[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Rules and Regulations]
[Pages 76882-76917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27087]
[[Page 76881]]
Vol. 87
Thursday,
No. 240
December 15, 2022
Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status with Section 4(d) Rule for Whitebark Pine (Pinus albicaulis);
Final Rule
Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 /
Rules and Regulations
[[Page 76882]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2019-0054; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BE23
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Whitebark Pine (Pinus albicaulis)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
that whitebark pine (Pinus albicaulis), a high-elevation tree species
found across western North America, is a threatened species under the
Endangered Species Act of 1973 (Act), as amended. We also finalize a
rule under the authority of section 4(d) of the Act that provides
measures that are necessary and advisable to provide for the
conservation of the species. We have determined that designation of
critical habitat for the whitebark pine is not prudent at this time.
DATES: This rule is effective January 17, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0054. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0054.
FOR FURTHER INFORMATION CONTACT: Tyler Abbott, Field Supervisor, U.S.
Fish and Wildlife Service, Wyoming Ecological Services Field Office,
334 Parsley Boulevard, Cheyenne, WY 82007; telephone: 307-757-3707.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that
whitebark pine meets the definition of a threatened species; therefore,
we are listing it as such. We have determined that designating critical
habitat is not prudent. Both listing a species as an endangered or
threatened species and designating critical habitat can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process.
What this document does. This rule lists whitebark pine (Pinus
albicaulis) as a threatened species under the Act. This document also
finalizes a rule under the authority of section 4(d) of the Act that
provides measures that are necessary and advisable to provide for the
conservation of whitebark pine.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (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. We have determined that the primary stressor
driving the status of the whitebark pine is white pine blister rust, a
fungal disease caused by the nonnative pathogen Cronartium ribicola
(Factor C). Whitebark pine is also negatively affected by the mountain
pine beetle (Dendroctonus ponderosae Hopkins) (Factor C), altered fire
regimes (Factor E), and the effects of climate change (Factor E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. We have determined that
designating critical habitat is not prudent for whitebark pine at this
time, for the reasons discussed below in Critical Habitat.
Previous Federal Actions
Please refer to the proposed rule to list whitebark pine as a
threatened species (85 FR 77408; December 2, 2020) for a detailed
description of previous Federal actions concerning this species.
Supporting Documents
We prepared an SSA report for whitebark pine in 2018 (Service 2018,
entire) and developed a revised version (version 1.3) in 2021 (Service
2021, entire); this revised version includes updates based on new
science and information provided during the public comment period on
our proposed listing rule. The SSA team was composed of Service
biologists; we also consulted with other species experts in the
development of the SSA report. The SSA report compiles the best
scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both detrimental and beneficial) affecting the species. In accordance
with our joint policy on peer review published in the Federal Register
on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
updating and clarifying the role of peer review of listing actions
under the Act, we sought peer review of the SSA report from independent
scientists with expertise in whitebark pine biology, habitat
management, genetics, and stressors (factors negatively affecting the
species). Their comments were incorporated into the SSA report, as
appropriate, during the proposed rule stage and informed our final
determination. We also considered all comments and information we
received from the public during the comment period for the proposed
rule. The SSA report and other materials relating to this rule can be
found at https://ecos.fws.gov/ecp/species/1748 and at https://www.regulations.gov under Docket No. FWS-R6-ES-2019-0054.
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the public on the proposed rule. In addition to minor
editorial changes, we updated information in this final rule and the
SSA report (Service 2021, entire) based on comments and additional
information provided, as follows:
First, we incorporated information on acres burned in the United
States between 2016 and 2019, as these data are now available in the
Monitoring Trends in Burn Severity database (MTBS Data Access 2021).
Data from these more recent fire seasons do not change our conclusions
regarding the species' viability, as white pine blister rust remains
the primary driver of the species' status; in fact, these additional
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data validate our model assumptions that the intensity and extent of
fire will increase in the future.
Second, we incorporated, in both the SSA report and in our
discussion of fire in this final rule, new information on whitebark
pine's susceptibility to damage from low-intensity fire, the role of
low-severity fire in whitebark pine ecology, and the role of prescribed
fire in maintaining and restoring whitebark pine (see Service 2021, pp.
34-41, 113). Although this information is important and relevant to the
management and recovery of whitebark pine, it does not significantly
affect our understanding of the threats to the species or our listing
determination. The loss of whitebark pine to low-intensity fire would
primarily affect individuals at the stand scale and is unlikely to
affect the species' broader distribution and viability (Service 2021,
p. 41).
Third, we revised our discussion of the stressor of altered fire
regimes in the SSA report and in this rule to better capture the
subtleties in recent research regarding the role of fire suppression in
whitebark pine ecosystems (Service 2021, pp. 37-39). The idea that fire
suppression has resulted in tree densification and loss of whitebark
pine has been a predominant hypothesis in the whitebark pine literature
(Arno 1980, p. 460; Arno 2001, p. 82; Keane et al. 2017a, p. 3; Keane
and Parsons 2010, p. 57; Flanagan et al. 1998, p. 307); however, other
recent research has challenged these findings (Service 2021, pp. 37-
39). Whitebark pine may be more shade-tolerant and resilient to
suppression than previously determined (Larson and Kipfmueller 2012, p.
204; Campbell and Antos 2003, p. 395; Dolanc et al. 2013, p. 272;
Larson et al. 2009, p. 294). Thus, although fire suppression
undoubtedly affects individual whitebark pine stands, it is unclear
under what conditions fire suppression begins to negatively influence
whitebark pine populations and the rate at which succession occurs in
those populations. However, when considering the stressor of fire at
the rangewide scale of whitebark pine, these additional nuances on the
past effects of fire suppression do not change our original conclusions
that high-severity fire currently influences whitebark pine and is
expected to influence the species in the future.
Fourth, we added recent research to the SSA report regarding the
characteristics of whitebark pine trees that are more resistant to
mountain pine beetle attacks (Service 2021, pp. 53-54). These trees
exhibited slower growth rates and greater genetic diversity (Kichas et
al. 2020, p. 6; Six et al. 2021, p. 19; Six et al. 2021, p. 9). There
is also recent evidence of a genetic basis for resistance to mountain
pine beetle attack, with mountain pine beetles selecting some whitebark
pine genotypes for attack over other genotypes, even during outbreaks
(Six et al. 2018, p. 7). This research also shows that, although tree
vigor is often used as an indicator of resistance to bark beetles in
some conifer species, it does not appear to be an indicator of
resistance to mountain pine beetle in whitebark pine, illustrating that
thinning treatments may not enhance whitebark pine's defenses to bark
beetles (Six et al. 2021, p. 19). Although this information is
important and relevant to the management and recovery of whitebark
pine, it does not significantly affect our understanding of the threats
to the species or species' status.
Fifth, in the SSA report, we added information on the uncertainties
regarding how climate change could affect Clark's nutcracker (Nucifraga
columbiana) populations (Service 2021, p. 60). Should climate change
negatively affect Clark's nutcracker populations under future warming
scenarios, the additive effect would likely exacerbate the decline of
whitebark pine in the future by disrupting the mutualistic relationship
between the two species (Ray et al. 2020, p. 20); however,
uncertainties remain as to how Clark's nutcracker could respond to
climatic changes. This information only further supports our conclusion
that whitebark pine is likely to become an endangered species in the
foreseeable future.
Sixth, we revised language in appendix A of the SSA report, which
discusses management and restoration, based on information from the
comments we received on the proposed rule. This new language further
acknowledges existing local conservation efforts and better reflects
potential restoration strategies (Service 2021, pp. 119-144). We also
include additional discussion of localized conservation efforts in this
final rule.
Seventh, we made additional minor updates to the SSA report and,
where appropriate, to this final rule, based on information provided in
the comments, including, but not limited to, adding relevant literature
references throughout, updating language regarding the species' shade
tolerance (Service 2021, p. 22), detailing additional uncertainties
surrounding Clark's nutcracker cache-site selection (Service 2021, p.
25), updating language in the SSA report's appendix A regarding the
uncertainties inherent in identifying effective restoration strategies
for the species (Service 2021, pp. 125-131), and updating language
regarding whitebark pine seed-germination requirements (Service 2021,
p. 25). In all, these minor updates to the SSA report do not change our
overall understanding of the species' viability.
Eighth, we updated analysis and language in our determination of
whitebark pine status throughout a significant portion of the range to
ensure consistency with current practice and to enhance legal
completeness.
Finally, we made the following changes to the discussion and/or
regulatory text of the 4(d) rule:
Based on a comment we received from the Confederated
Salish and Kootenai Tribes, we added an exception to the 4(d) rule for
this species to allow members of federally recognized Tribes to collect
whitebark pine seeds for Tribal ceremonial use or traditional
consumption. As we discuss in additional detail in Provisions of the
Final 4(d) Rule, below, this minimal level of collection does not
present a threat to the species and will ensure Tribes can continue to
use these culturally significant seeds in their traditional practices.
In our discussion of the 4(d) rule below, we clarify that
the exception for ``forest-management activities'' includes vegetation
management in existing utility rights-of-way, as this management does
not present a threat to the species and could help reduce the risk of
high-severity fire, and we add clarifying language regarding the
relationship between the 4(d) rule for whitebark pine and section 7
consultation.
We made editorial corrections to the wording of certain
prohibitions and exceptions in the regulatory text of the 4(d) rule to
increase clarity and to better align the language with existing
regulations and law; these editorial corrections do not alter the
original meaning of these prohibitions and exceptions.
I. Final Listing Determination
Background
A thorough review of the taxonomy, range and distribution, life
history, and ecology of whitebark pine is presented in the SSA report
(Service 2021, pp. 14-32; available at https://www.regulations.gov at
Docket No. FWS-R6-ES-2019-0054) and is briefly summarized here.
Whitebark pine is a slow-growing, long-lived, five-needle conifer,
occurring at high elevations across the western United States and
Canada. Whitebark pine has a broad range both latitudinally (occurring
from a southern extent of approximately 36[deg]
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north in California to 55[deg] north latitude in British Columbia,
Canada) and longitudinally (occurring from approximately 128[deg] west
in British Columbia, Canada, to an eastern extent of 108[deg] west in
Wyoming). Rangewide, whitebark pine occurs on an estimated 32,616,422
hectares (ha) (80,596,935 acres (ac)) in western North America.
Whitebark pine typically occurs on cold and windy high-elevation
sites in western North America, although it also occurs in scattered
areas of the warm and dry Great Basin (Service 2021, p. 14). Whitebark
pine is considered both a keystone and a foundation species in western
North America, where it increases biodiversity and contributes to
critical ecosystem functions (Tomback et al. 2001, pp. 7-8).
Whitebark pine is a hardy conifer that tolerates poor soils, steep
slopes, and windy exposures; it is found at alpine tree line and
subalpine elevations throughout its range (Tomback et al. 2001, pp. 6,
27). Whitebark pine is slow-growing and moderately shade-tolerant, and
can be outcompeted and replaced by more shade-tolerant trees in the
absence of disturbances like fire (Arno and Hoff 1989, p. 6). The
species grows under a wide range of annual precipitation amounts, from
about 51 to over 254 centimeters (cm) (20 to 100 inches (in.)) per
year, and it is considered relatively drought-tolerant (Arno and Hoff
1989, p. 7; Farnes 1990, p. 303). A variety of soil types supports
whitebark pine (Weaver 2001, pp. 47-48; Keane et al. 2012, p. 3). These
soil types are generally described as well-drained soils that are
poorly developed, coarse, rocky, and shallow over bedrock (COSEWIC
2010, p. 10).
Primary seed dispersal occurs almost exclusively by Clark's
nutcrackers, a bird in the family Corvidae (whose members include
ravens, crows, and jays) (Lanner 1996, p. 7; Schwandt 2006, p. 2). Seed
predation plays a major role in whitebark pine population dynamics, as
seed predators' actions largely determine the fate of seeds. However,
whitebark pine has coevolved with seed predators and has several
adaptations, such as masting (regional synchrony of mass production of
seeds), that have allowed the species to persist despite heavy seed
predation (Lorenz et al. 2008, pp. 3-4). Whitebark pine trees may
produce both male and female cones (Service 2021, p. 20). Some
whitebark pine individuals are capable of producing limited amounts of
seed cones at 20 to 30 years of age, although large cone crops usually
are not produced until 60 to 80 years (Krugman and Jenkinson 1974, as
cited in McCaughey and Tomback 2001, p. 109), with average earliest
first cone production at 40 years (Tomback and Pansing 2018, p. 7).
Individual whitebark pine trees can survive on the landscape for
hundreds of years (Service 2021, p. 20).
In the literature, there is a range of time periods experts have
used to inform whitebark pine generation time; these methods have
included average age of first cone production (around 40 years)
(Tomback and Pansing 2018, p. 7) and the age trees produce a large cone
crop that can attract Clark's nutcrackers (60 to 80 years) (Krugman and
Jenkinson 1974, as cited in McCaughey and Tomback 2001, p. 109).
Therefore, the full range of possible generation times for whitebark
pine is 40 to 80 years. In our SSA, we used 60 years as the average
generation time to inform the time intervals for our future condition
analysis in the SSA; this is the midpoint of the range of possible
generation times in the literature (Service 2021, p. 99).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued final rules that revised the regulations in
50 CFR part 424 regarding how we add, remove, and reclassify threatened
and endangered species and the criteria for designating listed species'
critical habitat (84 FR 45020; August 27, 2019). At the same time the
Service also issued final regulations that, for species listed as
threatened species after September 26, 2019, eliminated the Service's
general protective regulations automatically applying to threatened
species the prohibitions that section 9 of the Act applies to
endangered species (84 FR 44753; August 27, 2019). We collectively
refer to these actions as the 2019 regulations.
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are the governing law just
as they were when we completed the proposed rule. Although there was a
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations
therefore governed, the 2019 regulations are now in effect and govern
listing and critical habitat decisions (see Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No.
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order
vacating the 2019 regulations until the district court resolved a
pending motion to amend the order); Center for Biological Diversity v.
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16,
2022) (granting plaintiffs' motion to amend July 5, 2022 order and
granting government's motion for remand without vacatur).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean
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that the species meets the statutory definition of an ``endangered
species'' or a ``threatened species.'' In determining whether a species
meets either definition, we must evaluate all identified threats by
considering the expected response by the species, and the effects of
the threats--in light of those actions and conditions that will
ameliorate the threats--on an individual, population, and species
level. We evaluate each threat and its expected effects on the species,
then analyze the cumulative effect of all of the threats on the species
as a whole. We also consider the cumulative effect of the threats in
light of those actions and conditions that will have positive effects
on the species, such as any existing regulatory mechanisms or
conservation efforts. The Secretary determines whether the species
meets the definition of an ``endangered species'' or a ``threatened
species'' only after conducting this cumulative analysis and describing
the expected effect on the species now and in the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time for which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies. The following is a summary of the key results
and conclusions from the SSA report (Service 2021, entire); the full
SSA report can be found at Docket No. FWS-R6-ES-2019-0054 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/1748.
To assess whitebark pine viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years), redundancy
supports the ability of the species to withstand catastrophic events
(for example, droughts, large pollution events), and representation
supports the ability of the species to adapt over time to long-term
changes in the environment (for example, climate changes). In general,
the more resilient and redundant a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the stressors that influence the
species' current and future condition, in order to assess the species'
overall viability and the risks to that viability. We completed a
comprehensive assessment of the biological status of the whitebark pine
and prepared a report of the assessment (the SSA report; Service 2021,
entire), which provides a thorough account of the species' needs and
overall viability. We define viability here as the ability of the
species to sustain populations in the wild into the future. In the
discussion below, we summarize the conclusions of that assessment,
which we provide in full under Docket No. FWS-R6-ES-2019-0054 on
https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/1748.
In the SSA, we discuss individual-, population-, and species-level
needs of whitebark pine in detail (Service 2021, pp. 22-32). In
general, whitebark pine individuals have similar requirements to other
tree species. That is, all four life stages require adequate amounts of
sunlight, water, and soil for survival and/or reproduction (Service
2021, pp. 22-28). Clark's nutcrackers are able to assess cone crops,
and if there are insufficient seeds to cache, they will emigrate in
order to survive (McKinney et al. 2009, p. 599). Therefore, at the
population level, whitebark pine populations need sufficient density
and abundance of reproductive individuals to facilitate masting and to
attract Clark's nutcrackers, in order to achieve adequate recruitment
and maintain resiliency to stochastic events (Service 2021, pp. 27-30).
At the species-level, for long-term viability, whitebark pine requires
multiple (redundancy), self-sustaining populations (resiliency)
distributed across the landscape (representation) to maintain the
ecological and genetic diversity of the species (Service 2021, pp. 31-
32).
Rangewide data from U.S. Forest Service (USFS) Forest Inventory and
Analysis surveys indicate that 51 percent of all standing whitebark
pine trees in the United States are now dead, with over half of that
mortality occurring approximately in the last two decades alone
(Service 2021, p. 86; Goeking and Izlar 2018, p. 7). We focused our
analysis of whitebark pine's viability on four main stressors: white
pine blister rust, mountain pine beetle, altered fire regimes, and
climate change. We focused on these four stressors because, according
to the best available
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data, these stressors are the leading factors attributed to the
aforementioned decline of whitebark pine (Keane and Arno 1993, p. 44;
Tomback et al. 2001, p. 13; COSEWIC 2010, p. 24; Tomback and Achuff
2010, p. 186; Keane et al. 2012, p. 1; Mahalovich 2013, p. 2;
Mahalovich and Stritch, 2013, entire; Smith et al. 2013, p. 90; Greater
Yellowstone Whitebark Pine Monitoring Working Group (GYWPMWG) 2016, p.
v; Jules et al. 2016, p. 144; Perkins et al. 2016, p. xi; Shanahan et
al. 2016, p. 1; Shepherd et al. 2018, p. 138). While all of these
stressors affect the species, we found that white pine blister rust is
the main driver of the species' current and future conditions. Each of
these four stressors is described in detail in our SSA report (Service
2021, pp. 34-63), and is summarized below. There are numerous other
factors that operate on whitebark pine at more local scales, affecting
individuals or local areas; these include, but are not limited to,
agriculture; energy production and mining; biological resource use
(e.g., logging); and recreation (Service 2021 pp. 145-160). However,
these factors are likely not driving population dynamics of whitebark
pine on a rangewide scale, or at the species level (Service 2021, p.
34).
White Pine Blister Rust
White pine blister rust is a fungal disease of five-needle pines
caused by a nonnative pathogen (Geils et al. 2010, p. 153). The fungus
was inadvertently introduced to the West Coast around 1910, near
Vancouver, British Columbia (McDonald and Hoff 2001, p. 198; Brar et
al. 2015, p. 10). The incidence of white pine blister rust at stand,
landscape, and regional scales varies due to time since introduction
and environmental suitability for its development. It continues to
spread into areas originally considered less suitable for infection,
such as the Sierra Nevada Mountains, where it has become a serious
stressor, causing severe population losses to several species of
western pines, including whitebark pine (Schwandt et al. 2010, pp. 226-
230). Its current known geographic distribution in western North
America includes all U.S. States and British Columbia and Alberta,
Canada.
The white pine blister rust fungus has a complex life cycle: It
does not spread directly from one tree to another, but alternates
between primary hosts (i.e., five-needle pines) and alternate hosts.
Alternate hosts in western North America are typically woody shrubs in
the genus Ribes (gooseberries and currants) (McDonald and Hoff 2001, p.
193; McDonald et al. 2006, p. 73). The spreading of white pine blister
rust spores depends on the distribution of hosts, the prevailing
microclimates, and the different genotypes of white pine blister rust
and hosts (McDonald and Hoff 2001, pp. 193, 202). A wave event (a
massive spreading of new white pine blister rust infections into new or
relatively unaffected areas, or intensification of spread from a
cumulative buildup in already infected stands) occurs where alternate
hosts are abundant and when late-summer weather is favorable to spore
production and dispersal and subsequent infection of pine needles.
Because its abundance is influenced by weather and host populations,
white pine blister rust also is affected by climate change. If
conditions become cooler or moister, white pine blister rust will
likely spread and intensify; conversely, where conditions become both
warmer and drier, it may spread more slowly (Service 2021, p. 45).
However, even if climatic conditions slow the spread of white pine
blister rust, it remains present on the landscape and will still
continue to infect trees, albeit at a slower rate.
White pine blister rust attacks whitebark pine seedlings, saplings,
and mature trees, damaging stems and cone-bearing branches and
restricting nutrient flows. It eventually girdles branches and boles
(tree trunks or stems), leading to the death of branches or the entire
tree (Tomback et al. 2001, p. 15; McDonald and Hoff 2001, p. 195).
While some infected mature trees can continue to live for decades (Wong
and Daniels 2017, p. 1935), their cone-bearing branches typically die
first, thereby eliminating the seed source required for reproduction
(Geils et al. 2010, p. 156). Although some areas of the species' range
have been affected by white pine blister rust for 90 years or more, for
whitebark pine that timeframe equates to only 1.5 generations
(Mahalovich 2013, p. 17), which means the species has had a limited
time to adapt to or develop resistance to white pine blister rust.
However, low levels of rust resistance have been documented on the
landscape in individual trees and their seeds, indicating that there is
some level of heritable resistance to white pine blister rust (Hoff et
al. 2001, p. 350; Mahalovich et al. 2006, p. 95; Mahalovich 2015, p.
1). In some populations and geographic areas, there is moderate
frequency and level of genetic resistance, while in others, the
frequency of resistance appears to be much lower (Sniezko 2018, pp. 1-
2).
Most current management and research focus on producing and
planting whitebark pine seedlings with proven genetic resistance to
white pine blister rust, but also include enhancing natural
regeneration and applying silvicultural treatments, such as appropriate
site selection and preparation, pruning, and thinning (Zeglen et al.
2010, p. 347). However, management challenges to restoration include
remoteness, difficulty of access, and a perception that some whitebark
pine restoration activities conflict with wilderness values (Schwandt
et al. 2010, p. 242). In addition, the vast scale at which planting
rust-resistant trees would need to occur, the long timeframes in which
restoration efficacy could be assessed, and limited funding and
resources will make it challenging to restore whitebark pine throughout
its range. Based on modeling results (Ettl and Cottone 2004, pp. 36-47;
Hatala et al. 2011, entire; Field et al. 2012, p. 180), we conclude
that, in addition to the ubiquitous presence of white pine blister rust
across the entire range of the whitebark pine, white pine blister rust
infection likely will continue to increase and intensify within
individual sites, ultimately resulting in stands that are no longer
viable and potentially face extirpation. For a more detailed discussion
of white pine blister rust, see the SSA report (Service 2021, pp. 41-
48).
Mountain Pine Beetle
The native mountain pine beetle is one of the principal sources of
whitebark pine mortality (Raffa and Berryman 1987, p. 234; Arno and
Hoff 1989, p. 7). Mountain pine beetles feed on whitebark pine and
other western conifers and, to reproduce successfully, the beetles must
kill host trees (Logan and Powell 2001, p. 162; Logan et al. 2010, p.
895). At endemic, or more typical, levels, mountain pine beetles remove
relatively small areas of trees, changing stand structure and species
composition in localized areas. However, when conditions are favorable
(abundant hosts and favorable climate), mountain pine beetle
populations can erupt to epidemic levels and create stand-replacing
events that may kill 80 to 95 percent of suitable host trees (Berryman
1986 as cited in Keane et al. 2012, p. 26). Such outbreaks are
episodic, and typically subside only when the supply of suitable host
trees has been exhausted or when winter temperatures are sufficiently
low to kill larvae and adults (Gibson et al. 2008, p. 2). Therefore, at
epidemic levels, mountain pine beetle outbreaks may have population-
level effects on whitebark pine.
Mountain pine beetle epidemics affecting whitebark pine have
occurred
[[Page 76887]]
throughout recorded history (Keane et al. 2012, p. 26). The most recent
epidemic began in the late 1990s, and, although the levels of mortality
from this epidemic have since subsided considerably, mountain pine
beetles continue to be a measurable source of mortality for whitebark
pine (Macfarlane et al. 2013, p. 434; Mahalovich 2013, p. 21; Shelly
2014, pp. 1-2). Unlike previous epidemics, the most recent mountain
pine beetle outbreak had a significant rangewide impact on whitebark
pine (Logan et al. 2003, p. 130; Logan et al. 2010, p. 898; MacFarlane
et al. 2013, p. 434). Warmer, shorter winter seasons caused by climate
change have provided favorable conditions necessary to sustain the most
recent, unprecedented mountain pine beetle epidemic in high-elevation
communities across the western United States and Canada (Logan and
Powell 2001, p. 167; Logan et al. 2003, p. 130; Raffa et al. 2008, p.
511). This most recent epidemic is waning across the majority of the
West (Hayes 2013, pp. 3, 41, 42, 54; Alberta Whitebark and Limber Pine
Recovery Team 2014, p. 18; Bower 2014, p. 2; Shelly 2014, pp. 1-2).
However, given ongoing and predicted environmental effects from climate
change, we expect mountain pine beetles will continue to expand into
higher-elevation habitats and that epidemics will continue within the
range of whitebark pine (Buotte et al. 2016, p. 2516; Sidder et al.
2016, p. 9). For a more detailed discussion of mountain pine beetles,
see the SSA report (Service 2021, pp. 48-57).
Altered Fire Regimes
Fire is one of the most important landscape-level disturbance
processes within high-elevation whitebark pine forests (Agee 1993, p.
259; Morgan and Murray 2001, p. 238; Spurr and Barnes 1980, p. 422) and
is relevant to whitebark pine both as a stressor that causes mortality
and as a mechanism that affects forest succession (Arno 2001, p. 82;
Shoal et al. 2008, p. 20; Keane and Parsons 2010, p. 57). Although
whitebark pine is fire-adapted, there is uncertainty surrounding the
specifics of these adaptations, including the species' ability to
resist fires of differing intensity, the role of low-severity fire, and
how fire suppression interacts with fire-return intervals to affect
forest succession across the range of whitebark pine. We discuss the
ways in which fire can influence whitebark pine population dynamics in
the SSA report, including highlighting these relevant uncertainties
(Service 2021, pp. 34-41).
When considering the role of fire in whitebark pine ecosystems, it
is critical to consider the potential effects that differing fire
intensities have on fire severity and, consequentially, how differing
severities may affect the species. Fire intensity describes the energy
released from the combustion of organic matter; fire severity describes
the effects that the fire's intensity has on the ecosystem (Keeley
2009, pp. 117-118). Fire resistance is the ability of mature trees to
withstand surface fire; different tree species have different
functional traits that affect their ability to resist surface fires of
differing intensities (Stevens et al. 2020, p. 945). Higher-intensity
fires often result in higher-severity fire effects, and lower-intensity
fires often result in lower-severity fire effects, but the latter is
not necessarily always the case. In systems where the vegetation is not
well-adapted to resist and survive low-intensity fire, those fires can
result in more severe fire effects.
Whitebark pine is well-adapted to mixed- and high-severity fire
effects. In many areas, mixed- and high-severity fire have historically
been conducive to the maintenance of whitebark pine ecosystems at the
landscape scale (Arno et al. 2000, p. 226; Arno 2001, p. 83, Campbell
and Antos 2003, p. 393; Larson et al. 2009, p. 283; Romme 1982, p.
208). Fire can expose mineral soils and reduce forest canopy closure,
providing optimal growing conditions for whitebark pine seedlings
(Tomback et al. 2001, p. 13). Mixed- and high-severity fires also
create open areas that whitebark pine may colonize via seed dispersal
facilitated by Clark's nutcracker, although this colonization depends
on the availability of nearby seed sources (McCaughey et al. 1985;
Tomback et al. 1990, 1993 in Keane and Parsons 2010, p. 58).
Some experts also conclude that low-intensity surface fires that
result in low-severity fire effects are an important ecosystem process
in some whitebark pine systems, because low-severity fire can remove
small-diameter trees and seedlings, reduce fuel loads, and allow mature
whitebark pine trees to maintain site dominance or co-dominance (Arno
2001, p. 82; Keane and Parsons 2010, p. 57; Flanagan et al. 1998, p.
307). However, whitebark pine's ability to resist and survive low-
intensity fire is still somewhat uncertain, as we discuss in additional
detail in the SSA report (Service 2021, pp. 36-37; Arno and Hoff 1990
in Keane and Parsons 2010, p. 58; Stevens et al. 2020, p. 948; Hood et
al. 2008, p. 66; Keane et al. 2020, p. 7; Keane and Parsons 2010, p.
63). Despite these uncertainties, the loss of whitebark pine to low-
intensity fire would primarily affect individuals at the stand scale
and is unlikely to affect the species' broader distribution (Service
2021, p. 41).
Despite adaptations that allow whitebark pine to recolonize areas
that experience high-severity fire effects, the ability of whitebark
pine to regenerate and reestablish following high-severity fire has
been disrupted by white pine blister rust in many areas. This stressor
makes the species more vulnerable to the impacts of fire (Service 2021,
p. 40). White pine blister rust has killed many mature whitebark pine
trees, effectively reducing or eliminating whitebark pine seed sources.
The presence of white pine blister rust also reduces whitebark pine
seedling survival, which significantly reduces the species' ability to
regenerate in fire-created openings that are typically ideal for
seedling establishment. Thus, although high-severity fires may create
these ideal openings for seed caching, facilitate seedling
establishment, and reduce competitive pressures, we view the immediate
large-scale loss of mature whitebark pine trees, the corresponding loss
of seed sources, and potential reduction of genetic diversity as the
predominant effects of high-severity fire.
In summary, fire has been an important ecosystem process in
maintaining whitebark pine on the landscape throughout the species'
evolutionary history. However, these historical dynamics with fire have
likely been altered due to the compounding effects of white pine
blister rust and mountain pine beetles. Also, in general, fire
characteristics are expected to shift with future climate changes.
Substantial increases in fire-season length, number of fires, area
burned, and intensity are predicted (e.g., Keane et al. 2017b, pp. 34-
35; Westerling 2016, pp. 1-2). Thus, although there is variation in the
degree to which specific stands have been affected, over the range of
whitebark pine, the widespread incidence of poor stand health and
reduced reproductive capacity from disease and predation, coupled with
changes in fire regimes due to climate change, has compromised and will
continue to compromise regeneration of whitebark pine in many cases
(Tomback et al. 2008, p. 20; Leirfallom et al. 2015, p. 1601). These
factors increase the likelihood of negative effects to whitebark pine
populations from fire, especially from high-severity fires that can
cause widespread tree mortality. For a more detailed discussion of
altered fire regimes, see the SSA report (Service 2021, pp. 34-41).
[[Page 76888]]
Climate Change
Our analyses under the Act include consideration of ongoing and
projected changes in climate. In general, the pace of predicted climate
change will likely outpace many plant species' abilities to respond to
the concomitant habitat changes. Whitebark pine is potentially
particularly vulnerable to warming temperatures because it is adapted
to cool, high-elevation habitats. Therefore, current and anticipated
warming is expected to make its current habitat unsuitable for
whitebark pine, either directly or indirectly as conditions become more
favorable to whitebark pine competitors, such as subalpine fir (Abies
lasiocarpa) or mountain hemlock (Tsuga mertensiana) (Bartlein et al.
1997, p. 788; Hamann and Wang 2006, p. 2783; Hansen and Phillips 2015,
p. 74; Schrag et al. 2007, p. 8; Warwell et al. 2007, p. 2; Aitken et
al. 2008, p. 103; Loehman et al. 2011, pp. 185-187; Rice et al. 2012,
p. 31; Chang et al. 2014, p. 10). The rate of migration needed to
respond to predicted climate change will be substantial (Malcolm et al.
2002, pp. 844-845; McKenney et al. 2007, p. 941). The ability of
whitebark pine to migrate to more favorable areas at a pace sufficient
to survive the projected effects of climate change is unknown. We also
do not know the degree to which the Clark's nutcracker could facilitate
this migration. In addition, the presence of significant white pine
blister rust infection in the northern range of whitebark pine could
serve as a barrier to effective northward migration. Whitebark pine
currently inhabits high elevations, so there is little remaining
habitat in many areas for the species to migrate to higher elevations
in response to warmer temperatures. Adaptation in response to a rapidly
warming climate would also be unlikely, as whitebark pine is a long-
lived species with a long generation time (Bradshaw and McNeilly 1991,
p. 10).
Climate models indicate that climate change is expected to act
directly and indirectly, regardless of the emission scenario, to
significantly decrease the probability of rangewide persistence in
whitebark pine within the next 100 years (e.g., Warwell et al. 2007, p.
2; Hamann and Wang 2006, p. 2783; Schrag et al. 2007, p. 6; Rice et al.
2012, p. 31; Loehman et al. 2011, pp. 185-187; Chang et al. 2014, p.
10-12). This time interval is less than two generations for this long-
lived species. See Determination of Whitebark Pine Status, below, for a
discussion of the relationship between this modeled timeframe and our
identification of the foreseeable future for this listing
determination. In addition, projected climate-change effects are a
significant stressor to whitebark pine because the impacts of climate
change, including projected temperature and precipitation changes,
interact with and exacerbate the other stressors, such as mountain pine
beetle and altered fire regimes, resulting in habitat loss and
population decline. For a more detailed discussion of climate change
impacts on whitebark pine, see the SSA report (Service 2021, pp. 57-
63).
Current Conditions
In order to assess the current condition of the whitebark pine
across its extensive range, we broke the range into 15 smaller analysis
units (AUs), based primarily on Environmental Protection Agency Level
III ecoregions as well as input from whitebark pine experts, as
described in the SSA report (see Table 1 below; Service 2021, pp. 65-
67). Ecoregions identify areas of general similarity in ecosystems, as
well as topographic and environmental variables. We further divided AUs
in the United States from those in Canada to reflect differences in
management and legal status. A map of these AUs is available in the SSA
report (Service 2021, p. 66, figure 9), and we detail the area of each
AU in Table 1 below. We then evaluated the best available data
regarding the current impacts of fire, white pine blister rust, and
mountain pine beetle on the resiliency (ability to withstand stochastic
events) of each AU. These analyses are described in detail in the SSA
report (Service 2021, pp. 68-83), and our conclusions are summarized
below. We note that not all AUs are equal in size; they encompass
varying proportions of the species' range, ranging from the Middle
Rockies AU (27.6 of the range) to the Olympics AU (0.4 of the range)
(Service 2021, p. 67, table 3).
Table 1--Whitebark Pine Analysis Units (AUs)
------------------------------------------------------------------------
Percent of total
Area of whitebark whitebark pine
AU pine range within range within each
each AU AU
------------------------------------------------------------------------
Middle Rockies.................. 9,008,418 ha 27.6
(22,260,286 ac).
Idaho Batholith................. 4,621,881 ha 14.2
(11,420,917 ac).
Canadian Rockies................ 3,660,161 ha 11.2
(9,044,455 ac).
Cascades........................ 2,906,758 ha 8.9
(7,182,755 ac).
Columbia Mountains.............. 2,849,789 ha 8.7
(7,041,982 ac).
U.S. Canadian Rockies........... 2,153,185 ha 6.6
(5,320,636 ac).
Fraser Plateau.................. 2,122,498 ha 6.5
(5,244,807 ac).
Northern Rockies................ 1,704,834 ha 5.2
(4,212,737 ac).
Sierras......................... 1,292,333 ha 4.0
(3,193,424 ac).
Basin and Range................. 827,089 ha 2.5
(2,043,781 ac).
Blue Mountains.................. 554,865 ha 1.7
(1,371,101 ac).
Klamath Mountains............... 334,950 ha (827,679 1.0
ac).
Nechako Plateau................. 266,078 ha (657,493 0.8
ac).
Thompson Plateau................ 194,264 ha (480,037 0.6
ac).
Olympics........................ 119,319 ha (294,844 0.4
ac).
Total Size of Whitebark 32,616,422 ha
Range. (80,596,935 ac).
------------------------------------------------------------------------
Resiliency
To assess the current impact of white pine blister rust on the
resiliency of whitebark pine AUs, we examined the large volume of
published literature and information provided by experts, as described
in the SSA report (Service 2021, pp. 72-79). White pine blister rust
infections have increased in intensity over time and are now prevalent
even in trees living in cold, dry areas formerly considered less
susceptible (Tomback and Resler 2007, p. 399; Smith-Mckenna et al.
2013, p. 224), such as the Greater Yellowstone Ecosystem. This trend
has
[[Page 76889]]
resulted in reduced seed production and increased mortality. We
assessed the current impact of white pine blister rust on whitebark
pine by evaluating data from a modeled dataset developed by the USFS in
2011 for the United States. This modeled dataset is based on white pine
blister rust infection information from the USFS Whitebark and Limber
Pine Information System (WLIS) database combined with environmental
variables (Service 2021, pp. 76-77). Canadian white pine blister rust
data were derived from a combination of survey data from Parks Canada
and empirical literature (e.g., COSEWIC 2010, p. viii and table 4, p.
19; Smith et al. 2010, p. 67; Smith et al. 2013, p. 90; Shepherd et al.
2018, p. 6). Approximately 34 percent of the range is infected with
white pine blister rust (Service 2021, p. 77), and every AU is
currently affected by the disease. The current average white pine
blister rust infection level within each AU ranges between 2 percent
and 74 percent, with 12 of the 15 AUs having an average infection level
over 20 percent, and 5 of the AUs having average infection levels above
40 percent (Service 2021, pp. 78-79). Average infection levels are
lowest in the southern AUs (Klamath Mountains, Basin and Range, and
Sierras) and sharply increase moving north into the latitudes of the
Rocky Mountains and Cascades. As stated above, once white pine blister
rust is present in an area, there are no known methods to eradicate it.
It will spread and infect more of the area when conditions are
favorable.
To assess the current impact of mountain pine beetle on the
resiliency of whitebark pine AUs, we aggregated aerial detection survey
(a USFS dataset) data for the United States and aerial overview survey
(a dataset of the British Columbia Ministry of Forests) data for Canada
from 1991 through 2016 across the range of whitebark pine (Service
2021, pp. 80-83). As mountain pine beetles only attack mature trees,
the effects of mountain pine beetle attacks observed during aerial
surveys can be interpreted as the loss of seed-producing trees. From
1991 through 2016, 5,919,276 ha (14,626,850 ac) of the whitebark pine's
range have been affected by the mountain pine beetle, resulting in at
least 18 percent of the whitebark pine's range being negatively
affected (Service 2021, pp. 80-83). Similar to white pine blister rust
infection, the southern AUs are currently less affected by the mountain
pine beetle than their more northern counterparts.
To assess the current impact of fire on the resiliency of whitebark
pine AUs, we examined burn data collected from 1984 to 2016 from the
following sources: Monitoring Trends in Burn Severity (a multi-agency
program compiling fire data from multiple sources including the U.S.
Geological Survey and the USFS); GeoMac (a multi-agency program
providing fire data from multiple agencies managed by the U.S.
Geological Survey); and the Canadian Forest Service (Service 2021, p.
68). We found that from 1984 to 2016, between 0.08 percent and 42.64
percent of each AU burned (including fires of any severity level).
Although we collected information on all fires, our analysis focuses on
areas affected by high-severity fire that could potentially negatively
affect the species. Overall, a minimum of 1,273,583 ha (3,147,092 ac)
of whitebark pine habitat burned in high-severity fires during this
time period, equating to approximately 5 percent of the species' range
within the United States (Service 2021, pp. 69-71). Between 2016 and
2019, an additional 0.8 percent of whitebark pine range within the
United States (or 191,459 ha (471,105 ac)) burned at high severity
(Service 2021, p. 69). Similar data for high-severity fires were not
available for AUs in Canada.
White pine blister rust, mountain pine beetle, and high-severity
fires all act on portions of whitebark pine's range, killing
individuals and limiting reproduction and regeneration (Service 2021,
p. 89, figure 14). Overall, whitebark pine stands have seen severe
reductions in reproduction and regeneration because of these stressors,
resulting in a reduction in resiliency or their ability to withstand
stochastic events. Interactions between these factors have further
exacerbated the species' decline and have reduced its resiliency.
Representation
Having evaluated the current impact of the above stressors on the
resiliency of each whitebark pine AU, we next evaluated the species'
current levels of representation, or ability to adapt to changing
conditions (Service 2021, pp. 83-86). The range of variation found
within a species, which may include ecological, genetic, morphological,
and phenological diversity, may be an indication of its levels of
representation. Whitebark pine can be found in a number of ecological
settings throughout its range, mainly depending on elevation, latitude,
and climate of an area. Whitebark pine has high genetic diversity
relative to other conifer tree species (i.e., high representation in
terms of genetic variation), with poor genetic differentiation among
zones, and similar levels of diversity to other widely distributed tree
species in North America (Mahalovich and Hipkins 2011, p. 126). The
high levels of genetic diversity within the species may be affected
through bottleneck events caused by mortality resulting from white pine
blister rust, mountain pine beetle, or high-severity fires. Whitebark
pine also has higher rates of inbreeding than most other wind-
pollinated species, likely due to Clark's nutcracker dispersal; Clark's
nutcracker can deposit clumps of related seeds in the same vicinity,
which leads to close proximity of related mature trees (Keane et al.
2012, p. 14; Service 2021, p. 85). Whitebark pine exhibits a range of
morphologies, from tall, single-stemmed trees to shrub-like krummholz
forms. These factors may contribute to the species' level of ability to
adapt to changing conditions. Given the species' wide geographic range
and levels of ecological, genetic, morphological, and phenological
diversity, it likely has inherently higher levels of representation
than many species.
Redundancy
Finally, we evaluated the whitebark pine's current levels of
redundancy, or ability to withstand catastrophic events. Whitebark pine
is widely distributed, and thus inherently has higher levels of
redundancy than many species. Rangewide, whitebark pine occurs on an
estimated 32,616,422 ha (80,596,935 ac) in western North America.
However, as a result of the rangewide reduction in resiliency due to
the stressors discussed above, there has been a concomitant loss in
species redundancy, as many areas become less able to contribute to the
species' ability to withstand catastrophic events (Service 2021, p.
86).
Overall, as previously mentioned, rangewide data from USFS Forest
Inventory and Analysis surveys indicate that 51 percent of all standing
whitebark pine trees in the United States are now dead, with over half
of this mortality occurring approximately in the last two decades alone
(Goeking and Izlar 2018, p. 7). Each of the stressors acts individually
and cumulatively on portions of the whitebark pine's range, and
interactions between stressors have further exacerbated the species'
decline and have reduced its resiliency. This reduction in resiliency
is rangewide, occurring across all AUs, with the Canadian Rockies AU,
U.S. Canadian Rockies AU, and Northern Rockies AU likely the most
affected. While the species is still wide-ranging and, therefore, has
inherently higher levels of representation and redundancy than
[[Page 76890]]
many species, reductions to resiliency across the range are reducing
the species' adaptive capacity and ability to withstand catastrophic
events (Service 2021, pp. 86-88).
Future Conditions
To assess the future condition of whitebark pine, we projected the
impacts of each of the stressors described above under three plausible
scenarios (scenarios 1, 2, and 3, as noted below). This analysis, and
the uncertainties and assumptions associated with it, are described in
more detail in the SSA report (Service 2021, pp. 90-117), and are
summarized below. Scenarios constructed include variation in:
(1) The presence of white pine blister rust. Given historical
trends, we assume in all scenarios that white pine blister rust will
continue to spread and intensify throughout the range of whitebark
pine. There is no information to indicate that the rate of spread or
prevalence of white pine blister rust will decrease in the future. The
incidence of white pine blister rust at stand, landscape, and regional
scales varies due to time since introduction and environmental
suitability for its development. It continues to spread into areas
originally considered less suitable for persistence, and it has become
a primary threat. In our future scenarios, we varied the future rate of
white pine blister rust spread between 1 and 4 percent annually based
on values presented in the literature (e.g., Schwandt et al. 2013,
entire; Smith et al 2013, entire). The percentage of genetically
resistant individuals and the effectiveness and scale of management
efforts to collect, propagate, and plant genetically resistant
individuals are key areas of uncertainty. Therefore, we varied the
level of genetic resistance between a lower value of 10 percent and
higher value of 40 percent based on a range of values presented in the
literature (e.g., Mahalovich 2013, p. 33). We considered the higher 40
percent value to include both the presence of some level of natural
resistance and planting of resistant individuals.
(2) The frequency of high-severity fire. Given current trends and
predictions for future changes in the climate, we assume in all
scenarios that the frequency of stand-replacing fires will increase,
although the magnitude of that increase is uncertain (Keane et al.
2017b, p. 18; Westerling 2016, entire; Littell et al. 2010, entire).
Because of that uncertainty, we chose what are likely conservative
values of a 5 or 10 percent increase in severe fire above current
annual levels.
(3) The magnitude of future mountain pine beetle impacts. Given
warming trends, we assume in all scenarios that mountain pine beetle
epidemics will continue to affect whitebark pine in the future. There
is no information to indicate that mountain pine beetle epidemics will
decrease in magnitude or frequency in the future. In our future
scenarios, we predicted a new mountain pine beetle epidemic would occur
every 60 years, as that is the minimum time it would likely take for
individual trees to achieve stem diameters large enough to facilitate
successful mountain pine beetle brood production that is required to
reach epidemic levels.
Climate change is understood to affect whitebark pine principally
through its effect on the magnitude of the other three key stressors
and was, therefore, included in these projections as an indirect impact
to whitebark pine resilience by modifying the rate of change in the
other stressors (Service 2021, p. 90). Similarly, potential levels of
current and future conservation efforts were also included indirectly
in these projections by varying the rate of change of those stressors
for which conservation could potentially have an effect. Due to the
longevity and long generation time of the species, we modeled
projections of impacts for several timeframes, going out 180 years,
which corresponds to approximately three generations of whitebark pine
(Tomback and Pansing 2018, p. 7; COSEWIC 2010, p. v). However, we
focused our discussion of viability in the SSA report largely on the
60-year (approximately one generation) timeframe where our confidence
is greatest with respect to the range of plausible projected changes to
stressors and the species' response. We note that our projections are
based on long-term geospatial data sets and a large body of empirical
data, and our scenarios encompass the full range of conditions that
could plausibly occur. Below, we briefly summarize each scenario that
we considered and the results of our analysis under each scenario.
Scenario 1 is a continuation of current trends, where impacts from
high-severity fires and the mountain pine beetle continue at current
levels. We predicted a new mountain pine beetle epidemic would occur
every 60 years, as that is the minimum time it would likely take for
individual trees to achieve stem diameters large enough to facilitate
successful mountain pine beetle brood production that is required to
reach epidemic levels. In this scenario, white pine blister rust begins
at the current estimated proportion of the range infected and spreads
at 1 percent per year with an assumed 10 percent level of genetically
resistant individuals (Service 2021, p. 97).
In scenario 2, high-severity fires increase by 5 percent over
current trends. The spread of white pine blister rust continues at a
relatively low annual rate (1 percent per year), and the assumed level
of genetic resistance to white pine blister rust is relatively high at
40 percent (a value that includes both the presence of some level of
natural resistance and planting of resistant individuals). Mountain
pine beetle epidemics continue to occur at 60-year intervals, but 20
percent of affected whitebark pine stands are re-established through
conservation efforts, primarily by out-planting nursery-bred seedlings
(Service 2021, p. 98).
In scenario 3, high-severity fires increase by 10 percent over
current trends. The spread of white pine blister rust increases (4
percent per year), and only 10 percent of individuals on the landscape
have genetic resistance to white pine blister rust. Mountain pine
beetle epidemics continue to occur at 60-year intervals, but impacts
increase in severity by 10 percent, and there is no recruitment between
epidemics (Service 2021, p. 98).
Under each scenario, we forecasted the percentage of the whitebark
pine's range that each stressor would affect, relative to current
levels. We focused our discussion of viability in the SSA report
largely on the 60-year (approximately one generation) timeframe where
our confidence is greatest with respect to the range of plausible
projected changes to stressors and the species' response. See
Determination of Whitebark Pine Status, below, for a discussion of the
relationship between this modeled timeframe and our identification of
the foreseeable future for this listing determination. Currently, white
pine blister rust infects approximately 34 percent of whitebark pine's
range. Within the 60-year timeframe, under scenario 1, white pine
blister rust would infect approximately 61 percent of the range. Under
scenario 2, white pine blister rust will infect approximately 52
percent of the range within the next 60 years. Under scenario 3, white
pine blister rust will infect approximately 88 percent of the range
within the next 60 years (Service 2021, p. 107). Thus, under the three
scenarios, within one generation, white pine blister rust will infect
52 to 88 percent of the range. These impacts will reduce the ability of
whitebark pine stands to regenerate following disturbances, such as
fire and mountain pine beetle outbreaks.
[[Page 76891]]
In addition, the mountain pine beetle currently affects
approximately 17 percent of the range. Within the 60-year timeframe,
under scenario 1, mountain pine beetle will affect an estimated 31
percent of the range in the absence of other stressors. Under scenario
2, mountain pine beetles will affect an estimated 15 percent of the
range within 60 years. Under scenario 3, mountain pine beetles will
impact approximately 40 percent of the range within 60 years (Service
2021, pp. 109). These potential impacts from mountain pine beetle
infestations, especially when combined with the projected reduced stand
health from increased white pine blister rust infection, could further
reduce species' resiliency in the future.
Within the 60-year timeframe, a continuation of current trends in
high-severity fires (under scenario 1) would not likely severely
negatively affect whitebark pine resiliency, redundancy, or
representation in the absence of other stressors, as newly burned areas
can potentially provide a seedbed for whitebark pine if stands of
healthy cone-producing whitebark pine are nearby, resulting in some
level of natural regeneration. Similarly, if current trends in high-
severity fires continue or increase by 5 to 10 percent (the relatively
small projected increase in severe fire under scenarios 2 and 3), high-
severity fires alone (in the absence of other stressors) would not be
likely to severely negatively affect whitebark pine (Service 2021, pp.
105-106).
In the SSA report, we detail the projected distribution of white
pine blister rust, mountain pine beetle, and high-severity fire in each
AU under each scenario (Service 2021, pp. 99-110).
Although not specifically analyzed in our projections, the best
available science indicates that there are strong synergistic and
cumulative interactions between the four key stressors (white pine
blister rust, mountain pine beetle, high-severity fire, and climate
change), which will increase negative impacts to whitebark pine under
all three scenarios. Therefore, our assessment of the future effects of
each individual stressor on whitebark pine likely underestimates the
total impact of these combined stressors on the species' overall
viability. For example, environmental changes resulting from climate
change are expected to alter fire regimes, resulting in decreased fire
intervals and increased fire severity. More frequent stand-replacing
fires will likely negatively affect whitebark pine resiliency by
reducing the probability of regeneration in many areas (Tomback et al.
2008, p. 20; Leirfallom et al. 2015, p. 1601). Warming trends have also
resulted in unprecedented mountain pine beetle epidemics throughout the
range of the whitebark pine (Logan et al. 2003, p. 130; Logan et al.
2010, p. 896). In addition, the latest mountain pine beetle epidemic
and white pine blister rust have negatively affected the probability of
whitebark pine regeneration because both have resulted in severely
decreased seed cone production. These and other interactions are
described in the SSA report (Service 2021, pp. 110-116).
In summary, the abundance of whitebark pine is projected to decline
over time under all three future scenarios we considered. In these
scenarios, the rate of decline appeared to be most sensitive to the
rate of white pine blister rust spread, the presence of genetically
resistant individuals (whether natural or due to conservation efforts),
and the level of regeneration (Service 2021, pp. 116-117). Whitebark
pine viability has declined over time, and continuation of current
trends and synergistic interactions between fire, white pine blister
rust, mountain pine beetle, and climate change will continue to result
in actual or functional loss of populations. However, we acknowledge
that there may be significant differences and a large degree of
variation when examining stressors at smaller landscape or stand
scales. As a result of the highly heterogeneous ecological settings of
this widespread species (e.g., differences in topography, elevation,
weather, and climate) and geographic variation in levels of genetic
resistance to white pine blister rust, rates of whitebark pine decline
will likely vary for each AU.
We predict all AUs will have a reduced level of resiliency in the
future. Continued increases in white pine blister rust infection,
synergistic and cumulative interactions between white pine blister rust
and other stressors, the resulting loss of seed sources, and
subsequently lower regeneration will lead to these reductions in
resiliency. Whitebark pine remains widely distributed across the
spatial extent and ecological settings of its historical range.
However, under all three future scenarios, we predict redundancy and
representation will decline, as fewer populations persist and the
spatial extent and connectivity of the species declines (Service 2021,
p. 118).
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
See the SSA report (Service 2021, entire) for a more detailed
discussion of our evaluation of the biological status of the whitebark
pine and the influences that may affect its continued existence. Our
conclusions in the SSA report, which form the basis for the
determination below, are based upon the best available scientific and
commercial data.
Conservation Efforts and Regulatory Mechanisms
There are a variety of regulatory mechanisms, as well as management
and restoration plans, in place that benefit or affect whitebark pine
trees, as described in appendix A of the SSA report (Service 2021, pp.
119-144). Due to the broad distribution of whitebark pine in the United
States and Canada, management of this species falls under numerous
jurisdictions that encompass a spectrum of local and regional
ecological, climatic, and management conditions and needs. Roughly 70
percent of the species' range occurs in the United States, with the
remaining 30 percent of its range occurring in British Columbia and
Alberta, Canada. In Canada, the majority of the species' distribution
occurs on Federal or provincial Crown lands (COSEWIC 2010, p. 12). In
the United States, approximately 88 percent of land where the species
occurs is federally owned or managed. The majority is located on USFS
lands (approximately 74 percent). The bulk of the remaining acreage is
located on National Park Service lands (approximately 10 percent).
Small amounts of whitebark pine also can be found on Bureau of Land
Management lands (approximately 4 percent). The remaining 12 percent of
the species' range is under non-Federal ownership, on State, private,
and Tribal lands (Service 2021, pp. 15-16).
Twenty-nine percent of the range of whitebark pine within the
United States (Service 2021, p. 16) is designated
[[Page 76892]]
wilderness under the Wilderness Act of 1964 (Wilderness Act; 16 U.S.C.
1131-1136). The Wilderness Act states that wilderness should be managed
to preserve its natural conditions and yet remain untrammeled by
humans. This designation limits management options and conservation
efforts in those areas to some degree. While the Wilderness Act does
not directly allow for treatment of the impacts of white pine blister
rust or mountain pine beetle epidemics, it does allow for some
``minimal actions'' to address management needs. How the Wilderness Act
is implemented can vary between agencies, regions, or even between
species. For a more detailed discussion of how the Wilderness Act
influences the management of whitebark pine, see the SSA report
(Service 2021, pp. 134-135).
Several management and restoration plans have been developed for
specific regions or jurisdictions to address the task of conserving and
restoring this widespread, long-lived species (Service 2021, p. 119).
Conversely, some areas within the range of whitebark pine do not have a
specific management plan for whitebark pine (e.g., central Idaho)
(Service 2021, p. 119). Within the United States, management actions in
these areas without a species-specific management plan would generally
follow established forest or vegetation-management plans developed
under the National Forest Management Act of 1976 (16 U.S.C.
1600(note)), which amended the Forest and Rangeland Renewable Resources
Planning Act of 1974 (16 U.S.C. 1600 et seq.), or other similar
policies (e.g., National Forest land management plans, National Park
Service vegetation-management plans). Additionally, many organizations,
States, agencies, Tribes, and local entities have begun to implement
local conservation and restoration programs for whitebark pine,
including conservation on private lands, State Forest Action Plans, and
other small-scale restoration projects.
In Canada, the Committee on the Status of Endangered Wildlife in
Canada (COSEWIC) designated whitebark pine as ``endangered'' under the
Canadian Species at Risk Act (SARA) on June 20, 2012, due to the high
risk of extirpation. This listing provides protection from harming,
killing, collecting, buying, selling, or possessing whitebark pine on
Federal Crown land.
See the SSA report for a description of management and restoration
plans currently in place or under development, and some of their
accomplishments (Service 2021, pp. 119-125). While these programs may
provide localized benefits to individuals or populations, given
whitebark pine's vast geographic range and the ubiquitous presence of
white pine blister rust, there is currently no effective means to
control the disease and its cumulative impacts with other stressors on
a species-wide scale through any regulatory or nonregulatory mechanism.
Summary of Comments and Recommendations
On December 2, 2020, we published a proposed rule in the Federal
Register (85 FR 77408) to list the whitebark pine as a threatened
species and adopt a 4(d) rule for the species, which applies the
prohibitions and provisions of section 9(a)(1) of the Act to the
species with certain, specific exceptions. We requested that all
interested parties submit written comments on the proposed rule by
February 1, 2021. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, Tribal entities, and
other interested parties, and invited them to comment on the proposed
rule. On December 9, 2020, we published a notice in USA Today inviting
the public to comment. We did not receive any requests for a public
hearing. All substantive information provided to us during the comment
period is incorporated directly into this final rule, has been used to
clarify the information in our SSA report, or is addressed (by topic)
below. We received numerous comments sharing views and strategies on
the implementation of recovery efforts for the species; we noted these
for our future reference in recovery planning but did not respond to
them herein because they are outside the scope of this rulemaking. More
generally, we do not summarize or respond to non-substantive comments,
comments outside the scope of our rulemaking (e.g., detailing areas for
future research), or any comments merely expressing support for our
finding.
Peer Review Comments
We reviewed all comments we received from peer reviewers during the
proposed rule stage for substantive issues and new information
regarding the information contained in the SSA report. The peer and
technical reviewers generally concurred with our methods used to
determine, and conclusions drawn from the available information
regarding, the status and biology of whitebark pine. In some cases,
they provided additional information, clarifications, and suggestions
to improve the final SSA report. The reviewers also provided new
references or corrected existing references we cited in our SSA report;
we revised or included relevant references, as appropriate. We
summarize the additional substantive feedback we received from peer
reviewers below.
Comment 1: One peer reviewer referenced figure 1 in the SSA
(Service 2021, p. 17) and asked us to identify the grid cell size.
Our Response: The map in this figure is a vector dataset;
therefore, there is no grid cell size. The whitebark pine range dataset
was created by compiling various occurrence and distribution data. In
order to match the methodology of the Canadian whitebark pine range
dataset that was available to us, we used the same methodology in the
development of our overall whitebark pine range dataset. This
methodology included applying a 6-kilometer (3.7-mile) buffer around
all occurrence and distribution data to approximate the range of the
species.
Comment 2: A peer reviewer requested that we either clarify or
change the name of the AU referred to as the U.S. Canadian Rockies,
which includes areas in the United States (south of the U.S./Canada
border).
Our Response: The AUs were generally based on Level 3 Ecoregions.
Most AU names stem from the names of those ecoregions. The Canadian
Rockies ecoregion spans across the U.S./Canada border. We divided this
ecoregion into a U.S. portion and a Canadian portion to reflect
differences in management and legal status. We named the U.S. portion
of this ecoregion the ``U.S. Canadian Rockies'' to distinguish it from
the portion in Canada, which we called the Canadian Rockies.
Comment 3: A peer reviewer presented information and references
documenting genetic data to spatially identify populations in the Idaho
Batholith, Middle Rockies, and U.S. Canadian Rockies AUs and in a
portion of the Northern Rockies AU. They also noted known differences
in molecular markers and adaptive variation between the interior and
coastal populations of whitebark pine. Despite this information, they
indicated that biologically administering populations on a rangewide
scale is not appropriate.
Our Response: We recognize that significant genetic work has been
completed in the whitebark pine populations in the Idaho Batholith,
Middle Rockies, U.S. Canadian Rockies, and Northern Rockies AUs.
However, this work does not cover the entire range of the whitebark
pine. We lack adequate data on distribution and genetic exchange to
precisely map or describe functional populations at a
[[Page 76893]]
rangewide scale. Instead, for the purposes of analysis, we discuss
resiliency of whitebark pine on the basis of AUs (Service 2021, pp. 65-
67).
Comment 4: Two peer reviewers questioned our use of 60 years as the
generation time of whitebark pine. One peer reviewer recommended that
we use another method for calculating generation time but did not
provide an associated reference. This peer reviewer also indicated that
many people incorrectly use the age of first reproduction as the
generation time. Another provided examples of variation in generation
time across the range.
Our Response: We recognize that there are variations and
differences in generation time across the range of whitebark pine. In
the literature, experts have used a range of time periods to inform
whitebark pine generation time; these methods have included average age
of first cone production (around 40 years) (Tomback and Pansing 2018,
p. 7) and the age trees produce a large cone crop that can attract
Clark's nutcrackers (60 to 80 years) (Krugman and Jenkinson 1974, as
cited in McCaughey and Tomback 2001, p. 109). Thus, we used 60 years as
the average generation time to inform the time intervals of our future
condition analysis in the SSA, because this is the lower end of the age
range at which the majority of reproductive individuals begin to
produce large cone crops and because this is the midpoint of the range
of possible generation times in the literature. We did not use average
first age of reproduction (i.e., cone production) (around 40 years of
age) for our generation time. The average of the ages of reproductive
maturity of the two whitebark pine populations one peer reviewer
provided (50 and 70 years) results in the generation time we used: 60
years. Our use of 60 years also aligns with the COSEWIC's analysis of
generation time using International Union for Conservation of Nature's
(IUCN) guidelines (IUCN 2008, pp. 28-31, as cited in COSEWIC 2010, pp.
12-13). COSEWIC used the most appropriate method for plants with seed
banks; this method calculates generation time as the juvenile period
(age of first reproduction) plus median time to germination. They
evaluated the age at which whitebark pine can first begin to produce
cones, the age at which whitebark pine trees begin sizable cone
production, and the time it takes for a seed in the seed bank to
germinate (COSEWIC 2010, pp. 12-13). Their evaluation validated the use
of approximately 60 years as the generation time for whitebark pine.
Comment 5: A peer reviewer reported that some data indicate
patterns of decrease or periods of no increase in white pine blister
rust prevalence. They also mentioned that fire and mountain pine
beetles can alter the rate of white pine blister rust infection.
Our Response: We acknowledge there is uncertainty regarding rates
of white pine blister rust in the future, and that there is currently,
and will continue to be, variation in infection rates across the range
of the species; however, the majority of the literature shows white
pine blister rust will continue to spread and intensify (Service 2021,
pp. 44-45, 48). Additionally, we note that in areas where white pine
blister rust has resulted in significant mortality, white pine blister
rust could show a decrease in rate of spread because few live trees
remain to be hosts.
Comment 6: A peer reviewer questioned why we did not include data
from the USFS forest health protection hazard map in our analysis of
the current conditions of white pine blister rust.
Our Response: While we examined the USFS's National Insect and
Disease Risk and Hazard Mapping (NIDRM) in our analysis of whitebark
pine viability, we were unable to include this dataset in our analysis
of current conditions (Service 2021, pp. 72-79) because the NIDRM did
not analyze the extent of white pine blister rust infection in the
United States in the manner we required for our analysis. First, the
NIDRM is a modeled dataset that projects levels of potential infection
into the future (through the year 2027); it is not intended to
characterize observed current levels of infection. Second, to have a
consistent metric that allowed for comparison of white pine blister
rust infection levels between the United States and Canada and for
comparison of the area affected by white pine blister rust with the
area affected by other stressors, we needed a measurement of white pine
blister rust infection as a proportion of the species' range (e.g.,
twenty percent of the species' range in a particular AU is infected
with white pine blister rust). NIDRM projects white pine blister rust
infection in terms of basal area affected (i.e., the density of trees
affected in a given area), rather than the total acres affected;
therefore, it did not provide the consistent measure of white pine
blister rust infection that we could use to calculate the current
proportion of whitebark pine range infected with white pine blister
rust. For these reasons, the USFS advised that this dataset could not
be accurately applied to our analysis of current or future condition,
given our specific needs. Instead, to characterize the current
distribution of white pine blister rust infection in the United States,
we used a much more informative white pine blister rust estimate
modeled dataset developed by the USFS based on survey information from
the USFS and the Whitebark and Limber Pine Information System (WLIS)
(Service 2021, pp. 76-78).
Comment 7: One peer reviewer questioned the accuracy of our summary
of white pine blister rust incidence in the Sierras AU (Service 2021,
p. 79, figure 11).
Our Response: We confirmed our incidence rates with the literature
the reviewer provided and other literature. While incidence rates may
be higher in smaller portions of the AU, the overall incidence rate for
the AU is reported accurately in the SSA report.
Comment 8: One peer reviewer indicated that whitebark pine has more
adaptive capacity with respect to climate change than we acknowledged
in our analysis.
Our Response: Our SSA report already included information
explaining that whitebark pine has a comparatively high level of
genetic diversity and one of the largest ranges of any of the five-
needle white pines in North America. Therefore, we acknowledge in the
SSA report that the species should have some adaptability to changing
climatic conditions, as this peer reviewer implies (Service 2021, p.
59).
Comment 9: Two peer reviewers expressed uncertainty regarding
whether the projected future condition of the species was adequately
addressed in our future scenarios. They provided localized examples
where parts of our future scenarios may overestimate or underestimate
the distribution of stressors.
Our Response: We recognize that our projections of each of the
stressors are based on averages of the best available data applied
across very large areas of the range (i.e., at the AU scale). We
acknowledge that there may be significant differences and a large
degree of variation when examining stressors at smaller landscape or
stand scales. We also recognize that as a result of the highly
heterogeneous ecological settings of this widespread species (e.g.,
difference in topography, elevation, weather, and climate) and
geographic variation in levels of genetic resistance to white pine
blister rust, trajectories for rates of whitebark pine decline will
likely vary for each AU. There is also inherent uncertainty in any
projection of future conditions. In the SSA report, we discuss in
detail specific areas of uncertainty that could lead to overestimates
(species viability appears better than it actually is) or
[[Page 76894]]
underestimates (species viability appears worse than it actually is) of
viability (Service 2021, pp. 92-95).
However, despite the limitations inherent in our future condition
analysis, we have relied on the best available science to examine the
status of whitebark pine at a rangewide scale. Our projections are
based on long-term geospatial data sets and a large body of empirical
data, and our multiple scenarios encompass the full range of conditions
that could plausibly occur (Service 2021, pp. 96-98). We also note that
our results are generally consistent with other modeling efforts for
the species, all of which project continued decline of whitebark pine
(e.g., Angeli and McGowan, in prep., entire; Keane et al. 2017b,
entire; Hatala et al. 2011, entire; Warwell et al. 2007, entire).
Comment 10: A peer reviewer questioned how we could interpret cause
and effect from our future-scenario models when more than one stressor
varied in each scenario. They also stated that too many variables
varied across the scenarios to produce statistically robust contrasts
between scenarios.
Our Response: We used the best available data to account for
uncertainty in potential future conditions by covering a breadth of
future scenarios that could plausibly occur within the range of
whitebark pine. In our future scenarios, each stressor was modeled
separately in a simplified (deterministic) approach in Microsoft Excel
(Service 2021, pp. 99-104). We modeled potential future extent of three
key stressors; we did not infer any cause or effect because we did not
model how the geographic extent of these stressors would translate to
changes in the distribution of whitebark pine. Given the detrimental
impacts each of these three stressors has on the species, we assumed
that a broader distribution of one or more key stressors would result
in a decreased distribution of healthy whitebark pine populations
(i.e., lower resiliency, redundancy, and representation). In the SSA
report, we provide a detailed account of the assumptions and
uncertainties involved in this modeling (Service 2021, pp. 92-95).
Comment 11: A peer reviewer questioned why we did not include
climate-change projections or models as part of our future scenarios.
They also noted that climate change was not modeled over the entire
180-year period. Two peer reviewers indicated that our future
projections may not be applicable across all whitebark pine populations
within a particular AU given variation in projected climate change;
they expressed concern regarding our assumptions that stressors will
increase or decrease uniformly across an entire AU in the future.
Specifically, these peer reviewers suggested that we should conduct
finer-scale analysis of changing climate conditions across the west to
better capture population-level variation in how climate and stressors
could change throughout the range of the species in the future.
Our Response: Climate change is understood to affect whitebark pine
principally through its effect on the magnitude of the other three key
stressors and was therefore included in our future projections as an
indirect impact to whitebark pine resilience by modifying the rate of
change in the other stressors (Service 2021, p. 90). Given that we
modeled climate-induced changes in these other stressors 180 years into
the future, we examined the indirect effects of climate change over the
entire 180-year modeling period.
We also recognize that our projections of each of the stressors are
based on averages of the best available data applied across very large
areas of the range (i.e., at the AU scale). Given the extensive
distribution of whitebark pine, current impacts from stressors and
levels of conservation efforts are highly variable across the range.
Because of the difficulty identifying an average rangewide magnitude of
key stressors, we analyzed current and future conditions of whitebark
pine by AU under varying scenarios to assess a range of possible
conditions. Our analysis examined area of impact for all stressors at
the AU scale to abate variation and limitations within the data, and to
have a comparable analysis across all stressors. All future scenarios
may not be equally likely, but all are plausible, when considered at
the rangewide scale, given the range of values presented for each
stressor in the best available scientific information. We acknowledge
that there may be significant differences and a large degree of
variation when examining stressors at smaller landscape or stand
scales; this localized information will be important to consider when
planning future recovery actions.
Comment 12: A peer reviewer questioned the timing of mountain pine
beetle outbreaks in our future scenarios (i.e., recurring every 30
years), given the slow growth rate of whitebark pine trees. They noted
that it takes 25 to 30 years for a whitebark pine tree to grow to
approximately 1.0- to 3.0-cm (0.4- to 1.2-in) diameter at breast height
(dbh). Thus, they recommended that a longer time frame between mountain
pine beetle outbreaks in the future scenarios would be more plausible
and appropriate.
Our Response: We adjusted the parameters of our future scenarios to
model mountain pine beetle outbreaks occurring every 60 years, rather
than every 30 years. This is the minimum time it would likely take for
enough individual trees in a previously attacked whitebark pine
population to achieve diameters large enough to facilitate successful
mountain pine beetle brood production at epidemic levels (Service 2021,
p. 96). We then revised our analyses to project the extent of mountain
pine beetle outbreaks under each future scenario, based on this new
timeframe.
Comment 13: One peer reviewer stated that our predicted residence
times of white pine blister rust infection, which were based on
assessments of others' models, were incorrect or misleading, especially
in the short term. They also stated that one of the models we
referenced (Hatala et al. 2011, entire) assumed that white pine blister
rust infection equaled mortality.
Our Response: We summarized the results from several models
developed to predict residence times of white pine blister rust
infection and project the long-term persistence of whitebark pine.
These models looked at varying time frames, but most included long-term
results. We find that these models present the best available science
on potential impacts of white pine blister rust. The modeling effort by
Hatala et al. (2011, entire) analyzed four possible white pine blister
rust dynamic infection models and predicts that, on average, whitebark
pine trees live with white pine blister rust infection for
approximately 20 years before succumbing to the disease. Because this
analysis shows that a whitebark pine tree can live, on average, for 20
years with white pine blister rust infection, the model could not have
assumed that infection with white pine blister rust equated to
immediate death of the whitebark pine tree (Service 2021, p. 48). In
our SSA report, we discuss the various impacts that white pine blister
rust has on whitebark pine and the various responses whitebark pine has
to the infection, only one of which is mortality (Service 2021, p. 44).
However, outcomes besides mortality can still have negative effects;
for example, an infected whitebark pine tree that continues to survive
enables the white pine blister rust fungus to produce spores, thereby
continuing to perpetuate and intensify the disease (Service 2021, p.
44). Thus, while we
[[Page 76895]]
did not assume areas experiencing white pine blister rust infection
equated to areas with dead trees, we find that areas with higher rates
of infection are more likely to present negative outcomes for the
species.
State Agency Comments
We received comments from State agencies on the proposed listing
and 4(d) rule during the open public comment period. We summarize and
respond to these below.
Comments on Biology, Ecology, Range, Distribution, or Population Trends
Comment 14: The California Department of Fish and Wildlife provided
maps or data points of where they have observed whitebark pine. Some of
this information specifically indicated elevations at which the species
occurs throughout different portions of its range, including areas in
Washington, Oregon, and California.
Our Response: Our range maps and analysis in the SSA incorporated
and considered the elevations at which the species occurs throughout
its range, which these commenters referenced. While the whitebark
pine's range was depicted at a coarse scale in the SSA report, it
encompasses all known occurrences and the current distribution of
whitebark pine (Service 2021, p. 17). Thus, these data from the
California Department of Fish and Wildlife did not represent new
information, nor did they change our analysis or conclusions.
Comments on Stressors
Comment 15: The California Department of Fish and Wildlife stated
that the geographic isolation of whitebark pine stands has resulted in
low genetic diversity between populations (i.e., greater genetic
diversity within populations than between them) and, as a consequence,
whitebark pine demonstrates high rates of self-pollination and
biparental inbreeding.
Our Response: Whitebark pine has higher rates of inbreeding than
most other wind-pollinated species, likely due to Clark's nutcracker
dispersal; Clark's nutcracker can deposit clumps of related seeds in
the same vicinity, which leads to close proximity of related mature
trees (Keane et al. 2012, p. 14; Service 2021, p. 85). However,
whitebark pine still exhibits a high level of genetic diversity across
its range, similar to other widespread tree species (e.g., Mahalovich
and Hipkins 2011, pp. 127-129; Service 2021, pp. 59, 85).
Comment 16: The California Department of Fish and Wildlife noted
that timber harvest should be considered a threat to whitebark pine
because timber-harvest projects on private lands have occurred in areas
where whitebark pine is present. They asserted that there is potential
for direct and indirect impacts on whitebark pine from timber harvest
activities such as tree falling and skidding of intermingled commercial
species, landing construction, road construction, site preparation, and
artificial regeneration.
Our Response: In the SSA report, we acknowledge numerous factors
that operate on whitebark pine at more local scales (see appendix B in
the SSA report, Service 2021), affecting individuals or localized
areas; however, these factors are likely not driving population
dynamics of whitebark pine on a rangewide scale or at the species
level. Further, as we discuss in Provisions of the Final 4(d) Rule,
below, whitebark pine is not commercially harvested, and while timber
harvesting could potentially affect individual trees or local areas, we
found no threats at the species level resulting from timber harvest.
Comments on Modeling Analysis and Future Projections
Comment 17: The State of Idaho recommended we use a percentage of
tree mortality to model potential mountain pine beetle effects in the
future-scenario analysis in our SSA report and proposed rule.
Specifically, they stated that the Service should distinguish between
percent mortality (trees killed in a mountain pine beetle epidemic) and
the percent of whitebark pine's range affected by a mountain pine
beetle epidemic.
Our Response: Our future-scenario models were derived from data
obtained from aerial surveys, which represent the best available
information on mountain pine beetle infestations but are not
appropriate for estimating the number of individual whitebark pine
trees killed by mountain pine beetles. However, they are very useful
for determining a minimum number of hectares within the whitebark
pine's range that mountain pine beetles have affected over time (i.e.,
recorded areas of beetle kill during surveys). Because mountain pine
beetles only attack mature trees, the effects of mountain pine beetle
attacks observed during aerial surveys can be interpreted as the loss
of seed-producing mature trees (Service 2021, p. 80).
Comments on Section 4(d) Rule and Post-Listing Management
Comment 18: The State of Idaho expressed concern about the
potential implications of the whitebark pine listing on forest
management, sharing that States within the range of the species must be
able to take action to limit high-severity fire, to address insect and
disease outbreaks, and to improve overall forest health without the
fear of litigation for violating the Act. The California Department of
Fish and Wildlife stated that some whitebark pine stands (i.e., on the
Modoc and Inyo National Forests) occur in areas where active vegetation
management, primarily in the form of restoration, is occurring. In
contrast to Idaho, the Wyoming State Forestry Division expressed that
because 88 percent of whitebark pine is found on Federal land, human
interaction is not a threat, and forest management is necessary for
recovery; therefore, whitebark pine's listing will likely not lead to
negative side effects.
Our Response: We have developed a species-specific 4(d) rule that
is designed to address the whitebark pine's specific threats and
conservation needs. We have concluded that the whitebark pine is at
risk of extinction within the foreseeable future primarily due to the
continued increase in white pine blister rust infection and associated
mortality, synergistic and cumulative interactions between white pine
blister rust and other stressors, and the resulting loss of seed
source. The 4(d) rule will enhance the conservation of whitebark pine
by prohibiting activities that would be detrimental to the species,
while allowing the forest-management, restoration, and research-related
activities that are necessary to conserve whitebark pine. We recognize
that forest managers currently conduct active vegetation and forest
management in areas where whitebark pine trees are present. However, we
found no threats at the species level resulting from vegetation- or
forest-management activities. In fact, forest-management activities can
be important to maintaining the health and resiliency of forest
ecosystems that include whitebark pine. The exception in our 4(d) rule
for forest-management activities on Federal lands, and any relevant
future section 7 consultations Federal agencies would conduct on their
activities, would likely facilitate the continuation of forest-
management activities conducted by or authorized by relevant Federal
land management agencies, as long as we reach the conclusion that these
activities will not jeopardize the species.
In addition, we emphasize that the listing of whitebark pine and
the species' 4(d) rule do not apply new prohibitions to State lands,
private lands, or Tribal lands, besides the prohibitions on import,
export, sale, and
[[Page 76896]]
interstate and foreign commerce. The listing of whitebark pine, and its
4(d) rule, will not change the State of Idaho's ability to conduct
forest-management, restoration, or research-related activities on non-
Federal lands (e.g., State-owned lands, private lands), as long as
these activities comply with other existing laws and regulations.
Comment 19: The State of Idaho requests that we clearly state that
preparatory activities associated with implementing silviculture and
forest-management activities (i.e., skid trails, roads) also do not
``pose any threat to the whitebark pine in any form,'' given the
importance of conducting these silvicultural and forest-management
activities in such a way that reduces the risk of high-severity fires,
insect infestations, and disease outbreaks.
Our Response: The exception in the section 4(d) rule that covers
forest-management, restoration, or research-related activities on
Federal properties also covers any preparation that Federal agencies
may need to conduct to implement forest-management, restoration, or
research safely and effectively. However, Federal agencies will still
need to fulfill their section 7 consultation obligations for any
forest-management, restoration, or research-related activities,
including associated preparatory tasks, even if these activities are
excepted from the prohibitions in the 4(d) rule (see response to
Comment 22, below). The section 7 consultation tools we will develop
for the whitebark pine will streamline this consultation process in
many cases. Additionally, given that the State of Idaho expressed these
concerns, we also emphasize that the listing of the species and its
section 4(d) rule do not apply new prohibitions to State lands, private
lands, or Tribal lands, outside of the prohibitions on import, export,
sale, and interstate and foreign commerce. The listing of whitebark
pine and this 4(d) rule will not change the State of Idaho's ability to
conduct forest-management, restoration, or research-related activities
on non-Federal lands (e.g., State-owned lands, private lands), as long
as there is no Federal nexus and these activities comply with other
existing laws and regulations.
Comments on Listing Process and Policy
Comment 20: The State of Idaho expressed concern about our
application of the Act's definitions of ``endangered species'' and
``threatened species'' in the proposed rule. While our proposed rule
stated that we determine that the whitebark pine is not currently in
danger of extinction but is likely to become in danger of extinction
within the foreseeable future throughout all of its range, Idaho
believed this was a misapplication of the definition of a threatened
species, which is any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range. Given that the text of our proposed rule said
whitebark pine was likely to become ``in danger of extinction'' within
the foreseeable future, rather than likely to become ``an endangered
species'' within the foreseeable future, the State of Idaho believed we
incorrectly used the definition of a threatened species. They posited
that we were trying to reference and incorporate the definition of an
``endangered species,'' but the final rule should reflect the strict
text of the statute's definition of a ``threatened species'' to avoid
any confusion.
Our Response: Under the Act, ``threatened species'' is defined as
any species which is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its range
(16 U.S.C. 1532(20)); the definition of a ``threatened species'' in the
Act thus references and incorporates the definition of an endangered
species, which is any species which is in danger of extinction
throughout all or a significant portion of its range (16 U.S.C.
1532(6)). We clearly provide the statutory definitions of ``endangered
species'' and ``threatened species'' verbatim under Regulatory
Framework, above, in this rule. While we state in some places in the
proposed rule and this final rule that whitebark pine is ``likely to
become in danger of extinction within the foreseeable future,'' rather
than ``likely to become an endangered species in the foreseeable
future,'' the term ``in danger of extinction'' is in the definition of
an endangered species; thus, we merely replaced the term ``endangered
species'' with the exact statutory definition of an endangered species,
as this incorporation provides greater clarity to the public. Thus, we
are stating in this rule that, while we do not find whitebark pine
meets the definition of an endangered species, we find it does meet the
definition of a threatened species under the Act, which we clearly
articulate under Determination of Whitebark Pine Status, below.
Comments on Conservation Activities and Recovery
Comment 21: Many State and Tribal commenters submitted comments
detailing past and future conservation actions for the species.
Our Response: We recognize ongoing and future conservation efforts
for this species. A variety of regulatory mechanisms, as well as
management and restoration plans are in place, that currently benefit
or influence whitebark pine, as described in the SSA report (Service
2021, pp. 119-125) and further detailed in these public comments. Many
of these efforts have had positive impacts on the species on local or
regional scales. However, given the vast geographic range of the
species, the ubiquitous presence of white pine blister rust, and the
lack of an effective means to control the disease, regulatory or
nonregulatory mechanisms have an inherently limited ability to reduce
the influence of white pine blister rust, and its cumulative impacts
with other stressors, on a species-wide scale.
Federal Agency Comments
We received comments from Federal agencies on the proposed listing
and 4(d) rule during the open public comment period. We summarize and
respond to these below. Where a State and Federal agency raised similar
concerns, we have included the State agencies' concerns along with the
Federal agencies' concerns in a single summary below.
Comments on Section 4(d) Rule and Post-Listing Management
Comment 22: The Inyo National Forest requested that our proposed
4(d) rule more clearly explain the process a Federal agency would
follow for section 7 consultation. They asked whether exceptions under
the 4(d) rule would absolve Federal agencies of consultation
requirements or whether excepted activities could be considered to have
``no effect'' on the species for the purposes of section 7 consultation
given that the Service concludes in the proposed rule that these
activities ``are not a threat to whitebark pine in any form.'' The
State of Idaho also raised questions on how section 7 consultation
relates to section 4(d) rules and asked that section 7 consultation for
silviculture and forest-management activities be exempted under the
final 4(d) rule.
Our Response: Section 4(d) rules cannot and do not absolve Federal
agencies of their consultation requirements under the Act. Section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated
[[Page 76897]]
critical habitat of such species. As a result of these provisions in
the Act, if a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency (action agency) must
initiate consultation with the Service. Federal actions that do not
affect listed species or critical habitat--and actions on State,
Tribal, local, or private lands that are not federally funded,
authorized, or carried out by a Federal agency--do not require section
7 consultation.
The trigger for consultation is whether a Federal action may affect
a listed species or its critical habitat, not whether the action would
violate prohibitions in any applicable 4(d) rule; thus, species-
specific 4(d) rules, regardless of the activities they prohibit or
allow, cannot change this requirement to consult. If a Federal action
may affect a listed species, section 7(a)(2) of the Act requires
consultation to ensure that the activity is not likely to jeopardize
the species, regardless of the substance of any applicable 4(d) rule.
Thus, if a Federal agency's action may affect whitebark pine, it must
fulfill section 7(a)(2) consultation obligations in accordance with 50
CFR part 402. Unless the Service concurs with a Federal agency's
determination that its action is not likely to adversely affect a
listed species, formal consultation with the Service is required on all
actions that may affect a listed species, even if the action will not
result in a violation of a prohibition under the 4(d) rule. For
instance, although removal and reduction to possession of whitebark
pine in the course of forest management conducted by a Federal agency
are not prohibited under the 4(d) rule, these types of activities are
still subject to section 7(a)(2) consultation requirements if they may
affect the species. Additionally, if a Federal agency determines that
its action is not likely to adversely affect a listed species or its
critical habitat, it must still receive the Service's written
concurrence, even if its activity, and the result of its activity, are
not prohibited by the 4(d) rule.
While we state in this rule that forest-management, restoration,
and research-related activities do not pose a species-level threat to
the whitebark pine, that does not imply these activities will never
affect individuals or populations of the species. It is possible that
an activity excepted under this 4(d) rule may affect individual
whitebark pine trees or populations. In other words, in excepting
forest-management, restoration, and research-related activities from
the prohibitions imposed by the 4(d) rule, we are not stating that
these activities have no effect on individual whitebark pine trees or
populations under all circumstances. Thus, while we do except forest-
management activities given that these activities are compatible with
whitebark pine's conservation at the rangewide scale, we cannot remove
the obligation of Federal agencies to consult with us if their forest-
management activities may affect individual whitebark pine trees or
populations.
However, even though 4(d) rules do not remove or alter Federal
agencies' section 7 consultation obligations, we can and will develop
tools to streamline consultation on Federal actions that may affect the
whitebark pine and are consistent with the provisions of the 4(d) rule.
We have added additional detail on this relationship between section 7
consultation and section 4(d) rules under Provisions of the Final 4(d)
Rule, below.
Comment 23: The Inyo National Forest and public commenters
expressed concern about new regulatory burdens that could prevent the
USFS from conducting forest-management, research, and restoration
activities, especially if they need to conduct consultation on excepted
activities under the 4(d) rule, as this can take time and money away
from actual project implementation. Public commenters likewise asked
the Service not to impede essential active forest management in
National Forests and elsewhere.
The Inyo National Forest requested that, if the Service were to
develop a programmatic consultation for whitebark pine, it develop a
process that is effective in protecting the species and monitoring its
status, but also streamlined and efficient such that it does not hinder
land management agencies' ability to conduct forest management
activities that would be excepted under the 4(d) rule. The State of
Idaho also requested that we create a conference report to help guide
decision makers and planners, reduce the section 7 consultation burden,
and add efficiencies to the implementation of forest management that
benefits the species.
Our Response: In the section 4(d) rule for whitebark pine, we
provide an exception to otherwise applicable prohibitions for forest-
management, restoration, and research-related activities. This 4(d)
rule will enhance the conservation of whitebark pine by prohibiting
activities that would be detrimental to the species, while allowing the
forest-management, restoration, and research-related activities that
are necessary to conserve whitebark pine; these forest-management,
restoration, and research-related activities maintain and restore
forest health on the Federal lands that encompass the vast majority of
the species' habitat within the United States.
However, even with this exception in the 4(d) rule, Federal
agencies must comply with relevant section 7 consultation requirements
on any forest-management, restoration, or research-related activities
that may affect whitebark pine, including activities that may affect
individual trees or populations. Even though 4(d) rules do not remove
or alter Federal agencies' section 7 consultation obligations, a 4(d)
rule can facilitate simplification of formal consultations. For
example, consistent with the discussion in the preamble to our August
27, 2019, final rule regarding prohibitions for threatened species (84
FR 44753, see p. 84 FR 44755), in choosing to except removal, damage,
or destruction associated with certain activities in a 4(d) rule, we
have already determined that these activities are compatible with
whitebark pine's conservation at the rangewide scale (even if these
activities may affect individual trees or populations), which can
streamline our analysis of whether an action would jeopardize the
continued existence of the species, making consultation more
straightforward and predictable.
We are developing tools to streamline consultation on Federal
actions that may affect the whitebark pine and are consistent with the
provisions of the 4(d) rule. In combination with these streamlined
section 7 tools, the protections in this section 4(d) rule should not
discourage or impede effective forest management that promotes the
conservation of the species and the ecosystems upon which it depends.
Tribal Comments
We received comments from Tribes on the proposed listing and 4(d)
rule during the open public comment period. We summarize and respond to
these below.
Comments on Section 4(d) Rule and Post-Listing Management
Comment 24: The Confederated Salish and Kootenai Tribes expressed
their expectation that listing whitebark pine as a threatened species
would not conflict or obstruct in any way their restoration strategies
and goals, including the consumption of whitebark pine seeds in
traditional Native American ceremonies.
[[Page 76898]]
Our Response: We recognize the importance of whitebark pine seeds
to the cultural and religious practices of Tribal Nations. It is not
our intent to limit Tribes' contributions to the species' restoration
or to obstruct Tribes' ability to incorporate the species into their
traditional practices. Because the prohibitions in the section 4(d)
rule do not apply outside of Federal properties, the 4(d) rule will not
affect Tribes' ability to conduct whitebark pine restoration on Tribal
lands. The 4(d) rule as proposed also would have allowed consumption of
seeds grown and collected on Tribal lands. However, the 4(d) rule as
proposed would have prohibited such collection on areas under Federal
jurisdiction (e.g., National Forests) without further authorization.
Tribal collection of whitebark pine seeds from Federal lands for the
purposes of ceremonial use or traditional consumption will not
negatively affect whitebark pine at a rangewide scale, given the
limited amount of collection that will likely occur (Service 2021, p.
34). Given that it was not our intent to infringe on Tribes' ability to
collect whitebark pine seeds for ceremonial or traditional use and
because this collection does not present a threat to the species, we
have added an exception to the final 4(d) rule to allow for this Tribal
collection on Federal lands. However, if further authorization is
required from relevant Federal agencies (e.g., if the USFS needs to
issue a permit to allow a Tribal member to collect seeds on a National
Forest), this further authorization would present a Federal nexus.
Thus, in this example, the USFS would still need to comply with
relevant section 7 consultation obligations before issuing a permit for
a Tribal member to proceed with their collection of seeds.
Comment 25: The Nez Perce Tribe expressed concern that there is
currently inconsistency in the regulatory measures and management for
whitebark pine both across and within Federal land management agencies.
The Tribe expressed concern about the continued persistence of
whitebark pine without ``standardized and adequate protection and
conservation measures.'' They specifically expressed concern about how
the Stibnite Gold Mine Project in Idaho could affect whitebark pine if
the species lacks Federal protection because that project has the
potential to remove up to 1,027 whitebark pine trees and impact up to
258 ac (104 ha) of occupied habitat.
Our Response: When the listing of whitebark pine as a threatened
species under the Act becomes effective (see DATES, above), the
protections provided in the 4(d) rule and the systems in the
streamlined section 7 processes we develop for the species will provide
consistency in the regulatory measures relevant to whitebark pine (see
Provisions of the Final 4(d) Rule, below). For example, section 7(a)(2)
of the Act requires Federal agencies, including the Service, to ensure
that any action they fund, authorize, or carry out is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. As a result of these
provisions in the Act, if a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must initiate consultation with the Service. Thus, because we are
listing whitebark pine as a threatened species under the Act, before
Federal agencies can authorize development projects on Federal land,
action agencies will need to consider whether these projects may affect
whitebark pine (in addition to any other listed species in the action
area). If the activities may affect any listed species, the Federal
agency must initiate consultation with the Service. Therefore, section
7 consultation processes will ensure that development and extractive
activities on Federal lands do not jeopardize the continued existence
of whitebark pine, or any other listed species. We have not yet
received a biological assessment for the Stibnite Gold Mine project, a
proposed mining operation on Federal public land (namely USFS land) and
private land in Idaho, and thus section 7 consultation has not yet
occurred for the project; when it does occur, this consultation process
will consider effects to whitebark pine, and any other listed species,
as described above.
Public Comments
We received more than 4,000 comments from the general public on the
proposed listing and 4(d) rule during the public comment period. We
summarize and respond to these below. We do not, however, repeat issues
that we have already addressed above; we address only new issues raised
that were not raised by peer reviewers, State or Federal agencies, or
Tribes.
General Comments About Listing
Comment 26: Many commenters stated their view that whitebark pine
warrants listing as ``endangered'' rather than ``threatened.'' In
support of this assertion, these commenters pointed to (1) whitebark
pine's vulnerability to climate change; (2) current and historical
threats that are ``pervasive and intensifying,'' highlighting the
discussion of these threats in the SSA report; (3) the fact that
stressors have worsened since the Service's substantial 90-day finding
on the species (75 FR 42033; July 20, 2010); and (4) the ``endangered''
listing status in Canada. One commenter referenced the statistic that
51 percent of all standing whitebark pine in the United States are dead
as a result of a combination of threats as evidence of the ``imminent
peril of extinction the species faces'' as further support for listing
the species as endangered.
Our Response: We find that the whitebark pine does not meet the
Act's definition of an ``endangered species'' because the species is
still widespread throughout its extensive range, because a large number
of trees will continue to thrive and reproduce for decades (given the
species' long lifespan), and because there are some levels of genetic
resistance to white pine blister rust across the range. The species'
current levels of resiliency rangewide provide sufficient ability to
withstand stochastic events such that it is not currently at risk of
extinction. In addition, although there is uncertainty regarding how
quickly white pine blister rust, the primary stressor, will spread
within the three southwestern AUs (the Sierras, Basin and Range, and
Klamath Mountains AUs) in the future, white pine blister rust currently
occurs at low levels in these areas, adding to the whitebark pine's
current resiliency. In addition, the species currently has sufficient
redundancy and representation to withstand catastrophic events and
maintain adaptability to changes, particularly in the southwestern part
of the range, and is not at risk of extinction now. However, we expect
that the stressors, individually and cumulatively, will reduce
resiliency, redundancy, and representation within all parts of the
range within the foreseeable future. Therefore, on the basis of the
best available scientific and commercial information, we determine that
the whitebark pine is not currently in danger of extinction, but is
likely to become in danger of extinction within the foreseeable future,
throughout all of its range.
Our analysis in the SSA report and in the proposed rule included
the statistic that one commenter referenced regarding the percent of
standing whitebark pine in the United States that is dead (Goeking and
Izlar 2018, p. 7; Service 2021, p. 78; 85 FR 77408, December 2, 2020,
p. 77415). However, even considering these losses of trees
[[Page 76899]]
due to disease, we find that the whitebark pine is not endangered
because the species is still widespread throughout its extensive range.
In Canada, the COSEWIC designated whitebark pine as ``endangered''
under the Canadian SARA on June 20, 2012, due to the high risk of
extirpation. However, the definitions of ``endangered species'' and
``threatened species'' under SARA differ from those under the Act, and
Canada uses different processes to evaluate species' status. Thus, even
while Canada determined that whitebark pine met the definition of an
``endangered species'' under SARA in 2010, that does not mean whitebark
pine also meets the different definition of an ``endangered species''
under the Act. In fact, based on the best available scientific and
commercial data, we have determined that whitebark pine meets the
definition of a threatened species, rather than endangered species,
under the Act primarily due to the continued increase in white pine
blister rust infection and associated mortality; synergistic and
cumulative interactions between white pine blister rust and other
stressors, such as climate change; and the resulting loss of seed
source.
Comment 27: One commenter stated that because the SSA report makes
no conclusive finding regarding the probability of becoming endangered,
because the SSA report indicates that the species is still widespread
and expected to persist, and because any potential declines will vary
regionally, the Service cannot argue that the species is likely to
become endangered throughout a significant portion of its range.
Our Response: We find that the whitebark pine is not currently in
danger of extinction because the species is still widespread throughout
its extensive range, as this commenter emphasizes, because a large
number of trees will continue to thrive and reproduce for decades
(given the species' long lifespan), and because there are some levels
of genetic resistance to white pine blister rust across the range.
We do not argue that the species will become endangered in a
significant portion of its range (see Status Throughout a Significant
Portion of Its Range, below). However, contrary to what is stated in
the comment, it is not the role of an SSA to make conclusive findings
regarding endangerment, and the fact that future declines will vary
regionally is not inconsistent with our determination that the species
is likely to become endangered in the foreseeable future. In the SSA
report, we recognize that our projections of each of the stressors are
based on averages of the best available data applied across very large
areas of the range (i.e., at the AU scale) (Service 2021, p. 116).
Therefore, based on these rangewide projections of the future influence
of the four primary stressors, we find that the species is likely to
become in danger of extinction within the foreseeable future throughout
all of its range.
Comment 28: Many commenters expressed opposition to the listing of
whitebark pine, as they felt the Act either would not provide any
benefit to the species or could even hinder efforts to conserve the
species. One commenter claimed that listing the species under the Act
will not help address the major threats of disease, fire, or climate
change. Multiple commenters expressed that listing the whitebark pine
could be detrimental to the species because it would make it more
difficult to carry out important restoration efforts.
Our Response: Neither the Act's definitions of ``endangered
species'' and ``threatened species'' nor the statutory factors that we
must consider when applying those definitions allow us to consider the
effects of listing when we determine the status of a species (16 U.S.C.
1532(6) and (20), 16 U.S.C. 1533(a)(1)). The statute states that we
must make listing determinations based solely on the basis of the best
available scientific and commercial information. Therefore, the
question of whether there may be some positive benefit to the listing
cannot by law enter into the determination. Once a species is listed as
either endangered or threatened, the Act provides many tools to advance
the conservation of listed species. Conservation measures provided to
species listed as endangered or threatened species under the Act
include recognition, recovery actions, requirements for Federal
protection, and prohibitions against certain practices. Recognition
through listing results in public awareness, and conservation by
Federal, State, Tribal, and local agencies, private organizations, and
individuals. The Act encourages cooperation with the States and other
countries and calls for recovery actions to be carried out for listed
species. Specifically, section 4(f) of the Act requires us to develop
and implement recovery plans for the conservation of endangered and
threatened species. For more information on the recovery-planning
process, see Available Conservation Measures, below.
We have also developed a species-specific 4(d) rule that is
designed to address the whitebark pine's specific threats and
conservation needs. We have concluded that the whitebark pine is at
risk of extinction within the foreseeable future primarily due to the
continued increase in white pine blister rust infection and associated
mortality, synergistic and cumulative interactions between white pine
blister rust and other stressors, and the resulting loss of seed
source. The 4(d) rule will enhance the conservation of whitebark pine
by prohibiting activities that would be detrimental to the species,
while allowing the forest-management, restoration, and research-related
activities that are necessary to conserve whitebark pine; these forest-
management, restoration, and research-related activities maintain and
restore forest health on the Federal lands that encompass the vast
majority of the species' range within the United States. Specifically,
the 4(d) rule provides an exception to allow Federal land management
agencies to continue managing the forest ecosystems where the whitebark
pine occurs and to continue conducting restoration and research
activities that benefit the species, as long as these Federal agencies
have also complied with all relevant section 7 consultation
requirements. These activities include forest-management activities
that reduce high-severity fire, address insect and disease outbreak,
and improve overall forest health. These activities pose no threat to
the whitebark pine at the species level and can contribute to the
species' conservation into the future. These prohibitions and
exceptions are further discussed in Provisions of the Final 4(d) Rule,
below.
Comment 29: One commenter opposed listing whitebark pine as
threatened under the Act because whitebark pine has a large
geographical range and is currently abundant and widespread. The
commenter also noted that the SSA draws conclusions regarding future
declines from a 180-year model that has substantial uncertainties. This
commenter also believed the SSA analysis did not adequately account for
the degree of variation in potential declines across the wide range of
the species.
Our Response: There is inherent uncertainty in any projection of
future conditions. However, based on the best available science, there
is widespread agreement among whitebark pine experts that all key
stressors are likely to continue to affect whitebark pine at levels
above current conditions in the future (Service 2021, p. 91). The exact
magnitude of effects from each stressor in the future is uncertain,
which translates to uncertainty in predictions of whitebark pine
viability in the future,
[[Page 76900]]
and that uncertainty increases the further those predictions are
carried into the future. In the SSA report, we identify specific areas
of uncertainty that could lead to overestimates (species viability
appears better than it actually is) or underestimates (species
viability appears worse than it actually is) of viability (Service
2021, pp. 92-95, table 8). Our projections are based on long-term
geospatial data sets and a large body of empirical data, and our
multiple scenarios encompass the full range of conditions that could
plausibly occur (Service 2021, pp. 96-98). We also focused our
discussion of future viability in the SSA report on the 60-year
(approximately one generation) timeframe where our confidence is
greatest (Service 2021, p. 99).
We consider the foreseeable future, for the purposes of determining
threatened status for whitebark pine, to be within 40 to 80 years. This
timeframe encompasses the full range of variation for the length of one
generation for whitebark pine. In order to understand future extinction
risk, we needed to examine the effects of stressors at least one
generation into the future; considering effects of stressors over at
least one generation allows us to capture the effects of these
stressors on reproduction (i.e., it allows us to discuss whether
sufficient reproduction can occur in the future to replace trees lost
to various stressors). While we were able to project the extent of
stressors more than one generation into the future (i.e., 180 years
into the future) in our SSA, we simply extrapolated various rates of
spread for three whitebark pine generations. Regardless of how far into
the future we could extrapolate the expanding scope of stressors, our
confidence is greatest with respect to the range of plausible projected
changes to stressors for one generation due to increasing uncertainties
in the interplay between disease and species' response (e.g.,
uncertainties regarding effects on species' genetics in the next
generation of trees and how this would affect species' response to
stressors, specifically white pine blister rust, in subsequent
generations; uncertainties regarding compounding effects on
reproduction after the next generation of trees). We can reasonably
determine that both the future threats and the species' responses to
those threats are likely within this 40- to 80-year timeframe (i.e.,
the foreseeable future), and we can reasonably rely on predictions over
this time frame in determining the future conservation status of the
whitebark pine.
In the SSA report, we also recognize that our projections of each
of the stressors are based on averages of the best available data
applied across very large areas of the range (i.e., at the AU scale)
(Service 2021, p. 116). Given its extensive distribution, current
impacts from stressors and levels of conservation efforts are highly
variable across the range. Our analysis examined area of impact for all
stressors at the AU-scale to abate variation and limitations within the
data, and to have a comparable analysis across all stressors (Service
2021, p. 96). We acknowledge that there may be significant differences
and a large degree of variation when examining stressors at smaller
landscape or stand scales.
Despite the limitations inherent in our future-conditions analysis,
we have relied on the best available science to examine the current and
future extent of white pine blister rust infection, mountain pine
beetle infestations, and high-severity fire in each AU (capturing some
level of variability in resiliency across the range of the species); as
a result of the highly heterogeneous ecological settings of this
widespread species (e.g., differences in topography, elevation,
weather, and climate) and geographic variation in levels of genetic
resistance to white pine blister rust, rates of whitebark pine decline
will likely vary for each AU in the future (Service 2021, p. 116). We
also note that our results are generally consistent with other modeling
efforts for the species, all of which project continued decline of
whitebark pine (e.g., Warwell et al 2007, entire; Hatala et al. 2011,
entire; Keane et al. 2017b, entire; Angeli and McGowan, in prep.,
entire).
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the whitebark pine is likely to become endangered
within the foreseeable future throughout all of its range. This finding
is based on anticipated reductions in resiliency, redundancy, and
representation in the future as a result of continued increase in white
pine blister rust infection and associated mortality, synergistic and
cumulative interactions between white pine blister rust and other
stressors, and the resulting loss of seed source. White pine blister
rust is already ubiquitous rangewide, and there is currently no
effective method to reverse its effects on a meaningful scale.
Comment 30: One commenter recommended that, instead of listing
whitebark pine throughout its entire range, we should only list the
whitebark pine that occurs in wilderness areas as a threatened species.
This commenter claimed that the Act gives the Service the authority to
geographically limit the listing in this way because section 4(c)(1) of
the Act states that the Lists of Endangered and Threatened Wildlife and
Plants shall refer to the species contained therein by scientific and
common name or names, if any, specify with respect to each such species
over what portion of its range it is endangered or threatened, and
specify any critical habitat within such range (16 U.S.C. 1533(c)(1)).
The commenter thus believed the Service had the ability to list
whitebark pine in only a portion of its range, specifically the portion
in Congressionally designated wilderness areas, even if this portion is
not a ``significant portion of the range.'' The commenter believed the
Service's current ``significant portion of the range'' policy was
``suspect,'' given that the courts have vacated parts of it; they
especially believed the ``all-or-nothing nature'' of the policy, which
requires the Service to list a species throughout their entire range
even if they only meet the definition of a threatened species in a
significant portion, violates the Act. Thus, the commenter believed we
should be able to list whitebark pine as threatened in only a portion
of its range (the portion in wilderness areas).
Our Response: We must comply with all current regulations,
policies, and court opinions when making status determinations under
the Act. Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. If we were to find that the species was endangered or
threatened in a significant portion of its range, it would result in
listing the species under the Act as such throughout all of its range.
Thus, even if we found that the species met the definition of an
endangered or threatened species only in designated wilderness areas
(which we did not), that finding would still result in listing the
species throughout the entirety of its range.
We note that this interpretation is required by the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (Final Policy; 79 FR 37578, July 1, 2014), which
by its terms is binding on the Service. Although some aspects of the
Final Policy have been invalidated by the courts, this aspect has not.
In fact, this aspect of the Final Policy adopts case law that expressly
rejects the argument made by the commenter (see 79 FR at 37580).
[[Page 76901]]
Comment 31: Commenters expressed concern that the Service did not
adequately consider the value of existing conservation efforts in its
assessment of the Act's Factor D (the inadequacy of existing regulatory
mechanisms). One of these commenters noted that, in the SSA report, the
Service dismisses restoration work under the Range-Wide Conservation
Strategy by stating that recent accomplishments conducted using this
guidance are ``too numerous to detail here.'' They noted that the
Service is obligated under section 4(b)(1)(A) of the Act to consider
State conservation efforts in its listing determinations. Moreover,
they felt the Service did not acknowledge how a listing could interfere
with these conservation efforts.
Our Response: The Act requires us to make a determination using the
best available scientific and commercial data after conducting a review
of the status of the species and after taking into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation to protect such
species. In evaluating the status of whitebark pine, we considered the
numerous ongoing conservation efforts detailed in the SSA report
(Service 2021, pp. 119-125). However, while these programs may provide
localized benefits to individuals or populations, they do not provide a
reduction of the influence of key stressors at the species scale across
the more than 32-million-ha (more than 80-million-ac) range of the
species. Additionally, despite these existing regulatory mechanisms
(Factor D) and voluntary conservation efforts, the stressors have
continued to affect the species and are predicted to increase in
prevalence in the future. Specifically, white pine blister rust is
already ubiquitous rangewide, and there is currently no effective
method to reverse its effects on a meaningful scale. Although current
planting efforts may be sufficient to restore whitebark pine at some
local levels, the current rates appear to be insufficient to address
the primary stressor (white pine blister rust) and restore whitebark
pine on a scale large enough to ensure its continued viability (Service
2021, p. 47).
The listing of a species does not obstruct the development of
conservation agreements or partnerships to conserve the species. Once a
species is listed as either endangered or threatened, the Act provides
many tools to advance the conservation of listed species. Conservation
of listed species in many parts of the United States is dependent upon
working partnerships with a wide variety of entities. Conservation
measures provided to species listed as endangered or threatened species
under the Act include recognition, recovery actions, requirements for
Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The specific protective regulations for
whitebark pine are discussed in Provisions of the Final 4(d) Rule,
below.
Additionally, section 4(f) of the Act calls for the Service to
develop and implement recovery plans for the conservation of endangered
and threatened species, which will further collaboration for the
recovery of whitebark pine. For more information on the recovery-
planning process, see Available Conservation Measures in this rule.
Comments on Biology, Ecology, Range, Distribution, or Population Trends
Comment 32: A commenter noted that there is still much to learn
about the successional ecology of whitebark pine. They noted that there
are no scientific data supporting the idea that whitebark pine is
shade-intolerant or successional to other tree species and that these
ideas are anecdotal throughout the literature. They requested that the
Service make this clear.
Our Response: We used the best available scientific and commercial
data to inform our discussion of whitebark pine's shade tolerance and
successional ecology in the SSA report. We recognize that much
uncertainty remains in our understanding of whitebark pine ecology, and
that variation occurs throughout the wide range of the species.
However, based on the best available information, including information
provided in the public comments, we find that, in general, whitebark
pine shows an intermediate level of shade tolerance and can be
outcompeted and replaced by more shade-tolerant trees in the absence of
disturbances like fire (Arno and Hoff 1989, p. 6; Service 2021, p. 22).
Higher whitebark pine seedling density has been correlated with higher
densities of nearby mature healthy whitebark pine, the presence of
intermediate amounts of vegetation cover, and lower solar radiation
(Leirfallom et al. 2015, p. 1603; Service 2021, p. 26).
Comment 33: One commenter recommended that the Service review
specific provided survey reports of whitebark pine for the Klamath,
Shasta Trinity, and Modoc National Forests in northern California to
ensure our range maps reflect this particular occurrence data.
Our Response: Our range maps and analysis in the SSA report already
incorporated the areas of whitebark pine presence that these commenters
referenced. While the whitebark pine's range was depicted at a coarse
scale in the SSA report, it encompasses all known occurrences and the
current distribution of whitebark pine (Service 2021, p. 17). Thus,
these data do not represent new information, and they did not change
our analysis or conclusions.
General Comments on Four Primary Stressors (White Pine Blister Rust,
Mountain Pine Beetle, Altered Fire Regimes, and Climate Change)
Comment 34: Multiple commenters expressed that we put too much
emphasis on white pine blister rust as the primary threat to the
species and insufficient focus on the potential impacts of mountain
pine beetle, altered fire regimes, and climate change; many commenters
believed that climate change should instead be identified as the
primary threat because it exacerbates other primary stressors, could
result in irreversible habitat loss, and will intensify in the
foreseeable future. Commenters stated that there is no science to
support the identification of white pine blister rust as the primary
threat to the species. One commenter noted that the threat of white
pine blister rust to whitebark pine is spatially, temporally, and
situationally dependent. This commenter stated that, while white pine
blister rust may be the primary threat in some areas, in other areas it
is a secondary factor. Additionally, they noted that the natural
resistance of whitebark pine populations to white pine blister rust is
encouraging, indicating that natural selection of resistant whitebark
pine could lead to decreasing importance of this stressor in the
foreseeable future. One commenter cited several studies when concluding
that climate change, mountain pine beetles, fire, and forest succession
to shade-tolerant species all represent significant threats to the
species and that a more holistic view of the threats is warranted.
Multiple commenters worried that our lack of emphasis on these other
stressors could result in recovery strategies inadequate to address the
threats facing the species or could divert interest and resources away
from other threats.
Our Response: Our analysis of the species' status found that the
primary stressor driving the status of whitebark
[[Page 76902]]
pine is disease (white pine blister rust). White pine blister rust also
interacts with other stressors, including predation by mountain pine
beetles, altered fire regimes, and climate change; we provided detailed
analysis of the extent of the effects of these stressors in our SSA
report (Service 2021, pp. 68-110). However, we do not consider altered
fire regimes, climate change, or the mountain pine beetle to be the
main drivers of the status of the species. In all three future
scenarios analyzed in the SSA report, the rate of decline appeared to
be most sensitive to the rate of white pine blister rust spread, the
presence of genetically resistant individuals (whether natural or due
to conservation efforts), and the level of regeneration (Service 2021,
pp. 116-117). Given that white pine blister rust led to the largest
rangewide reductions in viability in our analysis, and given that there
is currently no known remedy, we identified white pine blister as the
primary threat to this species.
Additionally, while the frequencies, levels, and heritability of
resistance identified to date are very encouraging, we expect the
disease to continue to affect whitebark pine in the future. Trees that
are rust resistant today only have known resistance to the current
white pine blister rust strain (Service 2021, p. 46). Moreover, the
number of genetically resistant individuals in some populations on the
landscape may be low (Service 2021, p. 88). Management challenges to
restoration include remoteness, difficulty of access, and a perception
that some whitebark pine restoration activities conflict with
wilderness values (Schwandt et al. 2010, p. 242). In addition, the vast
scale at which planting rust-resistant trees would need to occur, long
timeframes in which restoration efficacy could be assessed, and limited
funding and resources will make it challenging to restore whitebark
pine throughout its range. Based on modeling results (Ettl and Cottone
2004, pp. 36-47; Hatala et al. 2011, entire; Field et al. 2012, p.
180), we conclude that, in addition to the ubiquitous presence of white
pine blister rust across the entire range of the whitebark pine, white
pine blister rust infection likely will continue to increase and
intensify within individual sites, ultimately resulting in stands that
are no longer viable and that potentially face extirpation.
In the SSA report, we capture the variation in white pine blister
rust prevalence that these commenters identify, illustrating that
average infection levels are lowest in the southern analysis units
(Klamath Mountains, Basin and Range, and Sierras); these AUs constitute
more xeric habitats (Service 2021, p. 77). We acknowledge that there
may be significant differences and a large degree of variation when
examining stressors at smaller landscape or stand scales, including
variation in white pine blister rust infection; however, our
projections of each of the stressors in the SSA are based on averages
of the best available data applied across very large areas of the range
(i.e., at the AU scale) (Service 2021, p. 116). Furthermore, the
recovery-planning process will allow managers to address nuances in the
species' needs and threats across whitebark pine's range to ensure we
deliver appropriate and effective conservation measures in relevant
locations.
Comment 35: One commenter recommended that we need to acknowledge
that smaller, isolated whitebark pine populations occurring on mountain
tops, such as those in the Klamath-Siskiyou and southern Cascade
Mountains, are more susceptible to extirpation from repeated high-
severity fire, mountain pine beetle outbreaks, and climate change.
Our Response: In the SSA report, we recognize that our projections
of each of the stressors are based on averages of the best available
data applied across very large areas of the range (i.e., at the AU
scale) (Service 2021, p. 116). Given its extensive distribution,
current impacts from stressors and levels of conservation efforts are
highly variable across the range. Our analysis examined area of impact
for all stressors at the AU-scale to abate variation and limitations
within the data, and to have a comparable analysis across all stressors
(Service 2021, p. 96). We acknowledge that there may be significant
differences and a large degree of variation when examining stressors at
smaller landscape or stand scales. As a result of the highly
heterogeneous ecological settings of this widespread species (e.g.,
differences in topography, elevation, weather, and climate) and
geographic variation in levels of genetic resistance to white pine
blister rust, rates of whitebark pine decline will likely vary for each
AU. Our current- and future-condition analyses illustrate variation in
the percent of each AU that is currently or could be affected by
various stressors (Service 2021, pp. 68-83, 99-110). We relied on the
best available science to examine the status of whitebark pine at a
rangewide scale.
Comments on Altered-Fire-Regimes Stressor
Comment 36: A commenter stated that our future-viability scenarios
rely on outdated science on the extent of past fires and, therefore,
underestimate the likely future increase in annual area burned at high
severity within the range of whitebark pine. The commenter noted that
we projected a 5 to 10 percent increase in the annual amount of habitat
burned at high severity based on research published from 2010 through
2017, but 8 of the 20 largest fires in California history have occurred
since 2017, and the 2 largest fires in the Sierra Nevada in 2018
doubled the burned acreage of the previous record. Another commenter
noted that large increases in fires have already been documented,
particularly in the Northern Rockies where a historically healthy
population of whitebark pine occurs.
Our Response: We acknowledge that the fire data in our current-
condition analysis, which formed the baseline for our future-condition
analysis, only presented acres burned between 1984 and 2016. The 33-
year time period covered by this dataset provided the most
comprehensive information for fire extent across all AUs in the
whitebark pine's range. In the SSA report, we also project the
proportion of each AU that high-severity fire is likely to affect in
the future. Given current trends and predictions for future changes in
the climate, we assume in all scenarios that the frequency of stand-
replacing fires will increase, although the magnitude of that increase
is uncertain (Keane et al. 2017b, p. 18; Westerling 2016, entire;
Littell et al. 2010, entire). Because of that uncertainty, we chose
what were likely conservative values of a 5 or 10 percent increase in
high-severity fire above current annual levels.
We are aware that there have been several severe fire seasons since
2016, and the study of fire and climate change is a constantly evolving
field. Given the large range of whitebark pine, these additional
localized fires do not substantially change our overall understanding
of the extent of the species' range that has been affected by fire or
could be affected in the future. Between 1984 and 2016, a minimum of
1,273,583 ha (3,147,092 ac) of whitebark pine habitat burned in high-
severity fires, equating to approximately 5 percent of the species'
range within the United States. Data from Monitoring Trends in Burn
Severity on acres burned in the United States is now available through
2019. Between 2016 and 2019, an additional 0.8 percent of the
[[Page 76903]]
whitebark pine's range within the United States (or 191,459 ha (471,105
ac)) burned at high severity. In other words, nearly 13 percent of the
ac that have burned at high severity within the range of whitebark pine
in the United States since 1984 burned in the 4 years between 2016 and
2019. This increasing extent of high-severity fire impacts in recent
years validates our model assumptions that the frequency of high-
severity fire will increase in the future. We find that the three
future scenarios we modeled still capture the plausible range of
potential increases in high-severity fire into the future.
Thus, these recent fire seasons do not change our conclusions
regarding the species' status, especially because white pine blister
rust remains the primary driver of species' status. Despite these
additional fires, we find that the whitebark pine is not currently in
danger of extinction because the species is still widespread throughout
its extensive range, because a large number of trees will continue to
thrive and reproduce for decades (given the species' long lifespan),
and because there are some levels of genetic resistance to white pine
blister rust across the range. However, we expect that the stressors,
individually and cumulatively, will reduce resiliency, redundancy, and
representation within all parts of the species' range within the
foreseeable future.
Comment 37: Several commenters found that our assessment of the
role of fire in whitebark pine ecosystems was overly simplified and did
not account for possible variation in different communities (e.g.,
climax communities, subalpine communities, trees above treeline). They
stated that we did not adequately consider the wide variety of forest
types, and therefore fire regimes, in which whitebark pine occurs, and
how these could result in differential effects of fire in the future.
Our Response: In the SSA report, we recognize that our future
projections of the effects of each of the stressors are based on
averages of the best available data applied across very large areas of
the range (i.e., at the AU scale) (Service 2021, p. 116). Given its
extensive distribution, current impacts from stressors and levels of
conservation efforts are highly variable across the range. However, our
analysis examined areas of impact for all stressors at the AU-scale to
abate variation and limitations within the data, and to have a
comparable analysis across all stressors (Service 2021, p. 96). We
acknowledge that there may be significant differences and a large
degree of variation when examining stressors at smaller landscape or
stand scales (e.g., for climax communities of whitebark pine). Although
there is variation in the degree to which specific stands have been
affected, over the range of whitebark pine, the widespread incidence of
poor stand health and reduced reproductive capacity from disease and
predation, coupled with changes in fire regimes due to climate change,
has compromised and will continue to compromise regeneration of
whitebark pine in many cases (Tomback et al. 2008, p. 20; Leirfallom et
al. 2015, p. 1601). Overall, these factors increase the likelihood of
negative effects to whitebark pine populations from fire, especially
from high-severity fires that can cause widespread tree mortality.
Comment 38: One commenter stated that we did not adequately address
the threat of prescribed fire on whitebark pine. This commenter
indicated that not all forest types where whitebark pine occurs have
naturally occurring fires dominated by low-severity fire effects
(dynamics that prescribed fire can mimic). Whitebark pine seedlings,
saplings, and mature trees in subalpine forests could be negatively
affected by prescribed fire, because these forest types are not adapted
to a frequent fire regime and plants could experience mortality from
this activity. The commenter further noted that whitebark pine is fire-
intolerant and not well adapted to fire because it does not exhibit
phenotypic characteristics consistent with fire-resistant conifers
(i.e., thick bark). However, the commenter noted that fire favors
whitebark pine regeneration by creating canopy openings and reducing
competing vegetation in areas with an adequate seed source and
dispersal mechanisms (Clark's nutcracker seed caching or humans
planting whitebark pine seedlings). Whitebark pine seedlings and
saplings are likely present in the subalpine forests proposed for
prescribed burning. In the absence of fire, this naturally occurring
whitebark pine regeneration would continue to occur as an important
part of the subalpine ecosystem.
Several commenters also expressed concern regarding the use of
prescribed burning in whitebark pine systems, including concerns about
the use of prescribed burning in areas where whitebark pine seed
sources are scarce or where significant seedling regeneration is
occurring.
Our Response: We incorporated additional information on whitebark
pine's ability to resist low-intensity fire and the role of low-
severity fire in whitebark pine ecology into our discussion of altered
fire regimes in the SSA report (Service 2021, pp. 36-37); we also
updated our discussion of prescribed fire as a restoration strategy in
appendix A of the SSA report, based on information provided in the
comments. Although this information is important and relevant to the
management and recovery of whitebark pine, it does not significantly
affect our understanding of the threats to the species or our listing
determination. Any loss of whitebark pine to low-intensity fire
(including prescribed fire) would primarily affect individuals at the
stand scale and is unlikely to affect the species' broader distribution
(Service 2021, pp. 41, 68-69).
We will continue to update our understanding of the role of
prescribed burns and low-severity fire as we develop a recovery plan
for whitebark pine. The recovery-planning process will ensure that we
use the best available science to inform the identification of
effective recovery strategies, including appropriate use of prescribed
burning.
Comments on Climate-Change Stressor
Comment 39: A commenter stated we did not consider the direct
effects of climate change on whitebark pine phenology and that habitat-
niche modeling could be used to determine the extent to which climate
change is likely to result in habitat loss. Citing recent research, the
commenter noted that whitebark pine is predicted to decline throughout
its current range under all future climate scenarios and that niche
modeling could be used to spatially define and quantify this potential
loss of habitat.
Our Response: In the SSA report, we acknowledge that habitat loss
is anticipated to occur across the range of whitebark pine due to the
direct and indirect effects of climate change (Service 2021, p. 58).
Additionally, we acknowledge numerous studies that predict that
whitebark pine will decline throughout its range (Service 2021, pp. 61-
63). Habitat-niche modeling, as this commenter recommended, can be a
useful tool for assessing projected changes in populations or smaller
portions of the range of whitebark pine when planning conservation
strategies for the species; however, modeling the synergistic effects
of the four primary stressors, including climate change, introduces
high levels of uncertainty and is beyond the scope of the analysis for
our SSA. Although niche modeling may help illuminate localized
differences in projected future impacts of climate change throughout
the species' range, such refinement would not change our overall
determination
[[Page 76904]]
that whitebark pine warrants protection under the Act as a threatened
species. The references this commenter provided are incorporated into
the final SSA report.
Comment 40: One commenter stated that, in contrast to our focus in
the SSA on the effects of climate change on whitebark pine habitat
suitability (i.e., where temperatures will exceed the thermal tolerance
of the species), the primary adverse effect of climate change on
whitebark pine is the relaxation of constraining conditions for
competing conifers (Greenwood and Jump 2014, entire) and improved
environment for insect predators (Logan and Powell 2001, entire; Logan
et al. 2009, entire).
Our Response: In the SSA report, we acknowledge that climate change
may result in conditions favorable to competing species (Service 2021,
p. 60), and that warming temperatures created the unprecedented nature
of the most recent mountain pine beetle outbreak (Service 2021, p. 52).
Our analysis of the impacts of insect predators considers scenarios in
which climate change would exacerbate the impacts of mountain pine
beetles (Service 2021, pp. 97-98). We added the reference this
commenter provided (Greenwood and Jump 2014, p. 835) to the relevant
discussion of mountain pine beetles in the SSA report (Service 2021, p.
60). We already cite Logan and Powell (2001, p. 167) in the SSA report
to support our discussion of climate change and insect predators
(Service 2021, p. 52); the SSA cites Logan et al. (2010, p. 895), which
is a more recent study with updated conclusions than Logan et al.
(2009), the paper the commenter provided (Service 2021, p. 52). Given
that these assumptions were already considered in the assessment and
analysis, our determination that whitebark pine warrants protection
under the Act as a threatened species remains unchanged.
Comment 41: A commenter stated that, contrary to our analysis,
mature whitebark pine trees are not affected by climate change. This
commenter claimed that mature whitebark pine have survived past climate
cycles similar to the climate cycle we are currently experiencing;
therefore, there is no science supporting the idea that climate change
is associated with whitebark pine declines. The commenter also claimed
that the proposed rule is speculative in stating that whitebark pine is
unable to adapt as fast as competing plants to changing conditions.
They asserted that whitebark pine survived a similar climate-cycle
change in the 1930s and the Service did not provide any science or
information explaining why other plants did not outcompete whitebark
pine at that time. The commenter anecdotally noted that there are very
few areas in Idaho with evidence of plant competition contributing to
whitebark pine population declines; old mature trees have not been
crowded out, but instead died due to predators or fire. The commenter
did note that climate is associated with the length of the fire season,
and longer fire seasons are associated with an increase in fire-killed
whitebark pine.
Our Response: Our SSA report discusses the best available science
on how climate change could affect whitebark pine, including the best
available information regarding the species' ability to adapt to future
changes in climate (Service 2021, pp. 57-63); this commenter did not
provide any new research or references to support their claims that our
assessment is inaccurate. Within the species' current range, future
changes in climate will likely exceed the climatic variation the
whitebark pine has experienced in the past century and will likely last
longer. For example, using the A2 scenario (which assumes a global
average surface warming of 6.1 degrees Fahrenheit ([deg]F) (3.4 degrees
Celsius ([deg]C))), the USFS's climate envelope modeling projects that,
by 2090, temperatures could increase 9.1 [deg]F (5.1 [deg]C) within the
range of the species; this would cause whitebark pine's suitable
climate to contract to the highest-elevation areas in the northern
Shoshone National Forest and Greater Yellowstone Ecosystem, or could
cause whitebark pine to be extirpated from these areas (Rice et al.
2012, p. 31).
As we discuss in greater detail in the SSA report (Service 2021,
pp. 57-63), the pace of predicted climate change will outpace many
plant species' abilities to respond to the concomitant habitat changes.
Whitebark pine may be particularly vulnerable to warming temperatures
because it is adapted to cool, high-elevation habitats. Therefore,
current and anticipated warming is expected to make its current habitat
unsuitable for whitebark pine, either directly or indirectly as
conditions become more favorable to whitebark pine competitors, such as
subalpine fir or mountain hemlock. The rate of migration needed to
respond to predicted climate change will be significant (Malcolm et al.
2002, pp. 844-845; McKenney et al. 2007, p. 941). It is not known
whether whitebark pine is capable of migrating at a pace sufficient to
move to areas that are more favorable to survival as a result of
climate change. It is also not known the degree to which Clark's
nutcracker could facilitate this migration. In addition, the presence
of significant white pine blister rust infection in the northern range
of whitebark pine could serve as a barrier to effective northward
migration. Whitebark pine survives at high elevations already, so there
is little remaining habitat for the species to migrate to higher
elevations in response to warmer temperatures. Adaptation in response
to a rapidly warming climate could also be unlikely as whitebark pine
is a long-lived species with a long generation time. Climate models
project that climate change is expected to act directly and indirectly
to significantly decrease the probability of rangewide persistence in
whitebark pine within the next 100 years. This time interval is less
than two generations for this long-lived species.
Comments on Other Stressors
Comment 42: Multiple commenters expressed concern about other
stressors that they believed could further affect whitebark pine,
including: (1) High levels of backcountry recreation on the John Muir
Trail in the Sierra Nevada, which is leading to overcrowding campsites,
illegal campfires, and human waste; (2) cross-country over-snow vehicle
use (commenters provided several studies and examples of damage to
whitebark pine trees from over-snow vehicle use); and (3) ski areas
(commenters claimed that the proposed Mount Ashland Ski Area Expansion
and other recreational activities in the Klamath-Siskiyou Mountains can
result in the trampling of seedlings).
Our Response: We have concluded that the whitebark pine is likely
to become endangered within the foreseeable future primarily due to the
continued increase in white pine blister rust infection and associated
mortality, synergistic and cumulative interactions between white pine
blister rust and other stressors, and the resulting loss of seed
source. White pine blister rust is not human-spread or influenced by
human activity, and few restoration methods are currently available to
restore whitebark pine in areas affected by the disease.
We acknowledge there are numerous other factors that operate on
whitebark pine at local scales (see appendix B in the SSA report),
affecting individuals or local areas, including recreation; however,
these factors are likely not driving population dynamics of whitebark
pine on a rangewide scale or at the species level (Service 2021, p.
34). According to the best available science the four stressors
influencing the status of whitebark pine are white pine blister rust,
altered fire regimes, mountain pine
[[Page 76905]]
beetle, and climate change (Keane and Arno 1993, p. 44; Tomback et al.
2001, p. 13; COSEWIC 2010, p. 24; Tomback and Achuff 2010, p. 186;
Keane et al. 2012, p. 1; Mahalovich 2013, p. 2; Mahalovich and Stritch,
2013, entire; Smith et al. 2013, p. 90; GYWPMWG 2016, p. v; Jules et
al. 2016, p. 144; Perkins et al. 2016, p. xi; Shanahan et al. 2016, p.
1; Shepherd et al. 2018, p. 138). While we recognize these concerns
regarding localized recreation activities, we found no information
suggesting that recreation is occurring or could occur at a scope or
scale that would produce species-level declines. Therefore, we did not
analyze recreation as a threat to whitebark pine in our determination
of species' status.
However, section 7(a)(2) of the Act requires Federal agencies,
including the Service, to ensure that any action they fund, authorize,
or carry out is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of designated critical habitat of such species.
As a result of these provisions in the Act, if a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must initiate consultation with us. For
example, before any approval of ski area expansions on Federal land,
action agencies will need to consider whether this expansion may affect
whitebark pine (or any listed species in the action area). If the
activities may affect any listed species, the Federal agency must
initiate consultation with us. Therefore, the section 7 consultation
processes will ensure that recreational activities on Federal lands do
not jeopardize the continued existence of whitebark pine or any other
listed species.
Comment 43: A commenter claimed that we inadequately analyzed the
impacts of whitebark pine decline on ecosystem integrity, given the
whitebark pine's important role in community dynamics. This commenter
also believed our analysis of individual threat factors under the Act
was inadequate because it does not consider the complicated interplay
between whitebark pine decline, impacts on Clark's nutcracker
populations, stand and disturbance structure conducive to
recolonization via Clark's nutcracker seed caching, seed-predator
relationships, ectomycorrhizal fungi communities, stand-composition
characteristics, and mountain pine beetle populations. They asserted
that the concept of identifying a single primary factor driving the
status of the species does not fulfill the intent of the Act, as it
does not address the potential loss of these essential community
relationships due to the cumulative decline of whitebark pine.
Our Response: In both the SSA report and this rule, we acknowledge
and discuss the cumulative impacts of stressors on whitebark pine
(Service 2021, pp. 110-116). Each of the stressors (white pine blister
rust, altered fire regimes, mountain pine beetle, and climate change)
acts individually and cumulatively on portions of the whitebark pine's
range, and interactions between stressors have further exacerbated the
species' decline and have reduced its resiliency; while we acknowledge
white pine blister rust as the main driver of the species' status, we
identify these synergistic interactions as a factor further influencing
the threatened status of the species.
Additionally, Service policy calls for an ecosystem approach to
carrying out programs for fish and wildlife conservation (59 FR 34273,
July 1, 1994). The goal of this approach is to contribute to the
effective conservation of natural biological diversity through
perpetuation of dynamic, healthy ecosystems when carrying out our
various mandates and functions. Preserving and recovering endangered
and threatened species is one of the more basic aspects of an ecosystem
approach to conservation. Successful recovery of an endangered species
or threatened species requires that the necessary components of its
habitat and ecosystem be conserved, and that diverse partnerships be
developed to ensure the long-term protection of those components. Thus,
the recovery process for whitebark pine will inevitably involve this
consideration of the synergistic community relationships the commenter
references. That said, a desire to achieve or maintain ``ecological
effectiveness'' (i.e., occupancy with densities that maintain critical
ecosystem interactions and help ensure against ecosystem degradation)
(Soule et al. 2003, p. 1239) is not relevant to the Act's definitions
of ``endangered species'' or ``threatened species,'' and is not one of
the factors that we consider under the Act's section 4(a)(1) in making
listing determinations.
Comment 44: A commenter claimed that because a recent assessment of
threats to listed species found that habitat loss is often identified
as a significant threat in most listing decisions, habitat loss must
therefore be a significant threat to whitebark pine.
Our Response: We acknowledge that habitat loss is anticipated to
occur across the range of whitebark pine due to the direct and indirect
effects of climate change (Service 2021, p. 58). However, the habitat
needs of whitebark pine are flexible and not specific, as evidenced by
the fact that the species is extremely widespread, occupying a wide
range of elevations, slopes, forest-community types, latitudes, and
climates across its 32,616,422-ha (80,596,934-ac) range (Service 2021,
pp. 14-16). In other words, habitat for whitebark pine is plentiful,
and is not a limiting factor determining the distribution of the
species. In addition, given that the vast majority of the species'
range (88 percent) is on federal public lands and 29 percent of the
species range is designated as wilderness, habitat loss due to human
development or other direct destruction of habitat is less likely to
occur in a large portion of the species' range. Therefore, we do not
consider habitat loss as a primary threat driving the status of
whitebark pine. In all three future scenarios analyzed in the SSA, the
rate of decline appears to be most sensitive to the rate of white pine
blister rust spread, the presence of genetically resistant individuals
(whether natural or due to conservation efforts), and the level of
regeneration (Service 2021, pp. 116-117). Given that white pine blister
rust led to the largest rangewide reductions in viability in our
analysis, and given that there is currently no known remedy, we
identify white pine blister rust as the primary threat for this
species. White pine blister rust also interacts with other stressors,
including predation by mountain pine beetles, altered fire regimes, and
climate change.
Comment 45: One commenter found that the proposed rule did not
address the effects of the USFS's Roadless Area Conservation rule (66
FR 3244; January 12, 2001), despite the presence of non-wilderness
roadless areas within the species' range. The commenter noted that the
January 12, 2001, rule imposes significant constraints on the ability
to harvest timber or reduce fuels in roadless areas. Relatedly, one
commenter noted that the Service failed to analyze the effects of the
USFS's Roadless Area Conservation; Applicability to the National
Forests in Idaho rule (73 FR 61456; October 16, 2008) on whitebark pine
or if listing the species would necessitate changes to that rule. The
commenter stated that whitebark pine occurs in areas designated by the
October 16, 2008, rule, and that rule classifies areas in several
categories with varying management restrictions.
Our Response: As we discuss in appendix A of the SSA report, the
remote and challenging terrain in which
[[Page 76906]]
whitebark pine frequently exists presents numerous logistical
challenges for accessing sites for restoration. In non-wilderness
roadless areas, much effort and costs may be required to transport
equipment, seedlings, and personnel to work sites, whether by foot,
livestock, or aerial means. Seasonal access to many sites is likely to
be brief due to abbreviated snow-free conditions at high elevations,
which often coincides with summer fire seasons. As the level of
accessibility to whitebark pine stands decreases, so does the number of
available restoration options (Keane et al. 2012, p. 89), meaning fewer
options to restore affected stands in more difficult-to-access sites.
Similar to our approach to wilderness areas, in planning for the
recovery of whitebark pine, we will ensure our strategies and our
partners' conservation efforts respect the standards and limitations of
roadless areas, while identifying practical means to deliver effective
restoration.
Comments on Section 4(d) Rule and Post-Listing Management
Comment 46: One commenter asserted that, because the proposed rule
did not provide managements plans or actions for recovering the
species, the rule itself had no effect or impact and did not provide a
clear legal standard for affected parties; they claimed this was a
violation of Executive Order (E.O.) 12988.
Our Response: Under the Act, we are to make listing determinations
``solely on the basis of the best scientific and commercial data'' (16
U.S.C. 1533(b)(1)(A)). Other considerations must not be a part of our
listing decisions.
That said, we believe this rule is consistent with E.O. 12988
(Civil Justice Reform). This rule will not unduly burden the judicial
system. In this rule, we determine that whitebark pine meets the
definition of a threatened species under the Act. We also finalize a
species-specific 4(d) rule that is designed to address the whitebark
pine's specific threats and conservation needs. The provisions of the
4(d) rule provide clear regulations concerning prohibited and allowed
activities that could affect whitebark pine; in doing so, the 4(d) rule
presents a clear legal standard for affected parties. Further, it is
our policy, as published in the Federal Register on July 1, 1994 (59 FR
34272), to identify to the maximum extent practicable at the time a
species is listed those activities that would or would not constitute a
violation of section 9 of the Act. The intent of this policy is to
increase public awareness of the effect of a listing on proposed and
ongoing activities within the range of the species. Our 4(d) rule,
described in detail in Provisions of the Final 4(d) Rule below,
provides this information. Questions regarding whether specific
activities would constitute a violation of section 9 of the Act should
be directed to the Wyoming Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Additionally, section 4(f) of the Act calls for the Service to
develop and implement recovery plans for the conservation of endangered
and threatened species. This listing rule does not need to include
strategies for recovery of the species. Instead, the recovery-planning
process involves the identification of actions that are necessary to
halt or reverse the species' decline by addressing the threats to its
survival and recovery. For more information on the recovery-planning
process, see Available Conservation Measures in this rule.
Comment 47: A commenter claimed that thinning and prescribed fire
associated with whitebark pine management conflicted with best
management practices for grizzly bear (Ursus arctos horribilis).
Our Response: As we discuss in the SSA report, in some cases, while
restoring whitebark pine may prove beneficial in the long term,
restoration activities may present short-term impacts for other species
(Service 2021, p. 135). For example, while grizzly bears use whitebark
pine seeds as a food source in many parts of their range, restoration
activities, and the associated human presence during these, may
negatively affect individual bears in the short term, even if the long-
term goal is improving an important component of their habitat. In
2017, we issued a biological opinion to the Idaho Panhandle National
Forest for a large-scale whitebark pine restoration project that was
determined to ``likely adversely affect'' grizzly bears in the area via
the use of chainsaws, helicopters, and prescribed fire, along with the
prolonged presence of humans in the work area. It was determined that
although the project may have short-term adverse effects on some bears,
it would provide long-term beneficial effects and would not jeopardize
the continued existence of grizzly bears.
More broadly, similar section 7 consultation processes will ensure
that conservation efforts for whitebark pine do not jeopardize the
continued existence of the grizzly bear or any other listed species.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. As a
result of these provisions in the Act, if a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
(action agency) must initiate consultation with us. Because both
whitebark pine and grizzly bears will now be listed as threatened
species, action agencies will need to consider whether their forest-
management activities may affect either species, or any other listed
species in the action area. If the activities may affect any listed
species (including grizzly bears), even if their intended purpose is to
benefit whitebark pine, the Federal agency must initiate consultation
with us to evaluate these effects.
Comment 48: A commenter recommended modifying the proposed 4(d)
rule to allow propagation and planting of rust-resistant whitebark pine
on Federal lands.
Our Response: As proposed and as presented in this final rule, the
4(d) rule allows for propagation and planting of rust-resistant
whitebark pine on Federal lands under its exception for restoration and
research-related activities. However, the Federal agency with
jurisdiction over the land where this planting would occur must also
comply with all of the Act's section 7 consultation requirements
relevant to this activity.
Comment 49: A commenter stated that the best tool for investigating
the growth dynamics of long-lived trees is dendroecology, or tree-ring-
based ecology, typically involving increment cores. They noted that
this activity is considered non-destructive and that the potential
risks are greatly outweighed by the insights that tree-ring data
provide into stand dynamics, mortality history, and the effects of
climate change. The commenter urged the Service not to restrict
researchers' ability to collect such data should whitebark pine be
listed.
Our Response: This rule does not prohibit researchers from
collecting cores of whitebark pine for research purposes from State,
Tribal, or private lands. If a researcher wishes to collect these cores
from whitebark pine trees on Federal properties, this activity would be
excepted from the prohibitions in the 4(d) rule under the exception
that covers research-related activities. However, even though this
activity is allowed under the 4(d) rule, the researcher may need to
obtain a special
[[Page 76907]]
use permit from the Federal agency with jurisdiction over the area in
which the researcher would like to collect cores before proceeding with
their activity (e.g., a special use permit from the USFS). Because the
issuance of a special use permit for this purpose is a Federal action,
the relevant Federal agency would also need to fulfill the Act's
section 7(a)(2) consultation obligations with us to evaluate whether
the issuance of this permit could jeopardize whitebark pine or any
other listed species. However, given that no research-related
activities, including collection of cores, pose any threat to whitebark
pine at the species level, this likely would be a straightforward
consultation.
Comment 50: Several commenters requested that an exception for
utility vegetation management, operations and maintenance, and fire-
fuel reduction efforts be added to the 4(d) rule or be clarified as
included in the existing exceptions.
Our Response: We recognize the importance of continuing vegetation
management for public safety and fire prevention. Given that the 4(d)
rule only prohibits removal and malicious damage or destruction of the
species on Federal lands, utility companies can continue to manage and
operate utility lines on private or State lands, even if these
activities affect whitebark pine, as long as there is no Federal nexus
and as long as these activities are otherwise lawful. These vegetation-
management activities do not present a threat to whitebark pine at the
species level and may reduce the risk of high-severity fire through
fuels reduction, which would benefit the species. Thus, we consider
this utility vegetation management as part of ``forest-management''
activities, which means this maintenance activity for existing utility
lines in Federal rights-of-way is covered by the exceptions to the
prohibitions in this 4(d) rule, as long as this vegetation management
is conducted or authorized by the Federal agency with jurisdiction over
the land where the activities occur and as long as this Federal agency
has complied with all relevant section 7 consultation requirements in
the Act. We added vegetation management of existing utility rights-of-
way as an example of forest-management activities covered under the
4(d) rule in Provisions of the Final 4(d) Rule, below. Importantly,
construction of new utility lines on Federal lands is not an excepted
activity under the 4(d) rule (i.e., it is not forest management); if
that construction could result in prohibited removal or damage of
whitebark pine, Federal agencies and associated utility companies would
need to pursue appropriate permitting and consultation processes.
Comment 51: A commenter recommended that we clarify in the preamble
to any final listing rule for the whitebark pine that, in most
circumstances, reinitiation of consultation will not be required for
vegetation-management activities occurring within rights-of-way for
electric transmission, distribution, or renewable energy on Federal
lands as of the effective date of the final rule.
Our Response: We recognize that relevant Federal agencies have
already completed section 7 consultations to analyze the effects of
construction and maintenance of utility lines in Federal rights-of-way
on currently listed species. However, if these existing consultations
do not consider the effects of these actions on whitebark pine, Federal
agencies will need to reinitiate consultation on these ongoing
vegetation-management activities if they may affect whitebark pine.
Federal agencies are obligated to ensure that the activities that they
authorize, such as maintenance of a utility line, do not jeopardize
listed species, so they must reinitiate consultation if these existing
consultations do not adequately examine whether these activities could
jeopardize whitebark pine. However, as we discuss in our responses to
Comment 18 and Comment 50, above, these vegetation-management
activities are excepted in the 4(d) rule because they do not present a
threat to whitebark pine at the species level and may reduce the risk
of high-severity fire, which would benefit the species. Thus, given
that we find these types of activities would not present a species-
level threat and may be beneficial, reinitiated consultation on the
basis that these activities may affect the newly listed whitebark pine
would likely be straightforward.
Comment 52: Two commenters requested that we expand the proposed
4(d) rule to permit active management of Federal forests.
Our Response: The 4(d) rule provides an exception to the
prohibitions for all forest-management activities. Because no forest-
management, restoration, or research-related activities pose any
species-level threat to the whitebark pine in any form, we purposefully
do not specify in detail what types of these activities are included in
this exception, or how, when, or where they must be conducted, as long
as they are conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur. Therefore, this
4(d) rule will allow the continuation of all forest-management,
restoration, and research-related activities conducted by or authorized
by relevant Federal land management agencies, as these activities pose
no threat to the whitebark pine at the species level and can contribute
to the species' conservation into the future.
However, while the 4(d) rule excepts forest-management activities
because they do not present a species-level threat, section 7
concurrence or consultation will still be required if a forest-
management activity with a Federal nexus may affect whitebark pine,
even if this activity would only affect individual trees or
populations.
Comment 53: Two commenters recommended we amend the proposed 4(d)
rule to not allow for unlimited logging in whitebark pine habitat.
Another commenter stated that the proposed 4(d) rule, including its
provisions for logging, will increase intensity, rate of spread, and
severity of fire.
Our Response: Whitebark pine is not commercially harvested, and
while some human activities could potentially affect individual trees
or local areas, we found no threats at the species level resulting from
timber harvest or forest-management activities. In fact, forest-
management activities can be important to maintaining the health and
resiliency of forest ecosystems that include whitebark pine, including
reducing the risk of fire. Thus, we provide an exception in the 4(d)
rule for all forest-management activities. Because no forest-
management, restoration, or research-related activities pose any threat
to the whitebark pine in any form at the species level, we purposefully
do not specify in detail what types of these activities are included in
this exception, or how, when, or where they must be conducted, as long
as they are conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur. However, even
with this exception in the 4(d) rule, Federal agencies must comply with
relevant section 7 consultation requirements for any forest-management,
restoration, or research-related activities that may affect whitebark
pine, including activities that may affect individual trees or
populations. This exception in our 4(d) rule, and the section 7
consultation Federal agencies may complete, will facilitate the
continuation of forest-management, restoration, and research-related
activities conducted by or authorized by relevant Federal land
management agencies, as these activities pose no threat to the
whitebark pine at
[[Page 76908]]
the species level and can contribute to the species' conservation into
the future.
Comments on Critical Habitat
Comment 54: While we received several comments supporting our
proposal not to designate critical habitat for whitebark pine, a number
of commenters recommended the species should receive critical habitat
protections. One commenter asserted that we should designate critical
habitat because the species is a foundation and keystone species.
Multiple commenters claimed that we should be able to designate
critical habitat, because we know the range of the species. Several
commenters disagreed with the reasoning we used to support our ``not
prudent'' determination. One commenter disagreed with our assessment
that habitat is not limiting for whitebark pine. They stated that the
species has a limited distribution due to the specific elevation,
geography, and climate envelope it requires. They, and another
commenter, assert that the range of whitebark pine could become more
limited as climate change further limits suitable habitat. Another
commenter claimed that we failed to explain why designation of critical
habitat would not benefit the whitebark pine, which they claim is the
only relevant consideration for invoking the ``not prudent'' exception.
Even though they acknowledged that we may lawfully make a ``not
prudent'' finding for reasons other than lack of benefit to whitebark
pine, they claim that we still did not articulate why it would not be
careful, circumspect, and cautious--i.e., prudent--to designate
critical habitat.
Some commenters provided specific suggestions for areas to include
as critical habitat. Several commenters recommended we designate
critical habitat in areas that provide a seed source, that have white
pine blister rust resistance, where trees may be additionally
threatened by ski area expansions, and where seedlings may be
vulnerable to crushing by snowmobiles and off-road vehicles. Another
commenter recommended we designate critical habitat in areas that are
most likely to support whitebark pine in a changing climate, even if
they are currently unoccupied, citing several studies indicating that
lower-elevation conifers will shift upward into whitebark pine habitat
as a result of climate change and changing fire return intervals.
Another commenter recommended we develop spatial threat models for each
of the significant threats to whitebark pine (e.g., white pine blister
rust, mountain pine beetle, and high-severity fire) to inform the
designation of critical habitat.
Our Response: As we discussed in the proposed rule for this species
(85 FR 77408; December 2, 2020), section 4(a)(3)(A) of the Act directs
the Secretary of the Interior to designate critical habitat to the
maximum extent prudent and determinable and therefore allows for the
possibility that designation of critical habitat may not be prudent.
Our regulations (50 CFR 424.12(a)(1)) further detail several reasons
the Secretary of the Interior may determine that a critical habitat
designation would not be prudent; these regulations provide for the
regulatory, rather than colloquial, definition of prudency as it
pertains to the designation of critical habitat. One of these
circumstances under which we may determine that designation of critical
habitat is not prudent is if the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species. We conclude that the present or threatened
destruction, modification, or curtailment of a species' habitat or
range is not a threat to the whitebark pine, and therefore designating
critical habitat is not prudent for the species.
Climate change presents challenges to this species, which we
summarize in detail in the SSA report (Service 2021, pp. 57-63).
Climate models project that climate change is expected to act directly
and indirectly, regardless of the emission scenario, to significantly
decrease the probability of rangewide persistence in whitebark pine
within the next 100 years (e.g., Warwell et al. 2007, p. 2; Hamann and
Wang 2006, p. 2783; Schrag et al. 2007, p. 6; Rice et al. 2012, p. 31;
Loehman et al. 2011, pp. 185-187; Chang et al. 2014, pp. 10-12).
Whitebark pine may be particularly vulnerable to warming temperatures
because it is adapted to cool, high-elevation habitats. Therefore,
current and anticipated warming is expected to make its current habitat
unsuitable for whitebark pine, either directly or indirectly as
conditions become more favorable to whitebark pine competitors, such as
subalpine fir or mountain hemlock (Bartlein et al. 1997, p. 788; Hamann
and Wang 2006, p. 2783; Schrag et al. 2007, p. 8; Warwell et al. 2007,
p. 2; Aitken et al. 2008, p. 103; Loehman et al. 2011, pp. 185-187;
Rice et al. 2012, p. 31; Chang et al. 2014, p. 10; Hansen and Phillips
2015, p. 74).
However, we recognize that there are many limitations to such
modeling techniques, specifically for whitebark pine. For example,
climate-envelope models use current environmental conditions in the
distribution of the species' range to determine whether similar
environmental conditions will be available in the future given
predicted climate change. Whitebark pine, however, is a very long-lived
species, and current environmental conditions may not closely resemble
environmental conditions present when the trees currently on the
landscape were established (Service 2021, p. 62). Additionally, these
models also describe current environmental variables in averages taken
over large areas. Whitebark pine may experience very different
environmental conditions even over a small range, as individuals can be
separated by thousands of meters (Service 2021, p. 62).
Thus, we acknowledge that climate change (Factor E) can present a
threat to the whitebark pine, especially given that the impacts of
climate change interact with and exacerbate other stressors such as
mountain pine beetle (Factor C) and altered fire regimes (Factor E).
However, in all three future scenarios analyzed in the SSA, the rate of
whitebark pine decline appeared to be most sensitive to the rate of
white pine blister rust spread, the presence of genetically resistant
individuals (whether natural or due to conservation efforts), and the
level of regeneration (Service 2021, pp. 116-117). Given that white
pine blister rust led to the largest rangewide reductions in viability
in our analysis, and given that there is currently no effective
management action to reverse its effects on a meaningful scale, we
identified white pine blister rust (disease, Factor C) as the primary
threat for this species.
Furthermore, as we describe in further detail in our proposed rule
(85 FR 77408; December 2, 2020), we do not view habitat as limiting for
whitebark pine, which is widely distributed over a range of 32,616,422
ha (80,596,935 ac) (Service 2021, pp. 14-16); moreover, the habitat
needs of the species are flexible and not specific (Service 2021, pp.
22-28). Therefore, we do not consider the present or threatened
destruction, modification, or curtailment of a species' habitat or
range to be a threat to the species.
Given that we determined that the present or threatened
destruction, modification, or curtailment of the species' habitat or
range is not a threat to the whitebark pine, under 50 CFR 424.12(a)(1)
we may, but are not required to, determine that designation of critical
habitat is not prudent. In light of the particular circumstances of the
whitebark pine, we have in fact determined that designation of critical
habitat is not prudent. We reach this conclusion largely because of the
nature
[[Page 76909]]
of the threats to this species, with the main driver of species' status
being disease (white pine blister rust). Designation of critical
habitat would not provide any additional protective measures or
benefits that address this specific threat. In fact, designation of
critical habitat could create an additional regulatory burden that
could detract from efforts to propagate rust-resistant trees or to
apply other management prescriptions to address the fungal disease.
Designation of critical habitat would also not provide otherwise
unavailable information to guide conservation efforts for the species.
Therefore, a designation of critical habitat would not be advantageous
for the species. We conclude that designation of critical habitat is
not prudent for whitebark pine.
Comment 55: Several commenters recommended we should designate
critical habitat because it could be a helpful tool to plan for
conservation and prioritize management. Commenters provided several
examples of the benefits that designation of critical habitat could
provide, including, but not limited to, the identification of priority
areas for conservation and regeneration, stimulation of funding for
conservation, and identification of management prescriptions to protect
and recover the species.
Our Response: While we recognize the potential benefits these
commenters present, we view most of these positive outcomes as benefits
of listing whitebark pine, rather than benefits of designating critical
habitat. While we cannot consider these benefits of listing in our
determination of status, we acknowledge that the listing will assist
our partners in the conservation and recovery of this species. Once a
species is listed as either endangered or threatened, the Act provides
many tools to advance the conservation of listed species. Conservation
measures provided to species listed as endangered or threatened species
under the Act include recognition, recovery actions, requirements for
Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals.
The listing itself and the recovery-planning process for the
species will provide these benefits independent of critical habitat
designation, especially because the main stressor driving the status of
the species is disease, not habitat destruction or modification. The
recovery plan and future conservation efforts for this listed species
can contemplate and encourage activities that address this main threat
(i.e., white pine blister rust) without designation of critical
habitat. For example, the recovery-planning process can identify
priority areas for conservation, develop strategies to promote the
conservation of genetic diversity and preservation of rust-resistant
traits, propose ways to aid the species' adaptation to climate change,
provide objectives for future research, provide guidance to Federal
agencies on appropriate areas to reduce disturbance and productive ways
to advance whitebark pine conservation in management plans, and clearly
articulate management strategies that State and local governments can
employ to conserve the species. Additionally, the listing will make
funding under section 6 of the Act available for species conservation,
independent of any critical habitat designation. Finally, the
protective regulations in our 4(d) rule, rather than critical habitat
designation, provide the regulatory measures necessary to adequately
protect the species and encourage research and management to address
white pine blister rust and other threats facing the species. Because
we determined that the present or threatened destruction, modification,
or curtailment of the species' habitat or range is not a threat to the
whitebark pine, designation of critical habitat is not necessary to
protect against habitat degradation.
Comment 56: One commenter indicated that identifying and protecting
critical habitat is a foundational tenet in both the USFS's Rangewide
Restoration Strategy for Whitebark Pine and the Canadian SARA Recovery
Strategy for the Whitebark Pine in Canada. By implementing critical
habitat protections, the Service stands to bolster the efforts of
programs such as the National Whitebark Pine Restoration Spatial Data
Archive as they strive to provide a centralized hub of methods and
data-management services to enable local land managers and scientists
to collect and utilize the necessary inventory data.
Our Response: The recovery-planning process can effectively
leverage the work of the National Whitebark Pine Restoration Spatial
Data Archive and provide a clear roadmap for recovery that is based on
the best available science. Given that the present or threatened
destruction, modification, or curtailment of the species' habitat or
range is not a threat to the whitebark pine, we have determined that
designation of critical habitat is not prudent. We do not need to
designate critical habitat to promote conservation of this species. We
will use the recovery-planning process to encourage activities that
address the threats and conservation needs of this species. This
recovery-planning process will involve relevant stakeholders and build
on existing conservation strategies and research.
Comments About Listing Process and Policy
Comment 57: One commenter asked whether hybridization with other
five-needle pines (i.e., gene splicing) would allow the resultant trees
to be considered whitebark pine and whether they would thus be
protected under the Act.
Our Response: We are not aware of any viable hybridization between
whitebark pine and other white pine species. While there was a
suspected hybrid between whitebark pine and limber pine in Montana,
this was a rare occurrence and resultant individuals were infertile
(Fryer 2002, unpaginated).
Comment 58: A county expressed concern that they were not contacted
during the assessment of whitebark pine's status nor invited to any
conversations to discuss the potential listing.
Our Response: We worked with Federal, State, and other partners who
were actively involved in broad-scale whitebark pine management or who
had relevant scientific expertise on the species in the development of
the SSA for whitebark pine prior to our decision to propose listing the
species under the Act. The development of the SSA is not a process
whereby outside parties can influence the listing decision; the
decision to list a species under the Act rests with the Director of the
Service alone (as delegated by the Secretary of the Interior) and must
be made based on the best scientific and commercial data available. We
notified all relevant counties when the proposed rule published,
consistent with the requirements in 50 CFR 424.16(c)(10)(ii). The 60-
day comment period for our December 2, 2020, proposed rule (85 FR
77408) provided sufficient opportunity for the public to provide input
on the potential listing of the whitebark pine.
Comment 59: One commenter claimed this rule did not complete the
required Office of Information and Regulatory Affairs (OIRA) review,
violating E.O. 12866.
Our Response: Under E.O. 12866, OIRA within the Office of
Management and Budget (OMB) has the authority to review ``significant
regulatory actions'' that fall into one of the following categories:
(1) Have an annual effect on
[[Page 76910]]
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in E.O. 12866.
The Act clearly prohibits us from considering economic or similar
information when making listing, delisting, or reclassification
decisions. Congress added this prohibition in the 1982 amendments to
the Act when it introduced into section 4(b)(1) an explicit requirement
that all determinations made under section 4(a)(1) of the Act be based
``solely on the basis of the best scientific and commercial data
available.'' Congress further explained this prohibition in the
Conference Report accompanying the 1982 amendments to the Act (H.R.
Conf. Rep. No. 97-835, at 19 (1982)).
The 1982 amendments were clear that we should avoid any
consideration of non-biological information in the decision and should
not introduce any additional delay in finalizing classification
decisions. It has been our long-standing position that OMB does not
have the authority to review classification rules under E.O. 12866 and
that all phases of the classification process are exempt from the
requirements of E.O. 12866; therefore, promulgating this final
classification decision does not violate E.O. 12866.
Determination of Whitebark Pine Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range and a ``threatened species'' as a species likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of endangered species or
threatened species because of any of the following factors: (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.
Status Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the whitebark pine across its range in the United States and Canada.
Our analysis of the current and future condition of whitebark pine
found that four main stressors are affecting the species: White pine
blister rust (Factor C), mountain pine beetle (Factor C), altered fire
regimes (Factor E), and climate change (Factor E). We found white pine
blister rust (Factor C) to be the main driver of the species' current
and future condition. White pine blister rust is currently ubiquitous
across the range, and under all three future condition scenarios, it is
expected to expand significantly. Under the three scenarios, within one
generation, 52 to 88 percent of the range will be infected. The impacts
of white pine blister rust combined with other stressors will reduce
the ability of whitebark pine stands to regenerate (i.e., resiliency)
following disturbances, such as fire and mountain pine beetle
outbreaks. The decline is expected to be most pronounced in the
northern two-thirds of the whitebark pine's range, where white pine
blister rust infection rates are predicted to be highest. Despite the
existing regulatory mechanisms (Factor D) and voluntary conservation
efforts summarized above in Conservation Efforts and Regulatory
Mechanisms and discussed in additional detail in the SSA report
(Service 2021, pp. 119-125), these stressors have continued to spread
and are predicted to increase in prevalence in the future. Our analysis
did not find any stressors to be affecting the species at a population
or species level under Factors A or B.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the whitebark pine is likely to become endangered
throughout all of its range within the foreseeable future. This finding
is based on anticipated reductions in resiliency, redundancy, and
representation in the foreseeable future as a result of a continued
increase in white pine blister rust infection and associated mortality,
synergistic and cumulative interactions between white pine blister rust
and other stressors, and the resulting loss of seed source.
Specifically, based on the projections of how white pine blister rust,
mountain pine beetle, and high-intensity fire could increase in scope,
it is likely the species will lose a large number of reproductive
adults in the foreseeable future; this loss of reproductive trees will
lead to a substantial decline in the establishment of new seedlings,
meaning new trees will not be able to replace lost trees sufficiently
quickly given the species' long generation time. White pine blister
rust is already ubiquitous rangewide, and there is currently no
effective method to reverse its effects on a meaningful scale. In
addition, 51 percent of whitebark pine trees in the United States are
now dead (Goeking and Izlar 2018, p. 7). We conclude that within one
generation of whitebark pine, the resiliency, redundancy, and
representation of the species are likely to be so reduced that the
species may not be able to produce another generation that has long-
term viability.
For this long-lived species, we consider the foreseeable future to
be at least 40 to 80 years into the future. This timeframe encompasses
the full range of variation for the length of one generation for
whitebark pine. In order to understand future extinction risk for the
whitebark pine, we needed to examine the effects of stressors at least
one generation into the future; considering effects of stressors over
at least one generation allows us to capture the effects of these
stressors on reproduction (i.e., it allows us to discuss whether
sufficient reproduction can occur in the future to replace trees lost
to various stressors). While we were able to project the extent of
stressors more than one generation into the future (i.e., 180 years
into the future) in our SSA, we simply extrapolated various rates of
spread for three whitebark pine generations. Regardless of how far into
the future we could extrapolate the expanding scope of stressors, our
confidence is greatest with respect to the range of plausible projected
changes to stressors for one generation due to increasing uncertainties
in the interplay between disease and species' response further into the
future (e.g., uncertainties regarding effects on species' genetics in
the next generation of trees and how this would affect species'
response to stressors, specifically white pine blister rust, in
subsequent generations; uncertainties regarding compounding effects on
reproduction after the next generation of trees). We can reasonably
determine that both the future threats and the species'
[[Page 76911]]
responses to those threats are likely within this 40- to 80-year
timeframe (i.e., the foreseeable future), and we can reasonably rely on
predictions over this timeframe in determining the future conservation
status of the whitebark pine. We conclude that the ongoing losses to
the resiliency, redundancy, and representation of the whitebark pine
will result in it becoming in danger of extinction within this
foreseeable future.
We find that the whitebark pine is not currently in danger of
extinction because the species is still widespread throughout its
extensive range, because a large number of trees will continue to
thrive and reproduce for decades (given the species' long lifespan),
and because there are some levels of genetic resistance to white pine
blister rust across the range. The species' current levels of
resiliency rangewide provide sufficient ability to withstand stochastic
events such that it is not currently at risk of extinction. In
addition, although there is uncertainty regarding how quickly white
pine blister rust, the primary stressor, will spread within the three
southwestern AUs (the Sierras, Basin and Range, and Klamath Mountains
AUs) in the future, white pine blister rust currently occurs at low
levels in these areas, adding to the whitebark pine's current
resiliency. In addition, the species currently has sufficient
redundancy and representation to withstand catastrophic events and
maintain adaptability to changes, particularly in the southwestern part
of the range, and is not at risk of extinction now. However, we expect
that the stressors, individually and cumulatively, will reduce
resiliency, redundancy, and representation within all parts of the
range within the foreseeable future. Therefore, on the basis of the
best available scientific and commercial information, we determine that
the whitebark pine is not currently in danger of extinction, but is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter Final Policy; 79 FR
37578; July 1, 2014) that provided that the Service does not undertake
an analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
following the court's holding in Everson, we proceed to evaluating
whether the species is endangered in a significant portion of its
range--that is, whether there is any portion of the species' range for
which both (1) the portion is significant; and (2) the species is in
danger of extinction now in that portion (i.e., endangered).
In undertaking this analysis for the whitebark pine, given the
species' extremely wide range and because the range of this species can
theoretically be divided into portions in an infinite number of ways,
we first identified portions that may warrant further review as a
potentially significant portion of the range in which the species may
be endangered. To do this, we first identified any portions of the
range that may be both significant and in danger of extinction. We
considered information pertaining to the geographic distribution of
both the species and the threats that the species faces to identify
these potentially significant portions of the range where the species
may be endangered.
For each of these potentially significant portions of the range, we
then further examined whether the portion is significant or whether the
species is in danger of extinction in that portion. Depending on the
case, it might be more efficient for us to address the ``significance''
question or the ``status'' question first for these potentially
significant portions of the range. We can choose to address either
question first. In our analysis below, we address the significance
question first for one potential portion and the status question first
for another. Regardless of which question we address first, if we reach
a negative answer with respect to the first question that we address,
we do not need to evaluate the other question for that portion of the
species' range.
In examining the status question, we note that the statutory
difference between an endangered species and a threatened species is
the time frame in which the species becomes in danger of extinction; an
endangered species is in danger of extinction now while a threatened
species is not in danger of extinction now but is likely to become so
in the foreseeable future. Thus, we reviewed the best scientific and
commercial data available regarding the time horizon for the threats
that are driving the whitebark pine to warrant listing as a threatened
species throughout all of its range. To determine whether whitebark
pine was in danger of extinction in a particular portion of the
species' range, we then considered whether these threats or their
effects are currently occurring (or may imminently occur) in the
portion with sufficient magnitude that the species is in danger of
extinction now in that portion of its range. We examined the following
threats: White pine blister rust, mountain pine beetle, altered fire
regimes, and climate change, including synergistic and cumulative
effects.
To determine whether a portion was ``significant,'' we considered
how the portion contributes to the viability of the species. There are
multiple ways in which a portion of the species' range could contribute
to the viability of a species, including (but not limited to) by
serving a particular role in the life history of the species (such as
the breeding grounds or food source for the species), by including
high-quality or unique-value habitat relative to the rest of the
habitat in the range, or by representing a large percentage of the
range.
During the first phase of our analysis, we identified two portions
of the whitebark pine's range that warranted further consideration: the
U.S. Canadian Rockies AU and the northern two-thirds of the range
(which includes the following AUs: Nechako Plateau, Fraser Plateau,
Thompson Plateau, Columbia Mountains, Canadian Rockies, Olympics,
Cascades, Northern Rockies, Blue Mountains, Idaho Batholith, U.S.
Canadian Rockies, and Middle Rockies (see Service 2021, figures 9, 11,
14)). We primarily identified these portions as necessitating further
review because of the currently high incidence of white pine blister
rust (the main driver of the species' status) in these portions of the
range; these infection rates, and correspondingly large proportions of
standing dead, could increase current extinction risk in these
portions. Specifically, the U.S. Canadian Rockies AU currently has the
highest proportion of white pine blister rust infection of any AU;
white pine blister rust infects almost 74 percent of the AU. In
addition, considering the range at a larger scale, white pine blister
rust infection rates are currently the highest in the northern two-
thirds of the whitebark pine's range. Having identified two portions
that necessitated further review as potentially significant portions of
the range in which whitebark pine may be in danger of extinction, we
proceeded to further
[[Page 76912]]
examine either the significance or status question for each of these
two portions.
For the U.S. Canadian Rockies AU, we chose to further examine the
significance question first. Although every AU provides some
contribution to the species' resiliency, representation, and
redundancy, this AU only covers 6.6 percent of the species' vast range.
In addition, we are not currently aware of any particular life-history
functions that the AU serves or unique characteristics of the U.S.
Canadian Rockies AU that are contributing meaningfully to the species'
overall resiliency and representation, within the context of a
``significant portion of its range'' analysis. For example, although
this AU is contiguous with other portions of the range, it is not
operating as a source of seeds enhancing the resiliency of non-
connected populations given the high incidence of disease and limited
dispersal distance of Clark's nutcrackers. While continued restoration
efforts will still be important in this AU, as in all portions of the
species' range, this portion, by itself, will have only a minor impact
on the overall viability of the species and, therefore, cannot be
significant and cannot provide a basis for listing the entire species
as endangered.
For the portion that constituted the northern two-thirds of the
species' range, we chose to further examine the status question first
(i.e., we chose to first evaluate whether the species is in danger of
extinction now in this portion). As described above under Summary of
Biological Status and Threats, white pine blister rust is more
prevalent in the northern two-thirds of the species' range. The impacts
of white pine blister rust combined with other stressors are expected
to reduce the ability of whitebark pine stands to regenerate following
disturbances. While we found differences in the prevalence of white
pine blister rust in this portion of the whitebark pine's range, the
timing of the effects of the threats and the species' responses to the
threats in that portion are the same as that for the entire range--the
foreseeable future. Despite the prevalence of white pine blister rust
and other stressors in the northern two-thirds of the whitebark pine's
range, whitebark pine trees are still widespread throughout this
extensive geographic area. Given their long lifespan and the presence
of some levels of genetic resistance to white pine blister rust,
whitebark pine trees are expected to persist on the landscape for many
decades. As we discuss above, white pine blister rust may not
immediately kill infected trees; many trees with white pine blister
rust can live for decades before they succumb to the disease. Although
the prevalence of the white pine blister rust threat to the whitebark
pine is higher in the northern two-thirds of the species' range, the
best scientific and commercial data available do not indicate that the
species' responses to those threats are more immediate in the northern
two-thirds of the species' range. Thus, we determine that the species
is not in danger of extinction now in that portion of its range.
Therefore, after evaluating the U.S. Canadian Rockies AU and the
northern two-thirds of the species' range, we determine that the
species is not in danger of extinction now in any significant portion
of its range, but that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal.
2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d,
946, 959 (D. Ariz. 2017), because, in reaching this conclusion, we did
not apply the aspects of the Final Policy's definition of
``significant'' that those court decisions held were invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the whitebark pine meets the Act's
definition of a threatened species. Therefore, we are listing the
whitebark pine as a threatened species in accordance with sections
3(20) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of those conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery-planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline that we
make available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. The plan may be revised to address continuing
or new threats to the species, as new substantive information becomes
available. The recovery plan also identifies recovery criteria for
review of when a species may be ready for removal from protected status
(``delisting''), and methods for monitoring recovery progress. Recovery
plans also establish a framework for agencies to coordinate their
recovery efforts and provide estimates of the cost of implementing
recovery tasks. Recovery teams (composed of species experts, Federal
and State agencies, nongovernmental organizations, and stakeholders)
are often established to develop recovery plans. When completed, the
recovery outline, draft recovery plan, and the final recovery plan will
be available on our website (https://www.fws.gov/program/endangered-species), or from our Wyoming Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
When this listing becomes effective,
[[Page 76913]]
funding for recovery actions will be available from a variety of
sources, including Federal budgets, State programs, cost-share grants
for non-Federal landowners, the academic community, and nongovernmental
organizations. In addition, pursuant to section 6 of the Act, the
States of California, Idaho, Montana, Nevada, Oregon, Washington, and
Wyoming will be eligible for Federal funds to implement management
actions that promote the protection or recovery of the whitebark pine.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for this species. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery-planning
purposes (see FOR FURTHER INFORMATION CONTACT, above).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must initiate consultation with us, even if these
activities are excepted under the 4(d) rule described below.
Federal agency actions within the species' habitat that may require
conference or consultation or both, as described in the preceding
paragraph, include management and any other landscape-altering
activities on Federal lands. We discuss this requirement in greater
detail under Summary of Comments and Recommendations, above.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. The discussion below regarding protective regulations under
section 4(d) of the Act complies with our policy.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to [her] with regard to the permitted activities for those species.
[S]he may, for example, permit taking, but not importation of such
species, or [s]he may choose to forbid both taking and importation but
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Exercising this authority under section 4(d), we have developed a
final rule that is designed to address the whitebark pine's specific
threats and conservation needs. Although the statute does not require
us to make a ``necessary and advisable'' finding with respect to the
adoption of specific prohibitions under section 9, we find that this
rule as a whole satisfies the requirement in section 4(d) of the Act to
issue regulations deemed necessary and advisable to provide for the
conservation of the whitebark pine.
As discussed above under Determination of Whitebark Pine Status, we
have concluded that the whitebark pine is at risk of extinction within
the foreseeable future primarily due to the continued increase in white
pine blister rust infection and associated mortality, synergistic and
cumulative interactions between white pine blister rust and other
stressors, and the resulting loss of seed source. The provisions of
this final 4(d) rule will promote conservation of the whitebark pine by
encouraging management of the landscape in ways that meet land
management considerations while also addressing the conservation needs
of the whitebark pine, as explained further below. The provisions of
this 4(d) rule are one of many tools that we will use to promote the
conservation of the whitebark pine.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must initiate
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency).
[[Page 76914]]
Federal actions not affecting listed species or critical habitat--and
actions on State, Tribal, local, or private lands that are not
federally funded, authorized, or carried out by a Federal agency--do
not require section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. If a Federal action may affect a
listed species, section 7(a)(2) requires consultation to ensure that
the activity is not likely to jeopardize the species to satisfy the
requirements in section 7(a)(2) of the Act, regardless of the substance
of any applicable 4(d) rule. Thus, if a Federal agency's action may
affect whitebark pine, it must fulfill section 7(a)(2) consultation
obligations in accordance with 50 CFR part 402. Unless we concur with a
Federal agency's determination that its action is not likely to
adversely affect a listed species, formal consultation with us is
required on all actions that may affect a listed species, even if the
action will not result in a violation of a prohibition under the 4(d)
rule. For instance, although removal and reduction to possession of
whitebark pine in the course of forest management conducted by a
Federal agency are not prohibited under the 4(d) rule, these types of
activities are still subject to 7(a)(2) consultation requirements if
they may affect the species. Additionally, if a Federal agency
determines that its action is not likely to adversely affect a listed
species or its critical habitat, it must still receive our written
concurrence, even if its activity, and the result of its activity, are
not prohibited by the 4(d) rule.
Even though section 4(d) rules do not remove or alter Federal
agencies' section 7 consultation obligations, a section 4(d) rule can
facilitate simplification of formal consultations. For example, as
noted in our August 27, 2019, final rule regarding prohibitions for
threatened species (84 FR 44753), in choosing to except removal,
damage, or destruction associated with certain activities in a 4(d)
rule, we have already determined that these activities are compatible
with the species' conservation, which can streamline our analysis of
whether an action would jeopardize the continued existence of the
species, making consultation more straightforward and predictable. We
are developing tools to streamline consultation on Federal actions that
may affect the whitebark pine and are consistent with the provisions of
the 4(d) rule.
Provisions of the Final 4(d) Rule
As discussed above under Summary of Biological Status and Threats,
white pine blister rust, mountain pine beetle, altered fire regimes,
and the effects of climate change are affecting the status of whitebark
pine. The final 4(d) rule provides for the conservation of the species
by use of protective regulations, as described here. Within the United
States, the vast majority of the species' range (approximately 88
percent) is located on Federal lands. Given the reductions in
resiliency that have already occurred to varying degrees across the
range (Service 2021, pp. 68-83), we are applying prohibitions
equivalent to those of section 9(a)(2) of the Act to the whitebark
pine. Specifically, this final 4(d) rule provides for the conservation
of whitebark pine by prohibiting the following activities, unless
otherwise authorized or permitted (e.g., allowed for in an exception or
authorized in a section 10(a)(1)(A) permit):
Import or export of the species;
Delivery, receipt, transport, or shipment of the species
in interstate or foreign commerce in the course of commercial activity;
Sale or offer for sale of the species in interstate or
foreign commerce;
Removal and reduction to possession of the species from
areas under Federal jurisdiction;
Malicious damage or destruction of the species on any area
under Federal jurisdiction; and
Removal, cutting, digging up, or damage or destruction of
the species on any other area in knowing violation of any law or
regulation of any State or in the course of any violation of a State
criminal trespass law.
These prohibitions and the exceptions described below apply to
whitebark pine trees and any tree parts (such as cones, tree cores,
seeds, branches, needles, etc.). The final 4(d) rule only addresses
Federal requirements under the Act and does not change any prohibitions
provided for by State law.
The following activities are excepted from the prohibitions
identified above:
Activities authorized by a permit under 50 CFR 17.72;
Forest-management, restoration, or research-related
activities conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur;
Removal, cutting, digging up, or damage or destruction of
the species on areas under Federal jurisdiction by any qualified
employee or agent of the Service or State conservation agency that is
operating a conservation program pursuant to the terms of a cooperative
agreement with the Service in accordance with section 6(c) of the Act,
who is designated by that agency for such purposes, when acting in the
course of official duties; and
Collection of whitebark pine seeds from areas under
Federal jurisdiction for Tribal ceremonial use or traditional Tribal
consumption if the collection is conducted by members of federally
recognized Tribes and does not violate any other applicable laws and
regulations.
The prohibitions in this final 4(d) rule related to removing and
reducing to possession and to maliciously damaging and destroying apply
only to areas under Federal jurisdiction. The prohibition related to
removing, cutting, digging up, or destroying the species in other areas
(i.e., areas not under Federal jurisdiction) applies only if those
activities are in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law. Therefore, the exceptions to these prohibitions, other than the
permitting exception, only apply to areas under Federal jurisdiction.
We still encourage forest-management, restoration, and research-related
activities on areas outside of Federal jurisdiction such as State,
private, and Tribal lands within the United States or any lands within
Canada; this 4(d) rule will not alter managers' ability to conduct
these activities on non-Federal lands because the 4(d) rule does not
prohibit these activities in the first place (unless these activities
are already prohibited by State law or regulation).
We have concluded that the whitebark pine is likely to become
endangered within the foreseeable future primarily due to the continued
increase in white pine blister rust infection and associated mortality,
synergistic and cumulative interactions between white pine blister rust
and other stressors, and the resulting loss of seed source. This fungal
disease is not human-spread or influenced by human activity, and few
restoration methods are currently available to restore whitebark pine
in areas affected by the disease. The whitebark pine is not
commercially harvested, and while some human activities could
potentially affect individual trees or local areas, we found no threats
at the species level resulting from forest-management activities. In
fact, forest-management activities can be important to maintaining the
health and resiliency of forest ecosystems that include whitebark pine.
As described in the SSA report (Service 2021, pp. 125-131), most
current whitebark pine management and research focuses on producing
trees with inherited (genetic) resistance to
[[Page 76915]]
white pine blister rust, as well as implementing mechanical treatments
and prescribed fire as conservation tools. As part of this process,
cones may be collected from trees identified as apparently resistant to
white pine blister rust, or ``plus'' trees. Additional areas of
research involve investigating natural regeneration and silvicultural
treatments, such as appropriate site selection and preparation (i.e.,
identifying areas where restoration will be most effective), pruning,
and thinning to protect high-value genetic resources, increase
reproduction, reduce white pine blister rust damage, and increase stand
volume (Zeglen et al. 2010, p. 361).
Conservation measures for whitebark pine can generally be
categorized as either protection (of existing healthy trees and stands)
or restoration (of damaged, unhealthy, or extirpated trees and stands).
Inventory, monitoring, and mapping of whitebark pine stands are
critical for assessing the current status and implementing strategic
conservation strategies. The precise nature of management, restoration,
and research activities that are conducted may vary widely across the
broad range of whitebark pine, as management of this species falls
under numerous jurisdictions that encompass a spectrum of local and
regional ecological, climatic, and management conditions and needs.
Broadly, the forest-management, restoration, or research-related
activities referred to above may include, but are not limited to,
silviculture practices and forest-management activities that address
fuels management, insect and disease impacts, vegetation management in
existing utility rights-of-way, and wildlife-habitat management (e.g.,
cone collections, planting seedlings or sowing seeds, mechanical
cuttings as a restoration tool in stands experiencing advancing
succession, full or partial suppression of fires in whitebark pine
communities, allowing fires to burn, survey and monitoring of tree
health status).
Because no forest-management, restoration, or research-related
activities pose any threat to the whitebark pine at the species level,
we purposefully do not specify in detail what types of these activities
are included in this exception, or how, when, or where they must be
conducted, as long as they are conducted or authorized by the Federal
agency with jurisdiction over the land where the activities occur;
these activities may also vary in how they are conducted across the
species' wide range. Therefore, this final 4(d) rule, and any relevant
future section 7 consultations Federal agencies will conduct on their
activities, will likely facilitate the continuation of forest-
management, restoration, and research-related activities conducted by
or authorized by relevant Federal land management agencies, as long as
we reach the conclusion that these activities will not jeopardize the
species, because these activities pose no threat to the whitebark pine
at the species level and can contribute to the species' conservation
into the future; this exception, and any relevant future section 7
consultations, also allow for flexibility to accommodate specific
physical conditions, resource needs, and constraints across the
species' vast range.
Similarly, collection of seeds by members of federally recognized
Tribes for ceremonial use or traditional consumption does not present a
threat to the species. The limited amount of collection Tribal members
will conduct on Federal lands in certain parts of the species' range
will not have species-level impacts, especially considering that many
stands of whitebark pine are inaccessible for collection. Tribes within
the range of the whitebark pine are important partners in the recovery
of this culturally significant species; allowing Tribes to collect
whitebark pine seeds for ceremonial and traditional use will only
further their commitment to and participation in whitebark pine
conservation.
We may also issue permits to carry out otherwise prohibited
activities, including those described above, involving threatened
plants under certain circumstances. Regulations governing permits for
threatened plants are codified at 50 CFR 17.72, which states that that
the Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. That regulation also
states that the permit shall be governed by the provisions of section
17.72 unless a special rule applicable to the plant is provided in
sections 17.73 to 17.78. On August 27, 2019, we revised section 17.71
to provide that section 17.71 will no longer apply to plants listed as
threatened after September 26, 2019 (84 FR 44753). We did not intend
for those revisions to limit or alter the applicability of the
permitting provisions in section 17.72, or to require that every
species-specific 4(d) rule spell out any permitting provisions that
apply to that species and species-specific 4(d) rule. To the contrary,
we anticipate that permitting provisions would generally be similar or
identical for most species, so applying the provisions of section 17.72
unless a species-specific 4(d) rule provides otherwise would likely
avoid substantial duplication. Moreover, this interpretation brings
section 17.72 in line with the comparable provision for wildlife at 50
CFR 17.32, in which the second sentence states that the permit shall be
governed by the provisions of section 17.32 unless a special rule
applicable to the wildlife, appearing in sections 17.40 to 17.48,
provides otherwise. Under 50 CFR 17.72 with regard to threatened
plants, a permit may be issued for the following purposes: for
scientific purposes, to enhance propagation or survival, for economic
hardship, for botanical or horticultural exhibition, for educational
purposes, or for other purposes consistent with the purposes and policy
of the Act. Additional statutory exemptions from the prohibitions are
found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is operating a conservation program
pursuant to the terms of a cooperative agreement with us in accordance
with section 6(c) of the Act, who is designated by his or her agency
for such purposes, will be able to conduct activities designed to
conserve the whitebark pine that may result in otherwise prohibited
activities without additional authorization.
For the reasons discussed above, we find that this rule under
section 4(d) of the Act is necessary and advisable to provide for the
conservation of the whitebark pine. This final 4(d) rule enhances the
conservation of whitebark pine by prohibiting activities that would be
detrimental to the species, while allowing the forest-management,
restoration, and research-related activities that are necessary to
conserve whitebark pine; these forest-management, restoration, and
research-related activities maintain and restore forest health on the
Federal lands that encompass the vast majority of the
[[Page 76916]]
species' habitat within the United States. Moreover, this 4(d) rule
will allow activities that do not present a threat to the species to
continue; specifically, it will allow Tribes to continue collecting
this culturally important species for traditional or ceremonial
purposes.
However, notwithstanding the provisions in this 4(d) rule, Federal
agencies must comply with relevant section 7 consultation requirements
for all Federal actions, including any forest-management, restoration,
or research-related activities, that may affect whitebark pine,
including activities that may affect individual trees or populations.
Nothing in this 4(d) rule will change in any way the recovery-planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of whitebark pine.
However, interagency cooperation may be further streamlined through
planned programmatic consultations or other tools for the species
between Federal agencies and the Service.
III. Critical Habitat
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the Secretary may, but is not required to, determine that a designation
would not be prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
In this final rule, we affirm the determinations we made in our
December 2, 2020, proposed rule (85 FR 77408) concerning the prudency
and determinability of critical habitat for the whitebark pine. Habitat
is not a limiting factor for this species, and there are no significant
habitat-based threats that are now or would in the future limit habitat
for the whitebark pine. In light of the particular circumstances of the
whitebark pine, we have determined that designation of critical habitat
is not prudent. We reach this conclusion largely because of the nature
of the threats for this species--the main driver of the species' status
is disease (white pine blister rust). Designation of critical habitat
would not provide any additional protective measures or benefits that
address this specific threat. In fact, designation of critical habitat
could create an additional regulatory burden that could detract from
efforts to propagate rust-resistant trees or to apply other management
prescriptions to address the fungal disease. Nor would designation of
critical habitat provide otherwise unavailable information to guide
conservation efforts for the species. Therefore, a designation of
critical habitat would not be advantageous for the species. For more
information on the rationale for our determination that designation of
critical habitat is not prudent, see the December 2, 2020, proposed
rule (85 FR 77408).
We note that because the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the whitebark pine, designation of critical habitat would not
be beneficial to the species. Therefore, we would also conclude that
designation of critical habitat is not prudent for the whitebark pine
under the regulations in effect prior to those published on August 27,
2019 (84 FR 45020).
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as an endangered or
threatened species under the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We solicited information from Tribes within the range of
whitebark pine to inform the development of our SSA and notified Tribes
of the proposed listing determination. We also provided these Tribes
the opportunity to review a draft of the SSA report and provide input
prior to making our proposed determination on the status of the
whitebark pine. We received comments from two Tribes, the Nez Perce
Tribe and the Confederated Salish and Kootenai Tribes, on the December
2, 2020, proposed rule (85 FR 77408). We continued to coordinate with
Tribes throughout the development of this final determination to ensure
we understood and addressed their comments on the proposed rule. Thus,
we have fulfilled our relevant responsibilities.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Wyoming Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Wyoming
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and
[[Page 76917]]
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245, unless otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h), by adding an entry to the List
of Endangered and Threatened Wildlife for ``Pinus albicaulis'' in
alphabetical order under CONIFERS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Conifers
* * * * * * *
Pinus albicaulis................ Whitebark pine.... Wherever found.... T 87 FR [Insert Federal
Register page where
the document begins],
12/15/2022; 50 CFR
17.74(a).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Add Sec. 17.74 to read as follows:
Sec. 17.74 Special rules--conifers and cycads.
(a) Whitebark pine (Pinus albicaulis).
(1) Prohibitions. The following prohibitions that apply to
endangered plants also apply to whitebark pine, except as provided
under paragraph (a)(2) of this section:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.61(c)(1) for endangered plants.
(iii) Maliciously damage or destroy the species on any areas under
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the
species on any other area in knowing violation of any State law or
regulation or in the course of any violation of a State criminal
trespass law, as set forth at section 9(a)(2)(B) of the Act.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(v) Sell or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to the whitebark pine,
you may:
(i) Conduct activities as authorized by permit under Sec. 17.72.
(ii) Conduct forest-management, restoration, or research-related
activities conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur.
(iii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.71(b).
(iv) Collect whitebark pine seeds from areas under Federal
jurisdiction for Tribal ceremonial use or traditional Tribal
consumption, provided that:
(A) The collection is conducted by members of federally recognized
Tribes; and
(B) The collection does not violate any other applicable laws and
regulations.
(b) [Reserved]
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-27087 Filed 12-14-22; 8:45 am]
BILLING CODE 4333-15-P