butterfly (E. Hein, 
pers. obs. 1999; W. Murphy, Southwestern Regional Office, FS, pers. 
comm. 2000). Roads are a significant source of mortality for many 
species of wildlife (Case 1978; Ashley and Robinson 1996; Hourdequin 
2000), including butterflies (Ries et al. In press; Service 1996). 
Roads can also modify animal (including butterflies) behavior, alter 
the physical and chemical environment, and spread nonnative plant 
species (Trombulak and Frissell 2000). Roads limit movements and 
dispersal of insects, effectively fragmenting and isolating populations 
(Mader 1984; Mader et al. 1990).
    Increases in the population in and around the Village of Cloudcroft 
(U.S. Census Bureau 1998; FS 1999e) have led to increases in traffic. 
For example, the average annual daily traffic along habitat adjacent to 
highway 130 was 1,956 vehicles in 1995 and is projected to double by 
2015 (Metric Corporation 1996), especially with proposed private 
developments (e.g., Woodlands, The Lodge, etc.). The normal flight 
behavior of Euphydryas anicia suggests that butterflies found along 
roads may attempt to cross and increase their risk of death from 
passing vehicles. Roads could also indirectly affect the butterfly by 
increasing the deposition of dust on food plants for larvae and adults. 
Dust can affect plants by blocking photosynthesis, respiration, and 
transpiration and reducing growth or causing injuries (Farmer 1993). 
The direct and indirect impact of roads on

[[Page 46586]]

the Sacramento Mountains checkerspot butterfly are presently unknown.
    Given the low probability of improving the status of the Sacramento 
Mountains checkerspot butterfly in the next few years (e.g., the high 
risk of a catastrophic wildfire in the next few years, the continued 
elimination of suitable habitat by development, the likelihood of an 
extreme weather event occurring, the reduction or elimination of larval 
or adult food plants by grazing and/or nonnative plants), this species 
is vulnerable to extinction throughout all or a significant portion of 
its range. We have carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats facing the Sacramento Mountains checkerspot butterfly in 
determining to propose listing. Based on this evaluation, we propose to 
list the Sacramento Mountains checkerspot butterfly as endangered. 
Although we have considered all available alternatives to this action, 
such alternatives would not be in accordance with the Act or the 
definitions therein. Based on the information available, not listing 
the species as endangered or listing the species as threatened would 
not accurately reflect the status of the Sacramento Mountains 
checkerspot butterfly.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The term ``conservation,'' as defined in section 3(3) of the 
Act, means ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary'' (i.e., the species is recovered and removed from the list 
of endangered and threatened species).
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We can 
exclude areas from critical habitat designation if we determine that 
the benefits of exclusion outweigh the benefits of including the areas 
as critical habitat, provided the exclusion will not result in the 
extinction of the species.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions through consultation under section 7(a)(2) of 
the Act. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or destroy or 
adversely modify its critical habitat.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)(1)) state that the designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    In the last few years, a series of court decisions have overturned 
Fish and Wildlife Service determinations that designation of critical 
habitat would not be prudent for a variety of species (e.g., Natural 
Resources Defense Council v. U.S. Department of the Interior 113 F. 3d 
1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. 
Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in 
those judicial opinions, we have examined the question of whether 
critical habitat for the Sacramento Mountains checkerspot butterfly 
would be prudent.
    Due to the small number of butterfly localities, the Sacramento 
Mountains checkerspot butterfly is vulnerable to unrestricted 
collection, vandalism, or other disturbance. Rare butterflies are 
highly prized by collectors and we have specific evidence for 
Sacramento Mountains checkerspot butterfly of collection and trade of 
this species or similarly situated species (see Factor B). We are 
concerned that these threats might be exacerbated by the publication of 
critical habitat maps and further dissemination of locational 
information. However, this information has already been published and 
available (Ferris and Holland 1980; Toliver et al. 1994; Wood 1999). 
Consistent with recent case law, we must weigh the benefits in 
proposing to designate critical habitat for the Sacramento Mountains 
checkerspot butterfly against the harm which could be caused by 
disclosure of its location.
    The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies consult with us to ensure that their 
proposed actions will not destroy or adversely modify critical habitat. 
While a critical habitat designation for this species in currently 
occupied habitat would not be likely to change the section 7 
consultation outcome because an action that destroys or adversely 
modifies such critical habitat would also be likely to result in 
jeopardy to the species, there may be instances where section 7 
consultation would be triggered only if critical habitat is designated. 
Examples could include unoccupied habitat or occupied habitat that may 
become unoccupied in the future. Both of these situations are expected 
because of the metapopulation structure of butterflies in the genus 
Euphydryas (e.g., Harrison 1989, Hanski and Gilpin 1991). There may 
also be some educational or informational benefits to designating 
critical habitat. Consequently, we find that these benefits outweigh 
the risk of increasing collection because the locations are already 
known and available to the public. Therefore, we find that critical 
habitat is prudent for the Sacramento Mountains checkerspot butterfly.
    The Act requires that, to the maximum extent prudent and 
determinable, we designate critical habitat at the time a species is 
listed. Although we will make a detailed determination of the habitat 
needs of a listed species during the recovery planning process, there 
is no provision in the Act to delay designation of critical habitat 
until such time as a recovery plan is prepared. We reviewed the 
available information pertaining to habitat characteristics where this 
species has been recently located, including material received during 
the comment period for the 90-day petition finding. This and other 
information represent the best scientific and commercial data 
available, and led us to conclude that the designation of critical 
habitat is both prudent and determinable for the Sacramento Mountains 
checkerspot butterfly. Therefore, we propose to designate critical 
habitat pursuant to the Act for the Sacramento Mountains checkerspot 
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for

[[Page 46587]]

conservation of that species. Designation of critical habitat alerts 
the public as well as land-managing agencies to the importance of these 
areas. Critical habitat also identifies areas that may require special 
management considerations or protection, and may provide protection to 
areas where significant threats to the species have been identified.
    Critical habitat receives protection from destruction or adverse 
modification through required consultation under section 7 of the Act, 
with regard to actions carried out, funded, or authorized by a Federal 
agency. Section 7 also requires conferencing on Federal actions that 
are likely to result in the adverse modification or destruction of 
proposed critical habitat. Aside from the protection that may be 
provided under the section 7 adverse modification standard, designation 
of critical habitat does not provide prohibitions beyond those 
available from the listing of a species as endangered or threatened.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create or mandate a 
management plan, establish numerical population goals, prescribe 
specific management actions (inside or outside of critical habitat), or 
directly affect areas not designated as critical habitat. Specific 
management recommendations for critical habitat are most appropriately 
addressed in recovery plans and management plans, and through section 7 
    Because of this species' precarious status, mere stabilization of 
the Sacramento Mountains checkerspot butterfly at its present level 
will not achieve survival and recovery. Protection and enhancement of 
the existing localities, plus reestablishment of localities in suitable 
areas of its known range, are necessary for its survival and recovery. 
One of the most important goals to be achieved toward recovery is 
establishment of secure self-reproducing localities in areas from which 
the species is no longer found, and may have been extirpated. We, 
therefore, determine that areas that may or may not be used by 
butterflies every year are essential for the conservation of the 
species and are proposed as critical habitat.


    The proposed critical habitat described below constitutes our best 
assessment of areas needed for the conservation of the Sacramento 
Mountains checkerspot butterfly and is based on the best scientific and 
commercial information available to us concerning the species' known 
present and historic range, habitat, biology, and threats. We have 
emphasized known butterfly localities, especially areas that were 
identified in the FS GIS model (FS 1999b). To maintain genetic and 
demographic interchange that will help maintain the viability of a 
regional metapopulation, we included dispersal areas adjacent to or 
linking localities that have some or all of the above elements and are 
sufficient to provide for connectivity between areas of butterfly 
habitat. The proposed areas are essential to the conservation of the 
species because they either currently support localities of the 
butterfly, or because they currently support the necessary requirements 
for survival, growth, and reproduction of the butterfly (see 
description of primary constituent elements, below). Despite extensive 
surveys and ongoing research, we currently are not aware of any areas 
outside the geographical area occupied by the Sacramento Mountains 
checkerspot butterfly that provide the primary constituent elements 
essential to the life cycle needs of the species (see ``Primary 
Constituent Elements'' section) and that are essential for the 
conservation of the butterfly. To the extent feasible, we will 
continue, with the assistance of other Federal, State, and private 
researchers, to conduct surveys and research on the species and its 
habitat. If new information becomes available that indicates that other 
areas or habitat types within the Sacramento Mountains checkerspot 
butterfly's historic range are essential to the conservation of the 
species, we will revise the designated critical habitat for the 
Sacramento Mountains checkerspot butterfly accordingly. Important 
considerations in selection of areas proposed in this rule include 
factors such as connectivity, habitat diversity, and potential for 
restoration and repatriation. The proposed critical habitat reflects 
the need for localities of sufficient size to provide habitat for 
Sacramento Mountains checkerspot butterfly localities--large enough to 
be self-sustaining over time, despite fluctuations in local conditions. 
Many areas are or have the potential to be interconnected so that 
butterflies are able to move among localities, at least during certain 
seasons. The ability of the species to repopulate areas where they are 
depleted or apparently extirpated is vital to recovery. Some areas 
proposed as critical habitat may not have substantial amounts of 
presently suitable foraging or breeding habitat, but instead provide 
dispersal corridors important for the maintenance of the butterfly's 
metapopulation structure.
    The areas we propose to designate as critical habitat include areas 
containing all known remaining localities used by the species. We 
believe it is important that the areas selected for proposed critical 
habitat designation include a representation of each locality within 
the range of the species. Nevertheless, uncertainty on the complete 
distribution limits of some known localities or currently unknown 
localities may result in small areas of habitat used by the butterfly 
being outside the designation. Further, this proposed critical habitat 
designation includes areas that may not currently support the butterfly 
every year, but are necessary for the conservation and recovery of the 
species. The inclusion of these types of areas in this proposed 
critical habitat designation for the Sacramento Mountains checkerspot 
butterfly are essential for the conservation of the species. The 
Sacramento Mountains checkerspot butterfly is in danger of extinction, 
and although additional localities of the butterfly have been found 
since 1997, their contribution to the status of the species may be 
offset by the magnitude and imminence of the threats facing the 
species. Additional localities/populations must be established to 
conserve and recover the Sacramento Mountains checkerspot butterfly.
    If this proposed rule is finalized and the Sacramento Mountains 
checkerspot butterfly is added to the lists of threatened and 
endangered species and we develop a recovery plan for the species, 
areas may be identified that are suitable for reintroduction. However, 
until a recovery plan is completed, we believe that this proposed 
critical habitat designation for the Sacramento Mountains checkerspot 
butterfly will provide for the protection of habitat essential for the 
species' conservation. If information becomes available that indicates 
additional or fewer areas would provide for the species' conservation, 
we may revise the proposed critical habitat designation.
    We propose the area described below as critical habitat for 
Sacramento Mountains checkerspot butterfly (see the Regulation 
Promulgation section of this rule for exact descriptions of 
boundaries). The proposed critical habitat designation includes the 
area found within an approximate 140 square km (54 square mi) polygon 
centered around the Village of Cloudcroft, Otero County, New Mexico, 
south of the Mescalero Apache Nation boundary. Mescalero Apache Nation 
lands are not included in the proposed

[[Page 46588]]

designation because it is unknown if these lands contain suitable 
habitat. The proposal includes those areas that currently support 
localities of the butterfly, as well as some that may not currently 
support the butterfly, but which are considered essential for 
reestablishment to conserve the species. Not all of the areas we are 
proposing to designate as critical habitat for the butterfly provide 
the primary constituent elements necessary for this species. For 
example, forested areas (i.e., canopy cover greater than 5 percent), 
meadows with elevation above or below 2,450 and 2,750 m (8,000 and 
9,000 ft), and other areas that do not provide the habitat for the 
Sacramento Mountains checkerspot butterfly do not contain the primary 
constituent elements. Therefore, Federal actions with effects limited 
to the areas that do not contain the primary constituent elements would 
not be subject to section 7 consultation. The areas are described more 
precisely in the Regulation Promulgation section of this rule.
    We did not map critical habitat in sufficient detail to exclude all 
developed areas (e.g., see features or structures defined below) and 
other lands unlikely to contain primary constituent elements essential 
for Sacramento Mountain checkerspot butterfly conservation. Within the 
proposed critical habitat boundaries, only lands containing some or all 
of the primary constituent elements (defined below) are proposed as 
critical habitat. Existing features and structures within proposed 
critical habitat, such as buildings, roads, cultivated agricultural 
land, residential landscaping (e.g., mowed nonnative ornamental 
grasses), ponds, wetlands (i.e., a lowland area that is permanently 
saturated with water), forests, and other features, do not contain, and 
are not likely to develop, some or all of the primary constituent 
elements. Therefore, these areas are not proposed for critical habitat.
    The habitat features (primary constituent elements) that provide 
for the physiological, behavioral, and ecological requirements 
essential for the conservation of the species are described at 50 CFR 
424.12, and include the following: space for individual and population 
growth, and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distributions of a species.
    We determined the primary constituent elements for the butterfly 
from field studies and population biology including, but not limited 
to, Cullenward et al. 1979; Ferris and Holland 1980; Cary and Holland 
1992; Toliver et al. 1994; and FS 1999a, 1999d, 2000a, 2000d. These 
primary constituent elements of critical habitat for the Sacramento 
Mountains checkerspot butterfly include those habitat components 
providing for breeding, ovipositing (egg laying), diapausing, roosting 
or resting, or foraging areas and are described below. The proposed 
critical habitat designation includes the area found within an 
approximate 140 square km (54 square mi) polygon centered around the 
Village of Cloudcroft, Otero County, New Mexico. The primary 
constituent elements are: (1) elevation between 2,450 and 2,750 m 
(8,000 and 9,000 ft) within the mixed-conifer forest (Lower Canadian 
Zone) and within an approximate 140 square km (54 square mi) polygon 
centered around the Village of Cloudcroft, Otero County, New Mexico, 
south of the Mescalero Apache Nation boundary; (2) drainages, meadows, 
or grasslands; (3) supporting the known food plants New Mexico 
penstemon (Penstemon neomexicanus), sneezeweed (Helenium hoopesii), or 
valerian (Valeriana edulis); (4) less than 5 percent canopy cover; and 
(5) composed of plants such as arrowleaf groundsel (Senecia 
triangularis), curly-cup gumplant (Grindelia squarrosa), figworts 
(Scrophularia sp.), penstemon (Penstemon sp.), skyrocket (Ipomopsis 
aggregata), milkweed (Asclepias sp.), Arizona rose (Rosa woodsii), or 
Wheeler's wallflower (Erysimum capitatum). Areas adjacent to or linking 
areas that have some or all of the above elements and are sufficient to 
provide for dispersal between areas of butterfly habitat are necessary 
for the conservation of the species and thus are proposed as critical 
habitat. Habitat that provides for dispersal may not support all of the 
other primary constituent elements.
    Due to the patchiness and small size of the areas providing 
suitable habitat for the Sacramento Mountains checkerspot butterfly, we 
have elected to designate an inclusive area that still provides habitat 
for the species as critical habitat rather than attempt to identify 
each individual meadow separately. Regulations at 50 CFR 424.12(c) 
require that we define the specific limits of critical habitat by using 
reference points and lines as found on standard topographic maps of the 
area(s). Because of the variety of meadow sizes, the difficulties in 
trying to obtain precise legal descriptions on the smaller meadows, the 
limited number of suitable habitat patches, and for ease of reference, 
we did not map critical habitat in sufficient detail to exclude land 
that is not likely to contain all of the primary constituent elements 
essential for the conservation of the Sacramento Mountains checkerspot 
butterfly. Consequently, the areas we are designating as critical 
habitat also include areas of unsuitable habitat; for example, forests 
(i.e., areas with cover greater than 5 percent), meadows with elevation 
above or below 2,450 and 2,750 m (8,000 and 9,000 ft), and other areas 
that do not provide the habitat for the Sacramento Mountains 
checkerspot butterfly. Federal actions with effects limited to these 
other habitat types, therefore, would not trigger a section 7 
consultation. Please note, however, that any activity authorized, 
funded, or carried out by a Federal agency that has a potential to 
affect the constituent elements of designated critical habitat, 
regardless of the activity's location in relation to designated 
critical habitat, will require a consultation with us, as required 
under the provisions of section 7 of the Act (see ``Effects of Critical 
Habitat Designation'' section). Prior to finalizing this rule, we will 
seek ways to refine our mapping in order to exclude, from within the 
critical habitat boundary, developed areas or other areas that do not 
contain the primary constituent elements and therefore, would not be 
considered to be critical habitat.

Land Ownership

    Proposed critical habitat for the Sacramento Mountains checkerspot 
butterfly encompasses the localities where the species has been 
collected in the recent past, where it is currently known to exist, 
where it is reasonably likely to occur currently, or where it may occur 
in the future. All of the land is within the administrative boundaries 
of the Sacramento Ranger District of the Lincoln National Forest. 
However, within this area are also lands of the Village of Cloudcroft, 
a number of smaller unincorporated communities, and a large number of 
other private landowners within the jurisdiction of Otero County, New 
Mexico. Private lands are primarily used for grazing and agriculture, 
but also include small-residence lots, larger ranchettes, and 
    About half of the suitable habitat for the Sacramento Mountains 
checkerspot butterfly occurs on private land and these areas are rather 
evenly distributed throughout the known range of the

[[Page 46589]]

butterfly. Although much of these lands have not been surveyed for the 
butterfly, because of a lack of access to private lands, these areas 
are within meadows that are adjacent to and contiguous with FS meadows, 
some with documented butterfly locations, and are also within the same 
elevational range where butterflies are consistently documented. For 
the reasons discussed above, we believe these areas are essential to 
the conservation of the species. The estimated land ownership for areas 
within the proposed critical habitat boundaries is approximately 1,033 
ha (2,553 ac) of private lands and 1,070 ha (2,645 ac) of FS lands. 
These estimates reflect the gross total area of proposed critical 
habitat and not the net acreage containing the primary constituent 
elements. We do not currently have sufficient data, due to limited 
access to private land, to estimate the actual acreage within the 
boundaries of proposed critical habitat. We believe that about 1 
percent (5,198 out of 34,560 ac) of the area we are proposing as 
critical habitat may contain the primary constituent elements. 
Estimates made for this proposal could differ from estimates in any 
final designation due to changes in the information available or 
improved calculation methods.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing and designation of critical 
habitat encourages and results in public awareness and conservation 
actions by Federal, State, and local agencies, private organizations, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the states and requires that the we carry out recovery 
actions for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities are discussed, 
in part, below.
    Listing of this butterfly would authorize development of a recovery 
plan for the butterfly. Such a plan would identify both State and 
Federal efforts for conservation of the butterfly and establish a 
framework for agencies and stakeholders to coordinate activities and 
cooperate with each other in conservation efforts. The plan would set 
recovery priorities and describe site-specific management actions 
necessary to achieve conservation and survival of the Sacramento 
Mountains checkerspot butterfly.

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Fish and Wildlife Service, to evaluate their actions with respect to 
any species that is proposed or listed as endangered or threatened and 
with respect to its critical habitat, if any is designated or proposed. 
Regulations implementing this interagency cooperation provision of the 
Act are codified at 50 CFR part 402. Section 7(a)(4) requires Federal 
agencies to confer with us on any action that is likely to jeopardize 
the continued existence of a proposed species or result in destruction 
or adverse modification of proposed critical habitat. Conference 
reports provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. We 
may adopt the formal conference report as the biological opinion when 
the critical habitat is designated, if no significant new information 
or changes in the action alter the content of the opinion (see 50 CFR 
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Such consultation would result in 
a biological opinion from us as to whether the proposed action would 
likely jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to the species or destruction or adverse 
modification of its critical habitat, we also provide reasonable and 
prudent alternatives to the project, if any are identifiable. 
Reasonable and prudent alternatives are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that we believe would avoid jeopardizing 
the species or the destruction or adverse modification of critical 
habitat. Reasonable and prudent alternatives can vary from slight 
project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Activities on Federal lands that may affect the Sacramento 
Mountains checkerspot butterfly or its critical habitat will require 
section 7 consultation. Activities on private lands requiring a permit 
from a Federal agency, such as a permit from the FS or from us (e.g., 
section 10(a)(1)(B) permits) or some other Federal action, including 
funding (e.g., Federal Highway Administration or Department of 
Agriculture Title IV Wildfire Suppression, Hazardous Fuels Reduction, 
or Rehabilitation projects, etc) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal lands that are not 
federally funded or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat those activities 
involving a Federal action that may destroy or adversely modify such 
habitat or that may be affected by such designation. Activities that 
may destroy or adversely modify critical habitat include those that 
alter the primary constituent elements to the extent that the value of 
critical habitat for both the survival and recovery of the Sacramento 
Mountains checkerspot butterfly is appreciably diminished. We note that 
such activities may also jeopardize the continued existence of the 
species. Actions authorized, funded, or carried out by a Federal agency 
that appreciably degrade suitable habitat, deter the use of suitable 
habitat areas by the Sacramento Mountains checkerspot butterfly, or 
otherwise affect the species require consultation under section 7 of 
the Act. Such activities may include, but are not limited to, the 
following--habitat restoration activities; activities associated with 
timber harvesting; livestock grazing and associated management 
activities; recreational activities or improvements; road or power line 
maintenance or construction; trail maintenance; fire suppression and 
fuel reduction; off-road vehicle management; and sale, exchange, or 
lease of Federal land containing suitable habitat. Some activities, for 
example, timber harvesting, thinning, or prescribed burning may benefit 
the species by creating or maintaining non-forested openings, as well 
as reducing conifer seed production and establishment or encroachment 
of conifer seedlings. However, these types

[[Page 46590]]

of activities need to be carefully planned because they also have the 
potential for adverse effects on the Sacramento Mountains checkerspot 
    Conservation of this butterfly is consistent with some ongoing 
activities at localities that support the species; however, listing of 
the species and designating critical habitat may entail consultation in 
regard to activities taking place on Federal lands, such as those of 
the FS. We believe that listing the Sacramento Mountains checkerspot 
butterfly and designation of critical habitat could affect Federal 
agency activities including, but not limited to:
    (1) Sale, exchange, or lease of lands owned by the FS;
    (2) Regulation of grazing, recreation, off-road vehicle management, 
or timber management by the FS;
    (3) Funding and implementation of disaster relief projects by the 
Federal Emergency Management Agency, including vegetation clearing to 
reduce the risk of catastrophic wildfire;
    (4) Funding and regulation of new road construction by the Federal 
Highway Administration or State highway activity implemented by the 
State and partly funded by the Federal government, including highway 
maintenance activities, such as roadside vegetation control;
    (5) Funding of low-interest loans to facilitate the construction of 
low income housing by the Department of Housing and Urban Development;
    (6) Clearing of vegetation or fuel reduction by the FS; and
    (7) Issuance of section 10(a)(1)(B) permits by the Fish and 
Wildlife Service for Habitat Conservation Plans.
    The Act and its implementing regulations found at 50 CFR 17.21, 
17.22, and 17.23 set forth a series of general prohibitions and 
exceptions that apply to all endangered wildlife. With respect to 
animal species listed as endangered, all prohibitions of section 
9(a)(1) of the Act, implemented by 50 CFR 17.21, apply. These 
prohibitions, in part, make it illegal with respect to any endangered 
animal for any person subject to the jurisdiction of the United States 
to import or export; transport in interstate or foreign commerce in the 
course of a commercial activity; sell or offer for sale in interstate 
or foreign commerce; or take (includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, or collect--or attempt any of these). Certain 
exceptions apply to our agents and State conservation agencies.
    The Act and 50 CFR 17.22 and 17.23 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered animal species under certain circumstances. Such permits are 
available for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    Section 10(a) of the Act authorizes us to issue permits for the 
taking of listed species incidental to otherwise lawful activities. 
Incidental take permit applications must be supported by a habitat 
conservation plan (HCP) that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the requested incidental take. Currently, no approved 
HCPs cover the Sacramento Mountains checkerspot butterfly or its 
habitat. However, we expect critical habitat may be used as a tool to 
help identify areas within the range of the Sacramento Mountains 
checkerspot butterfly that are most critical for the conservation of 
the species. We will encourage development of HCPs for such areas on 
non-Federal lands because we consider HCPs to be one of the most 
important methods through which non-Federal landowners can resolve 
endangered species conflicts. We will provide technical assistance and 
work closely with applicants throughout development of HCPs to help 
identify special management considerations for the Sacramento Mountains 
checkerspot butterfly. We intend for HCPs to provide a package of 
protection and management measures sufficient to address the 
conservation needs of the species.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify to the maximum extent practicable at the 
time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of this listing on 
proposed and ongoing activities within the species' range. We believe 
that, based on the best available information, the following actions 
are not likely to result in a violation of section 9, provided these 
actions are carried out in accordance with existing regulations and 
permit requirements:
    (1) Possession, delivery, or movement, including interstate 
transport and import into or export from the United States, involving 
no commercial activity, of dead specimens of this taxon that were 
collected prior to the date of publication in the Federal Register of a 
final regulation adding this taxon to the list of endangered species;
    (2) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, non-forested area management, 
private or commercial development, recreational trail or forest road 
development or use, road construction, prescribed burns, timber 
harvest, pesticide/herbicide application, or pipeline or utility line 
construction crossing suitable habitat) when such activity is conducted 
in accordance with a biological opinion from us on a proposed Federal 
    (3) Low-impact, infrequent, dispersed human activities on foot or 
horseback (e.g., bird watching, sightseeing, backpacking, hunting, 
photography, camping, hiking);
    (4) Activities on private lands that do not result in the take of 
Sacramento Mountains checkerspot butterfly, including those activities 
involving loss of habitat, such as normal landscape activities around 
your own personal residence, proper grazing management, road 
construction that avoids butterfly habitat, pesticide/herbicide 
application consistent with label restrictions; and
    (5) Activities conducted under terms of a valid permit issued by us 
pursuant to section 10(a)(1)(A) and 10(a)(1)(B) of the Act.
    We believe that the following actions involving Sacramento 
Mountains checkerspot butterfly could result in a violation of section 
9; however, possible violations are not limited to these actions alone:
    (1) Capture (i.e., netting), survey, or collection of specimens of 
this taxon without a permit from us pursuant to section 10(a)(1)(A) of 
the Act;
    (2) Incidental take of Sacramento Mountains checkerspot butterfly 
without a permit pursuant to section 10(a)(1)(B) of the Act;
    (3) Sale or purchase of specimens of this taxon, except for 
properly documented antique specimens of this taxon at least 100 years 
old, as defined by section 10(h)(1) of the Act;
    (4) Use of pesticides/herbicides that are in violation of label 
restrictions resulting in take of Sacramento Mountains checkerspot 
    (5) Unauthorized release of biological control agents that attack 
any life stage of this taxon;
    (6) Removal or destruction of the native food plants being utilized 
by Sacramento Mountains checkerspot butterfly, defined as Penstemon 
neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that 
are used by this taxon that results in harm to this butterfly; and
    (7) Destruction or alteration of Sacramento Mountains checkerspot 
butterfly habitat by grading, leveling, plowing, mowing, burning, 
herbicide or pesticide spraying, intensively grazing,

[[Page 46591]]

or otherwise disturbing non-forested openings that result in the death 
of or injury to eggs, larvae, or adult Sacramento Mountains checkerspot 
butterflies through significant impairment of the species essential 
breeding, foraging, sheltering, or other essential life functions.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act or destruction or adverse 
modification of critical habitat should be directed to the Field 
Supervisor of the New Mexico Ecological Services Field Office (see 
ADDRESSES section).
    Requests for copies of the regulations concerning listed wildlife 
or inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services, Endangered Species 
Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505/
248-6649; facsimile 505/248-6922).

Relationship of Critical Habitat to Incidental Take Permits Issued 
Under Section 10

    As stated earlier, there are no approved HCPs within the proposed 
critical habitat designation. However, future HCPs are probable. In the 
event that future HCPs covering the Sacramento Mountains checkerspot 
butterfly are developed within the proposed critical habitat, we will 
work with applicants to ensure the HCPs provide for protection and 
management of habitat areas essential for the conservation of the 
butterfly, while directing development and habitat modification to 
nonessential areas of lower habitat value. The HCP development process 
provides an opportunity for more intensive data collection and analysis 
regarding the use of particular habitat areas by the Sacramento 
Mountains checkerspot butterfly. The process also enables us to conduct 
detailed evaluations of the importance of such lands to the long-term 
survival of the species in the context of constructing a biologically 
configured system of interlinked habitat blocks. We fully expect that 
HCPs undertaken by local jurisdictions (e.g., Otero County or the 
Village of Cloudcroft) and other parties will identify, protect, and 
provide appropriate management for those specific lands within the 
boundaries of the plans that are essential for the long-term 
conservation of the species.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species. We will conduct 
a robust economic analysis on the effects of the proposed critical 
habitat designation prior to a final determination. We will conduct an 
analysis that complies with the ruling by the Tenth Circuit Court of 
Appeals in New Mexico Cattle Growers Association, et al. v. U.S. Fish 
and Wildlife Service. When the draft economic analysis is completed, we 
will announce its availability with a notice in the Federal Register, 
and we will reopen the comment period at that time to accept comments 
on the economic analysis or further comment on the proposed rule.

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. Final promulgation of the 
regulations on Sacramento Mountains checkerspot butterfly will take 
into consideration any comments and any additional information we 
receive during the comment period, and such communications may lead to 
a final regulation that differs from this proposal. We particularly 
seek comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat for the Sacramento Mountains checkerspot 
butterfly as provided by section 4 of the Act, including whether the 
benefits of designation will outweigh any threats to the species due to 
    (2) Depending on additional status information received (e.g., new 
localities) and the development and implementation of conservation 
agreements or management plans to reduce the threats to the Sacramento 
Mountains checkerspot butterfly, whether the development of a special 
rule under section 4(d) of the Act would promote conservation of this 
    (3) Biological, commercial, trade, or other relevant data 
concerning threats (or lack thereof) to the Sacramento Mountains 
checkerspot butterfly;
    (4) Specific information on the amount, range, and distribution of 
Sacramento Mountains checkerspot butterflies and their habitat, and 
what habitat is essential to the conservation of the species and why;
    (5) The location of any additional localities of Sacramento 
Mountains checkerspot butterfly;
    (6) Current or planned activities in the subject area and their 
possible impacts on this taxon;
    (7) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (8) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
unincorporated communities, small entities (e.g., businesses), or 
individuals; and
    (9) Economic and other values associated with designating critical 
habitat for the Sacramento Mountains checkerspot butterfly such as 
those derived from non-consumptive uses (e.g., hiking, camping, bird-
watching, enhanced watershed protection, improved air quality, 
increased soil retention, ``existence values,'' or reductions in 
administrative costs).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comment. However, we 
will not consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. All 
comments must be received in our New Mexico Ecological Services Field 
Office by November 5, 2001.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested by October 22, 2001. Should

[[Page 46592]]

a public hearing be requested, then we will announce the date, time, 
and place for the hearing in the Federal Register and local newspapers 
at least 15 days prior to the hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
Supplementary Information section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to the Field Supervisor, New Mexico 
Ecological Services Field Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB), under Executive Order 12866.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas should be excluded pursuant to section 4 of 
the Act, we believe that this rule will not have an annual economic 
effect of $100 million or more or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. 
Under the Act, critical habitat may not be destroyed or adversely 
modified by a Federal agency action; the Act does not impose any 
restrictions related to critical habitat on non-Federal persons unless 
they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency. The Act prohibits us from considering 
the economic impacts that may result from listing the species.
    (b) This rule, if finalized, will not create inconsistencies with 
other agencies' actions. As discussed above, Federal agencies would be 
required to ensure that their actions do not destroy or adversely 
modify designated critical habitat of the Sacramento Mountains 
checkerspot butterfly. Because of the potential for impacts on other 
Federal agencies activities, we will review this proposed action for 
any inconsistencies with other Federal agency actions.
    (c) We believe that this rule, if finalized, will not materially 
affect entitlements, grants, user fees, loan programs, or the rights 
and obligations of their recipients, except those involving Federal 
agencies which would be required to ensure that their activities do not 
destroy or adversely modify designated critical habitat. As discussed 
above, we do not anticipate that the adverse modification prohibition 
(from critical habitat designation) will have any significant economic 
effects, but will wait until completion of the economic analysis to 
fully evaluate expected effects.
    (d) OMB has determined that the critical habitat portion of this 
rule will raise novel legal or policy issues and, as a result, this 
rule has undergone OMB review. The listing portion of this rule will 
not raise novel legal or policy issues. The proposed rule follows the 
requirements for proposing to list a species and determining critical 
habitat contained in the Endangered Species Act.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. The following discussion explains our determination.
    The areas we are proposing as critical habitat are already 
occupied, or used by the Sacramento Mountains checkerspot butterfly as 
corridors for movement between populations or suitable habitat. As a 
result, Federal agencies funding, permitting, or implementing 
activities in these areas will be required to consult with us under 
section 7 of the Act, to avoid jeopardizing the continued existence of 
this species, if the species becomes listed under the Act. While the 
designation of critical habitat will require that agencies ensure, 
through section 7 consultation, that their activities do not destroy or 
adversely modify critical habitat, for the reasons discussed above we 
do not believe this will result in any additional regulatory burden on 
the Federal agencies or their applicants. As a result, this proposed 
rule, if finalized, would not result in a significant economic burden 
on Federal agencies or their applicants. Additionally, the majority of 
businesses that support the approximately 700 residents living in the 
Village of Cloudcroft and an additional 2,300 people living in the 
small communities in the mountain area, are located within the limits 
of the Village of Cloudcroft. These businesses support tourism and the 
retirement community, which are the main sources of income for the 
Village of Cloudcroft (Clements and Sem 1997). The Village of 
Cloudcroft contains existing man-made structures and other features not 
containing one or more of the primary constituent elements are not 
considered critical habitat
    Therefore, we are certifying that the proposed designation of 
critical habitat in this rule is not expected to have a significant 
adverse impact on a substantial number of small entities. Thus, no 
regulatory flexibility analysis is necessary.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Although this rule is a significant regulatory action under Executive 
Order 12866, it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat or take the species under section 

[[Page 46593]]

    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act).


    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. This critical habitat rule will 
not increase or decrease the restrictions on private property 
concerning take of the Sacramento Mountains checkerspot butterfly. We 
do not anticipate that property values will be affected by critical 
habitat designation, but will analyze the effects in our economic 


    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from and coordinated development of this proposal 
with appropriate resource agencies in New Mexico (i.e., during the 90-
day finding comment period). We will continue to coordinate any future 
listing decisions or designation of critical habitat for the Sacramento 
Mountains checkerspot butterfly with the appropriate agencies. The 
designation may have some benefit to these governments in that the 
areas essential to the conservation of the species would be clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species would be specifically identified.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections 3(a) and 
3(b)(2) of the Order. We propose to list a species and designate 
critical habitat in accordance with the provisions of the Act. The rule 
uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs of the Sacramento Mountains 
checkerspot butterfly.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit, such as that of the 
Sacramento Mountains checkerspot butterfly, pursuant to the Tenth 
Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a 
NEPA analysis for critical habitat designation. We will notify the 
public of the availability of the draft environmental assessment for 
this proposal.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and the Department of the 
Interior's requirement at 512 DM 2, we understand that recognized 
Federal Tribes must be related to on a Government-to-Government basis. 
We are not aware of any Tribal lands essential for the conservation of 
the Sacramento Mountains checkerspot butterfly. Therefore, we are not 
proposing to designate critical habitat for the Sacramento Mountains 
checkerspot butterfly on Tribal lands. Additionally, the proposed 
designation does not contain any lands that we have identified as 
impacting Tribal trust resources

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section).


    The primary author of this proposed rule is Eric Hein, New Mexico 
Ecological Services Field Office (see ADDRESSES section) (telephone 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201--4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under ``INSECTS'', to the List of Endangered and Threatened 

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                      Species                                               Vertebrate
----------------------------------------------------                     population where                                                      Special
                                                       Historic range      endangered or       Status     When listed    Critical  habitat      rules
          Common name              Scientific name                           theatened

                   *                  *                  *                  *                  *                  *                  *

[[Page 46594]]

                   *                  *                  *                  *                  *                  *                  *
Butterfly, Sacramento Mountains  Euphydryas anicia   U.S.A. (NM)......  NA................  E             ...........  17.95(i)............           NA
 checkerspot.                     cloudcrofti.

                   *                  *                  *                  *                  *                  *                  *

    3. Amend Sec. 17.95(i) by adding critical habitat for the 
Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti) in the same alphabetical order as this species occurs in 
Sec. 17.11(h), to read as follows:

Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *

Sacramento Mountains Checkerspot Butterfly (Euphydryas anicia 

    1. Proposed critical habitat is depicted for Otero County, New 
Mexico, on the maps below.
    2. Within these areas, the primary constituent elements of 
critical habitat for the Sacramento Mountains checkerspot butterfly 
are: (1) Levation between 2,450 and 2,750 m (8,000 and 9,000 ft) 
within the mixed-conifer forest (Lower Canadian Zone) and within an 
approximate 140 square km (54 square mi) polygon centered around the 
Village of Cloudcroft, Otero County, New Mexico, south of the 
Mescalero Apache Nation boundary; (2) drainages, meadows, or 
grasslands; (3) supporting the known food plants New Mexico 
penstemon (Penstemon neomexicanus), sneezeweed (Helenium hoopesii), 
or valerian (Valeriana edulis); (4) less than 5 percent canopy 
cover; and (5) composed of plants such as arrowleaf groundsel 
(Senecia triangularis), curly-cup gumplant (Grindelia squarrosa), 
figworts (Scrophularia sp.), penstemon (Penstemon sp.), skyrocket 
(Ipomopsis aggregata), milkweed (Asclepias sp.), Arizona rose (Rosa 
woodsii), or Wheeler's wallflower (Erysimum capitatum). Areas 
adjacent to or linking areas that have some or all of the above 
elements and are sufficient to provide for dispersal between areas 
of butterfly habitat are necessary for the conservation of the 
species and thus are proposed as critical habitat. Habitat that 
provides for dispersal may not support all of the other primary 
constituent elements.
    3. Existing man-made structures and other features not 
containing one or more of the primary constituent elements are not 
considered critical habitat.
    Map 1: Otero County, New Mexico. From USGS 7.5' quadrangle map 
Cloudcroft, New Mexico, New Mexico Principal Meridian: T.15 S., R.13 
E., sects 19-35; T.15 S., R.12 E., sects 20-29, 32-36; T.16 S., R.11 
E., sects 1-2, 11-14; T.16 S., R.12 E., sects 1-11, 14-18.


[[Page 46595]]


* * * * *

    Dated: August 30, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-22340 Filed 9-5-01; 8:45 am]