[Federal Register: December 17, 2009 (Volume 74, Number 241)]
[Proposed Rules]
[Page 66937-66950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de09-15]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2008-0122]
[92210-1111-0000-B2]
Endangered and Threatened Wildlife and Plants; 12-month Finding
on a Petition To Change the Final Listing of the Distinct Population
Segment of the Canada Lynx To Include New Mexico
AGENCY: Fish and Wildlife Service, Interior.
[[Page 66938]]
ACTION: Notice of 12-month petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
12-month finding on a petition to expand the listing of the Canada lynx
(Lynx canadensis) to include the State of New Mexico, under the
Endangered Species Act of 1973, as amended (Act). After a review of the
best available scientific and commercial information, we find that the
petition to change the boundary of the listing of Canada lynx is
warranted but precluded by higher priority actions to amend the Lists
of Endangered and Threatened Wildlife and Plants. We have determined
that Canada lynx are regularly and frequently crossing the State
boundary between Colorado and New Mexico. When lynx cross the boundary,
their status under the Act changes, leaving lynx in New Mexico without
Federal protection. Upon publication of this 12-month petition finding,
we will add lynx in New Mexico to our candidate species list with a
listing priority number of 12. We will develop a proposed rule to amend
the listing of lynx in the lower 48 States as our priorities allow (see
section of Preclusion and Expeditious Progress).
DATES: This finding was made on December 17, 2009.
ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov at Docket Number [FWS-R6-ES-2008-0122]. Supporting
documentation we used to prepare this finding is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Montana Field Office, 585 Shepard Way,
Helena, MT 59601; telephone (406) 449-5225. Please submit any new
information, materials, comments, or questions concerning this finding
to the above street address.
FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, U.S.
Fish and Wildlife Service, Montana Field Office (see ADDRESSES). If you
use a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires
that, for any petition containing substantial scientific or commercial
information indicating that listing the species may be warranted, we
make a finding within 12 months of the date of receipt of the petition.
In this finding, we determine whether the petitioned action is: (a) Not
warranted, (b) warranted, or (c) warranted, but that immediate proposal
of a regulation implementing the petitioned action is precluded by
other pending proposals to determine whether species are threatened or
endangered, and expeditious progress is being made to add or remove
qualified species from the Federal Lists of Endangered and Threatened
Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we
treat a petition for which the requested action is found to be
warranted but precluded as though resubmitted on the date of such
finding, that is, requiring a subsequent finding to be made within 12
months. We must publish these 12-month findings in the Federal
Register.
Previous Federal Action
In the final listing rule for the Canada lynx, dated March 24,
2000, the Service defined a contiguous DPS of the Canada lynx based on
the international boundary with Canada and State boundaries (65 FR
16052). The final rule included all States in the historic and current
range of lynx, along with areas that lynx dispersed to frequently but
had no history of reproduction or population maintenance. New Mexico
was not included in the listed area due to a lack of any historic
record of lynx in the State and lack of sufficient lynx habitat and
prey. The 2000 listing of lynx contained a discussion of lynx dispersal
behavior and our prediction that lynx would continue to disperse
outside of currently occupied habitat and the current listed area. We
determined that these attempted dispersal events would not constitute
an expansion of lynx range or recolonization of previously occupied
habitat. Subsequent to publication of the final rule in 2000, lynx
dispersed out of the Southern Rockies reintroduction area with
relatively high frequency (Shenk 2007, p. 16) to other States including
New Mexico.
In 2003, we published a clarification of the 2000 listing rule in
which we determined that lynx were not endangered throughout a
significant portion of their range (68 FR 40076). We also determined
that lynx in the contiguous United States exist either as resident
populations or as dispersers, and that due to their proclivity for
moving long distances, lynx are often found repeatedly in habitats that
cannot sustain breeding populations. This repeated dispersal into
habitats that ultimately cannot support the species (``sink'' habitats)
often leads to confusion among scientists and the public about where
lynx populations may be viable. At the time of the clarification, we
considered sink habitats (those with lynx habitat characteristics but
without the requisite habitat scale or prey densities to support
reproducing populations of lynx) to be within the range of lynx, as a
conservative approach to conservation. We believed that in sink
habitats, there existed the possibility that lynx could establish small
local or ephemeral populations, and contribute to the persistence of
the DPS, although there was admittedly no evidence that this was the
case.
In 2007, we published a Clarification of Findings for the 2000
listing rule in which we determined that the significant portion of the
range of lynx in the contiguous States is the northern Rocky Mountains
and the North Cascades (72 FR 1186); however, the listed entity (the
14-State DPS) did not change. This clarification also determined that
much of the range of lynx consists of marginal habitat that cannot and
never could support resident lynx populations, and so is not
biologically significant to the conservation of the DPS.
On August 8, 2007, we received a petition from Forest Guardians,
Sinapu, Center for Native Ecosystems, Animal Protection Institute,
Animal Protection of New Mexico, Carson Forest Watch, and Sierra Club,
Rio Grande Chapter, requesting that we amend the final listing rule for
the lynx DPS to include New Mexico as part of the range of the listed
entity. Included in the petition was supporting information regarding
our interpretation of the Act, our DPS policy, and inconsistency with
the preamble to the March 2000 listing rule, as well as scientific
information the petitioners deemed important to the petitioned action.
We acknowledged the receipt of the petition in a letter to Matthew K.
Bishop, Western Environmental Law Center, dated August 24, 2007. In
that letter we also stated that due to staff and budget limitations we
anticipated beginning work on the finding in Fiscal Year (FY) 2009 and
that we would process a finding on the petition as soon as funds became
available. An evaluation of emergency listing was conducted. Based on
the population status and alleged threats described in the petition, we
found no evidence to support emergency listing in New Mexico at that
time.
On April 17, 2008, we received a complaint for failure to complete
a 90-day petition finding. A settlement agreement was finalized, in
which we agreed to submit a 90-day finding by December 15, 2008. On
December 18, 2008, we published a 90-day finding in which we determined
that the
[[Page 66939]]
petitioners presented substantial information indicating that changing
the listing rule to include New Mexico may be warranted (73 FR 76990).
This notice constitutes the 12-month finding on the August 8, 2007,
petition to amend the final listing rule for the lynx DPS to include
New Mexico.
We published a final rule designating critical habitat for lynx in
the Federal Register on November 9, 2006 (71 FR 66007). On July 20,
2007, we announced that we would review the November 9, 2006, final
critical habitat rule after questions were raised about the integrity
of scientific information used and whether the decision made was
consistent with the appropriate legal standards. Based on our review of
the previous final critical habitat designation, we determined that the
critical habitat designation may not comport with the best available
scientific and commercial information. On January 15, 2008, the U.S.
District Court for the District of Columbia issued an order stating the
Service's deadlines for a proposed rule for revised critical habitat by
February 15, 2008, and a final rule for revised critical habitat by
February 15, 2009. Consequently, our proposed rule was signed on
February 13, 2008, and submitted to the Federal Register. The proposed
rule was subsequently published in the Federal Register on February 28,
2008 (73 FR 10860), and a final rule was published in the Federal
Register on February 25, 2009 (74 FR 8616).
Species Information
Biology
The biology of the species is comprehensively covered in the
Previous Federal Actions, including the final rule listing the species
(65 FR 16052), the two clarifications of that final rule (68 FR 40076;
72 FR 1186) and the 2009 final critical habitat rule (74 FR 8616).
Here, we provide a short summary of the relevant species biology.
Canada lynx are medium-sized cats, generally measuring 30 to 35 inches
(75 to 90 centimeters) long and weighing 18 to 23 pounds (8 to 10.5
kilograms) (Quinn and Parker 1987, Table 1). They have large, well-
furred feet and long legs for traversing snow; tufts on the ears; and
short, black-tipped tails. Lynx are specialized predators of snowshoe
hare (Lepus americanus) (McCord and Cardoza 1982, p. 744; Quinn and
Parker 1987, pp. 684-685; Aubry et al. 2000, pp. 375-378). Lynx are
dependent on snowshoe hare populations for survival, so lynx habitat
suitability is strongly correlated with snowshoe hare habitat quality.
We consider adequate snowshoe hare densities to be the most important
habitat component for lynx.
Lynx and snowshoe hares are strongly associated with what is
broadly described as boreal forest (Bittner and Rongstad 1982, p. 154;
McCord and Cardoza 1982, p. 743; Quinn and Parker 1987, p. 684; Agee
2000, p. 39; Aubry et al. 2000, pp. 378-382; Hodges 2000a, pp. 136-140
and 2000b, pp. 183-191; McKelvey et al. 2000a, pp. 211-232). The
predominant vegetation of boreal forest is conifer trees, primarily
species of spruce (Picea spp.) and fir (Abies spp.) (Elliot-Fisk 1988,
pp. 34-35, 37-42). In the contiguous United States, the boreal forest
types transition to deciduous temperate forest in the Northeast and
Great Lakes and to subalpine forest in the west (Agee 2000, pp. 40-41).
Lynx habitat can generally be described as moist boreal forests that
have cold, snowy winters and a high-density snowshoe hare prey base
(Quinn and Parker 1987, pp. 684-685; Agee 2000, pp. 39-47; Aubry et al.
2000, pp. 373-375; Buskirk et al. 2000a, pp. 397-405; Ruggiero et al.
2000, pp. 445-447).
In mountainous areas, the boreal forests that lynx use are
characterized by scattered moist forest types with high hare densities
in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest)
with low hare densities. In these areas, lynx incorporate the matrix
habitat (non-boreal forest habitat elements) into their home ranges and
use it for traveling between patches of boreal forest that support high
hare densities where most foraging occurs. In areas like the northern
and southern Rockies where high-density hare habitat is fragmented by
other habitat types, hare density must remain high at the landscape
scale (i.e., averaged over all habitat types) for lynx to maintain
residency and reproduction.
Snow conditions also determine the distribution of lynx (Ruggiero
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically
adapted for hunting in deep snow and surviving in areas that have cold
winters with deep, fluffy snow for extended periods. These adaptations
provide lynx a competitive advantage over potential competitors, such
as bobcats (Lynx rufus) or coyotes (Canis latrans) (McCord and Cardoza
1982, p. 748; Buskirk et al. 2000b, pp. 86-95; Ruediger et al. 2000,
pp. 1-11; Ruggiero et al. 2000, pp. 445, 450). Bobcats and coyotes have
a higher foot load (more weight per surface area of foot), which causes
them to sink into the snow more than lynx. Therefore, bobcats and
coyotes cannot efficiently hunt in fluffy or deep snow and are at a
competitive disadvantage to lynx. Long-term snow conditions presumably
limit the winter distribution of potential lynx competitors such as
bobcats (McCord and Cardoza 1982, p. 748) or coyotes.
Lynx Habitat Requirements
Because of the patchy and temporal nature of high-quality snowshoe
hare habitat, lynx populations require large boreal forest landscapes
to ensure that sufficient high- quality snowshoe hare habitat is
available and to ensure that lynx may move freely among patches of
suitable habitat and among subpopulations of lynx. Populations that are
composed of a number of discrete subpopulations, connected by
dispersal, are called metapopulations (McKelvey et al. 2000b, p. 25).
Individual lynx maintain large home ranges (reported as generally
ranging between 12 to 83 square miles (mi\2\) (31 to 216 square
kilometers (km\2\)) (Koehler 1990, p. 847; Aubry et al. 2000, pp. 382-
386; Squires and Laurion 2000, pp. 342-347; Squires et al. 2004, pp.
13-16, Table 6; Vashon et al. 2005, pp. 7-11; Shenk 2009a, pp. 6-7).
The size of lynx home ranges varies depending on abundance of prey, the
animal's gender and age, the season, and the density of lynx
populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and
Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-386; Mowat et al.
2000, pp. 276-280; Vashon et al. 2005, pp. 9-10). When densities of
snowshoe hares decline, for example, lynx enlarge their home ranges to
obtain sufficient amounts of food to survive and reproduce, or seek new
habitats in which to establish a home range through dispersal.
In the contiguous United States, the boreal forest landscape is
naturally patchy and transitional because it is the southern edge of
the distributional range of boreal forest. This patchiness generally
limits snowshoe hare populations in the contiguous United States from
achieving densities similar to those of the expansive northern boreal
forest in Canada (Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp.
24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84).
Additionally, the presence of more snowshoe hare predators and
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx
generally occur at relatively low densities in the contiguous United
States compared to the high lynx densities that occur in the northern
boreal forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or to the
densities of species such as the bobcat, which is a habitat and prey
generalist.
[[Page 66940]]
Lynx are highly mobile and often move long distances (greater than
60 miles (mi) (100 kilometers (km))) during dispersal attempts (Aubry
et al. 2000, pp. 386-387; Mowat et al. 2000, pp. 290-294). Lynx
disperse primarily when snowshoe hare populations decline (Ward and
Krebs 1985, pp. 2821-2823; O'Donoghue et al. 1997, pp. 156, 159; Poole
1997, pp. 499-503). Sub-adult lynx disperse even when prey is abundant
(Poole 1997, pp. 502-503) because local home ranges with abundant hares
are generally occupied by established adult lynx and sub-adults must
look elsewhere to establish new home ranges. Lynx also make exploratory
movements outside their home ranges (Aubry et al. 2000, p. 386; Squires
et al. 2001, pp. 18-26).
The boreal forest landscape is naturally dynamic. Forest stands
within the landscape change as they undergo succession after natural or
human-caused disturbances such as fire, insect epidemics, wind, ice,
disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000,
pp. 47-69). As a result, lynx habitat within the boreal forest
landscape is typically patchy because the boreal forest contains stands
of differing ages and conditions, some of which are suitable as lynx
foraging or denning habitat (or will become suitable in the future due
to forest succession) and some of which serve as travel routes for lynx
moving between foraging and denning habitat (McKelvey et al. 2000c, pp.
427-434; Hoving et al. 2004, pp. 290-292).
Snowshoe hares comprise a majority of the lynx diet (Nellis et al.
1972, pp. 323-325; Brand et al. 1976, pp. 422-425; Koehler 1990, p.
848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat
et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires et al.
2004, p. 15, Table 8). When snowshoe hare populations are low, female
lynx produce few or no kittens that survive to independence (Nellis et
al. 1972, pp. 326-328; Brand et al. 1976, pp. 420, 427; Brand and Keith
1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996,
pp. 953-958; O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000,
pp. 388-389; Mowat et al. 2000, pp. 285-287). Lynx prey
opportunistically on other small mammals and birds, particularly during
lows in snowshoe hare populations, but alternate prey species may not
sufficiently compensate for low availability of snowshoe hares,
resulting in reduced reproductive success and reduced lynx populations
(Brand et al. 1976, pp. 422-425; Brand and Keith 1979, pp. 833-834;
Koehler 1990, pp. 848-849; Mowat et al. 2000, pp. 267-268).
In northern Canada, lynx populations fluctuate in response to the
cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat
et al. 2000, pp. 270-272). Although snowshoe hare populations in the
northern portion of their range show strong, regular population cycles,
these fluctuations are generally much less pronounced in the southern
portion of their range in the contiguous United States (Hodges 2000b,
pp. 165-173). In the contiguous United States, the degree to which
regional local lynx population fluctuations are influenced by local
snowshoe hare population dynamics is unclear. However, researchers
anticipated that, because of natural fluctuations in snowshoe hare
populations, there will be periods when lynx densities are extremely
low.
Because lynx population dynamics, survival, and reproduction are
closely tied to snowshoe hare availability, lynx habitat suitability is
directly tied to hare habitat quality. Lynx generally concentrate their
foraging and hunting activities in habitat patches where snowshoe hare
populations are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985,
pp. 2821-2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp.
155, 159-160 and 1998, pp. 178-181). Snowshoe hares are most abundant
in forest stands with dense understories that provide forage, cover to
escape from predators, and protection during extreme weather (Wolfe et
al. 1982, pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges
2000a, pp. 136-140 and 2000b, pp. 183-195). Generally, hare densities
are higher in regenerating, earlier successional forest stages because
they have greater understory structure than mature forests (Buehler and
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp.
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, pp. 63, 141; Griffin
2004, pp. 84-88). However, snowshoe hares can be abundant in mature
forests with dense understories (multi-storied stands) especially in
the Rocky Mountains (Griffin 2004, pp. 53-54, Squires et al. 2006, p.
15).
Within the boreal forest, lynx den sites are located where coarse
woody debris, such as downed logs and windfalls, provides security and
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744;
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion
2000, pp. 346-347; Squires et al. 2008, p. 1503; Organ 2001). The
amount of structure (e.g., downed, large, woody debris) appears to be
more important than the age of the forest stand for lynx denning
habitat (Mowat et al. 2000, pp. 10-11); however, proximity to forest
stands with high horizontal cover (and presumably high snowshoe hare
density) does contribute to overall suitability of denning sites
(Squires et al. 2008, p. 1503).
The 14-State Canada Lynx DPS
The Service listed lynx in 2000 within what we determined to be the
contiguous United States DPS, which included the known current and
historical range of the lynx (68 FR 40080). In specifying where lynx
was listed, we used State boundaries to circumscribe the outer limits
in which the DPS was found at the time, using the best science
available. This range included portions of the States of Colorado,
Idaho, Maine, Minnesota, Montana, Washington, and Wyoming, and also
areas that could support dispersers - portions of the above States
along with portions of Michigan, New Hampshire, New York, Oregon, Utah,
Vermont, and Wisconsin (68 FR 40099). We did not consider other areas
outside of boreal forest, where dispersing lynx had only been
sporadically documented in the past, to be within the range of the
lynx, because we deemed these areas to be currently incapable of
supporting dispersing lynx. These areas included Connecticut, Indiana,
Iowa, Massachusetts, Nebraska, Nevada, North Dakota, Ohio,
Pennsylvania, South Dakota, and Virginia (68 FR 40099).
We did not include New Mexico in this list of States because no
lynx occurred there, and we had no information to indicate that lynx
had ever been documented there, even sporadically. Therefore, we
determined that the boundaries delineating the range of lynx did not
include New Mexico because it was not within the current or historical
range of the species (68 FR 40083). In addition, no review of potential
habitat in New Mexico was conducted. We did not consider lynx recently
released into Colorado that strayed into New Mexico as sufficient
reason to include New Mexico within the range of lynx because there was
no evidence that habitat in New Mexico historically supported lynx, or
that lynx moving into New Mexico would support maintenance of the lynx
DPS (68 FR 40083).
In 1998, when the Service proposed to list the lynx in the United
States, no wild (or reintroduced) lynx were known to exist in Colorado,
which represented the extreme southern edge of the species' range (65
FR 16059). Boreal forest habitat in Colorado and southeastern Wyoming,
the Southern Rocky Mountain Region, is isolated
[[Page 66941]]
from boreal forest in Utah and northwestern Wyoming by intervening
grassland and shrubland habitats, and is naturally highly fragmented
(65 FR 16059).
It was uncertain whether lynx records from Colorado represented a
small self-sustaining lynx population, or whether historical records
represented dispersers that arrived during high population cycles of
lynx and subsequently died out. Under the scenario whereby lynx in
Colorado were not a self-sustaining population, some of the dispersers
may have remained for a period of years if hare populations were high
enough to support residents and reproduction, but eventually succumbed
to a lack of consistent, high-quality habitat and food sources. We
believe that this is the most likely historical scenario in the
southern Rockies based on the small number of historic lynx records
(McKelvey et al. 2000a, pp. 229-231), low snowshoe hare densities
(Andersen et al. 1980, Table 5; Dolbeer and Clark 1975, p. 539; Hodges
2000b, Table 7.5; Malaney 2003, pp. 65, 87, 90; Zahratka and Shenk
2008, Table 4), and overall low reproductive output of the reintroduced
population (Shenk 2007, pp. 11-13).
In 1999, the Colorado Division of Wildlife (CDOW) reintroduced 22
wild lynx from Canada and Alaska into southwestern Colorado (Shenk
2007, p. 20). By 2003, when we clarified the listing rule (68 FR 40076,
July 3, 2003), no data indicated that the lynx released could be
supported by the habitat available in Colorado. In their 2007 Wildlife
Research Report, CDOW continued to conclude that ``what is yet to be
determined is whether current conditions in Colorado can support the
recruitment necessary to offset annual mortality in order to sustain
the population'' (Shenk 2007, p. 18). Colorado was included in the 14-
State DPS in 2000, because records indicated that lynx were documented
there historically; however, it was not known whether the habitat
occurred in the requisite quantity and quality to sustain lynx
populations. Therefore, the 2000 listing represented a conservative
approach, which included areas in the range of the species when
evidence of long-term persistence was lacking, but enough evidence
existed that it could not be discounted.
In 2000, when the final listing rule was published, we were not
aware of any information to indicate that lynx existed in New Mexico,
that it was ever occupied historically, or that it could sustain lynx.
As a consequence, we did not include New Mexico in the listing rule or
special rule concerning lynx in the contiguous 14-State DPS. We now
have documentation that lynx reintroduced in Colorado have attempted to
disperse in many directions, primarily into New Mexico, Utah, and
Wyoming, but also into eight other States (Shenk 2007, pp. 6, 9). No
reproduction has been documented in New Mexico or Utah, but one den was
found in Wyoming (Shenk 2007, p. 15), and one den was found within 5.6
mi (9 km) of the Colorado-New Mexico State boundary (Shenk 2009b,
entire).
We also point out that lynx dispersal away from the reintroduction
area in southern Colorado is what would be predicted if lynx were
reintroduced into an area that consisted mostly of unsuitable habitat,
and dispersing animals were searching for habitats with the requisite
prey densities that could support resident animals. Our review of the
evidence indicates that this habitat is most likely found north of the
southern Rockies.
We included an analysis in the final lynx listing rule (68 FR
40081) on whether lynx were both discrete and significant in each of
the four regions of the contiguous United States where it exists (the
Northeast, Great Lakes, Southern Rocky Mountains, and Northern Rocky
Mountains/Cascades). We determined that none of the regions
individually constitute significantly unique or unusual ecological
settings and, therefore, did not individually meet the DPS criteria.
Therefore, the lynx was listed as a single contiguous United States DPS
defined by 14 States.
Lynx in the Southern Rockies
Lynx reintroduction into the southern Rocky Mountains in southern
Colorado occurred between 1999 and 2006 with a total of 218 animals
released (Shenk 2008, p. 1). Reintroduced lynx were captured from the
wild in Alaska and Canada. Also in 1999, the CDOW began a post-release
monitoring program that tracked reintroduced animals (and,
opportunistically, their wild-born progeny). The purpose of the
monitoring program was to determine whether the reintroduced population
was reproducing and to collect habitat use and other ecological data.
Prior to beginning reintroductions, CDOW reviewed the historic evidence
of lynx occupation and concluded that the Southern Rockies in Colorado
represent the extreme southern edge of the range of lynx. At that time,
lynx were either extirpated or at such low densities that the extant
population was no longer viable (Seidel et al. 1998, p. 4). Throughout
the post-release monitoring program, CDOW has maintained that the
reintroduction is experimental in nature and that it remains to be
determined whether the southern Rockies can support enough lynx
reproduction to offset mortality (Shenk 2007, p. 18)
At the time of the lynx listing in 2000, the CDOW reintroduction
program was in its beginning stages and without post-release data or
analysis to evaluate its effectiveness. Consequently, when lynx were
listed, lynx released into Colorado, prior to and after the listing,
received the full protection of the Act as a threatened species. At
that time, it was our determination that habitat in Colorado
represented the southernmost extension of lynx range (65 FR 16052, p.
16059), based on the lack of historic lynx records in New Mexico.
Therefore, when the line demarcating the range of lynx (and
consequently the regulatory reach of the final listing rule) was placed
at the border of Colorado and New Mexico, it was thought that this
boundary placement conservatively encompassed all of the lynx range in
the southern Rocky Mountains, and that while lynx may occasionally
wander south of that line, such occurrences would be rare (68 FR 40076,
p. 40077).
Habitat in New Mexico that may support all or a portion of lynx
life-history needs is limited to the San Juan and Sangre de Cristo
mountains in the northern part of the State. Both of these ranges are
contiguous with mountains in Colorado where reintroduced lynx are
residing and have reproduced. Both of these mountain ranges have
snowshoe hares (Malaney and Frey 2006, p. 879); however, densities at
the landscape scale (i.e., the scale of a lynx home range) are low
(0.13 hares/ha (0.32 hares/ac) before seasonal recruitment) and are
likely not high enough to support resident lynx (Malaney 2003, pp. 65,
87, 90).
Most of the habitat in question is managed by the Carson and Santa
Fe National Forests of the U.S. Forest Service (USFS). Approximately
596,000 ac (241,193 ha) of spruce-fir forest types lie within this
area, 440,000 ac of which are on National Forest system lands (USFS
2009, pp. 5-6). On the Carson and Santa Fe National Forests,
approximately 536,400 ac (217,073 ha) have characteristics of potential
lynx habitat (spruce fir and other cold, wet conifer forest types),
about 45 percent of which occurs in designated wilderness (USFS 2009,
p. 7). As a reference, in the reintroduced Colorado lynx population the
average lynx home range size is 108,109 ac (43,750 ha) (calculated from
data in Shenk 2007, p. 11). Other small patches of isolated spruce-fir
and mixed conifer habitats occur in northern New Mexico, but due to
their small size, they are not considered to have any value as lynx
habitats (USFS 2009, p. 7). In their
[[Page 66942]]
information submitted for this finding, the USFS concluded that due to
the lack of historic record, lack of reproduction in reintroduced lynx,
low prey densities, high densities of competitor species and relatively
low snow levels for this area, New Mexico is likely to function as a
``sink'' habitat for the reintroduced lynx population in the southern
Rockies meaning that mortality would exceed recruitment in this area
(USFS 2009, p. 17).
As explained in our 2007 clarification of the 2000 listing rule (72
FR 1186, p. 1189), the presence of snowshoe hares at high population
densities is a pre-requisite for lynx residency in any area. However,
neither the presence of snowshoe hare populations nor contiguity with a
lynx population are sufficient to assure that lynx will reside in an
area that lacks a high density of snowshoe hares at a scale large
enough to support a lynx home range (landscape scale). Snowshoe hare
habitat is of varying quality, and in the lower-48 States only the
highest quality habitat (i.e., that with the highest snowshoe hare
densities) is capable of supporting lynx populations and contributing
to the maintenance of the DPS. Since long-term studies of snowshoe hare
densities across the range of the DPS have not occurred, we believe
that historic and recent data about where lynx have or do reside and
reproduce, provide the best available scientific data concerning which
areas have the requisite high hare densities and amount of habitat
required to support lynx.
The best source of lynx presence data for the historic period is
McKelvey et al. (2000b entire). McKelvey et al. (2000b, entire) focus
on the use of ``verifiable records'' as the most appropriate locality
records for lynx. Verifiable records are those for which there is
verifiable evidence that the animal in question was a lynx, such as a
museum specimen, a diagnostic photograph, or an expert that had the
animal ``in hand'' at the time of identification. We believe that the
need for accurate identification of lynx necessitates that only
verifiable records be used, and we refer readers to McKelvey et al.
(2008, entire) for a discussion of evidentiary standards. Others have
attempted to determine the historic range of lynx through the use of
other types of evidence. Frey (2006, entire) used a combination of
habitat associations, biogeography, and habitat contiguity with known
populations to infer lynx historic range to areas without historic
records.
While this method may point to areas that were potentially in the
range of the species, it presumes that we understand the species' life-
history needs and the habitat condition well enough to know if the
habitat in question would support the species. In the case of lynx, we
know that lynx are dependent on high-density snowshoe hare populations,
in the sense that we know of no lynx population that occurs in an area
without a high density of hares. Conversely, we do know of habitats
with low-density hare populations that have no lynx populations, such
as the Olympic Peninsula in Washington, southwestern Montana/central
Idaho, and much of Appalachia (Hall 1981, p. 317). We do not know what
the threshold landscape-scale hare density is that will allow lynx to
persist, or precisely what habitat characteristics allow persistence of
reproducing populations.
Many depictions of lynx geographic range simply draw lines around
peripheral occurrence records without reference to habitat (e.g., Hall
1981). These depictions are likely to over-estimate the extent of lynx
range due to the animal's tendency to move long distances across
unsuitable habitats while attempting to disperse. Attempted dispersal
forays also bring lynx into human-dominated landscapes where they are
disproportionately likely to experience mortality in a way that leads
to discovery by humans and thus these animals are disproportionately
likely to become locality records. We believe that the best available
scientific information to inform determinations about historic range is
verifiable occurrence records due to their high level of reliability.
Verifiable species records, put in the context of suitable habitat
distribution, are crucial to determining what the historic distribution
of a species was, especially when there is some doubt about the habitat
characteristics that are sufficient to support the species. By using
verifiable occurrence records, we essentially give lynx a vote in the
process, where scientific uncertainty does not permit us to determine
precisely where suitable habitat exists. For these reasons, we believe
that lynx geographic range is best depicted through a combination of
reliable occurrence records and suitable habitat. Because lynx have a
tendency to move long distances during unsuccessful dispersal attempts,
the actual range of the species is much smaller than what is depicted
on range maps that simply draw lines around peripheral occurrence
records and do not consider habitat type and quality. For examples of
analyses that use both occurrence records and suitable habitat to
determine where a species may have occurred in the past, see McKelvey
et al. (2000b, entire) and Aubry et al. (2007, entire).
In our 2007 clarification of the 2000 listing rule, we further
determined that the northern Rockies and North Cascades formed a
significant portion of the DPS' range because this geographic area and
its constituents (e.g., habitat) was the primary region necessary to
support the long-term existence of the contiguous U.S. DPS (72 FR 1186,
p. 1189). This finding was based on the remaining portions of the DPS
range being composed of marginal habitat where lynx presence was tied
more directly to immigration of lynx from Canada. In that document we
emphasized that, just because habitat is marginal, it does not mean
that lynx can no longer live there. Instead, marginal habitat means
that such areas cannot and may never have supported resident lynx
populations (72 FR 1186, p. 1188).
Data collected by CDOW during their post-release monitoring also
are valuable in determining where lynx may find snowshoe hare densities
that may (at least occasionally) support reproduction. Between
September 1999 and March 2007, 60 individual lynx (37 females, 23
males) crossed into New Mexico (Shenk 2007, p. 10). Many of these lynx
passed back into Colorado after short forays into New Mexico, 14
mortalities occurred, and some lynx may have resided in New Mexico
year-round, although that has not been documented (Shenk 2007, pp. 10-
26). From September 1999 through March 2007, CDOW found no evidence
that any of the 37 female lynx that have moved into New Mexico
reproduced or attempted to reproduce (Shenk 2007, p. 15). However, CDOW
does not monitor lynx that leave the State of Colorado as intensively
as it does in Colorado. Based on the large number of female lynx that
have moved into New Mexico over the period of the reintroduction
program without evidence of any reproduction, we cannot conclude that
New Mexico lynx habitat is of high enough quality to support a resident
population. Indeed, we share CDOW's concern that the southern Rockies
in their entirety may not be able to sustain a lynx population.
Lynx suffer proportionally higher mortality in New Mexico than in
other States (Shenk 2001, p. 14). However, statistical tests to
determine whether this difference was significantly different than what
might be expected by chance were not reported. In addition, lynx
mortality due to deliberate killing (shooting) was higher as a
proportion of all mortalities in Colorado (53.8 percent) (where all
lynx are protected by the Act) than they were outside Colorado (46.2
percent) (where
[[Page 66943]]
lynx have Act protections in some States but not New Mexico and others)
(Shenk 2007, Table 9). Therefore, the evidence presented by Shenk does
not indicate that lack of the Act's protections in New Mexico is a
significant contributor to lynx mortality. Rather, lynx mortality is
high for lynx that disperse outside of high-quality lynx habitat
whether they remain under the protection of the Act or not. This result
is to be expected, because dispersal outside of quality habitat is
usually only done under stress, such as inability to find food or
displacement by another lynx. Dispersal outside of lynx habitat is
likely to place lynx in human-dominated landscapes such as agricultural
areas, settlements, and transportation corridors, where lynx
mortalities are more likely to occur.
It is our determination, based on the historic lack of evidence of
lynx occurrence in New Mexico (McKelvey et al. 2000a, Table 8.1) and
the recent evidence of lynx dispersal attempts into northern New Mexico
(Shenk 2007, pp. 29-31), that lynx in New Mexico represent attempted
dispersers, rather than lynx establishing residency in suitable habitat
as defined in our clarification of findings (68 FR 40076, p. 40077). We
also believe that the habitat in New Mexico is a population ``sink'',
in that it is unlikely to support lynx reproduction to the extent that
recruitment will ever be able to offset population mortality, even
absent any human-caused mortality. However, as we stated in 2003, at
the time of listing we considered lynx found in population sinks such
as New Mexico to be dispersers but we included these areas within the
range of lynx (68 FR 40076, p. 40080).
Finding
We have carefully assessed the information in the petition along
with the best scientific and commercial data available. This 12-month
finding reflects and incorporates information that we received during
the public comment period or that we obtained through consultation,
literature research, and field visits.
On the basis of this review, we have determined that revising the
boundaries of the DPS as identified in the 2000 final listing rule for
Canada lynx to include New Mexico is warranted. This finding is based
on the fact that the information that we used to describe the southern
boundary of the DPS at the time of listing is out of date. Lynx that
attempt to disperse outside of areas that support populations should be
protected from direct or indirect mortality that may occur due to the
lack of protections under the Act.
We are assigning a listing priority number (LPN) of 12 to amending
the listing of lynx to include New Mexico in the listed DPS. We assign
an LPN of 1 to 12 (higher number being of lower priority), depending on
the magnitude of threats (high vs. moderate to low), immediacy of
threats (imminent or nonimminent), and taxonomic status of the species
(in order of priority: monotypic genus (a species that is the sole
member of a genus); species; or part of a species (subspecies, DPS, or
significant portion of the range)). We are assigning an LPN of 12 based
on nonimminent threats of a low magnitude to the lynx DPS occurring
from human-caused mortality to lynx dispersing to New Mexico and the
lack of protection under the Act for these lynx. Human-caused mortality
is a factor affecting lynx in New Mexico; however, this impact does not
occur at a level such that it creates a significant threat to lynx in
the contiguous United States and to the DPS as a whole. The magnitude
of threats to the lynx DPS, inclusive of those lynx in New Mexico, is
low. The threats occur infrequently and are nonimminent. Furthermore,
as described above, the amount of suitable habitat for lynx in New
Mexico is considered negligible relative to the amount of habitat
within the listed range. Potential impacts to the habitat have not been
documented to threaten lynx, either in New Mexico or outside of it. The
majority of lynx and its habitats within the DPS are already protected
by the Act. Because lynx in the lower 48 States are listed as a DPS,
the appropriate LPN for this level of magnitude and immediacy of
threats is a 12.
Emergency Listing
We may list a species effective immediately under Section 4 of the
Act if there is any emergency posing a significant risk to the well-
being of the species. Because threats identified to lynx in New Mexico
are determined to be nonimminent and of low magnitude for the species
in the lower 48 States (DPS) as a whole, the Secretary has determined
not to exercise his discretion to invoke the provisions to immediately
put the protections of the Act in place for the Canada lynx in New
Mexico.
Importance of Habitat in New Mexico for the Lynx DPS
The information gathered in the process of preparing this finding
does not indicate that New Mexico can support reproducing lynx. We
still find no evidence that New Mexico can support a lynx population or
that habitat in New Mexico may play a supporting role in conservation
of the DPS. We believe that the only role that habitat in New Mexico
may play in lynx conservation is to allow individuals to survive long
enough to move north back into more suitable habitat. Managing to
increase habitat suitability for lynx in New Mexico would be counter-
productive to this end, because it is unlikely that habitat in New
Mexico can be made to support lynx, and the important goal is that lynx
return to the population further north. Therefore, we do not recommend
that habitat in New Mexico be managed to support residency and
reproduction, as are habitats further north in Colorado and the
northern Rockies. For example, we do not think it would be appropriate
for the USFS to implement management based on the Lynx Conservation
Assessment and Strategy such as that found in the Southern Rocky
Mountain Lynx Amendment (USFS 2008).
Significant Portion of the Range
Under the Act and our implementing regulations, a species may
warrant listing if it is threatened or endangered in a significant
portion of its range. Because this 12-month finding to amend the
listing of the Canada lynx DPS is warranted but precluded, we do not
need to perform a ``significant portion of the range'' analysis for the
species at this time.
Preclusion and Expeditious Progress
Preclusion is a function of the listing priority of a species in
relation to the resources that are available and competing demands for
those resources. Thus, in any given FY, multiple factors dictate
whether it will be possible to undertake work on a proposed listing
regulation or whether promulgation of such a proposal is warranted but
precluded by higher-priority listing actions.
The resources available for listing actions are determined through
the annual Congressional appropriations process. The appropriation for
the Listing Program is available to support work involving the
following listing actions: Proposed and final listing rules; 90-day and
12-month findings on petitions to add species to the Lists of
Endangered and Threatened Wildlife and Plants (Lists) or to change the
status of a species from threatened to endangered; annual
determinations on prior ``warranted but precluded'' petition findings
as required under section 4(b)(3)(C)(i) of the Act; critical habitat
petition findings; proposed and
[[Page 66944]]
final rules designating critical habitat; and litigation-related,
administrative, and program-management functions (including preparing
and allocating budgets, responding to Congressional and public
inquiries, and conducting public outreach regarding listing and
critical habitat). The work involved in preparing various listing
documents can be extensive and may include, but is not limited to:
gathering and assessing the best scientific and commercial data
available and conducting analyses used as the basis for our decisions;
writing and publishing documents; and obtaining, reviewing, and
evaluating public and peer review comments on proposed rules and
incorporating relevant information into final rules. The number of
listing actions that we can undertake in a given year also is
influenced by the complexity of those listing actions; that is, more
complex actions generally are more costly. For example, during the past
several years, the cost (excluding publication costs) for preparing a
12-month finding, without a proposed rule, has ranged from
approximately $11,000 for one species with a restricted range and
involving a relatively uncomplicated analysis, to $305,000 for another
species that is wide-ranging and involved a complex analysis.
We cannot spend more than is appropriated for the Listing Program
without violating the Anti-Deficiency Act (see 31 U.S.C. Sec.
1341(a)(1)(A)). In addition, in FY 1998 and for each FY since then,
Congress has placed a statutory cap on funds that may be expended for
the Listing Program, equal to the amount expressly appropriated for
that purpose in that FY. This cap was designed to prevent funds
appropriated for other functions under the Act (for example, recovery
funds for removing species from the Lists), or for other Service
programs, from being used for Listing Program actions (see House Report
105-163, 105th Congress, 1st Session, July 1, 1997).
Recognizing that designation of critical habitat for species
already listed would consume most of the overall Listing Program
appropriation, Congress also put a critical habitat subcap in place in
FY 2002, and has retained it each subsequent year to ensure that some
funds are available for other work in the Listing Program: ``The
critical habitat designation subcap will ensure that some funding is
available to address other listing activities'' (House Report No. 107-
103, 107th Congress, 1st Session, June 19, 2001). In FY 2002 and each
year until FY 2006, the Service has had to use virtually the entire
critical habitat subcap to address court-mandated designations of
critical habitat. Consequently, none of the critical habitat subcap
funds have been available for other listing activities. In FY 2007, we
were able to use some of the critical habitat subcap funds to fund
proposed listing determinations for high-priority candidate species. In
FY 2008 and 2009, while we were unable to use any of the critical
habitat subcap funds to fund proposed listing determinations, we did
use some of this money to fund the critical habitat portion of some
proposed listing determinations, so that the proposed listing
determination and proposed critical habitat designation could be
combined into one rule, thereby being more efficient in our work. In FY
2010, we anticipate being able to do the same.
Thus, through the listing cap, the critical habitat subcap, and the
amount of funds needed to address court-mandated critical habitat
designations, Congress and the courts have in effect determined the
amount of money available for other listing activities. Therefore, the
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already-listed species, set the limits on
our determinations of preclusion and expeditious progress.
Congress also recognized that the availability of resources was the
key element in deciding, when making a 12-month petition finding,
whether we would prepare and issue a listing proposal or instead make a
``warranted but precluded'' finding for a given species. The Conference
Report accompanying Public Law 97-304, which established the current
statutory deadlines for listing and the warranted-but-precluded finding
requirements that are currently contained in the Act, states (in a
discussion on 90-day petition findings that by its own terms also
covers 12-month findings) that the deadlines were ``not intended to
allow the Secretary to delay commencing the rulemaking process for any
reason other than that the existence of pending or imminent proposals
to list species subject to a greater degree of threat would make
allocation of resources to such a petition [i.e., for a lower-ranking
species] unwise.''
In FY 2010, expeditious progress is that amount of work that can be
achieved with $10,471,000, which is the amount of money that Congress
appropriated for the Listing Program (that is, the portion of the
Listing Program funding not related to critical habitat designations
for species that are already listed). Our process is to make our
determinations of preclusion on a nationwide basis to ensure that the
species most in need of listing will be addressed first and also
because we allocate our listing budget on a nationwide basis. The
$10,471,000 will be used to fund work in the following categories:
compliance with court orders and court-approved settlement agreements
requiring that petition findings or listing determinations be completed
by a specific date; section 4 (of the Act) listing actions with
absolute statutory deadlines; essential litigation-related,
administrative, and listing program-management functions; and high-
priority listing actions for some of our candidate species. The
allocations for each specific listing action are identified in the
Service's FY 2009 Allocation Table (part of our administrative record).
For FY 2010, Congress recently passed an appropriations bill. We are
working on finalizing our allocation of money for specific listing
actions.
In FY 2007, we had more than 120 species with an LPN of 2, based on
our September 21, 1983, guidance for assigning an LPN for each
candidate species (48 FR 43098). Using this guidance, we assign each
candidate an LPN of 1 to 12, depending on the magnitude of threats
(high vs. moderate to low), immediacy of threats (imminent or
nonimminent), and taxonomic status of the species (in order of
priority: monotypic genus (a species that is the sole member of a
genus); species; or part of a species (subspecies, DPS, or significant
portion of the range)). The lower the listing priority number, the
higher the listing priority (that is, a species with an LPN of 1 would
have the highest listing priority). Because of the large number of
high-priority species, we further ranked the candidate species with an
LPN of 2 by using the following extinction-risk type criteria:
International Union for the Conservation of Nature and Natural
Resources (IUCN) Red list status/rank, Heritage rank (provided by
NatureServe), Heritage threat rank (provided by NatureServe), and
species currently with fewer than 50 individuals, or 4 or fewer
populations. Those species with the highest IUCN rank (critically
endangered), the highest Heritage rank (G1), the highest Heritage
threat rank (substantial, imminent threats), and currently with fewer
than 50 individuals, or fewer than 4 populations, comprised a group of
approximately 40 candidate species (``Top 40''). These 40 candidate
species have had the highest priority to receive funding to work on a
proposed listing determination. As we work on proposed and final
listing rules for these 40
[[Page 66945]]
candidates, we are applying the ranking criteria to the next group of
candidates with LPNs of 2 and 3 to determine the next set of highest
priority candidate species. In FY 2008-2009, we funded work on proposed
listing determinations for 61 candidate species, most of which have an
LPN of 2, although these have not been published to date. There are
currently 56 candidate species with an LPN of 2 that nave not received
funding for preparation of proposed listing rules.
To be more efficient in our listing process, as we work on proposed
rules for these species in the next several years, we are preparing
multi-species proposals when appropriate, and these may include species
with lower priority if they overlap geographically or have the same
threats as a species with an LPN of 2. In addition, available staff
resources also are a factor in determining high-priority species
provided with funding. Finally, proposed rules for reclassification of
threatened species to endangered are lower priority, since as listed
species, they are already afforded the protection of the Act and
implementing regulations.
Our decision that a proposed rule to revise the boundaries of the
Canada lynx DPS under the Act is warranted but precluded is based on
the low magnitude and non-imminence of threats to the Canada lynx in
the lower 48-contiguous States (i.e., the DPS). As we have already
determined that the potential threats are of low magnitude and are not
imminent, we conclude that this action should receive the lowest
listing priority. We consider the priority for amending the Canada lynx
DPS to be lower than for other candidate species in need of protection
under the Act. As described in the ``Finding'' section above, we have
assigned an LPN of 12 to this amendment. In accordance with guidance we
published on September 21, 1983, we assign an LPN to each candidate
species (48 FR 43098). Such a priority ranking guidance system is
required under section 4(h)(3) of the Act (16 U.S.C. 1533(h)(3)). Using
this guidance, we assign each candidate an LPN of 1 to 12, depending on
the magnitude of threats, imminence of threats, and taxonomic status;
the lower the listing priority number, the higher the listing priority,
i.e., a species with an LPN of 1 would have the highest listing
priority. We currently have 56 species with an LPN of 2 that have not
received funding yet (see Table 1 of the November 9, 2009, Notice of
Review; 74 FR 57866). For the next 2 years, we have funded proposed
listings for several species with an LPN of 2. We consider amending the
Canada lynx DPS to be precluded by these high-priority candidate
species.
As explained above, a determination that listing is warranted but
precluded also must demonstrate that expeditious progress is being made
to add or remove qualified species to and from the Lists of Endangered
and Threatened Wildlife and Plants. (Although we do not discuss it in
detail here, we also are making expeditious progress in removing
species from the list under the Recovery Program, which is funded by a
separate line item in the budget of the Endangered Species Program. As
explained above in our description of the statutory cap on Listing
Program funds, the Recovery Program funds and actions supported by them
cannot be considered in determining expeditious progress made in the
Listing Program.) As with our ``precluded'' finding, expeditious
progress in adding qualified species to the Lists is a function of the
resources available and the competing demands for those funds. Given
that limitation, we find that we made progress in FY 2009 in the
Listing Program and will continue to make progress in FY 2010. This
progress included preparing and publishing the following
determinations:
FISCAL YEAR 2009 AND FISCAL YEAR 2010 COMPLETED LISTING ACTIONS
----------------------------------------------------------------------------------------------------------------
Publication Date Title Actions FR Pages
----------------------------------------------------------------------------------------------------------------
10/15/2008 90-Day Finding on a Notice of 90-day 73 FR 61007 61015
Petition To List the Petition Finding,
Least Chub Substantial
----------------------------------------------------------------------------------------------------------------
10/21/2008 Listing 48 Species on Proposed Listing, 73 FR 62591 62742
Kauai as Endangered & Endangered; Proposed
Designating Critical Critical Habitat
Habitat
----------------------------------------------------------------------------------------------------------------
10/24/2008 90-Day Finding on a Notice of 90-day 73 FR 63421 63424
Petition to List the Petition Finding, Not
Sacramento Valley substantial
Tiger Beetle as
Endangered
----------------------------------------------------------------------------------------------------------------
10/28/2008 90-Day Finding on a Notice of 90-day 73 FR 63919 63926
Petition To List the Petition Finding,
Dusky Tree Vole Substantial
(Arborimus longicaudus
silvicola) as
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
11/25/2008 12-Month Finding on a Notice of 12-month 73 FR 71787 71826
Petition To List the petition finding,
Northern Mexican Warranted but
Gartersnake precluded
(Thamnophis eques
megalops) as
Threatened or
Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
12/02/2008 90-Day Finding on a Notice of 90-day 73 FR 73211 73219
Petition To List the Petition Finding,
Black-tailed Prairie Substantial
Dog as Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
12/05/2008 90-Day Finding on a Notice of 90-day 73 FR 74123 74129
Petition To List the Petition Finding,
Sacramento Mountains Substantial
Checkerspot Butterfly
(Euphydryas anicia
cloudcrofti) as
Endangered with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
[[Page 66946]]
12/18/2008 90-Day Finding on a Notice of 90-day 73 FR 76990 76994
Petition to Change the Petition Finding,
Listing Status of the Substantial
Canada Lynx
----------------------------------------------------------------------------------------------------------------
01/06/2009 Partial 90-Day Finding Notice of 90-day 74 FR 419 427
on a Petition To List Petition Finding, Not
475 Species in the substantial
Southwestern United
States as Threatened
or Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
02/05/2009 Partial 90-Day Finding Notice of 90-day 74 FR 6122 6128
on a Petition To List Petition Finding, Not
206 Species in the substantial
Midwest & Western
United States as
Threatened or
Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
02/10/2009 90-Day Finding on a Notice of 90-day 74 FR 6558 6563
Petition To List the Petition Finding,
Wyoming Pocket Gopher Substantial
as Threatened or
Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
03/17/2009 Listing Final Listing 74 FR 11319 11327
Phyllostegiahispida Endangered
(No Common Name) as
Endangered Throughout
Its Range
----------------------------------------------------------------------------------------------------------------
03/25/2009 12-Month Finding on a Notice of 12-month 74 FR 12931 12968
Petition to List the petition finding,
Yellow-Billed Loon as Warranted but
Threatened or precluded
Endangered
----------------------------------------------------------------------------------------------------------------
04/09/2009 12-Month Finding on a Notice of 12-month 74 FR 16169 16175
Petition to List the petition finding, Not
San Francisco Bay- warranted
Delta Population of
the Longfin Smelt
(Spirinchus
thaleichthys) as
Endangered
----------------------------------------------------------------------------------------------------------------
04/22/2009 90-Day Finding on a Notice of 90-day 74 FR 18336 18341
Petition To List the Petition Finding,
Tehachapi Slender Substantial
Salamander
(Batrachosepsstebbinsi
) as Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
05/07/2009 90-Day Finding on a Notice of 90-day 74 FR 21301 21310
Petition To List the Petition Finding,
American Pika as Substantial
Threatened or
Endangered with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
05/19/2009 12-Month Finding on a Notice of 12-month 74 FR 23376 23388
Petition to List the petition finding, Not
Coaster Brook Trout as warranted
Endangered
----------------------------------------------------------------------------------------------------------------
06/09/2009 90-Day Finding on a Notice of 90-day 74 FR 27266 27271
Petition To List Petition Finding, Not
Oenothera acutissima substantial
(Narrowleaf Evening-
primrose) as
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
06/29/2009 Proposed Endangered Proposed Listing, 74 FR 31113 31151
Status for the Georgia Endangered; Proposed
Pigtoe Mussel, Critical Habitat
Interrupted Rocksnail,
& Rough Hornsnail with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
07/01/2009 90-Day Finding on a Notice of 90-day 74 FR 31389 31401
Petition to List the Petition Finding,
Northern Leopard Frog Substantial
(Lithobates [=Rana]
pipiens) in the
Western United States
as Threatened
----------------------------------------------------------------------------------------------------------------
07/07/2009 12-Month Finding on a Notice of 12-month 74 FR 32351 32387
Petition To List a petition finding,
Distinct Population Warranted but
Segment of the precluded
Roundtail Chub (Gila
robusta) in the Lower
Colorado River Basin
----------------------------------------------------------------------------------------------------------------
07/08/2009 90-Day Finding on a Notice of 90-day 74 FR 32510 32513
Petition to List the Petition Finding,
Coqui Llanero Substantial
(Eleutherodactylus
juanariveroi) as
Endangered
----------------------------------------------------------------------------------------------------------------
[[Page 66947]]
07/08/2009 90-Day Finding on a Notice of 90-day 74 FR 32514 32521
Petition to List the Petition Finding,
Susan's purse-making Substantial
caddisfly
(Ochrotrichia susanae)
as Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
07/08/2009 Proposed Endangered Proposed Listing, 74 FR 32490 32510
Status for Flying Endangered
Earwig Hawaiian
Damselfly (Megalagrion
nesiotes) & Pacific
Hawaiian Damselfly (M.
pacificum) Throughout
Their Ranges
----------------------------------------------------------------------------------------------------------------
07/09/2009 Listing Casey's June Proposed Listing, 74 FR 32857 32875
Beetle (Dinacoma Endangered; Proposed
caseyi) as Endangered Critical Habitat
& Designation of
Critical Habitat
----------------------------------------------------------------------------------------------------------------
07/22/2009 90-Day Finding on a Notice of 90-day 74 FR 36152 36158
Petition To List the Petition Finding,
White-Sided Jackrabbit Substantial
(Lepus callotis) as
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
08/06/2009 Initiation of Status Notice of Status Review 74 FR 39268 39269
Review for Mountain
Whitefish (Prosopium
williamsoni) in the
Big Lost River, Idaho
----------------------------------------------------------------------------------------------------------------
08/11/2009 90-Day Finding on a Notice of 90-day 74 FR 40132 40138
Petition To List the Petition Finding,
Jemez Mountains Substantial
Salamander (Plethodon
neomexicanus) as
Threatened or
Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
08/18/2009 Partial 90-Day Finding Notice of 90-day 74 FR 41649 41662
on a Petition To List Petition Finding, Not
206 Species in the substantial (9
Midwest & Western species); Notice of 90-
United States as day Petition Finding,
Threatened or Substantial (29
Endangered with species)
Critical Habitat
----------------------------------------------------------------------------------------------------------------
08/19/2009 12-Month Finding on a Notice of 12-month 74 FR 41832 41860
Petition To List the petition finding, Not
Ashy Storm-Petrel as warranted
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
08/28/2009 90-Day Finding on a Notice of 90-day 74 FR 44335 44344
Petition To List the Petition Finding,
Sonoran Population of Substantial
Desert Tortoise
(Gopherus agasizzii)
as a Distinct
Population Segment
With Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/02/2009 12-Month Finding on a Notice of 12-month 74 FR 45396 45411
Petition To List the petition finding, Not
Sacramento Mountains warranted
Checkerspot Butterfly
as Endangered with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/09/2009 90-Day Finding on a Notice of 90-day 74 FR 46401 46406
Petition to List the Petition Finding,
Eastern Population of Substantial
the Gopher Tortoise
(Gopherus polyphemus)
as Threatened
----------------------------------------------------------------------------------------------------------------
09/10/2009 12-Month Finding on a Notice of 12 month 74 FR 46521 46542
Petition to List petition finding,
Astragalus anserinus Warranted but
(Goose Creek precluded
milkvetch) as
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
09/10/2009 90-Day Finding on a Notice of 90-day 74 FR 46542 46547
Petition to List Petition Finding,
Cirsium wrightii Substantial
(Wright's marsh
thistle) as Threatened
or Endangered with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/10/2009 Endangered & Threatened Notice of 90-day 74 FR 46551 46557
Wildlife & Plants; 90- Petition Finding,
Day Finding on a Substantial
Petition to List the
Amargosa Toad (Bufo
nelsoni) as Threatened
or Endangered
----------------------------------------------------------------------------------------------------------------
[[Page 66948]]
09/10/2009 90-Day Finding on a Notice of 90-day 74 FR 46548 46551
Petition to List the Petition Finding,
Pacific Walrus as Substantial
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
10/08/2009 Listing Lepidium Final Listing- 74 FR 52013 52064
papilliferum Threatened
(Slickspot
Peppergrass) as a
Threatened Species
Throughout Its Range
----------------------------------------------------------------------------------------------------------------
10/27/2009 90-day Finding on a Notice of 90-day 74 FR 55177 55180
Petition To List the Petition Finding, Not
American Dipper in the substantial
Black Hills of South
Dakota as Threatened
or Endangered
----------------------------------------------------------------------------------------------------------------
10-28-2009 Status Review of Arctic Notice of Intent to 74 FR 55524 55525
Grayling (Thymallus Conduct Status Review
arcticus) in the Upper
Missouri River System
----------------------------------------------------------------------------------------------------------------
Our expeditious progress also included work on listing actions that
we funded in FY 2009 but have not yet completed to date. These actions
are listed below. Actions in the top section of the table are being
conducted under a deadline set by a court. Actions in the middle
section of the table are being conducted to meet statutory timelines,
that is, timelines required under the Act. Actions in the bottom
section of the table are high-priority listing actions. These actions
include work primarily on species with an LPN of 2, and selection of
these species is partially based on available staff resources, and when
appropriate, include species with a lower priority if they overlap
geographically or have the same threats as the species with the high
priority. Including these species together in the same proposed rule
results in considerable savings in time and funding, as compared to
preparing separate proposed rules for each of them in the future.
ACTIONS FUNDED IN FISCAL YEAR 2009 BUT NOT YET COMPLETED
------------------------------------------------------------------------
SPECIES ACTION
------------------------------------------------------------------------
Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
Coastal cutthroat trout Final listing determination
------------------------------------------------------------------------
Mono basin sage-grouse 12-month petition finding
------------------------------------------------------------------------
Greater sage grouse 12-month petition finding
------------------------------------------------------------------------
Southwest bald eagle population 12-month petition finding
------------------------------------------------------------------------
White-tailed prairie dog 12-month petition finding
------------------------------------------------------------------------
American pika 12-month petition finding
------------------------------------------------------------------------
Hermes copper butterfly 90-day petition finding
------------------------------------------------------------------------
Thorne's hairstreak butterfly 90-day petition finding
------------------------------------------------------------------------
Actions with Statutory Deadlines
------------------------------------------------------------------------
48 Kauai species Final listing determination
------------------------------------------------------------------------
Black-footed albatross 12-month petition finding
------------------------------------------------------------------------
Mount Charleston blue butterfly 12-month petition finding
------------------------------------------------------------------------
Mojave fringe-toed lizard\1\ 12-month petition finding
------------------------------------------------------------------------
Pygmy rabbit (rangewide)\1\ 12-month petition finding
------------------------------------------------------------------------
Kokanee - Lake Sammamish population\1\ 12-month petition finding
------------------------------------------------------------------------
Delta smelt (uplisting) 12-month petition finding
------------------------------------------------------------------------
Cactus ferruginous pygmy-owl\1\ 12-month petition finding
------------------------------------------------------------------------
Tucson shovel-nosed snake\1\ 12-month petition finding
------------------------------------------------------------------------
[[Page 66949]]
Northern leopard frog 12-month petition finding
------------------------------------------------------------------------
Tehachapi slender salamander 12-month petition finding
------------------------------------------------------------------------
Coqui Llanero 12-month petition finding
------------------------------------------------------------------------
Susan's purse-making caddisfly 12-month petition finding
------------------------------------------------------------------------
White-sided jackrabbit 12-month petition finding
------------------------------------------------------------------------
Jemez Mountains salamander 12-month petition finding
------------------------------------------------------------------------
29 of 206 species 12-month petition finding
------------------------------------------------------------------------
Desert tortoise - Sonoran population 12-month petition finding
------------------------------------------------------------------------
Gopher tortoise - eastern population 12-month petition finding
------------------------------------------------------------------------
Wrights marsh thistle 12-month petition finding
------------------------------------------------------------------------
Southeastern population of snowy plover & 90-day petition finding
wintering population of piping plover
------------------------------------------------------------------------
Berry Cave salamander\1\ 90-day petition finding
------------------------------------------------------------------------
Ozark chinquapin\1\ 90-day petition finding
------------------------------------------------------------------------
Smooth-billed ani 90-day petition finding
------------------------------------------------------------------------
Bay Springs salamander\1\ 90-day petition finding
------------------------------------------------------------------------
Mojave ground squirrel\1\ 90-day petition finding
------------------------------------------------------------------------
32 species of snails and slugs 90-day petition finding
------------------------------------------------------------------------
Calopogon oklahomensis 90-day petition finding
------------------------------------------------------------------------
Striped newt 90-day petition finding
------------------------------------------------------------------------
Sprague's pipit 90-day petition finding
------------------------------------------------------------------------
Southern hickorynut 90-day petition finding
------------------------------------------------------------------------
5 Southwest mussel species 90-day petition finding
------------------------------------------------------------------------
Chihuahua scarfpea 90-day petition finding
------------------------------------------------------------------------
White-bark pine 90-day petition finding
------------------------------------------------------------------------
Puerto Rico harlequin 90-day petition finding
------------------------------------------------------------------------
Fisher - Northern Rocky Mtns. population 90-day petition finding
------------------------------------------------------------------------
42 snail species (Nevada & Utah) 90-day petition finding
------------------------------------------------------------------------
Hawaii yellow-faced bees 90-day petition finding
------------------------------------------------------------------------
475 Southwestern species (partially 90-day petition finding
completed)
------------------------------------------------------------------------
High Priority Listing Actions\3\
------------------------------------------------------------------------
19 Oahu candidate species (16 plants, 3 Proposed listing
damselflies) (15 with LPN = 2, 3 with LPN
= 3, 1 with LPN =9)
------------------------------------------------------------------------
17 Maui-Nui candidate species (14 plants, Proposed listing
3 tree snails) (12 with LPN = 2, 2 with
LPN = 3, 3 with LPN = 8)
------------------------------------------------------------------------
Sand dune lizard (LPN = 2) Proposed listing
------------------------------------------------------------------------
2 Arizona springsnails (Pyrgulopsis Proposed listing
bernadina (LPN = 2), Pyrgulopsis
trivialis (LPN = 2))
------------------------------------------------------------------------
2 New Mexico springsnails (Pyrgulopsis Proposed listing
chupaderae (LPN = 2), Pyrgulopsis
thermalis (LPN = 11))
------------------------------------------------------------------------
[[Page 66950]]
2 mussels (rayed bean (LPN = 2), snuffbox Proposed listing
No LPN)
------------------------------------------------------------------------
2 mussels (sheepnose (LPN = 2), Proposed listing
spectaclecase (LPN = 4),
------------------------------------------------------------------------
Ozark hellbender\2\ (LPN = 3) Proposed listing
------------------------------------------------------------------------
Altamaha spinymussel (LPN = 2) Proposed listing
------------------------------------------------------------------------
5 southeast fish (rush darter (LPN = 2), Proposed listing
chucky madtom (LPN = 2), yellowcheek
darter (LPN = 2), Cumberland darter (LPN
= 5), laurel dace (LPN = 5))
------------------------------------------------------------------------
8 southeast mussels (southern kidneyshell Proposed listing
(LPN = 2), round ebonyshell (LPN = 2),
Alabama pearlshell (LPN = 2), southern
sandshell (LPN = 5), fuzzy pigtoe (LPN =
5), Choctaw bean (LPN = 5), narrow pigtoe
(LPN = 5), and tapered pigtoe (LPN = 11))
------------------------------------------------------------------------
3 Colorado plants (Pagosa skyrocket Proposed listing
(Ipomopsis polyantha) (LPN = 2), Parchute
beardtongue (Penstemon debilis) (LPN =
2), Debeque phacelia (Phacelia submutica)
(LPN = 8))
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
previous FYs.
\2\ We funded a proposed rule for this subspecies with an LPN of 3 ahead
of other species with LPN of 2, because the threats to the species
were so imminent and of a high magnitude that we considered emergency
listing if we were unable to fund work on a proposed listing rule in
FY 2008.
\3\ Funds for these high-priority listing actions were provided in FY
2008 and FY 2009.
We have endeavored to make our listing actions as efficient and
timely as possible, given the requirements of the relevant laws and
regulations, and constraints relating to workload and personnel. We are
continually considering ways to streamline processes or achieve
economies of scale, such as by batching related actions together. Given
our limited budget for implementing section 4 of the Act, the actions
described above collectively constitute expeditious progress.
We will revise the boundaries of the Canada lynx DPS in the
contiguous United States when funding is available for discretionary
listing actions. At such time that funding becomes available to develop
a proposed rule, we will develop revised boundaries for the listed DPS
based on the biology of the species. We will continue to monitor the
status of this DPS as new information becomes available. This review
will determine if a change in status is warranted, including the need
to make prompt use of emergency listing procedures.
We intend any amendment to this listing to be as accurate as
possible. Therefore, we will continue to accept additional information
and comments on the status of and threats to this DPS from all
concerned governmental agencies, the scientific community, industry, or
any other interested party concerning this finding.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Supervisor, at the U.S. Fish and Wildlife Service, Montana Field Office
(see ADDRESSES).
Author
The primary author of this document is staff of the Mountain-
Prairie Region of the U.S. Fish and Wildlife Service, 134 Union Blvd.,
Suite 645, Lakewood, Colorado 80228 (also see ADDRESSES).
Authority
The authority for this action is section 4 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: November 25, 2009
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. E9-29960 Filed 12-16-09; 8:45 am]
BILLING CODE 4310-55-S