[Federal Register: December 21, 2004 (Volume 69, Number 244)]

[Proposed Rules]               

[Page 76428-76445]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]


[[Page 76428]]




Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT96


Endangered and Threatened Wildlife and Plants; Withdrawal of the 

Proposed Rule To List the Sacramento Mountains Checkerspot Butterfly as 

Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 

proposed rule published in the Federal Register on September 6, 2001 

(66 FR 46575), to list the Sacramento Mountains checkerspot butterfly 

(Euphydryas anicia cloudcrofti) (butterfly) as endangered with critical 

habitat pursuant to the Endangered Species Act of 1973, as amended 

(Act). This withdrawal is based on our conclusion that the threats to 

the species as identified in the proposed rule are not as significant 

as earlier believed. We base this conclusion on our analysis of current 

threats. We find that best scientific and commercial data available 

indicate that the threats to the species and its habitat, as analyzed 

under the five listing factors described in section 4(a)(1) of the Act, 

have been reduced below the statutory definition of threatened or 

endangered. Therefore, we are withdrawing our proposal to list the 

species as endangered.

ADDRESSES: Supporting documentation for this rulemaking is available 

for public inspection, by appointment, during normal business hours at 

the U.S. Fish and Wildlife Service, New Mexico Ecological Services 

Field Office, 2105 Osuna Road NE., Albuquerque, New Mexico 87113.

FOR FURTHER INFORMATION CONTACT: Susan MacMullin, Field Supervisor, New 

Mexico Ecological Services Field Office (telephone 505-761-4706, 

facsimile 505-346-2542).



    It is our intent to discuss only those topics directly relevant to 

this final listing determination. For more information on the 

butterfly, refer to the September 6, 2001 (66 FR 46575) proposed rule, 

and the October 7, 2004 Conservation Plan (69 FR 60178). However, some 

of this information is discussed in our analyses below, such as the 

summary of factors affecting the species.

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 butterfly as endangered. The petitioner stated that the species 

merits listing because of its restricted range, adverse impacts 

resulting from a proposed United States Department of Agriculture 

Forest Service (Forest Service) land transfer, improvements to a Forest 

Service campground, construction of homes and other structures, 

aggressive nonnative weeds that may be affecting the larval food plants 

and adult nectar sources, 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 Forest Service 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 90-day administrative 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. No further action was conducted related to the listing of the 

butterfly following the publication of the December 27, 1999 finding.

    In response to our failure to make a 12-month finding within the 

statutory time frame allowed by the Act, the Center for Biological 

Diversity filed a lawsuit. 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 butterfly within 30 days. On September 6, 2001, we published a 

proposed rule to list the butterfly as endangered with critical habitat 

(66 FR 46575). The proposed rule constituted our 12-month 

administrative finding. As part of the rulemaking process, we also held 

one public hearing in Alamogordo, New Mexico, on October 18, 2001, and 

extended the public comment period until December 5, 2001 (66 FR 49158, 

September 16, 2001). We invited all interested parties to submit 

comments on the proposed listing rule and proposed critical habitat 


    In the proposed rule, we determined that the butterfly was in 

danger of extinction throughout all or a significant portion of its 

range because much of the remaining suitable habitat and the long-term 

persistence of the subspecies were threatened. At that time, the known 

threats included: Commercial and private development, Forest Service 

projects, fire suppression activities, highway reconstruction, off-

highway vehicle use, and overgrazed range conditions. Additional 

background information is available in the September 6, 2001, proposed 

rule (66 FR 46575).

    In response to growing interest by the local community to conserve 

the butterfly, the Service began coordination in 2001 with local and 

Federal partners. Subsequently, we developed the ``Conservation Plan 

for the Sacramento Mountains Checkerspot Butterfly'' (Conservation 

Plan) (see ``Conservation Plan'' section below). The Conservation Plan 

was available for a 30-day public comment period and documents 

conservation actions that will benefit the species (69 FR 60178, 

October 7, 2004). We also held a public information meeting in 

Cloudcroft, New Mexico, on October 13, 2004.

    On November 8, 2004, we announced the availability of the draft 

economic analysis and draft environmental assessment for the proposal 

to designate critical habitat for the butterfly (69 FR 64710). Section 

4 (b)(2) of the Act requires that we consider economic impacts, impacts 

to national security, and other relevant impacts prior to making a 

final decision on what areas to designate as critical habitat. We 

solicited data and comments from the public on these draft documents, 

as well as on all aspects of our proposal, so that we could consider 

these in this final determination.

Summary of Comments and Recommendations

    In the notices announcing the public comment periods, we requested 

all interested parties submit comments on the proposed listing and 

critical habitat designation, as well as the associated draft economic 

analysis and draft environmental assessment, and information pertaining 

to the Conservation Plan or management actions that reduce the threats 

to the butterfly, current status, ecology, distribution, threats, and 

management/conservation efforts in place. We requested this information 

in order to make a final listing determination based on the best 

scientific and commercial data currently available. During the public 

comment periods, we received written comments from a total of 40 

entities, and 22 speakers gave verbal

[[Page 76429]]

comments at the public hearing. Substantive information provided in all 

public comments, written and verbal, either has been incorporated 

directly into this withdrawal or is addressed below. Similar comments 

are grouped together by issue.

    (1) Comment: Commercial and private development is not a threat to 

the species, because very little is occurring within the range of the 


    Our Response: The economic analysis found that in recent years, 

approximately 8 to 10 new homes have been constructed annually within 

the boundary of the proposed critical habitat designation. This trend 

is expected to continue into the foreseeable future. Based upon this 

estimate, over the next 20 years, approximately 160 to 200 small-scale 

residential projects may occur within the boundary of proposed critical 

habitat for the butterfly. Of these, the economic analysis assumed that 

55 to 69 may conduct butterfly surveys because they would be conducted 

within areas that were proposed as critical habitat and provide 

butterfly habitat. Eight to 24 of those areas surveyed may be found to 

be in use by butterflies (for a detailed discussion see Service 2004). 

This draft economic analysis estimated that the median lot size of 

these developments was 0.14 hectares (ha) (0.34 acres (ac)), indicating 

that up to 3.2 ha (8 ac) of suitable butterfly habitat may be impacted 

from commercial and private development activities (Service 2004). In 

the proposed rule, we described an additional 4 ha (10 ac) of impacts 

from a private development on the east side of the Village of 

Cloudcroft. Thus, we estimate that about 1 percent of the suitable 

butterfly habitat on private lands (i.e., 18 of 1,196 ac) may be 

subject to commercial and private development. We do not believe that 

this level of an impact is a significant threat to the butterfly (see 

``Summary of Factors'' section below for a more detailed discussion).

    (2) Comment: There is no evidence that exotic weeds have any effect 

on butterfly populations. How is listing the butterfly going to help 

solve the exotic weed problem?

    Our Response: 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 (Forest Service 1995). In 2002, the 

Forest Service conferenced with us regarding a District-wide noxious 

weed management program. Under this action, the Forest is using manual 

methods (e.g., spot applications) to remove noxious weeds within 

habitat occupied by the butterfly. We anticipated some impacts to host 

plants will occur, but these were expected to be insignificant (i.e., 

should never reach the level where incidental take of the butterfly 

will occur) or discountable (i.e., effects to the butterfly from the 

action are extremely unlikely to occur) to the butterfly. The 

Sacramento Ranger District is currently monitoring and treating 

infestations of nonnative vegetation. These actions have long-term 

benefits for the butterfly because the threat of nonnative vegetation 

to the butterfly has been minimized.

    (3) Comment: If global warming is really a threat to the butterfly, 

are you going to get the whole planet to change its habits to protect 

this one butterfly?

    Our response: We agree that we cannot address an issue of this 

magnitude and complexity on a species by species basis. However, we 

recognized in the proposal that the butterfly may be vulnerable to 

changes in climate. We also note that this does not imply that the 

species cannot survive natural events such as drought since the 

butterfly evolved in an environment subject to periodic atypical 

weather events.

    When a species has specific and limited habitat requirements, it is 

reasonable to assume that climate shifts occurring more rapidly than 

evolutionary timeframes might have an impact on the species in the 

future. Even if we cannot address these issues on a species by species 

basis, we believe it is important, where possible, to document the 

extent of any problems, to spur research or collaborative solutions. 

The U.S. Geological Survey (USGS) and the Service recently launched our 

Future Challenges Project with a scientific workshop at the National 

Conservation Training Center. At this workshop, we explored four 

environmental drivers that will affect our work and missions in the 

future. We examined the issues of water resources, invasive species, 

climate change, and biotechnology for their potential long-term impacts 

in managing biological resources and the systems that support them over 

the next 10 to 20 years. For example, we know the importance of 

coordinating research, monitoring, and risk assessment efforts so that 

human and financial resources are used effectively and directed at the 

highest priority needs. Closely related is the importance of accessing 

and sharing research and results so that the best information available 

is used by all decision-makers.

    (4) Comment: If listing the butterfly makes it more vulnerable to 

collection, then why list the subspecies?

    Our response: As part of our analysis under section 4(a)(1) of the 

Act, we disclose and analyze the known or potential threats to species 

and any related information. In the case of the butterfly, we 

acknowledged that listing can increase the publicity and interest in a 

species' rarity, and thus may directly increase the value and demand 

for specimens. To limit potential overcollecting, the Forest Service 

issued a closure order restricting the collection of any butterflies 

without a permit on the Smokey Bear and Sacramento Districts of the 

Lincoln National Forest (Forest Service 2001). The Forest Service 

posted the closure order in accordance with their regulations and also 

published a notice of the closure order in the newsletter of the 

Lepidopterists' Society (36 CFR 261, Lepidopterists' Society Newsletter 

1999, Holland 1999) (see discussion under ``Factor B'' below).

    (5) Comment: Based upon the fact that one of the only butterfly 

pupa ever found was attached to the side of a building, it does not 

appear that developments are a threat to the subspecies.

    Our response: The building where the pupa was found occurs in an 

area where butterfly habitat adjacent to the building was largely 

intact and is being used by the butterfly. Based on this and other 

information we have reviewed (see ``Factor A'' section below), it 

appears that private and commercial development activities can be 

conducted in such a way as to minimize impacts on the butterfly. For 

example, the Forest Service has found that the butterfly continues to 

exist within areas that are developed (Forest Service 2004e).

    (6) Comment: Recent studies have shown that the butterfly's 

population and range are actually much larger than previously thought. 

There is no evidence that the range of the butterfly is shrinking.

    Our response: As we noted in the 2001 proposed rule, the Forest 

Service has been conducting surveys since 1998 to estimate the range of 

the butterfly. The known range of the butterfly has not been extended 

since 2000 (Forest Service 2002). We do not have long-term monitoring 

data to evaluate whether the butterfly's population is increasing, 

stable, or declining. Still, on a gross scale, our observations 

indicate that the range of the butterfly has not changed since 2000 

(Forest Service 2002b). The Forest Service and Service will continue

[[Page 76430]]

to monitor the butterfly population and range (Service 2004b).

    (7) Comment: No studies have been conducted in the adjacent 

Mescalero Apache Nation lands, where there could be large numbers of 

butterflies in their plentiful meadows. The Village of Cloudcroft 

comments state they have spoken with ``at least two officials from the 

Mescalero Indian Reservation who assume the butterfly is found on the 

Mescalero Indian Reservation.''

    Our response: We have no information to be able to verify the 

information that the butterfly is found on the Mescalero Apache Nation 

lands (see ``Mescalero Apache Nation'' section below). We have provided 

technical assistance to the Mescalero Apache Nation through field 

identification and survey techniques that we conducted on Forest 

Service lands. We offered assistance to the Mescalero Apache Nation in 

conducting surveys. However, we have no knowledge that there is any 

occupied butterfly habitat on Mescalero Apache Nation lands or that 

surveys have ever been completed there.

    (8) Comment: There is no compelling information that the 

butterfly's population has been reduced.

    Our response: We have no evidence that the butterfly's population 

is declining (see also comment number 6). Section 4(b)(1)(A) of the Act 

requires us to make listing determinations on the basis of the best 

scientific and commercial data available. In this final listing 

determination, we are withdrawing the proposal to list the butterfly as 

endangered based upon our analysis of the current threats and our 

conclusion that the butterfly no longer meets the definition of 

threatened or endangered.

    (9) Comment: Both adult and larval foodplants for the butterfly are 

common and abundant throughout its range. There is no information to 

indicate that the foodplants are declining from any threats.

    Our response: We agree that adult foodplants are common. Larval 

foodplants have been impacted in some areas, but do not appear to be 

the sole determinant of the presence or abundance of the butterfly 

(Pittenger et al. 2001). Our current understanding of the threats to 

the butterfly and its foodplants is fully described under the ``Summary 

of Factors Affecting the Species'' section below.

    (10) Comment: The Service needs to conduct an analysis under the 

National Environmental Policy Act (NEPA) for the listing of the 


    Our response: While we are not required to complete an analysis 

under NEPA for the listing of the butterfly, we did however, complete a 

draft environmental assessment under NEPA on the proposed designation 

of critical habitat, and released it for public comment on November 8, 

2004 (69 FR 64710). We believe that this issue is no longer relevant 

because we are withdrawing our listing proposal.

    (11) Comment: Euphydryas anicia cloudcrofti is not a unique species 

or subspecies and was only referred to as cloudcrofti for regional 

identification purposes.

    Our response: We disagree. Euphydryas anicia cloudcrofti is 

recognized as a distinct taxonomic subspecies that is a listable entity 

under the Act if it were to meet the definition of threatened or 

endangered (16 U.S.C. 1532(16)). The subspecies was isolated by post-

Pleistocene climate changes and subsequent changes in the distribution 

of plant communities (Pittenger and Yori 2003). This spatial isolation 

resulted in a unique variation that is locally adapted and recognized 

as a distinct subspecies (Pittenger and Yori 2003, Pratt 2001, Toliver 

et al. 1994, Cary and Holland 1992, Ferris and Holland 1980).

    (12) Comment: The scientific record indicates there was a specimen 

found 282 kilometers (km) (175 miles (mi)) north of the Village of 

Cloudcroft that was identified as this butterfly. The specimen might 

have been mislabeled, but should be looked into.

    Our response: Holland and Ferris (1980) stated that, ``There is a 

single male of cloudcrofti in the American Museum of Natural History 

collection (O. Buchholz Collection) labeled ``Beulah, New Mexico 

VI.27.02''. Beulah was a former settlement in the Sapello Valley, San 

Miguel Co., N.M., some 282 kilometers (km) (175 miles (mi)) north of 

the Village of Cloudcroft. We suspect that this specimen was mislabeled 

and actually came from the Cloudcroft area.'' Toliver et al. (1994) and 

Cary (2003) document an undescribed subspecies of Occidryas (= 

Euphydryas) anicia collected in San Miguel County, New Mexico, in 1882, 

1901, 1902, 1949, and 1954. It was also observed in Mora County, New 

Mexico, in 1995 (Toliver et al. 1994) and 2003 (Cary 2003). We 

conducted surveys within Mora County in 2003 and 2004 during the 

presumed active season. In 2003, adult butterflies of this undescribed 

subspecies were photographed by Cary (2003) in Mora County, although 

New Mexico penstemon (Penstemon neomexicanus) or orange sneezeweed 

(Helenium hoopesii), the primary foodplants of the butterfly, have not 

been observed. We suspect that if the undescribed subspecies still 

occupies the area, it occurs at very low densities.

    Pratt (2000, 2001), who conducted extensive surveys throughout New 

Mexico, including the Sacramento Mountains (Pratt 2001a, 2001b, 

2001cF), found that the butterfly is highly isolated from other 

populations of Euphydryas anicia and, after reviewing the taxonomic 

relationships within Euphydryas described by Brussard et al. (1989), he 

believes that cloudcrofti may be its own separate species. Genetic 

studies have not been conducted between cloudcrofti and other 

Euphydryas anicia populations, including the undescribed subspecies in 

Mora County, New Mexico. Because the known foodplants of the Sacramento 

Mountains checkerspot butterfly have not been documented outside of 

Otero and Lincoln Counties, we do not believe that the undescribed 

subspecies is the same as the Sacramento Mountains checkerspot 

butterfly. This conclusion is consistent with previous interpretations 

of other lepidopterists who are familiar with and have observed these 

butterflies (Toliver et al. 1994, Holland and Ferris 1980).

    (13) Comment: Was the proposed rule peer reviewed?

    Our response: Yes. In September 2001, we sent the proposed rule to 

six peer reviewers. Only one responded; this peer reviewer supported 

the proposed listing.

    (14) Comment: Where have butterfly festivals been organized and are 

there any economic benefits of such festivals?

    Our response: We are aware of many butterfly festivals organized 

across the country. In fact, Mission, Texas, has been holding a 

festival for eight years (http://www.texasbutterfly.com/). Similarly, there are large butterfly festivals in Paris, Arkansas (http://www.butterflyfestival.com/

), Haynesville, Louisiana (http://

http://www.claiborneone.org/haynesville/butterfly.html), and celebrations for 

listed butterflies such as the Karner blue butterfly festival in Black 

River Falls, Wisconsin http://www.downtownblackriverfalls.com/karner_blue_butterfly_fest.htm

). These festivals can draw thousands of 

participants and provide a large economic benefit to the community.

    The Service and the Albuquerque Biological Park organized an 

overnight trip to Cloudcroft to view the butterfly and other sensitive 

species. This trip entailed about 20 people staying in The Lodge 

overnight and visiting local businesses. The Albuquerque Biological 

Park conservatively estimated that their group spent a minimum of 

$3,500 in Cloudcroft businesses.

[[Page 76431]]

    (15) Comment: Cattle grazing has occurred for over 100 years in the 

Sacramento Mountains and is not threatening the butterfly.

    Our response: We agree with this statement. Livestock grazing was 

recognized as a threat to the species in 2001. We have reevaluated this 

conclusion in light of recent information from the Forest Service and 

others (e.g., Forest Service 2001, 2004b, 2004i, Service 2004a, 2004b, 

Weiss 1999). Historic and current levels of grazing are not a 

significant threat to the species. The potential threat of grazing is 

further reviewed under the ``Summary of Factors Affecting the Species'' 

section below. We conclude that current and future levels of grazing 

have not and will not result in significant adverse effects to the 

butterfly because grazing monitoring and subsequent management changes 

(reducing number of livestock, moving to other pastures, etc.) ensure 

that utilization levels are met and foodplants for the butterfly are 

being maintained.

    (16) Comment: The Forest Service indicated that there is no 

potential risk to the butterfly related to the control of tussock moth 

(Orgyia pseudotsugata) as it was described in the proposed rule. They 

stated that any future proposed treatments would need to be analyzed 

under NEPA, and the suggestion that carbaryl or Bacillus thuringensis 

would be used to control these or other forest insects was premature.

    Our response: We agree and have revised our analysis to reflect 

this new information. See ``Summary of Factors Affecting the Species'' 

section below for further details.

    (17) Comment: The Forest Service indicated that all of their 

activities, including for example wildland urban interface (WUI) 

treatments, land exchanges, recreational improvements, and special use 

permits are currently evaluated for effects on the butterfly and its 

habitat. The Forest Service has implemented these conservation measures 

through modified project design features, avoidance of the species and/

or habitat, or implemented mitigation measures such as surveys or 

seasonal restrictions. The butterfly and its habitat are receiving 

adequate protection and management on the Lincoln National Forest as 

the Regional Forester designated the butterfly a Sensitive Species, 

and, as such, will continue to be analyzed in all applicable NEPA 


    Our response: We agree with the comments, and we are withdrawing 

our proposal to list the species (see ``Summary of Factors Affecting 

the Species'' section below), in part, due to this effort and 

designation from the Forest Service.

    (18) Comment: The Forest Service indicated that the majority of 

range conditions within meadows used by the butterfly are in 

satisfactory condition and are providing the necessary host plants for 

the species. Host plants have likely increased or at minimum remained 


    Our response: We assumed in our proposed rule that butterfly 

abundance was related to density of foodplants. Although the presence 

of foodplants is a necessary component of suitable butterfly habitat, 

it appears that foodplant density has little influence on number of 

adult butterflies (Pittenger et al. 2001). We agree that range 

conditions within meadows used by the butterfly are providing the 

necessary host plants for the species (see ``Summary of Factors 

Affecting the Species'' section below). It is also unknown why the 

butterfly is not present in meadows where larval and adult foodplant 

density is high (Pittenger et al. 2001, Pittenger and Yori 2003). 

Further research is needed to clarify the attributes of butterfly 


    (19) Comment: Female butterflies lay hundreds of eggs. Therefore, 

biologically it does not make sense that if a few larvae get crushed by 

recreation or other activities, it would cause the butterfly population 

to decline or lead to its extinction.

    Our response: We have also reached this conclusion (see our 

response to Comment 24 below). The proposed rule was a comprehensive 

document that analyzed a myriad of potential threats. At that time, we 

indicated the potential significance of many of the impacts had not 

been quantified. After further evaluation, we believe that the 

magnitude of each potential threat is a necessary component to 

accurately evaluate the potential of each threat. The commentor is 

correct that in a functioning metapopulation, as we believe is the case 

here, the loss of a few butterflies will not jeopardize the continued 

existence of the species.

    (20) Comment: What level of impact triggers an ``adverse effect'' 

determination for the butterfly from the Service.

    Our response: If the species were listed under the Act, the level 

of impact that triggers an adverse effect determination would be the 

same as any other species under section 7 of the Act. Federal agencies 

are required to consult with us under section 7 of the Act when 

activities with a Federal nexus (i.e., when a Federal agency is 

funding, permitting, or in some way authorizing a project) may affect a 

species or its designated critical habitat. The Federal action agency 

is required to make the determination as to whether their project may 

affect a species or designated critical habitat. If the anticipated 

effects from a proposed action are insignificant, discountable, or 

entirely beneficial, then we concur that the activity is not likely to 

adversely affect the species or its critical habitat (i.e., an informal 

consultation). Conversely, those activities that are likely to result 

in incidental take or adversely affect the species or its critical 

habitat require formal consultation.

    (21) Comment: Based upon Forest Service observations following the 

Scott Able fire in 2000, catastrophic wildfire is not a threat for the 

butterfly. The species lives in meadows, which are usually little 

affected from wildfires within mixed conifer fuel type.

    Our response: The information from the Scott Able fire indicates 

that the majority of areas burned were within the mixed conifer forest 

(Forest Service 2001). Meadows were essentially passed over by this 

wind-driven fire and did not sustain any high burn intensities (Forest 

Service 2001). In fact, within the meadows that burned, fire 

intensities were generally light (Forest Service 2001) (see Factor A 


    Recovery of butterfly populations after fires is a function of the 

species' ability to gain access to suitable postfire habitats and their 

ability to rebuild numbers from survivors or colonizers (Swengel 2001). 

We expect that the effects of fire on butterfly habitat quality and 

availability will vary based on the severity and spatial configuration 

of the fire, the response of foodplants to burn severity, and 

suitability of postfire vegetation. While we have a good understanding 

of the general factors that influence fire behavior, the way in which a 

fire behaves on the landscape is highly complex. As a result, fire 

behavior and severity can be understood and predicted in general terms, 

but exact predictions are not possible (Forest Service 2004). For 

example, butterfly habitat quality may either be enhanced or diminished 

by wildfire. It is probable that a fire of moderate severity could 

enlarge existing meadows or create suitable corridors between occupied 


    As described below, the Sacramento Ranger District and surrounding 

area has been identified as a high-priority area for fuel treatments 

within New Mexico. As a result, the Lincoln National Forest has 

increased funding and implemented projects across the Sacramento Ranger 

District to reduce the threat of wildfire (Forest Service 2001). In 

their comments, the Forest

[[Page 76432]]

Service reviewed the last 50 years of fire activity on the Sacramento 

Ranger District, the impact of recent fuels-reduction projects, and the 

potential impacts to meadows from fires. They concluded that the 

potential impacts to the butterfly from catastrophic wildfire were low 

(Forest Service 2001). We agree with this conclusion as further 

explained in the ``Summary of Factors Affecting the Species'' below.

    (22) Comment: The Forest Service stated that the only road 

construction project planned within butterfly habitat is associated 

with campground reconstruction activities.

    Our response: We agree and have revised our analysis to reflect 

this new information.

    (23) Comment: The Forest Service commented that recent and future 

developed recreation site rehabilitation projects were conducted to 

provide for public safety, accessibility, and compliance with the 

American with Disabilities Act, resource protection, and to improve 

campground image (color, style, etc). They indicated that the redesign 

of all campgrounds within meadows will result in a net reduction in 

camping and picnicking capacity by reducing the number of units (i.e., 

camp sites and picnic tables).

    Our response: We agree and have revised our analysis to reflect 

this new information.

    (24) Comment: The Forest Service contends that the annual mountain 

bike race is a recreational use that does not adversely affect the 

butterfly because the race occurs in mid-May prior to the growing 

season of the larval host plants.

    Our response: Although we believe that the annual mountain bike 

race has the potential to adversely affect (and incidentally take) 

post-diapause larvae, the significance of this threat is considered 

low. Some larvae may be crushed and killed, but we would expect less 

than 1 ha (2.4 ac) of occupied habitat (i.e., trails through occupied 

meadows) to be impacted from this activity to occur, which would not 

affect the metapopulation dynamics of the species (e.g., the linear 

nature of trails would not preclude butterfly movement and 

recolonization) (see ``the ``Summary of Factors Affecting the Species'' 


    (25) Comment: Was the model used to estimate the amount of existing 

butterfly habitat developed by people qualified to do this kind of 

work? Was the model peer reviewed?

    Our response: As noted in the proposed rule, the Forest Service 

used a Geographic Information System (GIS) to model the extent of 

existing butterfly habitat (Forest Service 1999b). The model was 

developed to focus survey efforts within areas thought to provide 

butterfly habitat. It is our understanding that this model was 

developed by biologists and cartographers. The information upon which 

the model was built was identified in the proposed rule. We asked our 

peer reviewers to review any aspect of the proposed rule, which 

included the model and estimate of existing butterfly habitat. No one 

commented on this aspect of the proposal. This model has been refined 

since 2001 (Forest Service 2004e) (see ``Summary of Factors Affecting 

the Species'' section below). We consider the refined model to be the 

best scientific and commercial information available for estimating 

existing butterfly habitat. As we have found, the model provided no 

certainty that the potential habitat may be occupied (e.g., the 1999 

model overestimated potential butterfly habitat by about 50 percent) 

(see ``Summary of Factors Affecting the Species'' section below).

    (26) Comment: The proposed rule states that the construction of 

roadways is believed to have historically eliminated or reduced the 

quality or quantity of butterfly habitat, and cites Pittenger (1999). 

Nowhere in the reference cited is there any discussion or mention of 

the historic effect of road construction on the quantity or quality of 

habitat for the butterfly.

    Our response: Our analysis used this citation because it documented 

the impact caused by recent road construction activities on the 

quantity and quality of butterfly habitat. On October 27, 2004, we 

visited this area and found that foodplants have naturally been 

reestablished during the 2004 growing season. Based upon our 

observation of a recently colonized site (Service 2004d), we believe 

the area impacted from the recent road construction activities may be 

utilized by the butterfly as soon as next year (see ``Summary of 

Factors Affecting the Species'' section below).

    (27) Comment: Erroneous information is provided in the proposed 

rule regarding the severity of impacts of the New Mexico Highway 130 

reconstruction project at Deerhead Campground. The project did not 

result in the extirpation of the butterfly from Deerhead Campground, 

because it still exists in the area.

    Our response: The proposed rule did not state that butterflies were 

extirpated from Deerhead Campground. The rule identified that in 1998 

and 1999, butterflies were located within the construction footprint 

(Forest Service 1999a, 1999b; 1999d.); however, none were observed 

during surveys in 2000 and 2001. No butterflies have been observed 

within the construction footprint since 1999. However, the commentor is 

correct, in that, butterflies are still occupying other parts of 

Deerhead Campground. As noted above in our response to comment 26, this 

area has been naturally revegetated with foodplants during 2004.

    (28) Comment: There is little to no evidence to back the claim in 

the proposed rule that overgrazing has occurred in the valleys of the 

Sacramento Ranger District of the Lincoln National Forest over the last 

several decades.

    Our response: Much of the information we reviewed in 2001 was from 

the Sacramento Grazing Allotment. We had assumed in the proposed rule 

that the continuing heavy grazing (i.e., above 35 percent forage 

utilization) on this allotment was impacting the butterfly. However, 

further examination of information from the Forest Service demonstrated 

that the butterfly and its proposed critical habitat are only found 

within a portion of the Nelson Pasture on the summer unit of the 

Sacramento Allotment, which does not receive any cattle use because of 

topography and lack of water (Service 2004a). For the other allotments 

within the range of the butterfly, we conclude that current and future 

grazing will not result in significant adverse effects to the butterfly 

because the Forest Service ensures that utilization levels are met and 

foodplants are maintained (see ``The Present or Threatened Destruction, 

Modification, or Curtailment of Its Habitat or Range'' section).

    (29) Comment: Has New Mexico penstemon (Penstemon neomexicanus) 

been found outside the geographic range of the butterfly?

    Our response: Yes. There are areas (e.g., Russia Canyon and Rawlins 

Canyon) where New Mexico penstemon is locally common, but are 

apparently unoccupied by the butterfly since it has not been located 

during surveys in these areas (Pittenger et al. 2001, Forest Service 

2000, 2000a, Bleakly 1998, 1999). Additionally, the butterfly's host 

plants are known to occur within portions of the Smokey Bear Ranger 

District, in the vicinity of Ruidoso, New Mexico, just north of 

Mescalero Apache Nation lands (Forest Service 2000a). However, the 

butterfly has not been documented north of the Sacramento Ranger 

District (Forest Service 2000a).

    (30) Comment: The information submitted in the proposed rule does 

not comply with the Guidelines for Ensuring and Maximizing the Quality, 

Objectivity, Utility, and Integrity of Information Dissemination by 


[[Page 76433]]

Agencies issued by Executive Office of the President, Office of 

Management and Budget (OMB) (Information Guidelines) (66 FR 49718).

    Our response: These guidelines require that agencies issue their 

own quality guidelines to ensure objectivity, utility, and integrity of 

information to be disseminated (66 FR 49718). The proposed rule was 

published prior to the October 1, 2001, effective date of the 

Information Guidelines. However, we used the best scientific and 

commercial data available in the formulation of our proposed rule as 

required by the Act. Additionally, we have reviewed this final 

determination and the rulemaking process that we have followed for this 

action relative to the current guidelines and have determined that this 

determination is in compliance with the parameters established therein.

    (31) Comment: We received a variety of comments regarding the 

proposed critical habitat, the draft economic analysis, and draft 

environmental assessment.

    Our response: Because we are withdrawing the proposal to list the 

butterfly, we are no longer proposing critical habitat for this 

subspecies. As such, the draft economic analysis and draft 

environmental assessment are no longer applicable, and we are not 

addressing comments on those documents in this determination.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 

424) set forth the procedures for adding species to the Federal list of 

endangered and threatened species. 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) of the Act. The following analysis 

examines the listing factors and their application to the butterfly. 

Within this section we evaluate new data received since the proposed 

rule, projects that were completed since 2001, and the related 

conservation measures that reduce present and future threats to the 


A. The Present or Threatened Destruction, Modification, or Curtailment 

of Its Habitat or Range

    Several categories of activities have the potential to affect the 

butterfly and its habitat, including commercial and private 

development, Forest Service activities, fire suppression and wildfire, 

highway and forest road reconstruction, recreational impacts, domestic 

livestock grazing, and nonnative vegetation. This section of the rule 

presents information for each of the factors affecting the butterfly 

and its habitat, followed by a summary of how formalized conservation 

efforts eliminate or reduce adverse effects.

Commercial and Private Development

    In 2001, commercial and private development was identified as a 

significant threat to the butterfly (66 FR 46575). The butterfly likely 

occupies a significant amount of private lands since habitat used by 

the butterfly occurs on Forest Service land that is immediately 

adjacent to these areas and the elevational and habitat characteristics 

are contiguous (Forest Service 2000a, 2004e).

    The proposed rule estimated that there were less than 2,104 ha 

(5,198 ac) of potential butterfly habitat, composed of 1,034 and 1,070 

ha (2,553 and 2,645 ac) on private and Forest Service lands, 

respectively. A refinement of the original data was conducted by the 

Forest Service in 2004 (Forest Service 2004e). These current data are 

similarly based upon focused surveys to ground truth the 1999 GIS model 

that we detailed in our proposed rule, but include only those lands 

within the proposed critical habitat boundary. Nevertheless, we are not 

aware of any butterfly occurrences outside of the previously known 

range of the butterfly, which was fully enclosed in the proposed 

critical habitat boundary. The refined estimate is that 1,096 ha (2,709 

ac) of suitable butterfly habitat exist on Forest Service and private 

lands, with 484 ha (1,196 ac) occupied by the butterfly on Forest 

Service lands and 314 ha (777 ac) occupied on private lands (Forest 

Service 2004e). About 298 ha (736 ac) of the 1,096 ha (2,709 ac) of 

suitable habitat are unoccupied, with 79 ha (194 ac) on Forest Service 

lands and 219 ha (542 ac) on private lands (Forest Service 2004e). This 

current estimate is the best information we have regarding the range 

and distribution of the butterfly.

    We also mapped meadows within the mixed-conifer forest at 

approximate elevations between 2,450 and 2,750 meters (8,000 to 9,000 

feet) elevation on the Mescalero Apache Nation lands, but have no data 

to indicate whether these lands are occupied by the butterfly (see 

``Mescalero Apache Nation'' section below). As detailed in response to 

comment 7 above, we have no knowledge that surveys have ever been 

completed there.

    Our economic analysis found that in recent years, approximately 8 

to 10 new homes have been constructed annually within the known range 

of the butterfly, which includes lands within the limits of the Village 

of Cloudcroft and areas outside these limits in Otero County (Service 

2004). Although development is no longer being encouraged by the 

Village of Cloudcroft due in part to the lack of water for residential 

use (Service 2004b, Village of Cloudcroft 2001), there are two existing 

subdivisions with developable lots available (Service 2004). The 

economic analysis estimated that over the next 20 years, approximately 

160 to 200 small-scale residential projects may occur within the 

butterfly's critical habitat boundary. Of these, 8 to 24 private lots 

within the range of the butterfly (i.e., the Village of Cloudcroft or 

Otero County) may be found to be in use by butterflies (Service 2004). 

These estimates, in conjunction with the median lot size of 0.14 ha 

(0.34 ac), indicates that up to 3.2 ha (8 ac) of suitable butterfly 

habitat may be impacted from commercial and private development 

activities over the next 20 years (Service 2004). In the proposed rule, 

we identified that a subdivision on the east side of the Village of 

Cloudcroft was currently developing and eliminating approximately 4 ha 

(10 ac) of suitable, and likely currently used, butterfly habitat. 

Depending on the location and configuration of each development, these 

activities have the potential to threaten the butterfly. Nevertheless, 

this amount is not a significant threat to the butterfly because it 

represents about 1 percent of the suitable butterfly habitat on private 

lands (i.e., 7.3 of 484 ha (18 of 1,196 ac)).

    In the proposed rule we stated that a 9-hole golf course was being 

discussed as a community recreational goal and objective for the 

Village of Cloudcroft in 2005 (Cloudcroft Area Sustainability Team 

1995). Based upon comments related to the proposed rule from the 

Village of Cloudcroft (2001), we found that this information is not 

accurate. The Village's view on development has changed, due in part to 

a lack of groundwater (Service 2004b). For example, in August 2004, a 

water crisis was declared in Cloudcroft and drinking water was being 

hauled to the Village (Shinabery 2004a, 2004b). They no longer intend 

to develop a golf course (Village of Cloudcroft 2001, Service 2004b).

    Since the proposed rule, we have also received updated information 

on the Village of Cloudcroft land transfer, which is located in areas 

adjacent to the Village. In the proposed rule, we found that the land 

transfer would provide additional land for commercial, industrial, 

educational, and recreational expansion for the Village of Cloudcroft, 

further degrading or eliminating suitable

[[Page 76434]]

habitat and restricting the movement of butterflies between local 

populations. The Forest Service has completed NEPA compliance and 

signed a decision notice to allow the Village of Cloudcroft to purchase 

33 ha (81 ac) of National Forest lands pursuant to the Townsite Act 

(Forest Service 2001a, 2001b). The land transfer includes five parcels 

of land totaling 33 ha (81 ac). Within these parcels butterflies have 

been observed in parts of parcels 3, 4, and 5. The portion of these 

parcels that is considered to be butterfly habitat amounts to about 1.2 

ha (3 ac) of the 33 ha (81 ac) being offered to the Village (Forest 

Service 2001a, 2001b, Service 2004, 2004d). The remaining 32 ha (78 ac) 

are currently not suitable butterfly habitat (Forest Service 2001a, 

2001b). To date, the Village has not purchased the five parcels of 

land; however, the majority of these parcels are intended for use as 

greenbelts and buffers and not development as we had described in our 

proposed rule (Forest Service 2001a, 2001b, Service 2004b). The use of 

these areas as greenbelt would be consistent with the Village of 

Cloudcroft's local zoning regulations related to open space. The 

Village of Cloudcroft's Village Code document (Chapter 7 of the Village 

Code--Greenbelt Zones Use Regulations G-1 Zone), states that Greenbelt 

Zones shall consist of open space with no structures or commercial 

signs allowed (Service 2004). In addition, the zoning regulations 

prohibit overnight parking or camping within greenbelt zones. The 

Village of Cloudcroft has stated its intention to keep all new land 

annexed from the Forest Service as greenbelt (Service 2004b). It is our 

understanding that greenbelt areas are not generally mowed by the 

Village of Cloudcroft (Forest Service 2004f). Because of the small 

scale of potential impacts involved in this land transfer (less than 

1.2 ha (3 ac)), the new information on the species' ability to 

recolonize areas (see discussion on the edges of the football field 

below), and the intention to keep these parcels as greenbelt, we now 

conclude that the incremental impact of this land transfer when added 

to other past, present, or reasonable foreseeable future actions (i.e., 

cumulative effects) on the butterfly's long-term persistence is not 


    The history of habitat occupied by the butterfly (e.g., Deerhead 

Campground, Pines Campground) could be characterized by frequent, often 

major, impacts to soils and vegetation. For example, impacts from 

logging operations and infrastructure were historically present 

throughout the Sacramento Mountains (Kaufmann et al. 1998, Glover 

1984). In fact, a railroad was constructed in June 1900 and operated 

until 1947 through the area where present-day Deerhead Campground is 

located (NMSHTD 2001; Glover 1984). The butterfly continues to be found 

at this locality. Thus, it appears that the butterfly and its 

foodplants can tolerate a certain amount of natural and man-made 


    We previously identified that heavy clearing or mowing of native 

vegetation 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 butterfly. Additionally, we 

found that the conversion of native landscapes to nonnative vegetation 

(e.g., lawns or gardens) could fragment butterfly localities, eliminate 

movement corridors, and cause additional loss of suitable habitat (Wood 

and Samways 1991, Holland 2001). Although these activities have the 

potential to reduce blocks of native vegetation to fragments, creating 

a matrix of native habitat islands, we have no specific information to 

conclude that these activities are significantly threatening the 


    The Village of Cloudcroft is situated on approximately 324 ha (800 

ac), and is surrounded by National Forest lands (Forest Service 2001b). 

The character of the Village is largely residential, with cabins, 

houses, and business serving the local vacation and tourist-based 

economy. Within the butterfly habitat of the Village of Cloudcroft, the 

native vegetation is generally not cleared or mowed because it adds to 

the rustic charm of the area. The New Mexico State Highway 

Transporation Department (NMSHTD) is responsible for maintaining the 

rights-of-way within Highways 82, 244, and 130. Much of the potential 

butterfly habitat within these rights-of-way is too steep for mowing or 

mowing is not needed (Forest Service 1999b). The NMSHTD generally 

occurs outside of the known range of the butterfly Dry Canyon eastward 

to Mayhill, but may occasionally mow the vegetation within the known 

range of the butterfly adjacent to Highways 82, 244, and 130, if the 

rights-of-way are not too steep (Forest Service 1999b, 2004f). The 

Forest Service found there are at least 3 areas within the Village of 

Cloudcroft that are occupied by the butterfly, including the edges of 

the existing golf course, residential areas along the southeast, and 

adjacent to Highway 82 (Forest Service 2004e). As noted below, we found 

another area (i.e., the edges of the football field) that was not 

butterfly habitat and had been recently cleared of trees, has been 

colonized this year (Service 2004d). This has been reported elsewhere 

for butterflies in the genus Euphydryas (Ehrlich and Hanski 2004). For 

example, freshly created habitats on road verges, railway embankments, 

and wide forest tracks (associated with timber extraction) have been 

colonized by many species of butterfly (see Thomas 1994). These areas 

are likely to provide connectivity through ``stepping stones'' to other 

occupied butterfly localities (Thomas et al. 1992).

    Recently, we also found that butterfly habitat has been created 

adjacent to a football field that was part of a 1996 land purchase 

(Service 2004d, Forest Service 2001a, 2001b). In an area adjacent to 

the football field that was previously forested and not considered 

butterfly habitat (Forest Service 2001a), we found larvae in diapause. 

During surveys in October 2004, we found New Mexico penstemon and 

valerian (Valeriana edulis) growing abundantly throughout the area and, 

based upon the presence of larvae, conclude that reproduction occurred 

in this area during 2004 (Service 2004d). This indicates that larval 

foodplants were naturally reestablished following forest clearing and 

soil disturbance. The butterfly subsequently colonized the area. This 

information demonstrates the resiliency of the butterfly and its 

footplants, and their ability to colonize new habitat. Based upon our 

assessment of these data, it appears that habitat connectivity is still 

provided through much of the land within the range of the butterfly. 

Thus, heavy clearing or mowing of native vegetation cannot be 

considered a significant threat presently or in the foreseeable future.


    As evidenced by the foregoing discussion of occupied butterfly 

habitat on private lands within the Village of Cloudcroft and Otero 

County, it has been demonstrated that the butterfly can co-exist within 

developed areas. The potential threat to the butterfly from private and 

commercial development is not as significant as we originally believed. 

For example, we estimate that no more than 7.3 of 484 ha (18 of 1,196 

ac) of suitable butterfly habitat on private land have the potential to 

be impacted from development activities. The Village of Cloudcroft will 

also continue to follow their greenbelt zoning regulations, thus 

limiting potential impacts within butterfly habitat on newly purchased/

acquired land. This new information indicates commercial and private 

development is

[[Page 76435]]

no longer a substantial threat to the species currently or in the 

foreseeable future within the Village of Cloudcroft and Otero County.

Forest Service Activities

    In the proposed rule we concluded that those Forest Service 

projects listed below, that are within the known range of the 

butterfly, had the potential to adversely affect the butterfly. Since 

the time of the proposal, the Forest Service has eliminated some 

proposed projects (e.g., the construction of a new administrative 

building) in habitat used by the butterfly (Forest Service 2001, 

2003a). They have also taken actions to protect and manage the 

butterfly, including instituting a butterfly closure order (see 

discussion below), fencing occupied butterfly habitat, and conducting 

butterfly surveys to determine range and occupancy (Forest Service 

1999a, 1999b, 1999h, 2000a, 2000d, 2004). These actions have eliminated 

or lessened threats to the species and have been beneficial for 

increasing our knowledge of this species.

    Below, we provide a brief summary of projects that have gone 

through conferencing as required for proposed species under section 7 

of the Act. The next section includes an update to those projects 

previously identified as threats to the species: (1) The capital 

improvement projects for three campgrounds; (2) a new power line, 

service road, and corridor; (3) livestock grazing activities in several 

allotments, one of which (Sacramento Allotment) encompasses over 44,921 

ha (111,000 ac); (4) a land transfer to the Village of Cloudcroft, 

which was analyzed above; and fire suppression and wildfire.

    We have a good history of conferencing with the Forest Service 

under section 7 of the Act on activities that may affect the butterfly. 

Thus, we can describe the kinds of actions that have undergone informal 

and formal conferencing. For example, we have found that many potential 

threats anticipated in the proposed rule resulted in insignificant and 

discountable effects for the butterfly (Service 2002, 2004a). These 

include: noxious weed management, reconstruction of Fir Campground, 

some wildland urban interface fuels management projects, and 

construction of the new Forest Service administrative building (Service 

2002, 2003a, Forest Service 2003a). Additionally, the majority of 

formal conferences that have anticipated incidental take of butterflies 

have found that short-term impacts will occur, but the overall project 

will result in long-term benefits for the species (Rio Pe[ntilde]asco 

II, Pines Campground reconstruction), or that impacts to occupied 

habitat will not affect the metapopulation dynamics of the species 

(Service 2001a, 2002b, 2002c, 2004e).

    To date, six projects have undergone formal conferencing for the 

butterfly and its proposed critical habitat. The projects with 

anticipated take include: (1) Cloudcroft Water Wells (2-22-02-F-012; 

1.5 ha (3.7 ac) of occupied habitat impacted); (2) Genetics Study (2-

22-02-F-667; 100 pre-diapause larvae collected); (3) Mark-release 

movements study (2-22-02-F-470; 15 adult butterflies harmed, unlimited 

number harassed); (4) Rio Pe[ntilde]asco II vegetation management 

project (2-22-02-F-397; 14.7 ha (36.4 ac) of occupied habitat 

impacted); (5) Pines Campground Reconstruction project (2-22-03-F-0061; 

4.2 ha (10.5 ac) of occupied habitat impacted); (6) Village of 

Cloudcroft Apache and Powerline water wells (2-22-04-F-721; less than 

1.2 ha (3 ac) of occupied habitat impacted). We are also currently 

conferencing on two additional projects: (1) The reinitiation of the 

Rio Pe[ntilde]asco II vegetation management project that will likely 

impact an additional 13 ha (33 ac) of occupied butterfly habitat; and 

(2) a proposed elk study that will impact about 2.4 ha (6 ac) of 

occupied habitat. In all of our conferences, we concluded that the 

actions, as proposed, were not likely to jeopardize the continued 

existence of the butterfly and are not likely to destroy or adversely 

modify proposed critical habitat.

Campground Projects

    In 1998, recreation managers and engineers of the Lincoln National 

Forest and the Forest Service's Southwest Regional Office reviewed 

improvements needed throughout existing developed campgrounds of the 

Sacramento Ranger District. In 1998, all phases of the district's 

recreation improvement proposal were submitted for funding under the 

Recreation Capital Improvement Program (Forest Service 2003b). As 

described below, three of the four phases have been completed (Pines, 

Fir, and Silver, Saddle, and Apache Campgrounds).

    Pines Campground located near the Village of Cloudcroft contains 

one of the largest known concentrations of the butterfly. 

Reconstruction activities in this campground were completed following 

formal conferencing (Service 2002a). We found that the implementation 

of this project, along with the conservation measures, will likely 

result in short-term adverse impacts to the butterfly and its habitat, 

but will ultimately reduce the long-term recreational impacts to the 

species and its habitat in this locality (Service 2002a). For example, 

the capacity of the campground has been significantly reduced, 

indicating that potential recreational impacts have decreased. The 

construction of retaining walls, fencing, and signs, the enforcement of 

areas not open to camping, and the installation of a barrier across the 

butterfly habitat has resulted in long-term benefits for the species 

(e.g., the impact of trampling of foodplants and crushing of larvae has 

been reduced). For these reasons, we believe that the reconstruction of 

Pines Campground did not disrupt the metapopulation dynamics of the 

butterfly (Service 2003). Because these activities were completed 

during 2004 (Service 2004d), this action no longer threatens the 


    The Fir Campground Capital Improvements Project underwent informal 

conferencing and resulted in a letter of concurrence (Service 2002). 

This project also redesigned the group camping area and paved the 

existing road. The Forest Service flagged and avoided butterfly 

locations during project construction. Additionally, a boundary fence 

was constructed to reduce long-term recreational and visitor impacts to 

butterfly habitat in the area. This action was completed in summer 2002 

and no longer threatens the butterfly.

    Silver, Saddle, and Apache Campgrounds were reconstructed during 

the summer of 2001 (Forest Service 2000). The Forest Service conducted 

butterfly surveys and did not locate any individuals; consequently, the 

Forest Service determined that no threatened, endangered, or sensitive 

species would be adversely affected (Forest Service 2000). Because this 

action was completed, it no longer threatens the butterfly.

    Under phase 4, the Forest Service is currently finalizing a 

proposal to reconstruct the remaining 5 campgrounds (Sleepy Grass, 

Black Bear Group, Aspen Group, Deerhead, and Slide Group) that are 

occupied by the butterfly (Forest Service 2003b, 2004i). We toured the 

five campgrounds on October 27, 2004, and discussed aspects of the 

proposal. For the final five campgrounds slated for renovations, the 

Forest Service's draft environmental analysis evaluates three 

alternatives: A no action and two action alternatives (Forest Service 

2004i). Both action alternatives incorporate measures to minimize 

impacts to the butterfly, although one alternative will protect more 

butterfly habitat through the placement of camp and day use sites in 

areas that are not butterfly habitat (e.g.,

[[Page 76436]]

forest habitat) (Forest Service 2004i). Regardless of which action 

alternative is chosen, this proposal will result in long-term benefits 

to the butterfly because more area of butterfly habitat will be 

protected than under existing conditions (Forest Service 2004i). The 

purpose of the project is to improve or replace the facilities in the 

campground to enhance the safety, accessibility and enjoyment of the 

site for National Forest visitors, while conserving the natural and 

cultural resources in the area. The main tenets of this proposal are to 

reduce the number of camping sites and condense the campgrounds into 

smaller areas through permanent campground boundaries with physical 

barriers (e.g., fences or boulders) to reduce access and associated 

trampling of butterfly habitat (Forest Service 2004i). Construction 

activities will likely be initiated during 2005 and will follow 

predefined best management practices and include seasonal restrictions 

during construction, monitoring of construction activities, surveys for 

the butterfly and foodplants, and revegetation where appropriate 

(Service 2004d, Forest Service 2004i). Construction will not result in 

a disruption of the overall metapopulation dynamics of the species 

because impacts will only be a short-term disturbance of butterfly 

habitat, with a minor amount of butterflies affected. We have found 

that these types of impacts are not a significant threat to the 

butterfly because the species and its foodplants have been demonstrated 

to be resilient to some disturbances (e.g., edges of the football 

field, campgrounds, and railroad) (Service 2004d). This remaining 

capital improvement project will offset the high demand for developed 

recreation, while limiting associated recreational impacts to the 

butterfly. For these reasons, reconstruction of the remaining five 

campgrounds is not considered a threat to the butterfly and will result 

in long-term benefits over existing conditions.

Powerline, Service Road, and Corridor

    The Forest Service issued a special use permit for the Otero County 

Electrical Cooperative Powerline project to install a new powerline 

corridor (Service 2000). The Forest Service determined that the 

powerline project was expected to result in a disturbance of less than 

0.4 ha (1 ac) of suitable butterfly habitat (Forest Service 1999a). 

They developed a seed mix for erosion control, avoided construction 

during the active season of butterfly, and added some nectar-source 

species to restore the area of disturbance (Forest Service 1999a, 

2000b). This action resulted in insignificant effects to the butterfly 

and does not threaten the butterfly currently or in the foreseeable 


    In October 2001, we informally conferenced on the Dry Canyon 

Telephone project with the Forest Service (Service 2001a). Under this 

project, the Forest Service relocated a planned telephone line from 

suitable butterfly habitat to burial in the middle of a road (Forest 

Service 1999) that is not butterfly habitat. The Forest Service also 

completed several conservation measures (e.g., foodplants were flagged 

and avoided within equipment staging areas) as part of this project 

(Forest Service 2002). The impacts associated with habitat disturbance 

from this project were temporary. Therefore, this project was, but is 

no longer considered a threat to the species.

    The economic analysis estimated that over the next 10 years about 

145 km (90 mi) of rights-of-way within butterfly habitat will be 

maintained, and that the Forest Service and Otero County Electric 

Cooperative will apply conservation activities for the species that 

range from $30,400 to $39,600 per mile ($48,640 to $63,360 per km) 

(Service 2004c). Rights-of-way provide access to powerlines and poles 

for routine monitoring and maintenance activities (1999a). For example, 

powerlines are visually inspected about 4 to 6 times per year by 

driving a vehicle along the powerline and checking for any problems or 

hazards (e.g., remove hazard trees) (Forest Service 1999a). Existing 

rights-of-way access range from two-track dirt paths to graveled roads 

in some of the areas that traverse or are adjacent to a variety of 

areas including meadows, mixed conifer forest, and pavement (Forest 

Service 1999a). These activities could result in adverse effects to the 

butterfly from scraping and grading activities (e.g., some individuals 

will likely be crushed and killed); however, we anticipate that the 

majority of impacts from rights-of-way maintenance activities will be 

temporary (scraping and leveling vegetation from within the footprint 

of existing rights-of-way). The Forest Service indicated that they will 

issue a special use permit that includes conservation measures for the 

butterfly (Forest Service 2004i). Moreover, annual maintenance projects 

are expected to be conducted in phases such that not all 145 km (90 mi) 

of rights-of-way will be impacted in a given year (Forest Service 

2004l). We encouraged the Forest Service to include a seasonal 

restriction during the active season of the butterfly and revegetate 

areas that are disturbed during maintenance activities to limit adverse 

impacts (Service 2004c). The Forest Service indicated that they were 

unable to include specific measures because activities vary from year 

to year and project to project (Forest Service 2004l). Nevertheless, 

the contractors that conducted our draft economic analysis of the 

proposed critical habitat for the butterfly interviewed employees of 

the Otero County Electric Cooperative and found that they were 

anticipating seasonal restrictions on maintenance activities (Service 

2004). Based upon this information, the special use permit will likely 

include some measures to limit adverse effects on the butterfly, but 

may not avoid all impacts such as crushing of larvae from heavy 

equipment use. Nevertheless, because of the linear nature of these 

impacts and the recognition that adjacent habitat will remain intact, 

we believe this activity represents only a limited threat to the 

species. We also note that no new Electric Cooperative projects are 

currently planned, indicating no other powerline-related threats are 

foreseeable (Service 2004).

Domestic Livestock Grazing

    The known range of the butterfly includes portions of six livestock 

grazing allotments and two horse pastures: La Luz Watershed, 

Sacramento, Russia Canyon, Pumphouse, James Canyon, Walker C.C, and 

Heliport and Pines horse pastures. The La Luz Watershed allotment 

covers about 2,023 ha (5,000 ac) and is closed and not grazed by 

livestock (Service 2004c, Forest Service 2002d). No livestock grazing 

occurs in the portion of the Sacramento allotment occupied by the 

butterfly because the topography is too steep for cattle to access 

(Service 2004a). The Heliport Horse Pasture (180 ha (446 ac)) is not 

grazed, whereas the Pines Horse Pasture (23 ha (57 ac)) is stocked with 

up to 4 horses for about 5 months out of the year (Service 2004c). The 

Pumphouse Allotment currently is stocked with up to 66 cattle, the 

Walker C.C. Allotment is permitted to stock up to 69 cattle, and the 

Russia Canyon Allotment is stocked with up to 42 cattle (Service 2004, 

2004c). These allotments are grazed for about 6 months out of the year, 

from around mid-May to mid-October during the active season of the 

butterfly (Service 2004c). The butterfly occurs within about 91 ha (225 

ac) of the Pumphouse Allotment and 7.2 ha (18 ac) of the Russia Canyon 

Allotment; however, surveys have not detected butterflies within the 

Walker C.C. Allotment (Forest Service 2001, 2004n). The grazing permit 

for the James Canyon allotment (4,299 ha (10,623 ac)) was cancelled in 

the early 1990s. Prior to that time, the allotment was stocked

[[Page 76437]]

with about 142 cattle for 6 months out of the year. The Forest Service 

is currently considering resumption of livestock grazing in the James 

Canyon Allotment (Forest Service 2004b). The Forest Service has 

proposed a utilization level of 35 percent in areas open to livestock 

grazing, and would permanently close about 2,790 ha (6,900 ac) of the 

allotment to grazing within the Silver Springs Canyon area (Service 

2004c, Forest Service 2004b). Therefore, about 40 percent (63 ha (155 

ac) of 154 ha (380 ac)) of the occupied butterfly habitat will not be 

grazed by livestock (Forest Service 2004b).

    Currently, the allowable forage utilization level in livestock 

grazing allotments within the range of the butterfly is 35 percent with 

a minimum stubble height of 10 centimeters (cm) (4 inches ( in)) 

(Service 2004c). The Forest recently requested formally conferencing 

for the James Allotment regarding potential impacts related to 

trampling of larvae from livestock (Forest Service 2004b). Prior to 

this request, we there have been no conferences between the Forest 

Service and the Service on livestock activities and the butterfly 

(Service 2004c). Nevertheless, the Forest Service manages these 

allotments consistent with existing range management standards and 

guidelines under their Forest Plan, and when management adjustments are 

necessary to meet the forage levels, adjustments are made through the 

permit administration process (Forest Service 2002d, 2004i, 2004l, 

United States District Court 2002). The existing forage utilization 

(i.e., 35 percent) is adequate for the protection of the butterfly to 

limit adverse effects (Service 2004c). Moreover, the Forest Service has 

been and is proposing to distribute livestock throughout the pastures 

in each allotment to minimize the number of cattle and the potential 

for trampling of butterflies within individual meadows (Forest Service 

2002d, 2004b). The Forest Service will also formally monitor three 

meadows within the James Canyon and Pumphouse Allotments (Forest 

Service 2004i), in addition to monitoring requirements under a previous 

(2001) court settlement agreement (Forest Guardians v. United States 

Forest Service et al. CIV 00-490 JP/RLP & CIV 00-1240 JP/RLP-ACE 

(Consolidated)) and as part of the permit administration process 

(Forest Service 2002d). If needed, management adjustments (e.g., 

reducing the number of livestock or removing all livestock) are made 

through the permit administration process (Forest Service 2002d, 2004i, 


    Although we previously assumed that grazing can eliminate or reduce 

the food plants used by the butterfly, we now conclude that management 

of current and future levels of grazing is compatible with conservation 

of the butterfly because the Forest Service is currently and will 

continue to manage these allotments for moderate grazing (i.e., 35 

percent forage utilization) (Service 2004c, Forest Service 2002d, 

2004i). For example, we incorrectly assumed that grazing would reduce 

or eliminate sneezeweed (Helenium hoopesii). In fact, the USDA 

Poisonous Plant Research Laboratory (2004) reports that sneezeweed is a 

poisonous nonpalatable species that induces chronic vomiting when eaten 

by animals. The Forest Service also indicated that most of the mountain 

meadows are currently in satisfactory range conditions and that 

sneezeweed may actually decrease as range conditions improve (Forest 

Service 2001).

    A focused study on the butterfly found that heavy grazing of 

butterfly foodplants, particularly during years with below-normal 

precipitation, may result in increased trampling and mortality of 

butterfly larvae because New Mexico penstemon may be among the few 

plants that are green (Pittenger and Yori 2003). On the other hand, the 

Forest Service indicated that Pumphouse Canyon has one of the highest 

densities of the butterfly even with high forage utilization in 1999 

(i.e., 60 to 70 percent) from combined elk and livestock use (Forest 

Service 2001, 2002d). Leaf lengths of palatable grass species in 

Pumphouse Canyon averaged 8.4 cm (3.3 in) in 1999, 11.4 cm (4.5 in) in 

2000, 21.3 cm (8.4 in) in 2001, and 10.1 cm (5.3 in) in 2002 (Forest 

Service 2002d). A leaf length of 10.1 cm (4 in) and greater reflects 

moderate forage utilization and equates to about 35 percent forage 

utilization (Forest Service 2002d). The Forest Service did not provide 

any monitoring data to us from 2003 or 2004, but indicated that they 

are managing this and other allotments to attain moderate forage use 

(Forest Service 2004d, 2004i). Although Pittenger and Yori (2003) found 

that heavy grazing on New Mexico penstemon occurred during 2002 within 

the Pumphouse Allotment, there were no differences in the density of 

New Mexico penstemon when compared to ungrazed meadows within Spud 

Patch Canyon. They also did not find a difference in the overall number 

of adult butterflies observed between moderate and heavy grazing years 

(i.e., 2000, 2001, and 2002) within the Pumphouse Allotment (Pittenger 

and Yori 2003). Forage utilization may have been high in 1999 because 

of a disproportionate amount of grazing by elk (Forest Service 2002d) 

(see discussion below on current elk management).

    We do not expect that heavy grazing will continue to occur within 

the range of the butterfly because the Forest Service has recently been 

monitoring and managing these allotments to attain 35 percent forage 

utilization and they must manage and protect long-term range conditions 

consistent with their range management regulations (e.g., see 36 CFR 

222) (Forest Service 2002d, 2004b, 2004i, 2004l, United States District 

Court 2002). We also note that, similar to other site-specific 

decisions, authorized grazing permits must be consistent with the 

applicable Forest Plan at the time they are issued (36 CFR 219.10).

    We find that the Lincoln National Forest Plan will manage butterfly 

habitat because at least two of the applicable standards and guidelines 

apply to the butterfly including: (1) Protecting and managing essential 

and critical habitats of threatened, endangered, and sensitive species 

through ensuring that legal and biological requirements of designated 

plant and animal species are met; and (2) identifying, protecting, and 

enhancing existing and potential habitat of all threatened, endangered, 

and sensitive species (USDA Forest Service 1986). The butterfly has 

been designated by the Regional Forester as a Sensitive Species, and, 

as such, will continue to be analyzed in all applicable NEPA documents 

(Forest Service 2004i). The Forest Service has indicated that 

conservative stocking levels, deferred and rest-rotation grazing 

schemes, and timing of permitted grazing are the best ways to minimize 

grazing impacts on the butterfly (Forest Service 2001). We agree with 

this conclusion.

    We acknowledge that grazing can incidentally kill butterflies 

through trampling and/or accidental ingestion of larvae or eggs 

(Pittenger and Yori 2003, Forest Service 2002, White 1986), and 

anticipate such effects are occurring within each of the allotments 

that overlap with occupied butterfly habitat (i.e., Pumphouse, Russia 

Canyon, and La Luz Watershed). However, because the Forest Service is 

managing these allotments for medium-intensity grazing, we believe the 

effects will be minimal and not result in the butterfly population 

being compromised (Forest Service 2002d). In the future, this same 

management strategy (i.e., the forage

[[Page 76438]]

utilization threshold) will ensure larval and adult foodplants are 


    In 2001, the New Mexico Department of Game and Fish changed the 

management objective for game management unit 34, which overlaps with 

the range of the butterfly. A 5-year plan was adopted to reduce the 

number of elk from about 4,000 to 1,000 across the entire game 

management unit (Forest Service 2002). The current elk population goal 

is 1,700 animals, with the most recent survey results estimating a 

current elk population of 2,700 animals within this game management 

unit (Forest Service 2004b). The New Mexico Department of Game and Fish 

has continued to increase the number of elk hunting tags and has 

implemented depredation hunts to minimize the impact of elk grazing on 

range conditions (Forest Service 2004b). These actions will continue to 

further reduce the impact of grazing on the butterfly.

    The foregoing analysis indicates that even when grazing is not 

closely managed, grazing appears to have a negligible effect on 

butterfly populations and its major foodplant, New Mexico penstemon 

(Pittenger and Yori 2003). Still, we expect that grazing will be 

closely managed to attempt to meet 35 percent forage utilization 

(Forest Service 2002d, 2004i, 2004l). For these reasons, the current 

and future occurrence of grazing does not represent a principal factor 

in the viability of the species and its habitat.

Trespass Horses

    About 20 to 40 trespass horses have been observed grazing in 

meadows of the James Allotment within the northern portion of the 

Sacramento Ranger District (Forest Service 2004b, Service 2004b). 

Trespass horses could have an impact on forage utilization levels and 

trampling of butterfly host plants and larvae (Forest Service 2004b). 

The Forest Service has posted impoundment notices, contacted presumed 

owners, and spent $10,000 repairing and rebuilding fences along the 

Forest boundary (Forest Service 2004i). To date, these efforts have not 

been successful in reducing the number of trespass horses on the 

Sacramento Ranger District (Forest Service 2004b). Similar to livestock 

grazing, we believe that trespass horses will have negligible effects 

on butterfly populations and its major foodplant, New Mexico penstemon. 

They are also unlikely to eat sneezeweed because it is a poisonous, 

nonpalatable species. Horses are currently having very little impact on 

soil and range conditions. For example, the Forest Service reports that 

the soil condition rating is satisfactory and range condition is stable 

or increasing on 98 percent of the James Allotment (Forest Service 

2004b). For these reasons, trespass horses are considered a low threat 

to the butterfly, because they occur in a limited number of meadows in 

the James Allotment (Forest Service 2004b). We also note that the 

Forest Service has committed to removing the feral horses from the 

James Allotment, and we anticipate that this will happen in the near 

future (Forest Service 2004b, Service 2004b). We have not relied upon 

this future removal in our determination that trespass horses are a low 


Fire Suppression and Wildfire

    In the proposed rule, we concluded that the condition of mountain 

forest lands as a result of 100 years of fire suppression in the 

Sacramento Ranger District threatened the butterfly. In light of new 

information we received (e.g., Service 2004b, Forest Service 2002a, 

2002c), we reexamined our original conclusion. Prior to 1900, the mean 

natural fire interval for forests in the Sacramento Mountains was about 

4 to 5 years (Kaufmann et al. 1998). 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 is currently the case 

(Kaufmann et al. 1998).

    Due to the small known range and low abundance of the butterfly, 

the subspecies is potentially vulnerable to catastrophic wildfires. 

Although at least nine catastrophic wildfires have burned over 34,000 

ha (90,000 ac) during the last 50 years in the Sacramento Mountains 

(Kaufmann et al. 1998), a significant fire has not been documented 

within occupied habitat or proposed critical habitat since 1916 

(Service 2004b). Because fire is an inherently variable process 

depending on season, fuels, wind, moisture, etc. it impossible to 

accurately predict how the butterfly will respond. Nevertheless, the 

effects of fire on butterfly habitat quality and availability can be 

expected to vary based on the severity of fire, the response of 

foodplants to burn severity, and suitability of postfire vegetation 

(Romme et al. 2004).

    Although the effect of fire upon this species is unknown (e.g., for 

a recent review see Service 2004b), some local information is available 

from post-fire monitoring of the Scott Able fire that burned 24 km (15 

mi) southeast of the Village of Cloudcroft. In May 2000, the Scott Able 

fire burned 6,400 ha (16,000 ac) in the Lincoln National Forest, 

covering elevations between 2,250 to 3,000 m (7,000 to 9,300 ft) (Cary 

2004 cited in Service 2004b). This intense, wind-driven fire burned an 

estimated 0 to 10 percent of the meadows and 85 to 90 percent of the 

forested canopies within the mapped fire boundary (Cary 2004 cited in 

Service 2004b), meeting the qualifications for a stand replacement fire 

in much of the burned area (McCarthy and Yanoff 2003). Meadows in mixed 

conifer habitat that did not burn were situated primarily along 

drainages (Cary 2004 cited in Service 2004b). The butterfly does not 

occur in the location of the burn, but New Mexico penstemon and 

sneezeweed can be found (Cary 2004 cited in Service 2004b). Between 

2001 and 2003, mobile butterflies associated with shrubs, grasses, and 

forbs have shown a positive response to the fire, with most species 

peaking in 2001 after abundant spring precipitation (Cary 2004 cited in 

Service 2004b).

    Fires in the Sacramento Mountains tend to burn in a mosaic pattern 

(i.e., patches of burned and unburned vegetation) and are less likely 

to burn in meadows compared to surrounding forests because of the types 

of fuel involved (Forest Service 2001, 2002c). In fact, weather 

conditions that would trigger a wildfire in forested areas (i.e., mixed 

conifer fuel type) that are adjacent to meadows consist of very dry, 

windy days (Forest Service 2001, 2002c). Meadow habitat is usually not 

at high risk during fires within the mixed-conifer fuel type because 

fire behavior during wind-driven events generally burns through the 

crowns or canopy of trees, with little to no high-severity burns within 

meadows (Forest Service 2001, 2002c). These conditions would not result 

in pronounced heat effects in the soil or seedbank (R. Guaderrama cited 

in Service 2004b, Forest Service 2001), especially within areas where 

the larval host plants grow, because they usually lack continuous fine 

fuels. For example, in areas burned by the Scott Able fire, underlying 

soils were not exposed to extreme temperatures and soils were generally 

unharmed (Forest Service 2000). These data suggest that meadows and 

drainages may be less likely to burn during wind-driven events, which 

offers some protection to the butterfly and its habitat. Still, some 

amount of butterfly habitat will likely burn. In that event, it is 

likely that adjacent butterfly localities in surrounding habitat and 

unburned inclusions would serve as source populations to recolonize 

burned areas following a fire. This information suggests that 

catastrophic wildfire may

[[Page 76439]]

not be as great a threat as we had originally believed.

    Since 1999, the Sacramento Ranger District of the Lincoln National 

Forest has been working on reducing the threat of catastrophic wildfire 

in the wildland-urban interface (WUI) (Forest Service 1999, Service 

2004). We have been following several projects throughout the 

Sacramento Ranger District, and have found that some projects may not 

only provide a reduction in the risk of catastrophic wildfire, but also 

enhance marginally suitable butterfly habitat along the edges of 

forests/meadows (Service 2004d). We have observed that the butterfly's 

foodplants, particularly New Mexico penstemon have been reestablished 

within areas that were recently disturbed (e.g., Highway 130 adjacent 

to Deerhead Campground, edges of the football field) (Service 2004d). 

The type of disturbance and soils likely influence whether foodplants 

will be reestablished; however, many of the forest/meadow edges that 

are contained within WUI projects have low-density foodplants already 

established (Forest Service 2000c). Within these areas, we believe that 

an increase in sunlight from thinning activities will allow foodplants 

to increase in both size and abundance. This is what we have observed 

within the construction footprint of Highway 130 adjacent to Deerhead 

Campground, the edges of the football field on Lost Lodge Road, and in 

drainages throughout these areas that have been thinned (Service 


    In the Sacramento Mountains, several locations adjacent to occupied 

butterfly habitat have been progressively thinned since 2002. Thinned 

areas occur in Bailey Canyon (215 ha, 532 ac), Pineywood Canyon (262 

ha, 647 ac), Deerhead Canyon (146 ha, 360 ac), and along Cox Canyon (72 

ha, 178 ac). An additional 373 ha (921 ac) are designated for thinning 

in Apache Canyon and 81 ha (201 ac) are projected for a different part 

of Deerhead Canyon (Service 2004b). Thinned locations adjacent to 

suitable butterfly habitat may be used or colonized by the butterfly 

(Service 2004d). Pittenger and Yori (2003) documented butterfly 

movement between meadows, with the movements of one butterfly crossing 

a closed-canopy mixed-conifer forest for the entire route. Butterfly 

movements such as this example are likely not common because forests do 

not provide the necessary foodplants. Thus, woodland canopy reduction 

is important for open-habitat butterflies, which readily move from 

meadows into corridors, but rarely from meadows into dense woodlands 

(Sutcliffe and Thomas 1996). Also, open-habitat specialist butterflies 

are known to reach higher densities in patches connected by corridors 

than in isolated patches (Haddad and Baum 1999). The formation of 

cleared corridors or stepping-stone patches by thinning could allow the 

butterfly to migrate between suitable meadows (Maina and Howe 2000, 

Service 2001b), thus encouraging colonization of new sites or genetic 

exchange among the subpopulations. Thinning has also been associated 

with the establishment of plant and butterfly edge specialists (i.e., 

species that are adapted to the conditions created at the boundary 

between wild and disturbed lands such as a forest where the adjacent 

land has been cut), which could provide potential microhabitats or 

nectar sources for the butterfly (Bergman 2001). We have not done an 

extensive inventory of all areas thinned throughout the Sacramento 

Ranger District; however, we maintain that areas where foodplants 

become more abundant could enhance habitat connectivity between 

occupied localities and provide long-term benefits for the butterfly, 

even with the potential for short-term impacts (e.g., Service 2002b, 

2001b). Thus, we conclude that thinned forests could facilitate habitat 

connectivity between meadows occupied by the butterfly (Service 2001b).

    Since 2000, the Forest Service has invested almost $11 million to 

reduce hazardous fuels on more than 18,616 ha (46,000 ac) on the 

Lincoln National Forest, with funding and amount of land treated in 

2004 nearly three times the 2000 level (Forest Service 2001, 2002a, 

2003, 2004c, 2004h, 2004m, Service 2004b). As part of the Healthy 

Forests Initiative, in June 2004, the Lincoln National Forest received 

$750,000 to thin an additional 607 to 809 ha (1,500 to 2,000 ac) of 

overgrown stands of trees adjacent to communities in Lincoln and Otero 

counties (2004h). Vegetation management activities within the range of 

the butterfly consist primarily of thinning treatments to reduce fire 

fuels loads and restore forest structure to a more natural state. About 

89 percent of the lands within the proposed critical habitat boundary 

(12,419 of 17,628 ha (30,687 of 43,560 acres)) are classified by the 

Forest Service as WUI treatment areas (Service 2004c). The goals of 

these thinning treatments are to reduce the threat of catastrophic 

wildfire in the wildland-urban interface and to assist in the economic 

sustainability of these communities. As described above, little 

quantitative data has been gathered following the WUI projects being 

implemented on the Lincoln National Forest. Nevertheless, qualitatively 

we have found a beneficial response of the butterfly to the increase in 

thinning (Service 2004d). Recent WUI projects have targeted reducing 

ladder fuels (those fuels that convey flames from the ground to the 

tree canopy) and tree densities in forests surrounding the meadows 

(Service 2004b). These projects should assist in lowering the risk of 

catastrophic wildfire in forested areas and may reduce the intensity 

and severity of wildfires in adjacent butterfly habitat (i.e., 


    The Forest Service is also currently proposing to amend their 

Forest Plan to allow broader application of natural fire to aid in 

forest restoration (Forest Service 2004d). Depending on the season of 

burns and other factors, fire activity from this action could be 

expected to range from creeping surface fires with flame lengths of 

less than 30 cm (12 in) burning in pine litter and duff (leaves and 

branches on the forest floor) during periods when temperatures are low 

and the relative humidity is high, to an active surface fire burning 

freely in all surface fuels, and actively torching groups of seedling 

and small-pole-size (2.54 to 10 cm)(1 to 4 in) trees. The more active 

fires will also regularly torch individual overstory trees of various 

sizes as well as small groups of overstory trees with continuous ladder 

fuels beneath them. These types of burns would generally provide 

conditions suitable for increased herbaceous plant growth by removing a 

thick layer of dead plant debris within treated areas, in addition to 

enlarging some of the meadows (i.e., from killing conifers that have 

encroached). We believe that the mosaic effect created by burned and 

unburned areas, in conjunction with a reduction in catastrophic fire 

risk and increase in meadows (from encroaching conifers burning), may 

result in long-term benefits for the butterfly.

    We previously concluded that wildfire was one of the most 

significant threats facing this species. In the proposed rule, we found 

that a significant increase in funding was required to reduce the risk 

of catastrophic fire for the butterfly. The new information we reviewed 

indicates this funding and subsequent increases in fuels management 

have occurred and will continue for the foreseeable future (Forest 

Service 2001, 2002a, 2003, 2004c, 2004h, Service 2004b). We have also 

reexamined our original conclusion based upon site-specific data from 

fires that have burned in the last few years. These data demonstrate 

that meadows

[[Page 76440]]

generally do not burn at high intensity, but usually burn as a mosaic 

(Service 2004b). Given recent information from the Sacramento Mountains 

and new and continued efforts to reduce the risk of catastrophic 

wildfire, we no longer consider fire a threat of high magnitude. In 

fact, fire and activities conducted to reduce the risk of fire may be 

beneficial by increasing connectivity between areas of suitable 

butterfly habitat. Thus, we find the threat to the butterfly from 

catastrophic wildfire has been reduced and is no longer significant.

Highway and Forest Road Reconstruction

    In the proposed rule, we concluded that construction of roadways 

had historically eliminated or reduced the quality or quantity of 

butterfly habitat. We reexamine this conclusion based upon new 

information. The Forest Service indicated in their comments on the 

proposed rule that the only road construction planned within butterfly 

habitat is associated with campground reconstruction projects (Forest 

Service 2001). These activities, including the associated road 

construction, are not considered a threat to the butterfly (see 

``Campground Projects'' section above). Road grading activities will 

likely occur on both Forest Service and private lands. The Forest 

Service has not found adverse impacts to the butterfly from these 

actions because the majority of these maintenance activities occur 

within the existing footprint of the road during the non-active season 

of the butterfly (Forest Service 2001). These road maintenance 

activities can cause localized adverse impacts to the butterfly through 

the elimination of larval food and adult host plants or the crushing of 

life history stages. However, as described under the Otero Electrical 

Powerline analysis above, many of these impacts are likely temporary 

and will not lead to a disruption of local populations.

    The NMSHTD project detailed in the proposed rule cleared a variety 

of vegetation by scraping and widening the road and shoulders, 

constructing retaining walls, adding drainage ditches and culverts, and 

reconstructing a curve. Topsoil and larval food plants were stockpiled 

and used in revegetation when the project was completed. Monitoring 

documented that transplanting efforts were not effective (Pittenger and 

Yori 2003); however, the area has been revegetated from naturally 

occurring seeds and now contains larval food plants and adult nectar 

sources (Service 2004). Although the butterfly has not been documented 

within this area to date, we believe it may be used as early as the 

2005 active season of the species (April through October). We base this 

conclusion on observations in the areas adjacent to the football field 

that had similar vegetation disturbance and subsequent foodplant and 

butterfly recolonization (Service 2004d). This information indicates 

that road maintenance and reconstruction activities have the potential 

to adversely affect the butterfly, but they have not been demonstrated 

to be a serious impact because the butterfly and its foodplants are 

more resilient than previously thought. Thus, we do not consider road 

reconstruction and maintenance activities to be a serious threat to the 

butterfly that will result in long-term consequences.

Recreational Impacts

    Off-highway vehicles (OHVs) pose a threat to the butterfly through 

direct crushing of eggs, larvae, pupae, or thermoregulating 

(maintenance of a constant internal body temperature regardless of 

environmental temperature) adults located on bare soils, leaves, or 

grasses within or adjacent to trails and roads (66 FR 46575, September 

6, 2001). The Forest Service recently produced a map and report that 

categorized meadow disturbances (Forest Service 2004e). They found that 

dispersed camping and OHV use is increasing on the Forest, and that 

impacts are occurring in about half of the occupied butterfly habitat 

(225 ha (555 ac)) (Forest Service 2004e). The level of OHV activity is 

high within four areas (Pumphouse Canyon, Bailey Canyon, Zinker Canyon, 

and La Luz road in the vicinity of Forest Road 162A).

    During 2004, the Forest Service focused on reducing the impact of 

illegal OHV traffic and related recreational impacts within the 

occupied butterfly habitat of Bailey Canyon by: (1) Fencing access 

points to meadows within these areas; (2) felling logs and trees across 

trails; (3) enforcing regulations that prohibit travel off-road use in 

certain areas; (4) placing signs in the middle of illegally created OHV 

trails; and (5) increasing public education regarding impacts of OHV on 

natural resources (Forest Service 2004f, Service 2004d). For example, 

fencing that was placed in Bailey Canyon during summer 2004 has thus 

far proved to be an effective deterrent against OHVs entering occupied 

butterfly habitat (Service 2004d, Forest Service 2004i). Fencing, 

signs, and monitoring by law enforcement personnel have similarly 

stopped OHVs from entering butterfly habitat in other areas of the 

forest (e.g., Pines Campground and Silver Springs) (Forest Service 

2000c). The Forest Service indicated that these fences have not been 

cut or torn down and OHVs generally stay out of meadows if their access 

is blocked (Service 2000c, 2004d). The Forest Service has committed to 

continue to alleviate OHV-related impacts to the butterfly by 

installing physical barriers, posting signs, felling trees, and 

enforcement (Forest Service 2004i). Nationally, the Forest Service is 

also currently revising their travel management regulations to require 

each Forest to establish a system of roads and trails and regulate or 

prohibit certain motor vehicle uses (July 15, 2004, 69 FR 42381).

    We are not relying on this effort in our analysis of this potential 

threat, but recognize that the revised travel management regulations 

may provide a long-term conservation benefit to the species by 

providing a consistent policy that can be applied to all classes of 

motor vehicles, including OHVs, that would allow the agency to regulate 

different types of uses. Nevertheless, it is likely that even with 

these measures, some temporary OHV-related impacts will continue to 

affect the butterfly and its habitat. OHV impacts will likely result in 

the temporary crushing or possible destruction of foodplants in 

localized areas and mortality of individual butterflies (or other life-

history stage) (Service 2004d). We believe the magnitude of these 

impacts is low based on our observations of OHV use and the estimate of 

OHV impacts in Kockelman (1983). Kockelman (1983) estimated that a two-

wheel OHV leaves a track about 13 cm (5 in) wide and disturbs about 0.4 

ha (1 ac) for every 32 km (20 mi) traveled, whereas tracks made by a 4-

wheel OHV are typically 0.5 m (18 in) wide and disturb about 0.4 ha (1 

ac) for every 10 km (6 mi) traveled. Using these estimates, we believe 

that only a small proportion of occupied butterfly habitat would be 

impacted in a given year. For example, if a 4-wheel OHV tracks across 

occupied butterfly habitat, the OHV would need to travel 96.5 km (60 

mi) uniformly to completely disturb a 4.0-ha (10-ac) meadow. Many of 

the OHV impacts that have been observed are single events (i.e., there 

are fewer than 5 to 10 OHV tracks across a meadow) (Forest Service 

2000c, Service 2004d). This type of an impact would account for very 

little habitat disturbance. For all of these reasons, we do not believe 

that OHVs significantly threaten the butterfly.

    In the proposed rule, we found the butterfly may also be threatened 

by impacts from mountain bikes, hiking, and camping because of the

[[Page 76441]]

development of trails, a reduction of native vegetation to barren 

areas, and trampling, but the potential significance of these impacts 

had not been quantified. We indicated that the species had the 

potential to be impacted by these activities because larvae could be 

found along and adjacent to several popular mountain biking routes, 

hiking trails, and dispersed camp sites.

    The Forest Service has conducted project-by-project analysis of 

large events (see discussion below) to determine potential impacts to 

the butterfly. These analyses will continue because the species is 

designated as a sensitive species on the Lincoln National Forest 

(Forest Service 2001, 2004i). As a sensitive species, the Forest 

Service conducts surveys within habitat that is capable of supporting 

the butterfly and analyzes the impacts of proposed projects as part of 

the NEPA process (Forest Service 2004i). For example, the Forest 

Service indicated that their biologists survey routes prior to large 

events such as races, and they determined the trails were not occupied 

by larvae and, therefore, were not affected (Forest Service 2001). It 

is our understanding that if larvae were to be found within the route 

of a race, the Forest would either analyze the impact on the species 

through the development of a Biological Evaluations (BEs) and a NEPA 

document, or they would move the route to avoid impacts to the 

butterfly. We do not have quantitative data on the potential impact 

from hiking or dispersed camping. However, our observations over the 

last several years suggest the potential adverse impacts from hiking 

and dispersed camping are minor and result in short-term crushing of 

vegetation (Service 2000a).

    We still believe mountain biking, hiking, or camping may directly 

or indirectly affect larval food plants, nectar sources, or various 

life stages of the butterfly through the development of 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). However, it does not appear that 

these impacts are likely significant for the butterfly. We reached this 

conclusion because we have found that some small-scale impacts such as 

those described above, particularly temporary crushing of vegetation 

(e.g., on trails), does not result in long-term impact to the local 

population (e.g., see Service 2000, 2000a, 2002c, 2004e) because only a 

small number of individuals have the potential to be affected. Thus the 

overall population would remain intact.

    We have continued to observe a variety of these small-scale impacts 

(e.g., barren ground, trampled food plants, multiple trails, vehicle 

tracking, etc.) in areas used by larval and adult life stages of the 

butterfly. Nevertheless, it does not appear that these small-scale 

disturbances have reduced the amount of suitable habitat in and around 

developed campgrounds or undeveloped campsites known to support the 

butterfly, because the subspecies is still abundant within these areas 

(e.g., Deerhead, Pines, Sleepygrass, Slide, Black Bear, and Fir 

Campgrounds) (Forest Service 2004e). Consequently, the effect of 

mountain bikes, hiking, and camping on the butterfly is not currently 

considered a threat.

Nonnative Vegetation

    In the proposed rule, we found that nonnative vegetation threatened 

the butterfly by out-competing and reducing or eliminating food plants 

for larvae and nectar plants used by adults (66 FR 46575, September 6, 

2001). On the Lincoln National Forest, there are 12 aggressive 

nonnative plant species, including Russian knapweed (Acroptilon 

repens), musk thistle (Carduus nutans), oat grass, and teasel (Dipsacus 

sylvestris). In 2002, we completed an informal conference with the 

Forest Service regarding a District-wide noxious weed management 

program (Service 2002, Forest Service 2000d). This program also 

authorizes the NMSHD to treat noxious weeds within state and Federal 

highway rights-of-way (Forest Service 2000d). We concluded that the 

effects from the Forest Service's proposal to manage and remove noxious 

weeds were expected to be insignificant (i.e., should never reach the 

level where incidental take will occur) or discountable (i.e., effects 

are extremely unlikely to occur) to the butterfly (Service 2002). These 

data indicate that nonnative vegetation and the application of 

herbicides are currently being managed, which significantly reduced the 

threat to the species. As such, we do not believe the nonnative 

vegetation and the application of herbicides are a significant threat 

to the butterfly.

Conclusion for Factor A

    The 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).

    In the proposed rule, we found that much of the remaining suitable 

butterfly habitat, and the long-term persistence of the species, was 

threatened by the direct and indirect effects of commercial and private 

development, Forest Service projects, catastrophic wildfire, fire 

suppression activities, highway reconstruction, OHV use, trampling, 

overgrazed range conditions, and nonnative vegetation. As detailed 

above, we received new information since publication of the proposed 

rule specific to the butterfly and the potential threats. It is our 

determination that based on an analysis of the best scientific and 

commercial data available that the present or threatened destruction, 

modification, or curtailment of the butterfly's habitat or range is no 

longer a significant factor because new information indicates that 

these threats have been eliminated or reduced. Considering the 

magnitude, imminence, and irreversibility of threats to the butterfly 

and its habitat, we now conclude that the threats identified under 

Factor A are not likely to cause the species to become endangered 

within the foreseeable future throughout all or a significant portion 

of its range (see discussion after ``Factor E'' below). Based upon the 

information reviewed above, we also conclude that the butterfly is not 

endangered of extinction throughout all or a significant portion of its 

known range.

B. Overutilization for Commercial, Recreational, Scientific or 

Educational Purposes

    In our proposal, we found that the species was at risk from over-

collection. The Forest Service issued a closure order in April 2000 for 

the collection of any butterflies without a permit on the Smokey Bear 

and Sacramento Districts of the Lincoln National Forest (Forest Service 

2001). This closure order restricts the collection of the butterfly 

without a permit. Pursuant to 36 CFR, Sec.  261.58(s), the Forest 

Service specifically prohibited ``capture, collection, killing, 

possession, storage, or transportation of the Sacramento Mountains 

checkerspot butterfly, and of life stages or parts thereof.'' The 

Forest Service posted the closure order in accordance with their 

regulations and also published a notice of the closure

[[Page 76442]]

order in the newsletter of the Lepidopterists' Society (36 CFR 261, 

Lepidopterists' Society Newsletter 1999, Holland 1999). Forest Service 

Law Enforcement is aware of possible threat of illegal collecting. It 

is our understanding that they patrol these areas. Penalty for illegal 

collection is a maximum of $5,000 and 6 months in jail. Since the 

closure order was enacted, we have not found any evidence (e.g., 

glassine collection envelopes, commonly used to house captured 

individuals) that the butterfly is being illegally collected. Since 

2000, we and the Forest Service have spent hundreds of person-hours in 

the field surveying for the butterfly, and neither we nor they have 

observed any people that appeared to be collecting the butterfly. The 

Forest Service intends to keep the closure order in place indefinitely. 

Consequently, on the basis of the efforts of the Forest service and the 

implementation of the closure order, we believe that over-collection is 

no longer considered a threat to the species.

C. Disease or Predation

    There are no indications at this time or at the time of the 

proposal that disease or predation might be a limiting factor for the 


D. The Inadequacy of Existing Regulatory Mechanisms

Public Lands

    While inadequate protection by way of existing regulatory 

mechanisms was a factor in our decision to propose this species for 

listing, developments since our proposal have addressed these 

inadequacies. The Forest Service has the authority through the National 

Forest Management Act (NFMA) 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 Forest Service has minimized or avoided potentially adverse 

impacts to the butterfly by either altering or canceling several 

proposed projects including campground reconstruction, a new 

administrative building, Townsite Act proposal, nonnative vegetation 

management, and the Dry Canyon Telephone line project (see Factor A 

section above for details). The Forest Service indicated that they 

currently provide protection and management measures for the butterfly 

because it is a designated sensitive species (Forest Service 2001). The 

Forest Service will continue to protect and manage butterfly habitat on 

public lands by analyzing potential impacts of proposed projects on the 

butterfly (Service 2004b, Forest Service 2004i). In fact, Forest 

Service policy (FSM 2670.3) states that Biological Evaluations (BEs) 

must be completed for sensitive species, and signed by a journey-level 

biologist or botanist. The BE must be signed prior to any NEPA decision 

document. BEs must include an evaluation of effects of proposed 

management actions on these species or their habitats occurring within 

the analysis area. The NFMA also requires the Forest Service ``provide 

for a diversity of plant and animal communities'' (16 U.S.C. 

1604(g)(3)(B)) as part of their multiple use mandate. The Forest 

Service is required to maintain ``viable populations of existing native 

and desired non-native species in the planning area'' (36 CFR 219.19). 

The Sensitive Species program was designed to meet this mandate and 

demonstrate their commitment to maintain biodiversity on National 

Forest System lands. The intent of this program is a proactive approach 

to conserving species to prevent a trend toward listing under the Act, 

and to ensure the continued existence of viable, well-distributed 


    The Lincoln National Forest will continue developing BEs and 

conducting NEPA analyses for each project that will affect the 

butterfly or its habitat (Forest Service 2004i). We will continue to 

analyze these site-specific NEPA documents, conduct field surveys, and 

monitor the cumulative impacts of projects on the butterfly and its 


    In areas that have the potential to support the butterfly, the 

Forest Service has and will continue to do so under their existing 

authorities: (1) Protected and managed occupied and unoccupied 

butterfly habitat on public lands; (2) applied appropriate weed and 

pest control practices in or near occupied meadows; (3) decreased risk 

of catastrophic wildfire; (prioritized fuel treatment areas near known, 

occupied habitat to reduce the risk of catastrophic wildfire); (4) 

managed public recreation; (5) managed campgrounds near butterfly 

meadows to limit vehicles, tents, and other equipment in confined 

areas; (6) developed and installed an interpretive kiosk regarding the 

butterfly at Pines campground to educate campers and visitors; (7) 

evaluated the potential impact to the butterfly prior to issuing 

special use permits; (8) managed domestic livestock grazing at levels 

that minimize impacts to the butterfly; (9) issued a closure order to 

protect the butterfly from the threat of collection; (10) ensured 

effective contract administration for projects occurring in butterfly 

habitat (i.e., monitor project implementation to document conservation 

measures are being implemented); and (11) implemented best management 

practices during maintenance of powerline corridors (Service 2004, 

2004b, 2004c, 2004d, 2004e, 2002, 2002a, Forest Service 2004b, 2004i, 

2002b, 2001, 2000b).

    In the proposed rule, we found that existing regulatory mechanisms 

did not fully protect this species or its habitat on Forest Service 

lands. Because the Forest Service has implemented many efforts to 

manage and maintain butterfly habitat, and has the authority and 

regulations in place to continue such efforts into the future, we now 

find these efforts contribute significantly to the adequacy of existing 

regulatory mechanisms.

Private Lands

    Private lands play an important role in the butterfly's continued 

existence. Since publication of the proposed rule, we have found that 

there are local regulatory mechanisms pertaining to open space on the 

Village of Cloudcroft's lands (Village of Cloudcroft 2001). As noted 

above, the Village of Cloudcroft local zoning regulations (i.e., the 

Village Code) states that Greenbelt Zones shall consist of open space 

with no structures or commercial signs allowed. Further, there shall be 

no overnight parking or camping allowed within these areas. Within the 

Village of Cloudcroft, it is our understanding that native vegetation 

within greenbelt areas is generally not mowed and, in some areas 

currently provides suitable butterfly habitat that is occupied (Forest 

Service 2004e). Although we are not relying a future land transfer in 

our current review, the Village of Cloudcroft is also proposing to 

offer 16 ha (40 ac) (some of which contains occupied butterfly habitat) 

near the Cloudcroft Ski Area in James Canyon to the Forest Service 

(Service 2004b). In exchange, the Forest Service has allotted 16 ha (40 

ac) that is not butterfly habitat to the Village. This would bring 

additional butterfly habitat under Forest Service management and remove 

the potential threat of development. The Village has committed to 

improving the status of the butterfly and contributing to its long-term 

conservation by: (1) Following their zoning regulations on ``greenbelt 

zones'' and open space with no structures in recently annexed (and any 

future annexed) lands; (2) committing to a land exchange with the 

Forest Service; and (3) providing community education and outreach for 

the conservation of the butterfly. We

[[Page 76443]]

view these actions as adequate existing regulatory mechanisms to 

minimize the current and future threats to the butterfly.

    On October 19, 2004, Otero County passed a resolution committed to 

conservation of the butterfly (Otero County 2004). This resolution 

outlines the County's commitment to conservation of the butterfly 

(Service 2004b, Otero County 2004), and initiated a process that will 

cause the County to begin amending its existing subdivision ordinance 

to provide conservation measures for the butterfly. The County has 

indicated to us that they intend to pass this ordinance in December 

2004. As identified in Factor A above, the threat of commercial and 

private development is not believed to be significant at this time. 

Therefore, although future developments within butterfly habitat will 

likely be required to follow the amended subdivision ordinance, and we 

encourage and support this effort, we have not relied upon the 

development of a protective ordinance when analyzing the potential 

threat of this activity in Factor A above.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Insect Control

    In the proposed rule, we also determined that the application of 

carbaryl and Bacillus thuringensis (BT) to control insects poses a 

threat to the butterfly. 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). The Forest Service stated that any future proposed 

treatments would need to be analyzed under NEPA, and the suggestion 

that carbaryl or BT would be used to control these or other forest 

insects was premature. Although future applications of carbaryl or BT 

may pose a potential risk to the butterfly, there are no proposals to 

spray for insect outbreaks currently or in the future (Forest Service 

2001, Service 2004b). This action is no longer considered a significant 

threat to the species.

Extreme Weather

    In the proposed rule we identified periodic droughts and atypical 

weather events as a threat to the butterfly. As noted in our response 

to comment 3 above, we believe that the species can survive and has 

persisted despite natural events such as drought since the butterfly 

evolved in an environment subject to periodic atypical weather events.


    When we proposed the butterfly as endangered we found that roads 

had the potential to threaten the butterfly (66 FR 46575, September 6, 

2001), but the direct and indirect impact on the butterfly was unknown. 

Similar to other potential threats, we now believe that existing roads 

are not likely to cause long-term impacts or disrupt metapopulation 

dynamics based upon the amount of foodplants growing along roads and 

the presence of butterfly egg masses and larvae observed in these areas 

(Service 2004b). Thus, we conclude that these impacts are not a 

significant threat to the long-term viability of the species.

Mescalero Apache Nation

    As identified in the proposed rule, it is unknown whether the 

butterfly is present on the Mescalero Apache Nation lands. 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 its natural resources. 

To our knowledge, no butterfly surveys have been conducted on Mescalero 

Apache Nation lands. Therefore, we do not know the status of the 

butterfly on these lands, the amount or quality of suitable habitat, or 

the potential activities that may negatively or positively affect the 

species. Although timber harvest, prescribed burns, and grazing occur 

on Mescalero Apache Nation lands (i.e., see Service 2004g, Natural 

Resources Conservation Service 2004, Klinekole 1998), we have no 

information regarding the presence or significance of any of these or 

other potential threats to the butterfly on Mescalero Apache Nation 

lands. We have considered whether the Mescalero Apache Nation lands 

would be a significant portion of the range. While we have mapped 

meadows (i.e., potential butterfly habitat) within Mescalero Apache 

Nation lands which occur between 2,450 and 2,750 meters (8,000 to 9,000 

feet), it is unknown whether the butterfly is present on Mescalero 

Apache lands, and therefore we have very little information to suggest 

these lands are significant to the butterfly. Therefore, we determine 

that Mescalero Apache lands do not constitute a significant portion of 

the range.

Finding and Withdrawal

    A variety of projects and conservation measures have been 

implemented by the Forest Service since 2001 that have reduced or 

eliminated threats to the butterfly. We have detailed these above in 

our analysis. Furthermore, since the proposed rule to list the 

butterfly as endangered was published, information from the Forest 

Service refined mapping of occupied and unoccupied habitat. This 

information will assist greatly in planning efforts for individual 

projects by providing an overall representation to collectively guide 

activities that will manage and maintain connectivity between patches 

of suitable butterfly habitat. In addition, we have demonstrated the 

resiliency of the butterfly and its foodplants by documenting the 

creation of new habitat where the butterfly is reproducing (the edges 

of the football field) (Service 2004d).

    Based on a thorough analysis of the best available scientific and 

commercial information available on the butterfly, we have revised our 

conclusion about the threats to the species. We believe that the two 

greatest threats we previously identified, catastrophic wildfire and 

private and commercial development, are no longer significant. We also 

believe that new information and current management related to the 

threat of livestock has led to a reduction of this threat. Nonnative 

vegetation, OHVs, and other recreational activities are being currently 

managed to minimize impacts on the butterfly. Forest thinning and fuels 

management projects, in addition to campground reconstruction projects, 

may have had some short-term impacts, but will result in long-term 

benefits to the species. We have determined that the factors analyzed 

above either alone or in combination no longer significantly threaten 

the species or are of low magnitude. To be considered a threat, a 

factor must be shown to play a significant role in the dynamics of the 

species to such an extent that it is likely to become an endangered 

species within the foreseeable future throughout all or a significant 

portion of its range. Based upon the factors analyzed, we determine 

that the species no longer is in danger of extinction throughout all or 

a significant portion of its range, nor is it likely to become 

endangered within the foreseeable future.

    This withdrawal of the proposed rule to list the butterfly as 

endangered is based on our conclusion that the butterfly is resilient 

to small-scale disturbance, such that the risk to the species has been 

reduced to a level

[[Page 76444]]

below the statutory definition of endangered or threatened. We have 

carefully assessed the best scientific and commercial information 

available regarding the past, present, and future threats facing the 

butterfly in determining to withdraw our proposed listing. Based on 

this evaluation, we are withdrawing our proposal to list the Sacramento 

Mountains checkerspot butterfly as endangered. As such, we are also 

withdrawing our proposal of critical habitat for the butterfly.

    We will continue to monitor the status of the species through 

monitoring, management, and project-related analyses (see 

``Conservation Plan'' below). Additional information and comments will 

continue to be accepted on aspects of the species. We encourage 

interested parties outside of those parties already signatories to the 

Conservation Plan to become involved in the conservation of the 

species. For example, the Forest Service will continue to analyze 

potential project-related impacts on the butterfly through NEPA. Any 

interested individual or party can review and comment on these 

documents. We will reconsider our determination in the event that new 

information indicates that threats to the species are of a considerably 

greater magnitude than we have identified.

Conservation Plan

    As described above, we signed a Memorandum of Understanding with 

the Village of Cloudcroft, Otero County, and the Forest Service, and 

cooperatively developed a Conservation Plan. The goal of the 

Conservation Plan is to provide conservation and management on public 

and private lands within the range of the butterfly (69 FR 60178). The 

individual and collective commitments of each of the parties are 

detailed in the Conservation Plan, and include time and cost estimates 

and responsible partners. Following the close of the public comment 

period, we collected the comments for all of the parties involved in 

the cooperative effort and provided the comments to them at the close 

of the public comment period. The cooperating parties of the 

Conservation Plan reviewed, analyzed, and incorporated public comments 

as they deemed appropriate.

    We did not rely upon the implementation of the conservation efforts 

identified in the Conservation Plan in making our final listing 

determination for the butterfly because many of the individual 

conservation efforts have not been completed and would require us to 

speculate on the certainty of their implementation and effectiveness. 

As such, we did not analyze the individual conservation efforts as they 

relate to the Service's Policy for Evaluation of Conservation Efforts 

When Making Listing Determinations (68 FR 15100, March 28, 2003) 

(PECE). Nevertheless, we summarize the Conservation Plan here to 

recognize that all of the parties are proactively looking for 

opportunities to conserve the butterfly within its range. We applaud 

the development of the Conservation Plan and believe it will assist in 

further improving the status of the butterfly and its habitat.

    The Conservation Plan provides an in-depth review of the 

butterfly's life history, habitat requirements, and known threats and 

further identifies the specific conservation efforts that will assist 

in management and maintenance of the butterfly and its habitat. 

Conservation efforts are categorized by the four primary objectives of 

the Conservation Plan: (1) Protect and manage occupied and unoccupied 

butterfly habitat on public lands; (2) manage habitat and promote 

conservation of the butterfly on non-Federal and other private lands 

through education and outreach; (3) conduct research to fill 

information gaps and inform continued management; and, (4) provide 

adequate regulatory protection.

    The Conservation Plan explains that long-term conservation of the 

species requires a thorough understanding of its life history and 

habitat requirements. Consequently, a step-down outline has been 

developed to guide research and monitoring to implement an adaptive 

management plan for the butterfly. The Conservation Plan describes in 

detail the process of adaptive management and assigns the 

responsibility to the cooperative team. We believe management of the 

butterfly will benefit from this process because the effectiveness of 

conservation measures will be monitored and adjustments will be made 

based on new information gained.

    The Forest Service has been involved in a variety of projects that 

have implemented measures to conserve the species (Service 2004b). The 

Conservation Plan represents a continuation of this major commitment on 

behalf of this Federal land manager that accounts for approximately 50 

percent of the known range of the species. Biologists from the Lincoln 

National Forest's Supervisor's Office and the Sacramento Ranger 

District have been implementing conservation actions since 1997 and 

will continue to serve in that capacity for the Conservation Plan 

(Forest Service 2000c, Service 2004b). Under the Conservation Plan we 

expect that the Forest Service will continue to allocate resources 

towards conservation efforts and coordinate with all parties involved 

with the conservation of the butterfly.

    The Conservation Plan also commits Otero County and the Village of 

Cloudcroft to manage and promote conservation of the butterfly and its 

habitat on private lands (Service 2004b). As described above, Otero 

County initiated a process that will cause the County to begin amending 

its existing subdivision ordinance to provide conservation measures for 

the butterfly. In addition, the County has committed to promoting 

public support for butterfly conservation through development and 

distribution of informational and educational materials (Service 

2004b). The Village of Cloudcroft is dedicated to public outreach and 

education programs to promote conservation of the butterfly. The 

Village will work with private landowners (in cooperation with the 

County) to educate landowners about butterfly conservation. This 

includes, but is not limited to, restoration of areas and planting 

butterfly food and larval host plants, and communication with 

landowners through the local newspaper and Village Council Workshops.

    The butterfly is currently a priority for the Service's Partners 

for Fish and Wildlife Program. This program has been working with the 

Forest Service and non-Federal entities regarding conservation efforts 

related to the butterfly. For example, the Forest Service gathered New 

Mexico penstemon seeds from sites on the Lincoln National Forest, and 

the Service funded a project through the USDA's Plant Materials Center, 

Los Lunas, New Mexico. This project grew 1,800 New Mexico penstemon, 

which will likely be planted at the Albuquerque Biological Park for 

educational and seed source purposes.

    All of the parties will assist each other to fill information gaps 

in the butterfly's basic biology, habitat, distribution, and population 

biology. The Conservation Plan describes research needs that were 

developed and prioritized in order to maximize the utility of the 

information gained such that it can be directly applied to management 

and conservation of the species. For example, we anticipate that 

regular monitoring will continue to be conducted by the Forest Service 

and other parties to the Conservation Plan. This information will be 

utilized in an adaptive management process to adjust or increase 

conservation efforts to manage OHV impacts on the butterfly

[[Page 76445]]

and its habitat (Service 2004b). Additionally, we intend to coordinate 

the development and implementation of this and other projects through 

the Sacramento Mountains Checkerspot Butterfly Conservation Plan 

Interagency Coordinating Committee (ICC). The cooperators will 

establish an ICC (see Conservation Plan, Appendix A. Section V, Service 

2004b). This Committee will monitor the implementation of the 

Conservation Plan, provide a forum for exchange of information on the 

species, will set annual priorities, seek funding sources, and provide 

feedback to the cooperators. This group will meet at least annually and 

likely more often in the first few years.

    We are confident in the interest and commitment of all parties to 

the Conservation Plan. We believe the implementation of conservation, 

management, and monitoring efforts will be beneficial for the 



    The authority for this action is the Endangered Species Act of 1973 

(16 U.S.C. 1531 et seq.).

    Dated: December 15, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 04-27841 Filed 12-20-04; 8:45 am]