[Federal Register: November 29, 2001 (Volume 66, Number 230)]
[Rules and Regulations]               
[Page 59537-59545]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI18

Endangered and Threatened Wildlife and Plants; Emergency Rule To 
List the Carson Wandering Skipper as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), exercise our 
emergency authority to list the Carson wandering skipper 
(Pseudocopaeodes eunus obscurus) in California and Nevada as endangered 
under the Endangered Species Act of 1973, as amended (Act). The Carson 
wandering skipper is currently known from only two populations, one in 
Washoe County, Nevada, and one in Lassen County, California. The 
subspecies is found in grassland habitats on alkaline substrates.
    Extinction could occur from naturally occurring events or other 
threats due to the small, isolated nature of the remaining populations 
of the Carson wandering skipper. These threats include habitat 
destruction, degradation, and fragmentation due to agricultural 
practices (such as excessive livestock grazing and wetland habitat 
modification), urban development, and non-native plant invasion. Other 
threats include collecting, livestock trampling, water exportation 
projects, road construction, recreation, pesticide drift, and 
inadequate regulatory mechanisms. We find these threats constitute 
immediate and significant risk to the Carson wandering skipper.
    This emergency rule provides Federal protection pursuant to the Act 
for the Carson wandering skipper for a period of 240 days. A proposed 
rule to list the Carson wandering skipper as endangered is published 
concurrently with this emergency rule in this issue of the Federal 
Register in the proposed rule section.

DATES: This emergency rule becomes immediately effective November 29, 
2001 and expires July 29, 2002.

ADDRESSES: The complete file for this emergency rule is available for 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 
Financial Boulevard, Suite 234, Reno, Nevada 89502.

FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, 
Nevada Fish and Wildlife Office (see ADDRESSES section; telephone 775/
861-6300; facsimile 775/861-6301), or Wayne White, Field Supervisor, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, 
Sacramento, California 95825-1846 (telephone 916/414-6000; facsimile 



    The genus Pseudocopaeodes in the family Hesperiidae and subfamily 
Hesperiinae (grass skippers) contains only one species, Pseudocopaeodes 
eunus. Members of Hesperiidae are called skippers because of their 
powerful flight. While their flight may be faster than other 
butterflies, they

[[Page 59538]]

seldom fly far and few species migrate (Scott 1986).
    The species Pseudocopaeodes eunus consists of five subspecies. The 
Carson wandering skipper (Pseudocopaeodes eunus obscurus) is locally 
distributed in grassland habitats on alkaline substrates in eastern 
California and western Nevada. Pseudocopaeodes eunus eunus is located 
in western desert areas of southern California; Pseudocopaeodes eunus 
alinea is found in eastern desert areas of southern California and in 
southern Nevada; and P. eunus flavus is found in western and central 
Nevada (Brussard 2000). In 1998, what is believed to be an undescribed 
fifth subspecies of P. eunus was found in Mono County, California. 
Efforts to formally describe this fifth subspecies are being conducted 
by Mr. George Austin of the Nevada State Museum and Historical Society 
in Las Vegas, Nevada (Brussard 2000). Except for the Carson wandering 
skipper, none of these other subspecies of P. eunus have common names.
    The Carson wandering skipper was collected in 1965 by Peter Herlan, 
Nevada State Museum, at a location north of U.S. Highway 50, Carson 
City, Nevada. It was first described by George Austin and John Emmel 
(1998), based on 51 adult specimens. The body is tawny orange above 
except for a narrow uniform border and black veins near the border at 
the outer edge of the wing. The upper forewing and hindwing are orange 
with darker smudging. The lower surface of the hindwings is pale creamy 
orange with two creamy rays extending form the base of the wing to its 
margin. There may be dusky suffusions along the wing veins (Howe 1975). 
Males tend to average 13.1 millimeters (mm) (0.52 inches (in)) in size 
(ranging from 12.0-13.9 mm (0.47-0.55 in)). Females average 14.7 mm 
(0.58 in) in size, and range from 13.4-15.6 mm (0.53-0.61 in). The 
female's dorsum (upper surface) is similar to the male's but with 
heavier dusting on the discal (relating to a disk) area of the 
hindwing. The female's venter (undersurface of the abdomen) is similar 
in appearance to the male's.
    The Carson wandering skipper can be distinguished from the other 
subspecies of Pseudocopaeodes eunus by a combination of several 
characteristics. The Carson wandering skipper is browner and less 
intensely orange on its dorsal surface (the insect's back), with 
thicker black coloring along the veins, outer margin, and on both basal 
surfaces; and it is duller, overall, with an expanse of bright yellow 
and orange ground color, especially on the ventral surface, interrupted 
by broadly darkened veins (Austin and Emmel 1998).
    Carson wandering skipper females lay their cream-colored eggs on 
salt grass (Distichlis spicata var. stricta), the larval host plant for 
the subspecies (Scott 1986). This is a common plant species in the 
saltbush-greasewood community of the intermountain west. Salt grass 
usually occurs where the water table is high enough to keep its roots 
saturated for most of the year (West 1988, as cited in Brussard et al. 
    No other observations have been made of the early life stages of 
the Carson wandering skipper. However, the Carson wandering skipper's 
life cycle is likely similar to other species of Hesperiinae. Larvae 
(immature, wingless, often worm-like form) of the subfamily Hesperiinae 
live in silked-leaf nests, and some species make their nests partially 
underground. Larvae are usually green or tan and have a dark head and 
black collar. Pupae (intermediate stage between larvae and adult) 
generally rest in the nest, and larvae generally hibernate (Scott 
1986). Some larvae may be able to extend their period of diapause 
(period of dormancy) for more than one season depending on the 
individual and environmental conditions (Dr. Peter Brussard, University 
of Nevada, Reno, pers. comm., 2001). Carson wandering skippers may 
differ from other Pseudocopaeodes eunus in producing only one brood per 
year during June to mid-July (Austin and Emmel 1998). The other 
subspecies produce a second brood in late July to late September 
(Austin and Emmel 1998). Additional research is needed to confirm that 
the Carson wandering skipper produces only one brood per year, however.
    Little is known about the specific habitat requirements of the 
Carson wandering skipper beyond the similarities recognized among known 
locations of this subspecies. As a result, the habitat requirements 
stated could apply to the species as a whole (Brussard et al. 1999). 
Habitat requirements for butterflies in general include: (1) Presence 
of a larval host plant; (2) appropriate thermal environment for larval 
development and diapause, and adult mate location and oviposition (to 
lay eggs); and (3) a nectar source (Brussard et al. 1999). Based on 
commonalities of known, occupied sites, suitable habitat for the Carson 
wandering skipper has the following characteristics: elevation of less 
than 1,524 meters (5,000 feet); located east of the Sierra Nevada; 
presence of salt grass; open areas near springs or water; and 
geothermal activity.
    There are no data in the literature on the micro-habitat 
requirements of the Carson wandering skipper (Brussard et al. 1999). 
However, it is likely that suitable larval habitat is related to the 
water table. Many salt grass areas are inundated in the spring, and 
larvae do not develop under water. During wet years, larval survival 
depends on salt grass areas being above standing water. In dry years, 
survival is probably related to the timing of the host plant senescence 
(aging). Therefore, micro-topographic variation (slight irregularities 
of a land surface) is probably important for larval survival because it 
provides a greater variety of appropriate habitat over time (Brussard 
et al. 1999). Since the few historic collections of the Carson 
wandering skipper have been near hot springs, it is possible this 
subspecies may require the higher water table or ground temperatures 
associated with these areas (Brussard et al. 1999) to provide the 
appropriate temperatures for successful larval development (Brussard et 
al. 1999).
    Adult Carson wandering skippers require nectar for food. Few plants 
that can serve as nectar sources grow in the highly alkaline soils 
occupied by salt grass. For a salt grass area to be appropriate habitat 
for the Carson wandering skipper, an appropriate nectar source must be 
present and in bloom during the flight season. Plant species known to 
be used by the Carson wandering skipper for nectar include a mustard 
(Thelypodium crispum), racemose golden-weed (Pyrrocoma racemosus), and 
slender birds-foot trefoil (Lotus tenuis) (Brussard et al. 1999). If 
alkaline-tolerant plant species are not present, but there is a fresh-
water source to support alkaline-intolerant nectar sources adjacent to 
the larval host plant, the area may provide suitable habitat (Brussard 
et al. 1999).
    No information is available on historic population numbers of the 
Carson wandering skipper. It is possible that a fairly large population 
of the subspecies occurred from the Carson Hot Springs site to the 
Carson River. Outflow from the springs likely supported a water table 
high enough to support salt grass and a variety of nectar sources. 
Urban development, water diversions, and wetland manipulations have 
eliminated most of the habitat type in this area (Brussard 2000).
    Likewise, it is possible that appropriate habitat once existed for 
the Carson wandering skipper between the existing populations in Lassen 
County, California, and Washoe County, Nevada (P. Brussard, pers. 
comm., 2001). The population locations are approximately

[[Page 59539]]

120 kilometers (km) (75 miles (mi)) apart, and while the dispersal 
capability of the Carson wandering skipper is unknown, it is unlikely 
that any current genetic exchange occurs between the two populations. 
Over time, the habitat between the two populations has become 
unsuitable and fragmented due to agriculture and development, and the 
two populations have become isolated from one another. The subspecies 
likely represents a remnant of a more widely distributed complex of 
populations in the western Lahontan basin (Brussard et al. 1999).

Population Sites

    Historically, population locations included the type locality found 
near the Carson Hot Springs in Carson City, Douglas County, Nevada, and 
one other site in Lassen County, California. When described in Austin 
and Emmel (1998), specimens from two additional sites, Dechambean Hot 
Springs at Mono Lake and Hot Springs, Mono County, were assigned, with 
uncertainty due to their small numbers, to the Carson wandering skipper 
subspecies. Based on 1998 surveys (Brussard et al. 1999), these Mono 
County specimens would be more appropriately assigned to the currently 
undescribed subspecies (George Austin, Nevada State Museum and 
Historical Society, pers. comm., 2001).
    Surveys conducted in 1998 throughout potential, suitable habitat in 
Nevada and California found two new nectar sites occupied by the Carson 
wandering skipper. One site was located in Washoe County, Nevada, and 
the other site (two locations) was found in Lassen County, California. 
The site in Lassen County could be a rediscovery of the area where 
skippers were collected in the 1970s; however, the collection record is 
too vague to be certain (P. Brussard, pers. comm., 2001). Despite 
additional, more limited attempts at finding other populations in 2000 
and 2001, none have been found (P. Brussard, pers. comm., 2000; Rebecca 
Niell, University of Nevada-Reno (UNR), pers. comm., 2001).

Carson City, Douglas County Site

    The Carson City site was surveyed for the Carson wandering skipper 
by the UNR from 1997 to 2001. Only five individuals (four males and one 
female) were observed during surveys in June 1997. One possible 
sighting of a Carson wandering skipper occurred at a project site in 
1998 (Brussard et al. 1999). No individuals were observed at this site 
in 1999 or in 2000 (P. Brussard, pers. comm., 2000). In 2001, searches 
were again conducted with no individuals observed (R. Niell, pers. 
comm., 2001). Habitat changes resulting from drainage manipulations for 
residential and commercial development are likely responsible for this 
possible extirpation (Brussard et al. 1999). Construction of a freeway 
bypass will eliminate and fragment the remaining habitat (5 ha (12 ac)) 
of the Carson wandering skipper at this site.
    An area just south of the Carson Hot Springs site was also surveyed 
in 1997 and 1998. Twelve hectares (ha) (30 acres (ac)) of potential 
habitat were present (Paul Frost, NDOT, in litt. 1998), however, no 
Carson wandering skippers were found during the surveys (Brussard et 
al. 1999). Approximately 5 ha (12 ac) of this potential habitat will be 
impacted by the construction of the Carson Highway 395 bypass (Alan 
Jenne, Nevada Department of Transportation (NDOT), pers. comm., 2001).
    Because of habitat degradation and fragmentation, the Carson 
wandering skipper has probably been extirpated from the Carson Hot 
Springs site.

Washoe County Site

    The nectar site in Washoe County occurs on Bureau of Land 
Management (BLM) administered lands and adjacent private lands. This 
nectar site is estimated to be about 10 to 12 ha (25 to 30 ac), with 
approximately half of the site occurring on BLM lands and half on 
private lands (Brussard et al. 1999). The nectar source at this site 
(racemose golden-weed) is abundant, as is salt grass. A few Carson 
wandering skippers were seen approximately 1.6 km (1 mi) northeast of 
the nectar site. This suggests the Carson wandering skipper may occur 
in small numbers elsewhere in the valley (Brussard et al. 1999). 
Surveys were not conducted in 1999 or 2000 at this site. In 2001, 
searches of this area were made to confirm the Carson wandering 
skipper's presence. Five individuals were found at the nectar site on 
BLM lands; private lands were not searched (Virginia Rivers, Truckee 
Meadows Community College, pers. comm., 2001).

Lassen County Site

    The new site found in 1998 in Lassen County, California, occurs on 
public lands (one location) managed by the California Department of 
Fish and Game (CDFG) and private lands (one location). In 1998, two 
individuals were observed on the public lands, while several 
individuals were observed at a nectar site less than 2 ha (5 ac) in 
size on the private lands. UNR did not conduct surveys at this site in 
1999. Surveys were conducted in 2000, and, while several individuals 
were seen on the private property nectar site location, none were seen 
on the public lands. Salt grass is abundant in this area but the 
attraction appears to be the nectar source, which is slender birds-foot 
trefoil. In 2001, searches were conducted to confirm the Carson 
wandering skipper's presence. A few sightings (three one day and four 
on another day) were observed on the private property nectar site, but 
again, none were observed on the nearby public lands (V. Rivers, pers. 
comm., 2001).
    In 1998, collections of four of the Pseudocopaeodes eunus 
subspecies were made for a genetic study. In addition to collections 
made of the Carson wandering skipper at the Washoe County site (24) and 
the Lassen County site (25) by UNR researchers, individuals of three 
other P. eunus subspecies (173) were also collected. Pseudocopaeodes 
eunus eunus individuals were not collected due to their scarcity. 
Genetic analysis was based on an analysis of allozyme (i.e., protein) 
variation (Brussard et al. 1999). Levels of heterozygosity (genetic 
variability) were low in all but two populations of P. eunus, and the 
average heterozygosity over the nine populations was also low. The low 
levels of heterozygosity in many of the populations is likely due to 
repeated extirpation events, recolonizations, and population and 
genetic bottlenecks throughout the Holocene geologic period to present 
time (Brussard et al. 1999).

Previous Federal Action

    On May 22, 1984, we published an invertebrate wildlife Notice of 
Review in the Federal Register (49 FR 21664) designating 
Pseudocopaeodes eunus eunus as a category 2 candidate. Category 2 
candidates were those species for which we had information indicating 
that listing may be appropriate, but for which additional information 
was needed to support the preparation of a proposed rule. The 
population known as the Carson wandering skipper was included in P. 
eunus eunus; however, in early 1995, we were informed by Mr. George 
Austin that the Carson wandering skipper was a distinct subspecies, not 
yet described (G. Austin, pers. comm., 1995). On February 28, 1996, the 
designation of category 2 species as candidates for listing under the 
Act (61 FR 7596) was discontinued.
    Following an updated assessment of the status of the Carson 
wandering skipper and its increased vulnerability to threats in 1998, 
we included this taxon as a candidate species in the

[[Page 59540]]

Notice of Review published in the Federal Register on October 25, 1999 
(64 FR 57533).
    On November 10, 2000, we received a petition dated November 9, 
2001, from Mr. Scott Hoffman Black, Executive Director, The Xerces 
Society, to emergency list the Carson wandering skipper as an 
endangered species throughout its range, and to designate critical 
habitat concurrent with the listing. We responded in a letter dated 
February 20, 2001, that we would not publish a petition finding for the 
Carson wandering skipper because it was already listed as a candidate 
species in the most recent Notice of Review (64 FR 57533). This meant 
that we had already determined that its listing was warranted. We 
indicated we would continue to monitor the status of the Carson 
wandering skipper, and if an emergency listing was warranted, we would 
act accordingly, or list the species when not precluded by higher 
    In addition, the petitioner requested emergency listing of the 
entire species. We responded in our February 20, 2001, letter to the 
petitioner that we did not believe that an emergency situation existed 
at the time for the remaining subspecies, other than the Carson 
wandering skipper. Surveys for Pseudocopaeodes eunus spp. were 
conducted in 1998 throughout potential, suitable habitat in Nevada and 
California (Brussard et al. 1999). Of the 78 sites (48 new; 30 
historic) visited, P. eunus spp. were found at 14 sites. Of the 30 
historic sites, P. eunus spp. were found at 8 sites. Seven areas (2 in 
Nevada; 5 in California) which were historic sites for this species 
were not visited. We conducted additional status surveys in 2001 for 
these other subspecies of P. eunus, and results of these surveys are 
pending. These surveys will assist in more appropriately determining 
their status. If our ongoing status review indicates a listing of the 
remaining subspecies is warranted, we will act accordingly.
    On August 28, 2001, the Service reached an agreement with the 
Center for Biological Diversity, Southern Appalachian Biodiversity 
Project, and the California Native Plant Society to complete work on a 
number of species proposed for listing. Under this agreement, we will 
issue several final listing decisions, propose a number of other 
species for listing, and we will review three species for emergency 
listing, including the Carson wandering skipper (Center for Biological 
Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) (D.D.C.), entered by 
the Court on October 2, 2001).

Summary of Factors Affecting the Species

    Section 4 of the Act and the regulations (50 CFR part 424) issued 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal list. We may determine that a species 
is endangered or threatened due to one or more of the five factors 
described in section 4(a)(1) of the Act. These factors and their 
application to Carson wandering skipper are as follows.
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The primary cause of the decline 
of the Carson wandering skipper is loss of salt grass and wetland 
habitats from human activities, primarily agricultural uses and 
development. This includes habitat fragmentation, degradation, and loss 
due to agricultural uses (such as livestock over-grazing and wetland 
habitat modification), urban development, non-native plant invasion, 
road construction, water exportation projects with their subsequent 
change in water table levels and plant composition, and recreation. 
Threats at each known or historic site are discussed below.

Carson City, Douglas County Site

    Habitat at the original Carson City site has been greatly modified 
over time, and most of it was destroyed by construction of a shopping 
center (Brussard et al. 1999). Several years later, an extension of 
this population was discovered north of the original location (Brussard 
et al. 1999). The current site includes about 10 ha (24.7 ac) of known 
and potential Carson wandering skipper habitat (P. Frost, in litt. 
1998). Collections were made at this site from the late 1960s through 
the early 1990s, though population numbers were small (Austin and Emmel 
1998; Brussard et al. 1999). In the 1990s, additional urban development 
further reduced the remaining habitat, and the site is now completely 
surrounded by development. Adult Carson wandering skippers have not 
been observed at this location since 1997.
    The Carson wandering skipper has likely been extirpated from the 
Carson City site due to development and habitat changes resulting from 
drainage manipulations for residential and commercial development 
(Brussard et al. 1999). Not only has direct loss of habitat occurred, 
but adjacent development appears to have also impacted the groundwater 
table, and the salt grass community is being invaded with non-native, 
upland species such as cheatgrass (Bromus tectorum). Adjacent lands 
surrounding this site will continue to be developed for commercial and 
residential use.
    The remaining habitat at the type locality will also be fragmented 
or destroyed by construction of a freeway bypass and associated flood 
control facilities being planned by the NDOT. The bypass was approved 
and the right-of-way corridor was purchased several years ago. At the 
time, this was the only known site occupied by the Carson wandering 
skipper. The only suitable nectar source available during the Carson 
wandering skipper's flight season at this site was the native mustard, 
Thelypodium crispum (Brussard et al. 1999). Construction of the bypass 
began in 2000 and impacts to Carson wandering skipper habitat will 
likely occur in 2002 (Julie Ervin-Holoubek, NDOT, pers. comm., 2001). 
The alignment will impact approximately 2.4 ha (6 ac) of previously 
occupied habitat and about 8 ha (20 ac) of the potential habitat 
remaining at both areas north and south of U.S. 50 (P. Frost, in litt. 
1998). According to Brussard (2000) this will leave inadequate habitat 
to support a restored population.
    Habitat loss and modifications of the Carson City site have also 
occurred due to the construction of a wetland mitigation area in the 
early 1990s to mitigate for wetlands lost approximately 0.8 km (0.5 mi) 
southwest of this site. This site is located in a highly developed 
area, with recreational use by walkers and bikers in the remaining open 
area. The U.S. Army Corps of Engineers (Corps) issued a section 404 
permit on March 10, 1993, for a residential housing and golf course 
project, impacting about 2 ha (5 ac) of wetlands. Mitigation for these 
impacts involved the creation of 9 ha (22 ac) of intermittent, 
seasonal, and semi-permanent wetlands adjacent to the existing wetlands 
(Robert W. Junell, Corps, in litt. to Charles L. Macquarie, Lumos and 
Associates, Inc. 1993; Lumos and Associates, Inc. 1993). To date, this 
mitigation site has not met its objectives to provide high-value urban 
wetlands and enhance wetland function (Nancy Kang, Corps, in litt. to 
Dwight Millard, J.F. Bawden and Stanton Park Development 2001).

Washoe County Site

    Threats at the Washoe County site include excessive livestock 
grazing and trampling, residential development, increased potential 
recreational use, such as by off-road vehicles (ORV), a proposed water 
export project, and impacts associated with pesticide drift.

[[Page 59541]]

    Current grazing practices on BLM-administered lands at the Washoe 
County site allow for a November to March grazing season. Although this 
season of use avoids impacts to adult Carson wandering skipper nectar 
sources and salt grass during spring and summer, high livestock 
densities can cause larval mortality through trampling during the 
winter. On adjacent private lands, cattle densities and timing are not 
regulated, and cattle have access to nectar sources during the Carson 
wandering skipper's flight season. While the level of grazing on salt 
grass has not been measured at this site, cattle readily utilize this 
dominant forage species (Walt DeVaurs, BLM, pers. comm., 2001).
    Residential development is occurring in the area surrounding the 
Washoe County site. Increases in domestic wells could impact the water 
table in the area, resulting in changes to the salt grass community in 
the valley. As this area becomes more populated, fragmentation and 
degradation of the Carson wandering skipper's habitat is expected to 
increase through development and recreational activities. Also, public 
lands will likely see additional recreational use as the area becomes 
more developed.
    The Nevada State Engineer's Office recently approved change-in-use 
applications (agricultural to municipal and industrial use) (Hugh 
Ricci, Nevada Department of Conservation and Natural Resources, 
Division of Water Resources, in litt. 2001) for a private landowner 
plan to export water from this valley to a neighboring one. This 
project will involve the collection of up to 2,900 acre-feet per year 
of surface and ground water through a system of ditches, natural 
channels, diversion structures, collection facilities, and recovery 
wells. The recovered water will be treated and exported via pipeline to 
a neighboring valley (Stantec Consulting, Inc. 2000). Implementation of 
this project could result in the lowering of the water table in the 
valley and loss of the salt grass community upon which the Carson 
wandering skipper population at this site depends. In addition, the 
construction of facilities could result in direct impacts to Carson 
wandering skipper habitat in the valley.
    Another potential threat is pesticide drift from alfalfa fields 
located adjacent to the occupied nectar site. Pesticides are used to 
control pests such as aphids, cutworms, grasshoppers, and mites 
(Carpenter et al. 1998.). Pesticide drift from these fields to the 
nectar site could eliminate a large part of the Carson wandering 
skipper population (Brussard 2000).

Lassen County Site

    Threats at the Lassen County site include the invasion of the non-
native plant species tall whitetop (Lepidium latifolium), and excessive 
livestock grazing on host plants and trampling of larvae. A water 
development project, affecting the ground water table, is also of 
    Whitetop, which was first noted in 2000, has encroached onto the 
nectar site on private property and has become established in patches 
of slender birds-foot trefoil, this site's nectar source. Whitetop is a 
perennial native to Europe and Asia which grows in disturbed sites, wet 
areas, ditches, roadsides, and cropland. Spreading roots and numerous 
seeds make this plant difficult to control (Stoddard et al. 1996). 
While visits during 2001 showed no further advancement of whitetop into 
the nectar site (V. Rivers, pers. comm., 2001), the surrounding 
countryside, including both public and private lands, is severely 
infested. Failure to control this invasive species could quickly result 
in the loss of this small nectar site. Depending on the control methods 
used (herbicide treatments or mechanical means) and timing, efforts to 
control this plant species could also impact the Carson wandering 
skipper population and its habitat at this site.
    Cattle have access to the Lassen County site; however, it is 
unknown at this time what management scenarios are being implemented. 
As at the Washoe County site, timing of use and densities of livestock 
can affect the availability of nectar sources and larval survival.
    Additional potential threats include attempts to export water from 
the area to other locations. In 1991, the Nevada State Engineer 
approved exportation of 13,000 acre-feet of groundwater per year from 
Honey Lake Valley, in Lassen and Washoe Counties to Lemmon and Spanish 
Springs Valleys, Washoe County. In 1993, a draft Bedell Flat Pipelines 
Rights-of-Way, Washoe County, Nevada Environmental Impact Statement was 
prepared (BLM 1993). If this project, or other similar projects, are 
implemented, lowering of the water table could occur and result in 
changes to the salt grass community upon which the Carson wandering 
skipper depends.
    B. Over-utilization for commercial, recreational, scientific, or 
educational purposes. Rare butterflies and moths are highly prized by 
collectors, and an international trade exists for insect specimens for 
both live and decorative markets, as well as the specialist trade that 
supplies hobbyists, collectors, and researchers (Morris et al. 1991; 
Williams 1996). The specialist trade differs from both the live and 
decorative market in that it concentrates on rare and threatened 
species (U.S. Department of Justice 1993). In general, the rarer the 
species, the more valuable it is, and prices may exceed US $2,000 for 
rare specimens (Morris et al. 1991).
    Simply listing a species can result in an increase in commercial or 
scientific interest, both legal and illegal, which can threaten the 
species through unauthorized and uncontrolled collection for scientific 
and/or commercial purposes. The listing of species as threatened or 
endangered publicizes their rarity and may make them more susceptible 
to collection by researchers or other interested parties. Even limited 
collection pressure on small populations can have adverse impacts on 
their viability.
    While there have been no studies on the impact of the removal of 
individuals from natural populations for this subspecies, it is 
possible that the Carson wandering skipper has been adversely affected. 
At the Carson City site, individuals of the Carson wandering skipper 
are known to have been collected for personal butterfly collections 
during the late 1960s until the early 1990s, though populations were 
small (Austin and Emmel 1998; Brussard et al. 1999). From 1965 to 1989, 
at least 86 males and 90 females were collected during 7 different 
years by various collectors (Austin and Emmel 1998). During this time, 
this was the only known site on which Carson wandering skipper 
occurred. The Carson wandering skipper is now believed to have been 
extirpated from the site. While habitat degradation and loss have 
occurred at this site, collecting may have also contributed to this 
    In 1998, Carson wandering skipper was collected at the Washoe 
County and Lassen County sites by UNR researchers for genetic analysis. 
Only males were collected, and these were taken late in the flight 
season to minimize impacts to the population (Brussard et al. 1999).
    The two populations of Carson wandering skipper that remain could 
face strong pressure from collectors. Since the nectar sites occur 
along public roadsides, the subspecies is easily accessible, and the 
limited number and distribution of these populations make this 
subspecies vulnerable to collectors. Even limited collection from the 
small populations of Carson wandering skipper could have deleterious 
effects on its viability and lead to the eventual extinction of this 

[[Page 59542]]

    C. Disease or predation. Disease is not known to be a factor 
affecting this subspecies at this time.
    Cattle grazing, as discussed under Factor A, is a threat to the 
species due to grazing impacts to adult nectar sources and the larval 
host plant. Livestock can also trample the salt grass, causing direct 
mortality of diapausing larvae. Predation by other species, such as 
birds or insects, on larvae or adult Carson wandering skippers is 
likely, but it is unknown how this may affect the population's 
    D. The inadequacy of existing regulatory mechanisms. The Carson 
wandering skipper occurs on Federal, State, and private lands. Existing 
regulatory mechanisms do not fully protect this subspecies or its 
habitats on these lands. Existing regulatory mechanisms that may 
provide some protection for the Carson wandering skipper include: (1) 
Federal laws and regulations including the Clean Water Act (CWA); and 
(2) State laws including the California Environmental Quality Act 

Federal Laws and Regulations

    The Carson wandering skipper appears to be closely associated with 
wetland habitats. Current regulatory mechanisms, such as section 404 of 
the CWA, have not precluded development and alteration of these 
habitats. Section 404 regulations require that applicants obtain a 
permit from the Corps for projects that place fill material into waters 
of the United States. Whether an individual or nationwide permit may be 
required depends upon the activity and the amount of fill proposed. 
Regulatory mechanisms addressing alterations to stream channels, 
riparian areas, springs and seeps from various activities such as 
agricultural activities, development, and road construction have been 
inadequate to protect the Carson wandering skipper habitat in Nevada 
and California.
    Until publication of this emergency rule, we considered the Carson 
wandering skipper a candidate species; this designation carries no 
formal Federal protection under the Act.
    Some protection is afforded to the Carson wandering skipper on 
lands administered by the BLM at the Washoe County site due to their 
commitment to assist in the conservation of this subspecies through the 
Cooperative Agreement (CA) signed in 1999. This CA was signed by the 
Service, NDOT, the Federal Highway Administration (FHWA), and BLM in 
October 1999. It was developed to outline the actions necessary for the 
conservation and management of the Carson wandering skipper. 
Development of a conservation plan was one activity outlined by the 
agreement. UNR was contracted by NDOT to prepare a draft conservation 
plan, which was prepared by UNR in 2000. Additional biological 
information and agency commitment are needed before this plan can be 
finalized. However, since signing the CA in 1999, BLM has designated 98 
ha (243 ac) of their lands at the Washoe County site as an Area of 
Critical Environmental Concern. This designation allows BLM discretion 
in determining actions which can occur within this area (BLM 2001). 
However, these protections only cover a portion of Carson wandering 
skipper habitat in the area and are insufficient to protect the species 
throughout the site.

State Laws and Regulations

    Although California State laws may provide a measure of protection 
to the subspecies, these laws are not adequate to protect the Carson 
wandering skipper and ensure its long-term survival. CEQA pertains to 
projects on non-Federal lands and requires that a project proponent 
publicly disclose the potential environmental impacts of proposed 
projects. Section 15065 of the CEQA Guidelines requires a ``finding of 
significance'' if a project has the potential to ``reduce the number or 
restrict the range of a rare or endangered plant or animal'' including 
those that are eligible for listing under CESA. However, under CEQA, 
where overriding social and economic considerations can be 
demonstrated, a project may go forward despite significant adverse 
impacts to a species.
    The California Natural Diversity Data Base classifies the Carson 
wandering skipper as a S1S3 species, which identifies this subspecies 
as one that is extremely endangered with a restricted range within 
California (California Natural Diversity Data Base 2001). This 
designation provides no legal protection in California. The CDFG is 
unable to protect insects under its current regulations (Pete 
Bontadelli, CDFG, in litt. 1990).
    In Nevada, there are no local or State regulations protecting the 
Carson wandering skipper on State or non-Federal lands. The Nevada 
Natural Heritage Program ranks the Carson wandering skipper as S1, 
meaning it is considered in the State of Nevada as critically imperiled 
due to extreme rarity, imminent threats, or biological factors (Nevada 
Natural Heritage Program 2000). This designation provides no legal 
protection in Nevada. The Nevada Division of Wildlife is unable to 
protect insects under its current regulations (Nevada Revised Statutes 
    E. Other natural or manmade factors affecting its continued 
existence. This subspecies is highly susceptible to extinction as a 
result of naturally occurring stochastic (random or chance variables) 
environmental or demographic events because the Carson wandering 
skipper occurs at only two known isolated locations and in small 
numbers. These events may be wildfire, increase in disease or 
predation, or severe weather events such as flooding. Additionally, 
random demographic effects (e.g., skewed sex ratios) and loss of 
genetic variability may result in individuals and populations being 
less able to cope with environmental change, and could cause the loss 
of one or both of the populations.
    In addition, the loss of habitat compromises the ability of the 
Carson wandering skipper to disperse. Populations remain isolated with 
no opportunity to migrate or recolonize if conditions become 
    A wetlands mitigation bank is being established near the Lassen 
County site. It is located adjacent to existing CDFG lands. This parcel 
of land has been recently grazed and farmed. The bank is intended to 
create a minimum of 37 ha (92 ac) of emergent wetlands at this site to 
mitigate for wetland losses in sagebrush scrub and juniper woodland 
habitats due to road construction in Lassen and Modoc counties, and the 
eastern portion of Plumas County. This bank will be managed by CDFG 
(California Department of Transportation (CalTrans) and CDFG 1998). The 
site has not been surveyed for the Carson wandering skipper, but 
potential habitat exists. Depending upon the location of constructed 
wetlands, loss of Carson wandering skipper habitat could occur. We will 
continue to work with CalTrans and CDFG regarding implementation of 
this bank in consideration of the Carson wandering skipper.

Reasons for Emergency Determination

    Under section 4(b)(7) of the Act, and regulations at 50 CFR 424.20, 
we must consider development of an emergency rule to list a species if 
threats to the species constitute an emergency posing significant risk 
to its continued survival. Such an emergency listing expires 240 days 
following publication in the Federal Register unless, during the 240-
day period, we list the species through our normal listing procedures. 
We discuss below the reasons why emergency listing of the Carson 
wandering skipper as endangered is necessary. In accordance with the 

[[Page 59543]]

we will withdraw this emergency rule if, at any time after its 
publication, we determine that substantial evidence does not exist to 
warrant such a rule.
    The immediate concerns for the Carson wandering skipper are 
associated with the extremely small number of populations, habitat 
fragmentation, and significant decrease in its historical range in 
Nevada and California. While historic population numbers are not known, 
current population sizes at the two locations appear small. As 
discussed in the Summary of Factors Affecting the Species, a number of 
threats face the subspecies. These include habitat destruction, 
degradation, and fragmentation due to agricultural uses (such as 
excessive livestock grazing and wetland habitat modification), and non-
native plant invasion. Other immediate threats include impacts from 
collecting, livestock trampling, pesticide drift, and inadequate 
regulatory mechanisms. Another threat is the approved and proposed 
water exportation projects. These projects could severely impact Carson 
wandering skipper habitat through lowering of the water table, and 
degrading or eliminating the salt grass community upon which the Carson 
wandering skipper depends.
    This subspecies is also vulnerable to chance environmental or 
demographic events, to which small populations are particularly 
vulnerable. The combination of only two populations, small range, and 
restricted habitat makes the subspecies highly susceptible to 
extinction or extirpation from a significant portion of its range due 
to random events such as fire, drought, disease, or other occurrences 
(Shaffer 1981, 1987; Meffe and Carroll 1994). Such events are not 
usually a concern until the number of populations or geographic 
distribution become severely limited, as is the case with the 
subspecies discussed here. Once the number of populations or the 
population size is reduced, the remnant populations, or portions of 
populations, have a higher probability of extinction from random events 
(Primack 1993).
    Because the Carson wandering skipper remains at only two known 
locations, and because both locations are subject to various immediate, 
ongoing, and future threats as outlined above, we find that the Carson 
wandering skipper is in imminent danger of extinction throughout all or 
a significant portion of its range and warrants immediate protection 
under the Act. Emergency listing the Carson wandering skipper as 
endangered will increase the regulatory protections and resources 
available to the subspecies.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as the--(i) 
specific areas within the geographical 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 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary of the Interior (Secretary) designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
implementing regulations (50 CFR 424.12(a)) state that critical habitat 
is not determinable if information sufficient to perform the required 
analysis of impacts of the designation is lacking, or if the biological 
needs of the species are not sufficiently well known to allow 
identification of an area as critical habitat. Section 4(b)(2) of the 
Act requires us to consider economic and other relevant impacts of 
designating a particular area as critical habitat on the basis of the 
best scientific data available. The Secretary may exclude any area from 
critical habitat if she determines that the benefits of such exclusion 
outweigh the conservation benefits, unless to do so would result in the 
extinction of the species.
    Because information relevant to the specific biological needs of 
the Carson wandering skipper is not currently available, we are unable 
to adequately perform the analysis required to designate critical 
habitat. Therefore, we find that critical habitat for the Carson 
wandering skipper is not determinable at this time. We are also 
concerned that the designation of critical habitat could increase the 
degree of threat to the species through collecting or from intentional 
habitat degradation. In the Public Comments Solicited portion of the 
proposed rule published concurrently with this emergency rule, we 
specifically solicit information on potential critical habitat, 
biological information, and information that would aid our prudency 
analysis. When a ``not determinable'' finding is made, we must, within 
2 years of the publication date of the original proposed rule, 
designate critical habitat, unless the designation is found to be not 
    We will protect the Carson wandering skipper and its habitat 
through section 7 consultations to determine whether Federal actions 
are likely to jeopardize the continued existence of the subspecies, 
through the recovery process, through enforcement of take prohibitions 
under section 9 of the Act, and through the section 10 process for 
activities on non-Federal lands with no Federal nexus.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, development of recovery 
actions, requirements for Federal protection, and prohibitions against 
certain activities. Recognition through listing encourages 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 recovery actions be 
carried out for listed species. We discuss the protection required of 
Federal agencies, considerations for protection and conservation 
actions, and the prohibitions against taking and harm for the Carson 
wandering skipper, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed to be listed or is 
listed as endangered or threatened, and with respect to its critical 
habitat, if any is being designated. Federal agencies are required to 
confer with us informally 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. If a species is 
subsequently listed, 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 such a species, or to 
destroy or adversely modify its critical habitat. If a Federal agency 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us. 
Federal agency actions that may require consultation include, but are 
not limited to, those within the jurisdictions of the Service, BLM, 
Corps, FHWA, and Natural Resources Conservation Service.

[[Page 59544]]

    We believe that protection and recovery of the Carson wandering 
skipper will require reduction of the threats from habitat destruction, 
degradation, and loss of salt grass and wetland habitats due to 
excessive livestock grazing, development, water exportation projects, 
non-native plant invasion, and road construction. Threats from 
collection, livestock trampling, pesticide drift, and recreation must 
also be reduced. These threats should be considered when management 
actions are taken in habitats currently and potentially occupied by the 
Carson wandering skipper, and areas deemed important for dispersal, and 
connectivity or corridors between known locations of this subspecies. 
Monitoring should also be undertaken for any management actions or 
scientific investigations designed to address these threats or their 
    Listing the Carson wandering skipper provides for the development 
and implementation of a recovery plan for the subspecies. This plan 
will bring together Federal, State, and regional agency efforts for 
conservation of the subspecies. A recovery plan will establish a 
framework for agencies to coordinate their recovery efforts. The plan 
will set recovery priorities and estimate the costs of the tasks 
necessary to accomplish the priorities. It will also describe the site-
specific management actions necessary to achieve conservation and 
survival of the subspecies.
    Listing will also require us to review any actions that may affect 
the Carson wandering skipper for lands and activities under Federal 
jurisdiction, State plans developed pursuant to section 6 of the Act, 
scientific investigations of efforts to enhance the propagation or 
survival of the subspecies, pursuant to section 10(a)(1)(A) of the Act, 
and conservation plans prepared for non-Federal lands and activities 
pursuant to section 10(a)(1)(B) of the Act.
    Federal agencies with management responsibility for the Carson 
wandering skipper include the Service, in relation to Partners for Fish 
and Wildlife projects and issuance of section 10(a)(1)(B) permits for 
habitat conservation plans, and other programs. Other activities on BLM 
lands could include livestock grazing and associated management 
activities, sale, exchange, or lease of Federal land containing 
suitable habitat, recreational activities, or issuance of right-of-way 
permits for various projects across lands administered by them. 
Occurrences of this subspecies could potentially be affected by 
projects requiring a permit from the Corps under section 404 of the 
CWA. The Corps is required to consult on permit applications they 
receive for projects that may affect listed species. Highway 
construction and maintenance projects that receive funding from the 
FHWA would be subject to review under section 7 of the Act. Activities 
authorized under the Natural Resources Conservation Service's Emergency 
Watershed Protection program, such as fire rehabilitation projects, 
would also be subject to section 7 review. In addition, activities that 
are authorized, funded, or administered by Federal agencies on non-
Federal lands will be subject to section 7 review.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These prohibitions, codified at 50 CFR 17.21, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect; or attempt any such conduct), 
import or export, transport in interstate or foreign commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any listed species. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to our agents and State 
conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. 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.
    It is our policy, as 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 effects of the listing on 
proposed and ongoing activities within the subspecies' range. We 
believe the following actions would not be likely to result in a 
violation of section 9:
    (1) Possession, delivery, including interstate transport and import 
or export from the United States, involving no commercial activity, of 
dead Carson wandering skipper that were collected prior to the date of 
publication of this emergency listing rule in the Federal Register;
    (2) Any actions that may affect the Carson wandering skipper that 
are authorized, funded or carried out by a Federal agency when the 
action is conducted in accordance with the consultation requirements 
for listed species pursuant to section 7 of the Act;
    (3) Any action taken for scientific research carried out under a 
recovery permit issued by the Service pursuant to section 10(a)(1)(A) 
of the Act; and
    (4) Land actions or management carried out under a habitat 
conservation plan approved by the Service pursuant to section 
10(a)(1)(B) of the Act, or an approved conservation agreement.
    Activities that we believe could potentially result in a violation 
of section 9 include, but are not limited to:
    (1) Unauthorized possession, trapping, handling, or collecting of 
Carson wandering skipper. Research efforts involving these activities 
will require a permit under section 10(a)(1)(A) of the Act;
    (2) Possession, sale, delivery, carriage, transportation, or 
shipment of illegally taken Carson wandering skipper;
    (3) Activities authorized, funded, or carried out by Federal 
agencies that may affect the Carson wandering skipper, or its habitat, 
when such activities are not conducted in accordance with the 
consultation requirements for listed species under section 7 of the 
Act; and
    (4) Activities (e.g., habitat conversion, excessive livestock 
grazing, farming, road and trail construction, water development, 
recreation, development, and unauthorized application of herbicides and 
pesticides in violation of label restrictions) that directly or 
indirectly result in the death or injury of adult Carson wandering 
skippers, or their larvae or eggs, or that modify Carson wandering 
skipper habitat and significantly affect their essential behavioral 
patterns including breeding, foraging, sheltering, or other life 
functions. Otherwise lawful activities that incidentally take Carson 
wandering skipper, but have no Federal nexus, will require a permit 
under section 10(a)(1)(B) of the Act.
    Questions regarding whether specific activities risk violating 
section 9 should be directed to the Field Supervisor of the Nevada Fish 
and Wildlife Office or the Field Supervisor of the Sacramento Fish and 
Wildlife Office (see ADDRESSES section). Requests for copies of the 
regulations on listed wildlife, and general inquiries regarding 
prohibitions and issuance of permits under the Act, may be addressed to 
the U.S. Fish and Wildlife Service, Ecological Services, Endangered 
Species Permits, 911 N.E.

[[Page 59545]]

11th Ave., Portland, Oregon 97232-4181 (telephone 503/231-2063; 
facsimile 503/231-6243).

National Environmental Policy Act

    We have determined that an environmental assessment and 
environmental impact statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose record keeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. The existing OMB control number is 1018-0093 and 
expires 3/31/2004.

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. 
This rule 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 required.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Nevada Fish and Wildlife Office (see 
ADDRESSES section).


    The primary author of this emergency rule is Marcy Haworth, U.S. 
Fish and Wildlife Service, Nevada Fish and Wildlife Office (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:


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

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

    2. In Sec. 17.11(h), add the following, in alphabetical order under 
INSECTS, to the List of Endangered and Threatened Wildlife:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

                   *                  *                  *                  *                  *                  *                  *

                   *                  *                  *                  *                  *                  *                  *
Skipper, Carson wandering........  Pseudocopaeodes       U.S.A. (CA, NV)....  U.S.A., (Lassen      E                       716           NA           NA
                                    eunus obscurus.                            County, CA; Washoe
                                                                               County, NV).

                   *                  *                  *                  *                  *                  *                  *

    Dated: November 21, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-29614 Filed 11-28-01; 8:45 am]