[Federal Register: July 22, 2009 (Volume 74, Number 139)]
[Proposed Rules]
[Page 36152-36158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy09-20]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2009-0039; MO 922105 0082-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the White-Sided Jackrabbit (Lepus callotis) as
Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status and
critical habitat review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the white-sided jackrabbit (Lepus
callotis) as an endangered species and designate critical habitat under
the Endangered Species Act of 1973, as amended. Following a review of
the petition, we find the petition provides substantial scientific or
commercial information indicating that listing this species may be
warranted. Therefore, with the publication of this notice, we are
initiating a status review to determine if listing this species is
warranted. To ensure that the status review is comprehensive, we are
requesting the public to submit scientific and commercial data and
other information regarding the white-sided jackrabbit. We will make a
determination on critical habitat if and when we initiate a listing
action for this species.
DATES: We made the finding announced in this document on July 22, 2009.
To allow us adequate time to conduct this review, we request that we
receive information on or before September 21, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for docket FWS-R2-ES-2009-0039 and then follow the instructions
for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2009-0039; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all information we receive on http://
www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Requested
section below for more details).
[[Page 36153]]
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM
87113; by telephone (505-346-2525) or by facsimile (505-346-2542).
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Requested
When we make a finding that a petition presents substantial
information indicating that listing a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting
information on the status of the white-sided jackrabbit. We request
information from the public, other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning the status of the white-sided jackrabbit.
We are seeking information regarding:
(1) The historical and current status and distribution of the
white-sided jackrabbit, its biology and ecology, and ongoing
conservation measures for the species and its habitat in the United
States and Mexico; and
(2) Information relevant to the factors that are the basis for
making a listing determination for a species under section 4(a) of the
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting the species'
continued existence and threats to it or its habitat.
If we determine that listing the white-sided jackrabbit is
warranted, we intend to propose critical habitat to the maximum extent
prudent and determinable at the time we propose to list the species.
Therefore, with regard to areas within the geographical range currently
occupied by the white-sided jackrabbit, we also request data and
information on what may constitute physical or biological features
essential to the conservation of the species, where these features are
currently found, and whether any of these features may require special
management considerations or protection. In addition, we request data
and information regarding whether there are areas outside the
geographical area occupied by the white-sided jackrabbit that are
essential to the conservation of the species. Please provide specific
comments and information as to what, if any, critical habitat should be
proposed for designation if the species is proposed for listing, and
why that proposed habitat meets the requirements of the Act.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.'' Based on the status review, we will issue
a 12-month finding on the petition, as provided in section 4(b)(3)(B)
of the Act.
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Please include sufficient information with your comments to allow us to
verify any scientific or commercial information you include.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of this
finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly commence a review of the status of the species.
On October 15, 2008, we received a petition dated October 9, 2008,
from the WildEarth Guardians requesting that the white-sided jackrabbit
(Lepus callotis) (jackrabbit) be listed as threatened or endangered
under the Act. The petitioner requested that we evaluate three
potentially listable entities of the jackrabbit: (1) the northern
population of the subspecies L. callotis gaillardia as a distinct
population segment (DPS); (2) the full species L. callotis throughout
its range; and (3) each of the subspecies of the jackrabbit, which they
identified as L. callotis gaillardia and L. callotis callotis.
Additionally, the petition requested that critical habitat be
designated concurrent with listing of L. callotis, its subspecies, and
the northern DPS. The petition clearly identified itself as such and
included the requisite identification information for the petitioner,
as required by 50 CFR 424.14(a). In a November 26, 2008, letter to the
petitioner, we responded that we had reviewed the petition and
determined that an emergency listing was not necessary. In that letter,
we advised the petitioner that, to the maximum extent practicable, we
would address the petition within 90 days. During our review of the
petition, we found that the majority of information cited in the
petition was not readily available to us. Therefore, on January 13,
2009, we requested that the petitioner provide references. On February
13, 2009, the petitioner provided references. We received a 60-day
notice of intent to sue from the petitioner dated January 28, 2009, and
on April 15, 2009, the petitioner brought a lawsuit against us for
failure to make a decision on the Petition within 90 days of its
receipt.
[[Page 36154]]
Previous Federal Actions
The white-sided jackrabbit was first listed as a candidate
(Category 2) for Federal listing as either a threatened or endangered
species under the Act, in the 1982 Candidate Notice of Review (47 FR
58454, December 30, 1982). Category 2 status included those taxa for
which information in the Service's possession indicated that a proposed
listing rule was possibly appropriate, but for which sufficient data on
biological vulnerability and threats were not available to support a
proposed rule. In the Candidate Notice of Review published on February
28, 1996, we announced a revised list of animal and plant taxa that
were regarded as candidates for possible addition to the Lists of
Endangered and Threatened Wildlife and Plants (61 FR 7595). The revised
candidate list included only former Category 1 species. All former
Category 2 species were dropped from the list to reduce confusion about
the conservation status of these species, and to clarify that the
Service no longer regarded these species as candidates for listing.
Because the white-sided jackrabbit was a Category 2 species, it was no
longer recognized as a candidate species.
Species Information
The white-sided jackrabbit is one of four species of hares (Family
Leporidae) occurring in New Mexico, including the black-tailed
jackrabbit (Lepus californicus), which co-occurs with the white-sided
jackrabbit (Findley et al. 1975). The white-sided jackrabbit can be
distinguished from the black-tailed jackrabbit by its extensive white
sides and inconspicuous or absent black ear tips (Findley et al. 1975,
pp. 92, 96; Best and Henry 1993, p. 1).
One of the primary issues presented by the petitioner is related to
the taxonomy of the jackrabbit. The petitioner presents information
that morphological and genetic data have caused some to question the
uniqueness of the subspecies Lepus callotis callotis and the subspecies
L. callotis gaillardi (e.g., InfoNatura 2008). They request that we
consider each recognized subspecies for listing, if we find them to be
taxonomically valid. Under section 3(16) of the Act, we may consider
for listing any species or subspecies of fish, wildlife, or plants, or
any distinct population segment of vertebrate fish or wildlife which
interbreeds when mature. Thus, in our 12-month finding, should we
determine that the species as a whole does not warrant listing, we will
evaluate whether any valid subspecies warrants listing. If we conclude
that the subspecies L. callotis gaillardia is valid, but does not
warrant listing, we will consider whether the northern populations of
the subspecies is a valid DPS under our policy (61 FR 4722, February 7,
1996) and, if so, whether it warrants listing. If we conclude that the
subspecies L. callotis gaillardia is not valid, we will consider
whether the northern populations of the full species is a valid DPS
and, if so, whether it warrants listing.
The core distribution of the white-sided jackrabbit lies within
Mexico (New Mexico Department of Game and Fish (NMDGF) 2006, p. 114).
The species historically occurred from southern New Mexico to northern
Oaxaca, Mexico, within two distinct geographic areas (Best and Henry
1993, p. 2). One area was located in the southern Animas and Playas
valleys of Hidalgo County, south to west-central Chihuahua and north-
central Durango, Mexico (Bednarz and Cook 1984, p. 358; Reynolds 1988,
p. 1). The other area was from central Durango south across the open
plains of the Mexican Plateau to the State of Oaxaca, Mexico (Hall
1981, p. 330). The geographic separation of the two areas occurs on
either side of the Rio Nazas, Durango, Mexico; that river marks the
dividing line for many subspecies of mammals (Peterson 1976, pp. 496-
498). The jackrabbit's range in New Mexico was restricted to about 121
square kilometers (47 square miles) (Bednarz 1977, p. 6; Bednarz and
Cook 1984, p. 359). We are unaware of any similar estimate for Mexico.
There is no recent information on the amount of habitat occupied by the
jackrabbit in either country. Moreover, the white-sided jackrabbit has
not been confirmed as extant in Arizona (Cahalane 1939, p. 436),
although in 1954, Hoffmeister and Goodpaster reportedly observed what
they believed to be white-sided jackrabbits along the west base of the
Huachuca Mountains, Cochise County, Arizona (Hoffmeister 1986).
Therefore, New Mexico is the only confirmed place in the United States
where the species has been documented to occur.
This species is highly elusive. It inhabits predominately well-
developed open grasslands that have low shrub density and level
terrain, avoiding hills or mountains (Bednarz and Cook 1984, p. 359;
Cook 1986, p. 15; Desmond 2004, p. 416). It was reported only a few
times after the species was discovered in 1892 along the International
Border between the United States and Mexico (Mearns 1895). For example,
two animals were collected in the Playas Valley in 1931 and one animal
was collected in the Animas Valley in 1974 (Anderson and Gaunt 1962;
Bogan and Jones 1975, p. 47; Bednarz 1977, p. 1).
The petitioner provides information indicating that white-sided
jackrabbit populations are declining (Bednarz and Cook 1984, p. 360;
Mehlhop 1995, pp. 3-10; Traphagen 2002, pp. 4-5). The information in
our files is consistent with the population numbers reported in the
petition. We judge the information regarding a possible decline in
jackrabbit numbers to be substantial and reliable. In 1976, the white-
sided jackrabbit was found in New Mexico only in the Animas Valley on
the Diamond A Ranch (the Diamond A Ranch includes the lands formerly
called Gray Ranch in southwestern New Mexico) and in limited parts of
the southern Playas Valley east of the Diamond A Ranch in southern
Hidalgo County (Bednarz 1977, pp. 4-5). During investigations conducted
between May and August 1976, Bednarz (1977) speculated that the number
of white-sided jackrabbits in the Animas Valley was between 250 to 300
individuals. Five years later, surveys in New Mexico revealed that
white-sided jackrabbit sightings had decreased to approximately half of
the mean reported by Bednarz (Bednarz and Cook 1984, pp. 359-360). The
jackrabbit may now be extirpated from the Playas Valley; no
observations of the species have been made in this area during recent
surveys (Traphagen 2002, p. 5; Frey 2004, p. 22; NMDGF 2006, p. 115).
Surveys in Chihuahua, Mexico, also reported low densities of white-
sided jackrabbits (Desmond 2004, p. 417). We are unaware of any
additional information on population abundance, or any year-round or
long-term monitoring data on the white-sided jackrabbit in either the
United States or Mexico (see also NMDGF 1997, p. 3). As such, the
status of this species remains unclear in both countries.
In the white-sided jackrabbit, females are generally larger than
males (Bednarz 1977, pp. 13, 15). In New Mexico, white-sided
jackrabbits are observed almost unvaryingly in pairs (Bednarz 1977, p.
9), suggesting that mated animals remain together on a long-term basis.
Pair bonds may serve to ensure adequate reproduction, in the context of
generally low population density (Bednarz 1977, p. 12). The members of
the pair are usually near each other and run together when approached
by intruders (Bednarz 1977). Several litters are probably produced each
year, with litter size appearing to average 2.2 young (Bednarz 1977).
The young tend to have a soft, woolly coat in early life and attain
sexual maturity at a rapid rate.
[[Page 36155]]
In the United States portion of its range, the white-sided
jackrabbit appears to be found only in association with grasslands
(Bednarz 1977, p. 6). Plants commonly found in areas inhabited by this
species in the Animas and Playa valleys of New Mexico include Bouteloua
gracilis (blue grama), B. eriopoda (black grama), Hilaria mutica
(tobosa), Buchloe dactyloides (buffalo grass), Lycurus phleoides
(wolftail), Muhlenbergia torreyi (ring muhly), Cyperus spp.
(flatsedges), Gutierrezia sarothrae (snakeweed), Yucca elata (soaptree
yucca), and Prosopis glandulosa (honey mesquite) (Bednarz and Cook
1984, pp. 358-359; Mehlhop 1995, p. 15; Moore-Craig 1992, p. 4). More
than 97 percent of all observations of this species have been in pure
grasslands and less than 3 percent in grasslands with varying amounts
of forbs (flowering herbs) and shrubs (Bednarz and Cook, 1984). In New
Mexico, white-sided jackrabbits feed primarily on B. gracilis,
B.dactyloides, B. eripoda, L. phleoides, and M. torreyi (Bednarz 1977,
pp. 14, 16).
Although the white-sided jackrabbit shares its range with the
black-tailed jackrabbit, the two generally occupy different habitats,
with white-sided jackrabbit found in areas of pure grassland and the
black-tailed generally found in areas dominated by shrubs (Bednarz
1977, p. 17; Bednarz and Cook 1984, p. 359-360; Desmond 2004, p. 417).
The white-sided jackrabbit constructs and uses forms (scrapes or
depressions in the ground). Forms provide jackrabbits with concealment
and protection. The form is usually located in clumps of grass and
surrounded by dense stands of Hilaria mutica (Bednarz 1977, p. 16).
Daytime observations of white-sided jackrabbits are uncommon, as the
species is primarily nocturnal (Bednarz 1977, pp. 6-11; Best and Henry
1993, p. 5). Although many species of jackrabbit and hare are
considered pests because they may damage crops, fields, and orchards,
the white-sided jackrabbit is not known to depredate crops.
Five-Factor Evaluation
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations in the Code of federal Regulations (CFR) at 50 CFR 424, set
forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. 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: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
In making this 90-day finding, we evaluated whether information on
threats to the white-sided jackrabbit, as presented in the petition and
other information available in our files, is substantial, thereby
indicating that the petitioned action may be warranted. Our evaluation
of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Species' Habitat or Range
The petition asserts that current and historic grazing practices
and suppression of wildfire threaten the jackrabbit because they have
led to shrub encroachment into grasslands. The petitioner correctly
asserts that the jackrabbit is found only in association with well-
developed, high-elevation (greater than 1,460 meters (4,800 feet))
Chihuahuan desert grasslands, characterized by flat topography and few
shrubs and forbs (Bednarz 1977). Moreover, the petitioner claims that
declines in grassland health, indicated by increases in shrub and forb
cover, cause populations of white-sided jackrabbit to decrease while
populations of black-tailed jackrabbit increase. The petitioner states
that this change in grassland vegetation is especially apparent in the
Playas Valley, Hidalgo County, where the white-sided jackrabbit may
have been recently extirpated (Traphagen 2002, pp. 5, 11; NMDGF 2006,
p. 4). The petitioner indicates that little is known about the specific
habitat associations of the white-sided jackrabbit in Mexico, but it
appears to also inhabit high-elevation grassland similar to that used
by the species in New Mexico.
The NMDGF's 2006 biennial review of State threatened and endangered
species identifies the loss and degradation of grassland habitat
through drought, shrub encroachment, and changes in grass composition
as the primary threat to the white-sided jackrabbit in New Mexico
(NMDGF 2006, p. 115). Numerous sources substantiate that past range-
management practices have contributed to the degradation of desert
grasslands or their conversion to shrublands (National Museum of
Natural History 2008, p. 1; Bednarz and Cook 1984, p. 360; Desmond
2004, p. 417; NatureServe 2008, p. 2; USDA Forest Service 2007, p. 15;
Service 2008, p. 53). Bednarz and Cook (1984, p. 360) postulated that
numbers of white-sided jackrabbit had decreased in New Mexico as the
density and vigor of grasses declined, while black-tailed jackrabbits
and desert cottontail (Sylvilagus audubonii) numbers increased in
response to an increase in woody shrubs. Desmond (2004, p. 417)
reported a similar pattern from Chihuahua, Mexico, where she found that
increased shrub encroachment into grasslands negatively affected
populations of white-sided jackrabbits (Desmond 2004, p. 417). It is
likely that the increase in shrub cover has occurred through a
combination of fire suppression policies, drought, and intense
livestock grazing during the late 1800s and early 1900s, which were the
key causes of the replacement of grasslands by shrublands (Malpai
Borderlands Habitat Conservation Plan Technical Working Group 2008, p.
18; Traphagen 2002, p. 12).
Citing Brown (1994), the petition asserts that the primary cause of
loss and degradation of grasslands in the Chihuahuan Desert is
overgrazing by cattle. Overgrazed grassland is susceptible to invasion
by shrubs and forbs, a cover type which greatly favors the black-tailed
jackrabbit (Baker 1977, pp. 222-223; Bednarz and Cook 1984, pp. 359-
360; Desmond 2004, p. 417; Moore-Craig 1992, p. 13; NMDGF 2006, p.
115). Areas where white-sided jackrabbits historically or currently
occur have been continuously grazed for over a century (Traphagen
2002). We will explore overgrazing more thoroughly in our 12-month
finding for the jackrabbit.
The petitioner claims that wildfire suppression is a cause of
grassland degradation. We have information in our files to substantiate
that fire exclusion has led to encroachment of shrubs into the
grassland habitat of the white-sided jackrabbit. For example, Humphrey
(1958, p. 245) believed fires were the controlling factor that kept
shrubs from invading the desert grasslands in southeastern Arizona and
southwestern New Mexico. The Bureau of Land management (BLM) came to a
similar conclusion for the region of southwestern New Mexico where the
white-sided jackrabbit historically occurred (BLM 2009, pp. 1-3).
Alternatively, Valone et al. (2002, p. 563) reported that two fires in
5 years did not result in high levels of mortality to woody shrubs such
as Prosopis glandulosa (mesquite) on the Diamond A Ranch, Hidalgo
County, which is within the range of the jackrabbit. Based on this
information, we find that the petition and other readily available
[[Page 36156]]
information in our files support the claim that fire exclusion may have
led to the degradation of grasslands inhabited by the jackrabbit.
Evaluation of Information Provided in the Petition and Available in
Service Files
We have evaluated the petition and readily available information in
our files and find substantial information indicating that listing the
species throughout its range may be warranted due to the present or
threatened destruction, modification, or curtailment of the habitat or
range of the white-sided jackrabbit. We find that substantial
information was presented that shrub encroachment into grassland
fostered by current and historic grazing practices, drought, and fire
exclusion may threaten the species.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The petitioner identifies hunting of the white-sided jackrabbit for
sport and food as an ongoing threat to the species. The petition
reports that the species has been commercially hunted in Mexico and is
considered a non-game species that is hunted in New Mexico, and thus is
not protected by State game laws. Matson and Baker (1986, p. 41)
indicated that the species was heavily hunted and considered highly
edible. Reynolds (1988) also reported that white-sided jackrabbits were
commonly hunted in some of the grasslands of Mexico. The species was
historically hunted for commercial markets in Mexico (Leopold 1959, p.
349). Thus, hunting may have played a role in the decline of the white-
sided jackrabbit in Mexico (Moore-Craig, 1992, p. 13). While all of the
citations in the petition that document that the species was hunted in
Mexico are over 20 years old, we do not have information indicating
that hunting of the jackrabbit in Mexico has ceased. However,
information in our files indicates that the species is not currently
hunted in New Mexico. The white-sided jackrabbit is currently protected
under the New Mexico Wildlife Conservation Act and may not be hunted
(NMDGF 2008, p. 10). The petitioner does not detail ongoing or future
impacts to the species from hunting in the United States.
The petition claims that the white-sided jackrabbit is currently
subject to animal damage control programs, and cites the NMDGF in
saying that some white-sided jackrabbits are known to have been killed
by gunners and trappers. The NMDGF (1985, p. 2) stated that some white-
sided jackrabbits have been lost to ``gunners and trappers,'' but
provided no further information. This may be referring to Federal or
State animal damage control agents. We have information in our files
that the U.S. Department of Agriculture (USDA) reported that
jackrabbits (Lepus spp.) have been taken in New Mexico as part of their
animal damage control program (USDA APHIS 1994, Appendix H, pp. 18-19).
The petitioner does not describe current or future plans for lethal
control of any white-sided jackrabbits or quantify the amount that may
have taken place historically through either the USDA or the general
public. Therefore, neither information in our files nor the literature
cited by the petition supports the petitioner's claim that the white-
sided jackrabbit is currently subject to animal damage control programs
by methods such as trapping or shooting, or is likely to be in the
future.
Evaluation of Information Provided in the Petition and Available in
Service Files
The petition provides substantial information that hunting of the
white-sided jackrabbit has been, and may continue to be, a threat to
its populations in Mexico. Therefore, we find that the petition
presents substantial information indicating that the petitioned action
may be warranted due to overutilization.
C. Disease or Predation
The petitioner cites Bednarz (1977) in indicating that a lung
infection has been observed in white-sided jackrabbits, but no serious
diseases were noticed. Moore-Craig (1992, p. 11) noted that the
infections found by Bednarz (1977) were all of a minor nature, and the
overall health of the jackrabbit population appeared to be fair to
good. Tularemia, a common disease among black-tailed jackrabbits, has
not been found in the white-sided jackrabbit (Moore-Craig 1992, p. 11).
The petition also notes that a wide variety of predators exists in the
southern Animas Valley, New Mexico. It is likely that predation occurs
on white-sided jackrabbits, since native predators occur within the
range of both subspecies. However, the petitioner provided no data to
support predation as an impact to populations of the jackrabbit.
Evaluation of Information Provided in the Petition and Available in
Service Files
We have no information in our files indicating that the petitioned
action may be warranted due to disease or predation. Therefore, we find
that the petition does not provide substantial information that listing
the white-sided jackrabbit due to disease or predation may be
warranted.
D. The Inadequacy of Existing Regulatory Mechanisms
The petitioner asserts that existing regulatory mechanisms do not
provide any protections for the species and have been ineffective in
mitigating many of the threats. The petitioner states that the species'
ranking in NatureServe is G3 (vulnerable) and its National and State
Status rankings are N1S1 (critically imperiled). Its status under the
International Union for Conservation of Nature and Natural Resources is
near threatened. We reviewed these designations and find the
petitioner's claims to be accurate. However, these lists are not
regulatory mechanisms; they serve only to notify the public of the
species' status; no conservation or management actions are required; no
regulatory authority for species conservation is established through
these listings.
The petitioner states that the Malpai Borderlands Habitat
Conservation Plan (MBHCP) does not reliably assure protection to the
jackrabbit on private lands in New Mexico. The apparent basis of this
position is that the Service willingly issued an incidental take permit
on private lands to the Malpai Borderlands Group for the MBHCP. The
petitioner also contends, based upon observed degradation of grassland
habitat and declines in the jackrabbit population, that the Malpai
Borderlands Group is not fulfilling its stated mission to restore and
maintain natural processes that support diverse and flourishing animal
life in the borderlands region, which includes the Diamond A Ranch in
southern Hidalgo County, and is within the range of the white-sided
jackrabbit in the United States. The petition does not provide
information that documents the extent, magnitude, or immediacy of the
perceived inadequacies of the MBHCP or how they threaten the white-
sided jackrabbit in New Mexico.
The white-sided jackrabbit was listed as threatened by the State of
New Mexico on January 24, 1975. This designation provides the
protection of the New Mexico Wildlife Conservation Act, which prohibits
direct take of the species except under issuance of a scientific
collecting permit. However, this only conveys protection from
collection or intentional harm.
Although the State of New Mexico statutes require the NMDGF to
develop a recovery plan that will restore and maintain habitat for the
species, the
[[Page 36157]]
species does not have a finalized recovery plan, conservation plan, or
conservation agreement (NMDGF 2006a, p. 430). As such, existing State
of New Mexico regulatory mechanisms are currently inadequate to protect
the jackrabbit. As discussed above under Factor A, we find that the
petition presents substantial evidence of threats to the species from
grassland degradation, and we thus find that the petition presents
substantial evidence that the inadequacy of existing regulatory
mechanisms to prevent further grassland degradation or to recover
grasslands may threaten the white-sided jackrabbit as well.
The white-sided jackrabbit is on the Regional Forester's Sensitive
Species List for the Coronado National Forest (USDA Forest Service
2007, p. 15). However, we found no information in our files to
substantiate that the jackrabbit is present on any public lands in New
Mexico. Moreover, the petition asserts that the jackrabbit is only
found on private lands in New Mexico. If the species is found on
National Forest System lands, the US Forest Service (USFS) is required
to analyze the impacts any proposed actions may have on the jackrabbit
in all applicable National Environmental Policy Act (NEPA) (42 U.S.C.
4321 et seq.) documents. On April 21, 2008, a new USFS planning rule
(73 FR 21468) was made final. The USFS's new planning rule indicated
that once a USFS land and resource management plan has been revised,
the sensitive species designation will no longer be needed because
species of concern (listed, proposed, or candidate species under the
Act) or species of interest will replace them. Since the occurrence of
the jackrabbit on the Coronado National Forest is uncertain, the
petition and information in our files do not contain substantial
information that the jackrabbit is faced with current and future
threats on Forest Service lands.
Evaluation of Information Provided in the Petition and Available in
Service Files
Neither the petition nor our files provide information about
existing regulatory mechanisms for the species in Mexico, which
contains the majority of the current range of the white-sided
jackrabbit. As such, we have no information that the lack of regulatory
mechanisms in Mexico is affecting the continued existence of the white-
sided jackrabbit. We intend to assess this factor more thoroughly
during our status review of the species.
As noted above, the jackrabbit receives no protection from the
NatureServe or International Union for Conservation of Nature and
Natural Resources designations, as these lists serve only to notify the
public of the species' status rather than requiring any conservation or
management actions; these listings do not impact either adequacy or
inadequacy of regulatory mechanisms, since they are not regulatory in
nature.
The petitioner does provide substantial information that the white-
sided jackrabbit's status as a State-listed threatened species in New
Mexico confers little regulatory protection (except against direct
take). Therefore, we find that the petition presents substantial
information that the petitioned action may be warranted due to the
inadequacy of existing mechanisms in the United States.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
The petition cites non-point source habitat change as a threat to
the jackrabbit, suggesting that no single factor (e.g., grazing, fire
suppression, shifting rainfall patterns, or increased atmospheric
carbon dioxide levels) has led to the encroachment of shrubs into the
grasslands. We find the information cited to be generic in nature and
not specific to the white-sided jackrabbit or its habitat beyond the
discussion under Factor A above.
The petitioner states that climate change and drought threaten the
white-sided jackrabbit under Factor E. The petitioner cites a variety
of sources in the body of the petition to support the claim regarding
climate change and drought and their relation to the persistence of the
jackrabbit, but did not provide any of these to us. Much of this
information is not readily available to us. There is uncertainty over
how climate change will affect the jackrabbit and its habitat. The
petition claims that climate change will likely cause a deterioration
of grassland habitat in New Mexico and the Chihuahuan Desert region.
Further, the petitioner asserts that information indicates that the
impact of drought and climate change have been implicated as
influencing shrub encroachment into grasslands. Information readily
available to us supports the petitioner's assertion that climate change
might contribute to more frequent and intense drought within the U.S.
and northern Mexico portion of the range of the jackrabbit (Seager et
al. 2007, pp. 1181-1182). We will review the possible effects of
climate change on the white-sided jackrabbit more thoroughly in our
status review.
The petitioner reports a case of a New Mexico rancher finding
several dead white-sided jackrabbits while eradicating mustard plants.
Bednarz (1977) suggests that this mortality may have been caused by the
jackrabbits' consumption of mustard plants and ensuing nitrate
poisoning. Consumption of mustard plants is known to cause nitrate
poisoning in cattle, and Bednarz (1977, p. 18) cites it as likely
having the same effect on jackrabbits. No other information or support
was provided by the petition, nor is there any information readily
available to us that provides substantial information that food
poisoning threatens the jackrabbit now or in the foreseeable future.
The potential for jackrabbit mortality due to food poisoning merits
further investigation during our status review of the species.
The petition asserts that road-killed white-sided jackrabbits have
been found in the past. Nevertheless, the petition does not claim this
is a threat to the species. Moore-Craig (1992, p. 16) found that
occasionally white-sided jackrabbits are killed by vehicles. Traphagen
(2009, p. 1) also noted that white-sided jackrabbits have been reported
road-killed recently, likely from an increased presence of Border
Patrol vehicles in New Mexico. Bednarz (1977, p. 18) reported that,
even though fieldworkers were constantly looking for road-killed white-
sided jackrabbits during a study, the species was rarely observed on
the roads and tended to avoid approaching vehicles. The NMDGF (1997, p.
4) found that impacts from this type of mortality are unknown, but
probably do not represent a significant threat to the species. Based on
this review, the petition and information readily available to us do
not provide any substantial information to support that vehicle
collisions represent a threat to the white-sided jackrabbit currently
or in the foreseeable future.
The petition notes that Smith (1999, p. 1) observed a white-sided
jackrabbit's behavior in response to an approaching wildfire, but does
not claim this is a threat to the species. The petitioner does not
present specific information that the wildfire Smith (1999) observed
resulted in losses of the white-sided jackrabbit. We acknowledge that
the active fire management program in the Malpai Borderlands area may
affect the white-sided jackrabbit. Effects during fire management may
include mortality or injury of individuals as a result of direct
exposure to fire, smoke inhalation, and crushing by the tires or tracks
of vehicles used in fire management activities (Service 2008, pp. 64-
65). We
[[Page 36158]]
believe that the jackrabbit is capable of surviving such fire effects
by running away (Service 2008, p. 64). We find prescribed burns may
also expose white-sided jackrabbits to higher rates of predation, but
also allow for easier detection of terrestrial predators (Service 2008,
p. 65). The effects of a prescribed burn would likely be short-term,
because the fire-adapted grassland community usually responds quickly,
with plant species showing regrowth within several days post-fire.
Nevertheless, a reduction of shrubs would benefit the white-sided
jackrabbit by improving grassland habitat. Although the MBHCP will
likely result in short-term adverse effects to the jackrabbit, the
long-term effects will improve the grassland community used by white-
sided jackrabbits by reducing the shrub component, providing additional
suitable habitat, and improving the area around occupied habitat for
potential expansion; thus, implementation of the MBHCP, including the
fire management program, should promote the conservation of the white-
sided jackrabbit. For these reasons, we found no data or substantial
information to indicate that wildfires or prescribed burns threaten
white-sided jackrabbits or their habitat.
Evaluation of Information Provided in the Petition and Available in
Service Files
We reviewed the petition, supporting information, and the
information readily available to the Service and find the petition does
not present any additional substantial information that any natural or
manmade factors other than those discussed above for Factors A, B, and
D may affect the white-sided jackrabbit's continued existence.
Finding
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding
on whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our process for making this 90-day finding under section 4(b)(3)(A)
of the Act is limited to a determination of whether the information in
the petition presents ``substantial scientific and commercial
information,'' which is interpreted in our regulations as ``that amount
of information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)).
We have reviewed the petition and the available literature cited in the
petition, and evaluated the information to determine whether the
sources cited support the claims made in the petition. We also reviewed
reliable information that was readily available in our files to clarify
and verify information in the petition. As described in our Five-Factor
Evaluation, above, the petition presents substantial information
indicating that listing the white-sided jackrabbit throughout its
entire range may be warranted based on Factor A (present or threatened
destruction, modification, or curtailment of the species' habitat or
range), Factor B (overutilization for commercial, recreational,
scientific or educational purposes), and Factor D (inadequacy of
existing regulatory mechanisms). Based on our Five-Factor Evaluation
(above), the petition does not present substantial information
indicating that Factor C (disease or predation) or Factor E (other
natural or manmade factors affecting the species' continued existence)
is currently, or in the future will be, a threat to the white-sided
jackrabbit.
Based on this review and evaluation, we find that the petition has
presented substantial scientific or commercial information that listing
the jackrabbit throughout all of its range may be warranted due to
current and future threats under Factors A, B, and D. We also find that
the petition presented substantial information that the northern
populations of the species may be a valid DPS and may warrant listing.
Therefore, we are initiating a status review to determine whether
listing the jackrabbit under the Act is warranted. As part of our
status review, we will examine whether the full species, subspecies, or
the petitioned northern DPS of the jackrabbit warrants listing under
the Act. We will issue a 12-month finding as to whether any of the
petitioned actions is warranted. To ensure that the status review is
comprehensive, we are soliciting scientific and commercial information
regarding the jackrabbit.
The ``substantial information'' standard for a 90-day finding is in
contrast to the Act's ``best scientific and commercial data'' standard
that applies to a 12-month finding as to whether a petitioned action is
warranted. A 90-day finding is not a status assessment of the species
and does not constitute a status review under the Act. Our final
determination as to whether a petitioned action is warranted is not
made until we have completed a thorough status review of the species,
which is conducted following a positive 90-day finding. Because the
Act's standards for 90-day and 12-month findings are different, as
described above, a positive 90-day finding does not mean that the 12-
month finding also will be positive.
The petitioner requested that critical habitat be designated for
this species. If we determine in our 12-month finding that listing the
jackrabbit is warranted, we will address the designation of critical
habitat at the time of the proposed rulemaking.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the New Mexico
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are the staff members of the New
Mexico Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: July 14, 2009.
James J. Slack,
Acting Deputy Director, Fish and Wildlife Service.
[FR Doc. E9-17449 Filed 7-21-09; 8:45 am]
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