[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Rules and Regulations]
[Pages 6177-6191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01146]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2021-0069; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG01
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Sacramento Mountains Checkerspot Butterfly
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing
the Sacramento Mountains checkerspot butterfly (Euphydryas anicia
cloudcrofti), a butterfly from New Mexico, as an endangered species
under the Endangered Species Act of 1973 (Act), as amended. This rule
extends the Act's protections to the Sacramento Mountains checkerspot
butterfly. We will propose the designation of critical habitat for the
Sacramento Mountains checkerspot butterfly in a future rulemaking.
DATES: This rule is effective March 2, 2023.
ADDRESSES: The January 25, 2022, proposed rule (87 FR 3739) and this
final rule are available on the internet at https://www.regulations.gov. 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 at Docket No. FWS-
R2-ES-2021-0069.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525.
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 the
Sacramento Mountains checkerspot butterfly meets the definition of an
endangered species; therefore, we are listing it as such. Listing a
species as an endangered or threatened species can be completed only by
issuing a rule through the Administrative Procedure Act rulemaking
process (5 U.S.C. 551 et seq.).
What this document does. We are listing the Sacramento Mountains
checkerspot butterfly as an endangered species under the Act. As
explained later in this document, we are working on a separate rule to
propose critical habitat for the Sacramento Mountains checkerspot
butterfly.
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 Sacramento Mountains
checkerspot butterfly is endangered due to the following threats:
incompatible grazing, recreation, climate change, invasive and
nonnative plants, and an altered wildfire regime.
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. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time
[[Page 6178]]
it is listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
We determined that designation of critical habitat was prudent but
not determinable at this time because specific information needed to
analyze the impacts of designation was lacking. We are still in the
process of assessing this information. We plan to publish a proposed
rule to designate critical habitat for the Sacramento Mountains
checkerspot butterfly in the near future.
Previous Federal Actions
On January 25, 2022, we published in the Federal Register (87 FR
3739) a proposed rule to list the Sacramento Mountains checkerspot
butterfly as an endangered species and concluded that critical habitat
was not determinable at that time (16 U.S.C. 1531 et seq.). Please
refer to that proposed rule for a detailed description of previous
Federal actions concerning this butterfly.
Peer Review
An assessment team prepared a current condition assessment report
for the Sacramento Mountains checkerspot butterfly. The team was
composed of Service biologists in consultation with other species
experts. The report represents a compilation of the best scientific and
commercial data available concerning the status of the Sacramento
Mountains checkerspot butterfly, including the impacts of past and
present factors (both negative and beneficial) affecting the
subspecies. 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 solicited independent
scientific review of the information contained in the report. As
discussed in the proposed rule, we sent the report to five appropriate
and independent peer reviewers and received three responses. The peer
reviews can be found at https://www.regulations.gov. In preparing the
proposed rule, we incorporated the results of these reviews, as
appropriate, into the report, which was the foundation for the proposed
rule and this final rule.
Summary of Changes From the Proposed Rule
We received comments and suggested clarifications on the January
25, 2022, proposed rule, and we updated the corresponding text of the
current condition assessment report and this rule. Those updates
include:
(1) New observation data of the butterfly in 2020 in Bailey Canyon;
(2) Additional details and clarification on elk, feral horse, and
cattle grazing; and
(3) Several nonsubstantive clarifications and corrections to ensure
better consistency, clarify some information, and update references.
We did not make any substantial changes to this final rule after
consideration of the comments we received on the proposed rule.
Summary of Comments and Recommendations
In the proposed rule published on January 25, 2022 (87 FR 3739), we
requested that all interested parties submit written comments on the
proposal by March 28, 2022. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Alamogordo Daily News, Albuquerque Journal, Las Cruces Sun-News, Rio
Rancho Observer, and Ruidoso News. We did not receive any requests for
a public hearing.
Peer Review Comments
As discussed in Peer Review above, we received comments from three
peer reviewers on the current condition assessment report. We reviewed
all comments we received from the peer reviewers for substantive issues
and new information regarding the information contained in the current
condition assessment report. The peer reviewers generally concurred
with our methods and conclusions, and provided additional information,
clarifications, and suggestions that we incorporated into an updated
version of the current condition assessment report. The peer reviewers'
comments did not change our determination that the Sacramento Mountains
checkerspot butterfly meets the definition of an endangered species
under the Act. Below is a summary of comments from peer reviewers we
received.
(1) Comment: Peer reviewers commented that we should add
information to specific sections of the current condition assessment
report, such as climate change and the butterfly's life history.
Response: We added information to these discussions in the current
condition assessment report. We elaborated where appropriate but did
not go into as great of detail as the reviewers requested because our
analysis indicates that the butterfly is in danger of extinction based
on its current condition. We acknowledge that there is a greater body
of work on these issues, such as climate change in the southwestern
United States, and the current condition assessment report is not meant
to be a comprehensive literature review on climate change overall, nor
would it change our analysis. We will ensure that the impacts of
climate change and all other appropriate information as it relates to
the butterfly, its life history, and resources are included in recovery
planning.
Federal Agency Comments
(2) Comment: The U.S. Forest Service (Forest Service) commented
that we need to define intensive grazing and explain how to measure
that in monitoring and defined violations. They further commented that
new chemicals and methods of herbicide use need to be clarified.
Response: We are not able to provide a specific definition on what
constitutes intensive grazing. Rather, we changed ``intensive'' to
``incompatible'' to capture any grazing activities that are
incompatible with the needs of the Sacramento Mountains checkerspot
butterfly. This may include any activities that reduce suitable
butterfly habitat by impacting the resource needs of the butterfly,
such as presence/quantity of host plants, nectar sources, or moisture.
We are also not able to provide information on how new chemicals and
methods of herbicide use may affect the subspecies. The use of
herbicide by a Federal agency in the presence of a listed species would
require that Federal agency to consult with the Service under section 7
of the Act to ensure that the action is not likely to jeopardize the
species. Similarly, should a Federal agency use a new chemical or
change the timing of herbicide use, they would have to consult with the
Service. Particular information regarding use and timing of that
chemical would be elucidated in the consultation process, and avoidance
and minimization measures would be determined.
(3) Comment: The Forest Service stated that the use of herbicide/
pesticides in the list of actions that may not violate section 9 of the
Act is a
[[Page 6179]]
contradiction to the conservation recommendation that herbicides should
be used to restore butterfly habitat.
Response: In the January 25, 2022, proposed rule (87 FR 3739), we
state that herbicide application authorized or carried out by a Federal
agency would not likely violate section 9 of the Act. We clarify in
this final rule that any use of herbicides that would result in take of
the butterfly would be a violation, not the use of herbicide itself.
The use of herbicide or pesticides by a Federal agency in the presence
of a listed species would require that Federal agency to consult with
the Service under section 7 of the Act to ensure that the Federal
agency action is not likely to jeopardize the species, but we do not
consider that herbicide use itself would likely result in a violation
of section 9 of the Act. Herbicides may also be used as a tool for
habitat restoration and would not be a violation of section 9 of the
Act if used as directed by the label and after the Federal action
agency consults with the Service.
State Agency Comments
(4) Comment: New Mexico Department of Game and Fish commented that
the limited data available are insufficient to draw conclusions
regarding the impact of elk on the butterfly.
Response: We considered the best scientific and commercial data
available regarding the Sacramento Mountains checkerspot butterfly to
evaluate its status under the Act. Also, in accordance with our peer
review policy published on July 1, 1994 (59 FR 34270), we solicited
peer review from knowledgeable individuals with scientific expertise
that included familiarity with the Sacramento Mountains checkerspot
butterfly, the geographic region in which the subspecies occurs, and
conservation biology principles. Additionally, we requested comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties concerning the January 25, 2022, proposed rule (87 FR 3739).
Comments and information we received helped inform this final rule. Elk
will browse New Mexico beardtongue (Penstemon neomexicanus) during
drought conditions, as vegetation becomes scarce (McIntyre 2021, pers.
comm.). This causes the New Mexico beardtongue to remain as small
rosettes that are not large enough to support tent colonies of
caterpillars and any larvae will starve after hatching. Browsing
ultimately reduces available host plants, which are an essential need
for the viability of the Sacramento Mountains checkerspot butterfly.
Therefore, we think it is reasonable to conclude, as we did in this
final rule, that elk grazing can impact the Sacramento Mountains
checkerspot butterfly's viability, especially when populations are at
low numbers.
We agree that outside of drought conditions, the effect of elk on
the butterfly's habitat is different and more nuanced. We acknowledge
that elk are a natural part of the ecosystem, filling an ecological
niche that is generally compatible with the viability of the butterfly.
However, during times of prolonged drought, synergistic effects lead to
increased habitat degradation, during which times both butterflies and
elk can be negatively impacted by increased temperature, decreased
precipitation, and increased browse pressure from other ungulates.
(5) Comment: The New Mexico Department of Agriculture stated that
the proposed rule implied that livestock grazing is not a risk factor
to the butterfly due to the absence of livestock, which can be
misconstrued to suggest that if the Forest Service were to resume
livestock grazing within the range of the subspecies, that would be
incompatible with the conservation of the subspecies.
Response: The previous version of the current condition assessment
report (Service 2021, pp. 12-13) stated that there is no information
indicating that livestock grazing significantly affects the butterfly's
status now or will do so in the foreseeable future; therefore,
livestock grazing is not a significant threat to the butterfly because
it does not occur within areas where the butterfly is currently extant.
In this rule, we clarify that livestock grazing, were it to occur
within occupied habitat, has the potential to impact the Sacramento
Mountains checkerspot butterfly especially during drought conditions.
We acknowledge that livestock grazing does occur within the butterfly's
historical range and acts synergistically to contribute to the decline
of habitat suitability within those active allotments. We amended the
current condition assessment report and the information in this rule to
reflect this analysis of current condition and how it has impacted the
subspecies previously. We have also updated the discussion in this
final rule of how grazing might affect the butterfly's status now and
into the foreseeable future.
Public Comments
We received 45 public comments on the proposed rule. One comment
provided us with new information on the Bailey Canyon population that
we have incorporated into our analysis, but it did not change our
determination that the Sacramento Mountains checkerspot butterfly is in
danger of extinction. The remaining comments did not provide any new
substantial information on the subspecies' status or threats.
Therefore, none of the public comments we received changed our
determination that the Sacramento Mountains checkerspot butterfly meets
the Act's definition of an endangered species. Some commenters provided
suggestions that apply to issues outside the scope of this rulemaking,
such as recovery strategies for the Sacramento Mountains checkerspot
butterfly, but these suggestions are not directly related to the
butterfly's this final rule to list the species as an endangered
species. These general comments included topics such as the role of the
Sacramento Mountains checkerspot butterfly in the ecosystem, the
importance of habitat heterogeneity, and the use of specific
conservation measures. While these comments are not directly
incorporated into this final rule, we have noted the suggestions and
look forward to working with our partners on these topics during
recovery planning for the Sacramento Mountains checkerspot butterfly.
Comments that we incorporated as changes into this final rule, comments
outside the scope of this rulemaking, and comments without supporting
information did not warrant an explicit response and, thus, are not
presented here. Identical or similar comments have been consolidated,
and a single response is provided below.
(6) Comment: Several commenters stated that critical habitat should
be designated for the Sacramento Mountains checkerspot butterfly. One
commenter said that it is determinable and gave information on where we
should propose critical habitat, while another recommended an approach
for us to use for the economic analysis.
Response: Section 4(a)(3) of the Act and implementing regulations
(50 CFR 424.12) require that we designate critical habitat at the time
a species is determined to be an endangered or threatened species, to
the maximum extent prudent and determinable. In the proposed listing
rule (87 FR 3739; January 25, 2022), we determined that designation of
critical habitat was prudent but not determinable because specific
information needed to analyze the economic and environmental impacts of
designation was lacking. Those analyses were not yet completed at the
time we published the proposed rule. We are currently in the process of
assessing this information, and we plan to publish a proposed rule to
designate
[[Page 6180]]
critical habitat for the Sacramento Mountains checkerspot butterfly in
the near future. In that upcoming rulemaking, we will evaluate areas to
determine if they should be proposed for critical habitat. We will
request public comments on the proposed designation of critical habitat
for the Sacramento Mountains checkerspot butterfly when we publish that
proposed rule.
(7) Comment: Several commenters stated concerns about the impacts
to landowners, such as taking away their property rights and use of
pesticides and stated that we should compensate affected landowners.
Another commenter added that the Act is harmful to landowners and
violates the 5th Amendment.
Response: The 5th Amendment states that private property may not be
taken for public use without just compensation. The mere promulgation
of a regulation, such as the listing of a species under the Act, does
not take private property, unless the regulation on its face denies the
property owners all economically beneficial or productive use of their
land, which is not the case with the listing of the Sacramento
Mountains checkerspot butterfly.
The presence of a listed species does not affect land ownership,
establish any restrictions on use of or access to the designated areas,
establish specific land management standards or prescriptions, or
prevent access to any land. Therefore, the Act does not violate the 5th
Amendment as private property is not being taken for public use.
Additionally, the presence of a listed species does not allow the
Federal Government or public to access private lands.
The Act does not authorize the Service to regulate private actions
on private lands, and landowners are not obligated to incur any costs
related to the species' conservation or to alter their current land
management. Programs are available to private landowners to obtain
permits for the incidental take of a listed species (see 50 CFR 17.22
for endangered wildlife and 50 CFR 17.32 for threatened wildlife) and
to assist in the voluntary conservation of listed species. Voluntary
conservation programs may provide technical or financial assistance to
the landowner. Private landowners may contact their local Service field
office to obtain information about these permits and programs.
(8) Comment: One commenter stated that the Sacramento Mountains
checkerspot butterfly is not a true subspecies.
Response: We considered the best scientific and commercial data
available regarding the Sacramento Mountains checkerspot butterfly's
taxonomy. The Sacramento Mountains checkerspot butterfly was first
described as a subspecies of the Anicia checkerspot in 1980 (Ferris and
Holland 1980, pp. 3-9), which was later corroborated (Glassberg 2017,
p. 207; Pohl et al. 2016, p. 315). Checkerspot butterflies in the
Euphydryas genus are similar but can be distinguished from one another
by several subtle morphological traits. The Sacramento Mountains
checkerspot butterfly has darker colors overall compared to other
checkerspots (Ferris and Holland 1980, p. 5). Therefore, we reaffirm
our previous conclusion that the Sacramento Mountain's checkerspot
butterfly is a valid species, and thus, a valid listable entity under
the Act.
(9) Comment: One commenter stated that there are many aspects of
the butterfly's life history that are unknown or not well understood,
which makes it impossible to determine the butterfly's viability.
Response: We based this final listing determination on the best
available scientific and commercial information, and the commenter did
not provide any new information for us to consider. The best available
information on the Sacramento Mountains checkerspot butterfly indicates
the butterfly needs host plants, larval food sources, and climatic
moisture. In assessing the viability of the butterfly, the best
available scientific and commercial data provide information about some
aspects of subspecies' biology and habitat requirements but may not
represent a full and complete knowledge of the subspecies. We drew
reasonable conclusions about other aspects of the subspecies' biology
and requirements based on similar species, similar habitats, and best
available information.
(10) Comment: Two commenters asked what our standard is for the
``best available science.''
Response: In accordance with section 4 of the Act, we are required
to list a species on the basis of the best scientific and commercial
data available. Further, our Policy on Information Standards under the
Act (published in the Federal Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines (https://www.fws.gov/program/information-quality) provide criteria and
guidance, and establish procedures to ensure that our decisions are
based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for listing recommendations. Primary or
original information sources are those that are closest to the subject
being studied, as opposed to those that cite, comment on, or build upon
primary sources. The Act and our regulations do not require us to use
only peer-reviewed literature, but instead they require us to use the
``best scientific data available'' in a listing determination. We use
information from many different sources, including, but not limited to,
articles in peer-reviewed journals, scientific status surveys and
studies completed by qualified individuals, Master's thesis research
that has been reviewed but not published in a journal, other
unpublished governmental and nongovernmental reports, reports prepared
by industry, personal communication about management or other relevant
topics, conservation plans developed by States and counties, biological
assessments, other unpublished materials, experts' opinions or personal
knowledge, and other sources. We have considered published articles,
unpublished research, habitat modeling reports, digital data publicly
available on the internet, and the expert opinion of subject biologists
to determine that the Sacramento Mountains checkerspot butterfly meets
the Act's definition of an endangered species.
Also, in accordance with our peer review policy published on July
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable
individuals with scientific expertise that included familiarity with
the Sacramento Mountains checkerspot butterfly, the geographic region
in which the subspecies occurs, and conservation biology principles.
Additionally, we requested comments or information from other concerned
governmental agencies, Native American Tribes, the scientific
community, industry, and any other interested parties concerning our
January 25, 2022, proposed rule (87 FR 3739). Comments and information
we received helped inform this final rule.
(11) Comment: One commenter asked how the public will know if
comments are considered in making a determination or merely noted as
``commercial data'' and are therefore not actually considered.
Response: In accordance with section 4 of the Act, we are required
to list a species on the basis of the best scientific and commercial
data available.
[[Page 6181]]
Therefore, if any comments are received that we classify as
``commercial data,'' they are considered in our listing determination.
(12) Comment: One commenter also asked how the Service plans to
address drought and other natural occurrences that are affecting the
Sacramento Mountains checkerspot butterfly.
Response: Drought and other naturally occurring events are
important as they relate to the conservation needs of the butterfly,
and we will consider these factors as we develop a recovery plan and
specific recovery strategies for the conservation of the Sacramento
Mountains checkerspot butterfly.
(13) Comment: One commenter asked if the Service bears the total
cost of management actions as they relate to recovery.
Response: The Service puts as many resources as we can, including
recovery grant funding and staff time, into the implementation of
recovery actions. Additionally, we also rely on expertise and funding
from other Federal agencies, States, Tribes, and other entities to
implement recovery of listed species.
(14) Comment: One commenter asked which animal(s) any exclosures
are meant to keep out of butterfly habitat on the Lincoln National
Forest and how many taxpayer dollars will be spent to construct these
exclosures.
Response: Exclosures that have been erected on the Lincoln National
Forest are meant to prevent any large ungulate or grazer from feeding
on butterfly host plants and nectar sources. This practice is often
used by land management agencies to allow for vegetation to recover
from overgrazing. Because the Sacramento Mountains checkerspot
butterfly is known to occupy areas entirely on the Lincoln National
Forest, we expect that the Forest Service would be a leader in the
recovery of the species. We expect that additional exclosures would be
paid for by the Service and Forest Service and we do not have estimates
on the total cost. When we develop our recovery plan for the species,
it will include an estimate of the costs of recovery.
(15) Comment: One commenter asked what a ``jeopardy finding'' is,
how it is determined, and what the consequences are.
Response: ``Jeopardize the continued existence of'' means to engage
in an action that reasonably would be expected, directly or indirectly,
to reduce appreciably the likelihood of both the survival and recovery
of a listed species in the wild by reducing the reproduction, numbers,
or distribution of that species (50 CFR 402.02). Per policy and
regulation, the jeopardy analysis in a biological opinion relies on
four components in our evaluation for each species:
1. The Status of the Species--evaluates the species' range-wide
condition, the factors responsible for that condition, and its survival
and recovery needs;
2. The Environmental Baseline--evaluates the condition of the
species in the action area, the factors which are responsible for that
condition, and the relationship of the action area to the survival and
recovery of the species;
3. The Effects of the Action--determines the consequences of the
proposed Federal action on the species that are reasonably certain to
occur as a result of the proposed action; and,
4. Cumulative Effects--evaluates the effects of future, non-Federal
activities in the action area on the species.
The jeopardy determination is made by evaluating the effects of the
Federal action in the context of the species' status. This analysis
considers any cumulative effects to determine if the implementation of
the action is likely to cause an appreciable reduction in the
likelihood of both the survival and recovery of the species in the
wild. The jeopardy analysis places emphasis on consideration of the
range-wide survival and recovery needs of the species and the role of
the action area in the survival and recovery of the species as the
context for evaluating the significance of the effects of the Federal
action, taken together with cumulative effects, for purposes of making
the jeopardy determination.
(16) Comment: One commenter asked how law enforcement is involved
in listing the Sacramento Mountains checkerspot butterfly as an
endangered species.
Response: The Service's Office of Law Enforcement works to protect
threatened and endangered species by enforcing violations of Section 9
under the Act, such as, but not limited to, preventing the unlawful
commercial exploitation of such species. The Service is committed to
meeting all requirements and enforcing the Act and doing so legally.
The Service maintains a comprehensive approach to conservation, and we
will work together with the Office of Law Enforcement to achieve our
conservation goals.
(17) Comment: One commenter asked how listing of the Sacramento
Mountains checkerspot butterfly is determined when the Act directly
conflicts with the Wild Free-Roaming Horses and Burros Act of 1971, as
amended (16 U.S.C. 1331 et seq.).
Response: The Wild Free-Roaming Horses and Burros Act was
established to protect wild horses and burros on Federal land from
capture, branding, harassment, or death by placing them under the
jurisdiction of the Bureau of Land Management and the Forest Service.
Each Act imposes its own requirements. This rule listing the Sacramento
Mountains checkerspot butterfly as an endangered species under the Act
does not violate the Wild Free-Roaming Horses and Burros Act because we
can achieve conservation of the butterfly while also protecting wild
horses and burros on Federal land.
(18) Comment: One commenter asked why the Secretary of Commerce is
not a determining agency for this rule.
Response: The Act states that the term ``Secretary'' means, except
as otherwise provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to the
provisions of Reorganization Plan No. 4 of 1970, which established that
the Secretary of Commerce would have functions relating to the oceans
and atmosphere, including commercial fisheries functions. Because this
subspecies falls under the jurisdiction of the Department of the
Interior (i.e., the Service) and not the Department of Commerce (i.e.,
the National Marine Fisheries Service), the Secretary of the Interior
maintains program responsibilities under the Act.
(19) Comment: One commenter said that our statement that
possession, delivery, or movement, including interstate transport and
import into or export from the United States, involving no commercial
activity, of dead specimens of this taxon that were collected prior to
the effective date of a final rule adding this taxon to the Federal
List of Endangered and Threatened Wildlife is unlikely to violate
section 9 of the Act is a violation of the Lacey Act (16 U.S.C. 3371-
3378; 18 U.S.C. 42).
Response: Section 9 of the Act (and its implementing regulations at
50 CFR part 17) and the Lacey Act (and its implementing regulations at
50 CFR part 16) impose separate permitting requirements. This rule,
authorized by the Act, does not address permitting requirements imposed
under the Lacey Act; as a result, importers and exporters are
responsible for following all applicable regulatory requirements under
the Lacey Act and any other relevant law.
[[Page 6182]]
I. Final Listing Determination
Background
Please refer to the revised current condition assessment report
(Service 2022, entire) and the January 25, 2022, proposed rule to list
the Sacramento Mountains checkerspot butterfly (87 FR 3739) for a full
summary of the taxon's information. Both are available on our Southwest
Region website at https://www.fws.gov/about/region/southwest and at
https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069.
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 CFR 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 in effect 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 were
therefore reinstated (see Center for Biological Diversity v. Haaland,
No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (vacating the
2019 regulations and thereby reinstating the pre-2019 regulations), the
2019 regulations are now in effect, so we must apply them when making
listing and critical habitat decisions (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 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 in 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 current condition assessment report (Service 2022, entire)
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 current condition assessment 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
[[Page 6183]]
basis that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess Sacramento Mountains checkerspot butterfly's viability,
we used the three conservation biology principles of resiliency,
redundancy, and representation (Shaffer and Stein 2000, pp. 306-310).
Briefly, resiliency is the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy is the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation is the ability of the species to adapt to
both near-term and long-term changes in its physical and biological
environment (for example, climate conditions, pathogens). In general,
species viability will increase with increases in resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the butterfly's ecological requirements for
survival and reproduction at the individual, population, and subspecies
levels, and described the beneficial and risk factors influencing the
subspecies' viability.
Our analysis can be categorized into several sequential stages.
During the first stage, we evaluated the individual subspecies' life-
history needs. The next stage involved an assessment of the historical
and current conditions of the subspecies' demographics and habitat
characteristics, including an explanation of how the subspecies arrived
at its current condition. Throughout these stages, we used the best
available information to characterize viability as the ability of the
subspecies to sustain populations in the wild over time. We use this
information to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the current condition assessment report; the full report can be found
at https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069 and
at https://www.fws.gov/office/new-mexico-ecological-services.
Summary of Biological Status and Threats
Below, we review the biological condition of the Sacramento
Mountains checkerspot butterfly and its resources, and the threats that
influence the subspecies' current and future condition, in order to
assess the subspecies' overall viability and the risks to that
viability.
For the Sacramento Mountains checkerspot butterfly to maintain
viability, its populations or some portion thereof must have sufficient
resiliency, redundancy, and representation. Several factors influence
the resiliency of Sacramento Mountains checkerspot butterfly
populations, including larval and adult abundance and density, in
addition to elements of the subspecies' habitat that determine whether
Sacramento Mountains checkerspot butterfly populations can survive and
reproduce. These resiliency factors and habitat elements are discussed
in detail in the current condition assessment report and are summarized
here.
Species Needs
Abundance and Density
To successfully reproduce and maintain or increase their fecundity
and abundance, butterflies need access to mates. The Sacramento
Mountains checkerspot butterfly is not a long-distance flier and
probably relies on local abundance and population density and
particular mate-location behaviors to successfully mate and reproduce
(Pittenger and Yori 2003, p. 39). Higher densities and more abundant
individuals result in more successful mating attempts and ensure the
subspecies' viability. Metapopulation dynamics are also maintained by
abundance and density within meadows (Pittenger and Yori 2003, pp. 39-
40).
Host Plants
The most crucial habitat factor for the Sacramento Mountains
checkerspot butterfly is the New Mexico beardtongue's presence and
abundance (McIntyre 2021, pers. comm.). The larvae rely nearly entirely
upon the New Mexico beardtongue during pre- and post-diapause. Because
of the Sacramento Mountains checkerspot butterfly's dependency on New
Mexico beardtongue, it is vulnerable to any type of habitat
degradation, which reduces the host plant's health and abundance
(Service et al. 2005, p. 9).
New Mexico beardtongue is a member of the Plantaginaceae, or
plantain, family (Oxelman et al. 2005, p. 425). These perennial plants
prefer wooded slopes or open glades in ponderosa pine and spruce/fir
forests at elevations between 1,830 and 2,750 meters (m) (6,000 and
9,000 feet (ft)) (New Mexico Rare Plant Technical Council 1999,
entire). New Mexico beardtongue is native to the Sacramento Mountains
within Lincoln and Otero Counties (Sivinski and Knight 1996, p. 289).
The plant is perennial, has purple or violet-blue flowers, and grows to
be half a meter tall (1.9 ft). New Mexico beardtongue occurs in areas
with loose soils or where there has been recent soil disturbance, such
as eroded banks and pocket gopher burrows (Pittenger and Yori 2003, p.
ii). Some plant species within the plantain family, including the New
Mexico beardtongue, contain iridoid glycosides, a family of organic
compounds that are bitter and an emetic (vomit-inducing) for many birds
and small mammal species. The Sacramento Mountains checkerspot
butterfly, like other subspecies of Euphydryas anicia, sequester the
iridoid glycosides as caterpillars. It is believed that these compounds
make the larvae and adult butterflies distasteful or unpalatable to
predators (Gardner and Stermitz 1987, pp. 2152-2167).
Nectar Sources
Access to nectar sources is needed for adult Sacramento Mountains
checkerspot butterflies to properly carry out their life cycle. The
primary adult nectar source is orange sneezeweed (Hymenoxys hoopesii)
(Service et al. 2005, p. 9). Forest Service personnel observed
butterflies visiting orange composite flowers (family Asteraceae),
including orange sneezeweed, as much as 90 percent of the time during
surveys (Forest Service 2000, p. 4). Other surveys have shown that
adult butterflies are closely associated with orange sneezeweed flowers
(McIntyre 2010, p. 26). Although orange sneezeweed flowers are most
frequently used, the butterfly has been observed collecting nectar from
various other native nectar sources (Service et al. 2005, pp. 9-10). To
contribute to the subspecies' viability, orange sneezeweed and other
native nectar sources must bloom at a time that corresponds with the
emergence of adult Sacramento Mountains checkerspot butterflies.
Although orange sneezeweed flowers are most frequently used, the
butterfly has been observed collecting nectar on various other native
nectar sources (Service et al. 2005, pp. 9-10). If orange sneezeweed is
not blooming during the adult flight period (i.e., experiencing
phenological mismatch), survival and the butterfly's fecundity could
decrease. In this case, other species of nectar-producing flowers might
be essential for adult butterflies to complete their life cycle.
Habitat Connectivity
Before human intervention, the habitat of the Sacramento Mountains
checkerspot butterfly is thought to have been dynamic, with meadows
forming and reconnecting due to natural wildfire
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regimes (Service et al. 2005, p. 21). These patterns and processes
would have facilitated natural dispersal and recolonization of meadow
habitats following disturbance events, especially when there was high
butterfly population density in adjacent meadows (Service et al. 2005,
p. 21). Currently, spruce-fir forests punctuate suitable butterfly
meadow habitats, creating intrinsic barriers to butterfly dispersal and
effectively isolating populations from one another (Pittenger and Yori
2003, p. 1). Preliminary genetic research suggested there is extremely
low gene flow across the subspecies' range or between meadows surveyed
(Ryan 2021, pers. comm.). If new sites are to become colonized or
recolonized by the butterfly, meadow areas will need to be connected
enough to allow dispersal from occupied areas. Therefore, habitat
connectivity is needed for genetically healthy populations across the
subspecies' range (Service 2021, p. 8).
Risk Factors for the Sacramento Mountains Checkerspot Butterfly
We reviewed the potential risk factors (i.e., threats, stressors)
that could be currently affecting the Sacramento Mountains checkerspot
butterfly. In this rule, we will discuss only those factors in detail
that could meaningfully impact the status of the subspecies. Those risk
factors that are unlikely to have significant effects on Sacramento
Mountains checkerspot butterfly populations, such as human collection,
disease, parasites, predation, insecticides, and habitat loss, are not
discussed here but are evaluated in the current condition assessment
report.
The primary risk factors (i.e., threats) affecting the status of
the Sacramento Mountains checkerspot butterfly are incompatible grazing
(Factor A), recreation (Factor A), climate change (Factor E), invasive
and nonnative plants (Factor A), and an altered wildfire regime (Factor
A).
Incompatible Grazing
Historically, Merriam's elk (Cervus canadensis merriami), an
extinct subspecies of elk, grazed meadows within the Sacramento
Mountains. Under normal conditions, this species likely coexisted
without impacting the existence of the butterfly. Rocky Mountain elk
(Cervus canadensis nelsoni) have been introduced to the Sacramento
Mountains, filling the ecological niche previously occupied by
Merriam's elk (New Mexico Department of Game and Fish 2009,
unpaginated). At natural population levels and normal environmental
conditions, elk do not pose a significant threat to the Sacramento
Mountains checkerspot butterfly or its habitat. In fact, some studies
have shown a positive correlation between elk grazing and caterpillar
abundance (McIntyre 2010, pp. 66-69). However, should elk herds expand
beyond natural levels or occur during times of resource scarcity, such
as extended periods of drought, browse pressure from elk could pose a
significant threat to the butterfly's habitat and viability (Service
2021, p. 13).
Additionally, feral horses were inadvertently released from the
Mescalero Apache Reservation and dispersed onto the Lincoln National
Forest around 2012. Horses are not native to the Sacramento Mountains
and add significant browse pressure to meadows. Larger than elk, horses
consume large quantities of vegetation and graze more heavily in each
area before moving to seek more food (Lightfoot 2022, pers. comm.).
The New Mexico beardtongue is not the main source of food for
horses or elk. However, research has shown that elk do selectively
browse on large, more robust New Mexico beardtongue plants, which are
often the same individual plants selected by female Sacramento
Mountains checkerspot butterflies for depositing eggs (McIntyre 2010,
p. 72). During dry conditions, such as has been seen over the past 10
years, there is less forage on the landscape overall, which increases
browse pressure on perennials such as New Mexico beardtongue.
During these times of prolonged drought, synergistic effects lead
to increased habitat degradation, during which times both butterflies
and elk can be negatively impacted by increased temperature, decreased
precipitation, and increased browse pressure from other ungulates.
Under such conditions, New Mexico beardtongue remains as small rosettes
less than an inch tall and does not flower when there is significant
browse pressure from large herbivores. These small, stunted plants are
not large enough to support colonies of caterpillars; any larvae will
starve after hatching (Forest Service 2020, p. 11).
The combined effects of feral horse and elk browsing, compounded by
drought due to climate change, have significantly impacted habitat
within meadow ecosystems in the range of the Sacramento Mountains
checkerspot butterfly. Over the past several years, sustained drought
in Otero County has driven large herbivores to graze most meadow areas
to the ground (McMahan et al. 2021, pp. 1-2). Currently, vegetation for
host plant and nectar sources is scarce in all the meadows throughout
the range of the Sacramento Mountains checkerspot butterfly (Forest
Service 2020, p. 11).
Impacts of livestock grazing on native wildlife in Southwestern
montane ecosystems vary depending on the timing, duration, and
intensity of grazing (Service et al. 2005, p. 32). Grazing intensities
and durations that exceed the ability of herbaceous plants to recover
or survive are detrimental to the Sacramento Mountains checkerspot
butterfly (Service et al. 2005, p. 31). Drought and increased
temperatures can exacerbate this trend. Overgrazing by stock animals
has led to the extinction of some butterfly populations in the United
States, including butterflies in the genus Euphydryas (Murphy & Weiss
1988, p. 187).
The Forest Service permits livestock grazing in select allotments
on the Lincoln National Forest in the Sacramento Mountains. The
butterfly's range occurs within about 17 acres (ac) (7.2 hectares (ha))
of the Russia Canyon Allotment (Forest Service 2004, entire), which has
two grazing permittees. The Pumphouse Allotment also contains suitable
butterfly habitats open to livestock grazing (Service et al. 2005, p.
1; Forest Service 2009, p. 1). Most of the butterfly's range is
encompassed by the James Canyon Allotment. Currently, the James Canyon
Allotment is vacant (Forest Service 2009, p. 2). At this time, the
National Environmental Policy Act (42 U.S.C. 4321 et seq.) analysis has
not yet been finalized, and the James Canyon Allotment remains
ungrazed.
The areas where grazing allotments overlap the subspecies' range do
not currently contain extant populations of the Sacramento Mountains
checkerspot butterfly (Service 2021, p. 12). Extant populations are
currently within the ungrazed James Canyon Allotment. Therefore,
butterfly individuals are not currently in direct competition with
domestic livestock for habitat resources. However, there have been
significant impacts from grazing in the past (Lightfoot 2022, pers.
comm.).
Livestock grazing, primarily by cattle, has historically been
practiced throughout the meadows inhabited by the Sacramento Mountains
checkerspot butterfly (Service et al. 2005, p. 29). However, based on
the currently available information, the exact relationship between
Sacramento Mountains checkerspot butterfly population abundance and
cattle grazing is not well understood (Service et al. 2005, p. 30). It
is likely the effect of cattle grazing on butterfly abundance varies,
depending on the current habitat and climatic conditions. Cattle
grazing can result in direct mortality by
[[Page 6185]]
trampling eggs and larva or by consuming host plants (White 1986, p.
54), impacting butterfly habitat by changing abundance and distribution
of host and nectar plants, reducing vegetative cover, altering
vegetative communities, compacting and eroding soil, and reducing
natural disturbance regimes (i.e., gopher activity) (Service et al.
2005, p. 29). In some cases, cattle can increase host plant abundance
by grazing on competing plant species (Weiss 1999, p. 1480). However,
New Mexico beardtongue is consumed by cattle as well, and grazing might
reduce available plants and impact the butterfly's presence and
survival (McIntyre 2010, pp. 94-104). Research on population abundance
in response to grazing for other butterfly species has shown that
results vary depending on the species and system studied (Service et
al. 2005, p. 30), and Forest Service surveys did not show a strong
correlation between grazing and butterfly abundance (Forest Service
2004, p. 7).
Due to current habitat conditions, it is likely that in the areas
of the butterfly's range where grazing does occur, that livestock
grazing continues to degrade habitat for the Sacramento Mountains
checkerspot butterfly. Outside of drought conditions, it might be
possible to collect data on the effects of cattle grazing on Sacramento
Mountains checkerspot butterfly habitat and establish an adaptive
management plan for grazing within butterfly habitat. However, current
conditions of butterfly habitat are not compatible with cattle grazing.
In summary, incompatible grazing has resulted in decline of
suitable habitat, limiting larval host plants and adult nectar sources
for the Sacramento Mountains checkerspot butterfly. All meadow units
within the subspecies' range reflect impacts from past and recent
grazing.
Recreation
Over the past 10 years, recreation has increased in the Lincoln
National Forest. The September 6, 2001, proposed listing rule (66 FR
46575) determined that off-road vehicle use on Forest Service trails
posed some threat to meadow units; off-road vehicle use continues to
this day and has increased in popularity. Large recreational vehicle
(RV) use has also increased, and the Forest Service does not require
permits for parking vehicles within the Lincoln National Forest
(Service 2021, p. 14). Meadows within the range of the Sacramento
Mountains checkerspot butterfly are popular with RV users because they
are open, flat, and easily accessible by road (Hughes 2021b, pers.
comm.). A variety of these impacts (e.g., soil compaction, barren
ground, trampled food plants, multiple trails, vehicle tracking) are
evident in areas used by larval and adult life stages of the Sacramento
Mountains checkerspot butterfly; these impacts are reducing the quality
or quantity of suitable habitat in and around developed campgrounds or
undeveloped campsites in meadows known to support the Sacramento
Mountains checkerspot butterfly (Hughes 2021b, pers. comm.).
Recreation can negatively affect the butterfly in several ways.
Trampling and crushing can physically kill both individual butterflies
and caterpillars. While adults can fly away, these butterflies are
slow, especially on cold mornings. Recreational activities can also
crush plants, including New Mexico beardtongue and orange sneezeweed.
During times of drought, these plants are especially vulnerable and
unlikely to survive repeated damage (Service 2021, p. 14).
Additionally, RVs compact soil where large vehicles are parked.
Repeated trampling by humans around the vehicles, caused by normal
camping activities, will further compact soils, making it less likely
for New Mexico beardtongue to recover or re-establish in former
campsites (Hughes 2021b, pers. comm.).
In summary, recreation by humans can directly kill Sacramento
Mountains checkerspot butterflies and their larvae. All meadow units
within the range are experiencing some level of impact from recreation.
Climate Change
Climate change is impacting natural ecosystems in the southwestern
United States (McMahan et al. 2021, p. 1). The Sacramento Mountains are
sky islands surrounded by a matrix of desert grassland, which hosts a
unique mix of flora and fauna (Brown et al. 2001, p. 116). This
ecosystem is sensitive even to small changes in temperature and
precipitation regimes. Such changes to the environment can
significantly alter air temperature, the amount of precipitation, and
the timing of precipitation events (Service et al. 2005, p. 37).
New Mexico has been in a drought for the past several years.
Roughly 54 percent of New Mexico is currently experiencing an
exceptional drought, including the Sacramento Mountains (McMahan et al.
2021, pp. 1-2). Droughts of this severity push wildlife to alter
behavior based on available resources, while vegetation in habitats
becomes extremely degraded (McMahan et al. 2021, entire).
Over the past several years, annual precipitation levels have
decreased throughout the butterfly's range. Snowfall and corresponding
snowpack have remained well below normal levels (Forest Service 2020,
pp. 11-12). Some alpine butterflies need high levels of snowpack during
diapause to shelter from wind and cold temperatures. The same might be
true for the Sacramento Mountains checkerspot butterfly, as the
subspecies likely evolved with higher levels of winter snowpack than
have been experienced over the past decade (Hughes 2021a, pers. comm.).
However, while snowpack might be an important factor, we do not have
enough evidence to analyze the effects of low snow years on the
butterfly.
Recent shifts in climate can impact how species interact with their
environment. The timing of butterfly life-history events during an
annual cycle can shift due to increases in temperature, changes in
humidity, and length of growing season. These shifts can directly be
attributed to the effects of climate change. For habitat specialists
such as the Sacramento Mountains checkerspot butterfly, shifts in
phenological timing can have important consequences for population
dynamics and viability (Colorado-Ruiz et al. 2018, pp. 5706-5707). It
is likely that climate change has already caused some level of
phenotypic mismatch (when life-history traits are no longer
advantageous due to changes in the environment) between the butterfly,
its host plants, and its nectar sources (Service 2022, p. 9). This
shift negatively impacts the butterfly because it has adapted to
specific timing of resource availability (i.e., growth of host plants,
blooming of nectar sources) in various stages of its life cycle, and
climate change has altered the timing, quality, and quantity of those
resources.
The Sacramento Mountains checkerspot butterfly needs adequate
vegetation growth in host plants and nectar sources during the summer
months to survive (Service et al. 2005, p. 15). Vegetation growth
within the butterfly's range appears to rely heavily on summer rains.
Large rainfall events typically form during the mid-summer months in
the Sacramento Mountains, marking the beginning of the monsoon season.
These midday showers occur almost daily for several months, stimulating
much of the vegetation to grow and proliferate during the midsummer
season. Specifically, New Mexico beardtongue growth increases in
response to the monsoons. It is thought that moisture might also
encourage the butterflies to emerge from diapause as well (Service et
al. 2005, pp. 37-38).
[[Page 6186]]
Climate change is impacting the timing of monsoon events throughout
the Southwest (Service 2021, p. 15). New Mexico beardtongue and other
plant species in subalpine meadows are adapted to the pulse of moisture
from monsoons (Service et al. 2005, pp. 37-38). With a lack of, or
altered, monsoon rains, the butterfly is at risk, as the subspecies
relies on vegetation growth dependent upon the timing of precipitation.
The 2020 monsoon season was an exceptionally weak one, with far
less precipitation falling than in an average summer (McMahan et al.
2021, unpaginated). As a result, New Mexico beardtongue growth was also
weak; few plants grew larger than small rosettes on the ground. Even
fewer plants survived to produce flowers (Forest Service 2020, p. 12).
Some experts believe that the dry conditions, compounded with increased
browse pressure from large ungulates, contributed to the deterioration
of habitat throughout the Sacramento Mountains checkerspot butterfly's
range (Ryan et al. 2021, pers. comm.).
In 2021, the monsoon season in the Sacramento Mountains produced
heavy precipitation and several flash-flood events (Hergert et al.
2022, unpaginated). While this precipitation allowed vegetation to
temporarily recover, it also caused erosion in some meadow habitat
(Hughes 2022, pers. comm.). Despite these large precipitation events
during the summer months of 2021, the Sacramento Mountains remain in a
moderate to severe drought (U.S. Drought Monitor, https://droughtmonitor.unl.edu/, accessed June 30, 2022) and impacts to the
butterfly's habitat from climate change are likely to continue.
In summary, climate change adversely impacts the viability of the
Sacramento Mountains checkerspot butterfly. All meadow units within the
subspecies' range are experiencing impacts from climate change.
Invasive, Nonnative Plants
Invasive, nonnative plants have begun to encroach into meadow areas
within the Lincoln National Forest. Other species of butterfly had
become scarcer when nonnative plants appeared in suitable butterfly
habitats (Hughes 2021a, pers. comm.). During the drought, Kentucky
bluegrass (Poa pratensis) proliferated within meadow areas. This
aggressive, nonnative plant, whose seeds are primarily windblown, can
outcompete native wildflowers, such as New Mexico beardtongue. As
invasive, nonnative plants begin to expand their influence, native
plants, including host and nectar plants for butterflies, such as New
Mexico beardtongue and orange sneezeweed, are likely to be outcompeted
and become more scarce (Kennedy 2020, pers. comm.; 62 FR 2313, January
16, 1997).
In summary, invasive, nonnative plants can outcompete the native
plants that Sacramento Mountains checkerspot butterflies and their
larvae require. All meadow units within the subspecies' range are
experiencing some level of impact from nonnative plants.
Altered Wildfire Regime
Fire is a natural part of the Sacramento Mountains ecosystem and
would have historically maintained many of the ecosystem processes
within the Sacramento Mountains checkerspot butterfly's range. Humans
have largely suppressed wildfires over the past 150 years (Service et
al. 2005, p. 21). Before human intervention, there would have been
gradual ecosystem clines between meadows and forests. Grassland
corridors or sparsely forested glades would have connected meadow
areas. These habitat types would have allowed for the butterfly to pass
through, thereby maintaining metapopulation dynamics. Fire exclusion
and suppression have reduced the size of grasslands and meadows by
allowing the encroachment of conifers, and these trends are projected
to continue (Service et al. 2005, pp. 21-22). No significant wildfires
have occurred in the butterfly's habitat since 1916 (Service et al.
2005, p. 21). Before active fire suppression, fire in the Sacramento
Mountains occurred at intervals between 3 and 10 years (Forest Service
1998, p. 63). These frequent, cool, low-intensity, surface fires
historically maintained a forest that was more open (i.e., more non-
forested patches of different size; more large, older trees; and fewer
dense thickets of evergreen saplings). Such low-intensity fires are now
rare events. A large fire can occur within the range of the subspecies;
there have been at least nine large, hot, high-intensity wildfires
(over 90,000 ac (34,000 ha)) in the Sacramento Mountains during the
past 50 years (Forest Service 1998, p. 63). Trees and other woody
vegetation have begun encroaching into suitable meadow habitats for the
butterfly. Current forest conditions make the chances of a high-
severity fire within the range of the butterfly increasingly likely
(Service et al. 2005, p. 21).
It is likely that fire exclusion and historical cattle grazing have
altered and increased the threat of wildfire in ponderosa pine (Pinus
ponderosa) and mixed conifer forests in the semi-arid western interior
forests, including New Mexico (Forest Service 1998, pp. 3, 63).
Further, there has been a general increase in the dominance of woody
plants, with a decrease in the herbaceous (non-woody) ground cover used
by the butterfly (Service et al. 2005, pp. 32-33). These data indicate
that the quality and quantity of the available butterfly habitat is
decreasing rangewide. Therefore, we conclude that wildfire exclusion
has substantially affected the subspecies and will likely continue to
significantly degrade the quality and quantity of suitable habitat.
In summary, the altered fire regime can impact Sacramento Mountains
checkerspot butterflies and their larvae. All meadow units within the
subspecies' range are experiencing adverse impacts from altered fire
regimes.
Summary
Our analysis of the current influences on the needs of the
Sacramento Mountains checkerspot butterfly for long-term viability
revealed there are several threats that pose the largest risk to
viability: incompatible grazing, recreation, climate change, invasive
and nonnative plants, and an altered wildfire regime. These influences
reduce the availability of host plants and nectar sources, thereby
reducing the quantity and quality of essential habitat for the
subspecies, in addition to reducing its ecological and genetic
diversity.
Species Condition
The current condition of the Sacramento Mountains checkerspot
butterfly considers the risks to those populations that are currently
occurring. In the current condition assessment report, for each
population, we developed and assigned condition categories for two
demographic factors and three habitat factors that are important for
the viability of the Sacramento Mountains checkerspot butterfly. The
condition scores for each habitat factor were then used to determine an
overall condition of each population and meadow: high, moderate, low,
very low, or extirpated.
Two populations of the Sacramento Mountains checkerspot butterfly
remain in two meadows, Bailey Canyon and Pines Meadow Campground.
Historically, the populations likely had greater connectivity, but
today they are small and isolated due to the altered wildfire regime,
which fostered a greater extent and density concentration of trees
separating habitat meadows. Dispersal and colonization of extirpated
locations is unlikely without human
[[Page 6187]]
assistance. If butterflies have not been detected at any site once or
more during the last 3 years, we consider that population to be
extirpated. The two remaining populations are in very low condition in
terms of demographic factors (adult density and larval density) (see
table 1, below) and low condition in terms of overall meadow condition
(see table 2, below). There have not been any observations of adults or
larvae in the past 3 consecutive years in any of the other eight
populations, and we therefore consider them to be demographically
extirpated. Six of those eight populations have very low overall meadow
condition, and two are considered extirpated for overall meadow
condition because suitable habitat for the Sacramento Mountains
checkerspot butterfly no longer exists there.
Table 1--Current Condition of Demographic Factors of the Sacramento Mountains Checkerspot Butterfly
----------------------------------------------------------------------------------------------------------------
Demographic factors
Meadow unit ----------------------------------------------------------------------
Adult density Larval density
----------------------------------------------------------------------------------------------------------------
Bailey Canyon............................ Very Low.......................... Very Low.
Pines Meadow Campground.................. Very Low.......................... Very Low.
Cox Canyon............................... Extirpated........................ Extirpated.
Silver Springs Canyon.................... Extirpated........................ Extirpated.
Pumphouse Canyon......................... Extirpated........................ Extirpated.
Sleepygrass Canyon....................... Extirpated........................ Extirpated.
Spud Patch Canyon........................ Extirpated........................ Extirpated.
Deerhead Canyon.......................... Extirpated........................ Extirpated.
Horse Pasture Meadow..................... Extirpated........................ Extirpated.
Yardplot Meadow.......................... Extirpated........................ Extirpated.
----------------------------------------------------------------------------------------------------------------
Table 2--Current Condition of Habitat Factors of the Sacramento Mountains Checkerspot Butterfly
----------------------------------------------------------------------------------------------------------------
Habitat factors
Meadow unit --------------------------------------------------------------- Overall meadow
Host plants Nectar sources Connectivity condition
----------------------------------------------------------------------------------------------------------------
Bailey Canyon................ Very Low........... Low................ Moderate........... Low.
Pines Meadow Campground...... Very Low........... Low................ Moderate........... Low.
Cox Canyon................... Very low........... Low................ Low................ Very Low.
Silver Springs Canyon........ Very Low........... Low................ Moderate........... Very Low.
Pumphouse Canyon............. Very Low........... Low................ Low................ Very Low..
Sleepygrass Canyon........... Very Low........... Low................ Moderate........... Very Low.
Spud Patch Canyon............ Very Low........... Low................ Moderate........... Very Low.
Deerhead Canyon.............. Extirpated......... Very Low........... Low................ Very Low.
Horse Pasture Meadow......... Extirpated......... Extirpated......... High............... Extirpated.
Yardplot Meadow.............. Extirpated......... Extirpated......... Low................ Extirpated.
----------------------------------------------------------------------------------------------------------------
Bailey Canyon and Pines Meadow Campground are two adjacent meadows
in the northwest part of the Sacramento Mountains checkerspot
butterfly's range. During the 2020 survey season, approximately eight
butterflies were detected in both meadows combined (Forest Service
2020, p. 3), and no larval tents were found (Forest Service 2020, pp.
1-3; Hughes 2020, pers. comm.). One individual observed dozens of
Sacramento Mountains checkerspot butterflies in Bailey Canyon in 2020
(Banker 2022, pers. comm.). In 2021, surveys detected 23 adult
butterflies and two larval tents (Hughes 2022, pers. comm.). Larvae
from the two tents were taken into captivity by experienced biologists
to establish a captive refugia (Williams 2021, pers. comm.). Although
the 2021 field season represented an increase in population numbers,
the adult and larval density levels remain at historical lows. We
categorized resiliency for demographics as very low for both meadows,
which were the only two meadows where butterflies were found. In
addition, the overall meadow condition for these sites was low because
there are few host plants and nectar sources present. Although nectar
sources are present, they are not blooming or providing enough
resources for the butterfly colonies. These meadows are within 800
meters of each other, which is within the dispersal distance of the
butterfly, allowing for potential gene flow between populations.
Overall resiliency of Sacramento Mountains checkerspot butterfly
populations is very low for demographic factors and low for habitat
factors. This is because butterflies were only found in 2 of the 10
documented meadows, and both had very low recorded adult and larval
abundance and density numbers. Additionally, these two meadows have
poor habitat conditions (few host plants, nectar sources are abundant
but provide insufficient resources, and some connectivity to other
meadows), and the other eight meadows have either very low condition or
are extirpated in terms of habitat factors.
We define a species' representation by assessing ecological and
genetic diversity. As a narrow-range endemic, the entire range of the
Sacramento Mountains checkerspot butterfly is approximately 32 square
miles. However, suitable habitat within this range is limited to only
about 2 square miles. Today, only 0.2 square miles might be occupied by
the butterfly. This range contraction suggests that most of the
original representation present within the subspecies has declined. The
entirety of the butterfly's range represents one representation area
because of the narrow range and limited ecological diversity. The
extant populations are small and isolated in this single representation
area with no current connectivity between those two populations. There
is some connectivity between habitat patches, but there is no
connectivity between extant
[[Page 6188]]
populations. The occupied meadows are among spruce-fir forests, so some
barriers limit the dispersal of individuals among the populations. Due
to the limited habitat connectivity of populations, individual
Sacramento Mountains checkerspot butterflies rarely, if ever, travel
between populations. This effectively restricts the transfer of genetic
material, thus limiting genetic diversity. There was likely greater
habitat connectivity between populations in the past due to a more
natural fire regime. Therefore, overall representation was always
limited for this subspecies and has declined since 2010.
We define redundancy for the Sacramento Mountains checkerspot
butterfly as multiple populations or metapopulations spread across the
subspecies' range. There are only 2 extant Sacramento Mountains
checkerspot butterfly populations located in adjacent meadows out of 10
documented populations within the single representation area. Given the
historical distribution of the butterfly, it is likely that Sacramento
Mountains checkerspot butterfly populations were more abundant within
the Sacramento Mountains prior to European colonization of the area.
Therefore, redundancy of the butterfly has declined over time. As a
consequence of these current conditions, the viability of the
Sacramento Mountains checkerspot butterfly primarily depends on
maintaining and restoring the remaining isolated populations and
reintroducing populations where feasible.
We incorporated the cumulative effects of the operative threats
into our analysis when we characterized the current condition of the
subspecies. Because our characterization of current condition considers
not just the presence of the factors, but to what degree they
collectively influence risk to the entire subspecies, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
Conservation Efforts and Regulatory Mechanisms
Several habitat management actions might benefit the viability of
the Sacramento Mountains checkerspot butterfly. To address the threat
of overgrazing from large ungulates, the Lincoln National Forest
erected exclosures to protect butterfly habitats from browsing. These
efforts are currently focused within Bailey Canyon and Pines Meadow
Campground, where adult butterflies are extant. Botanists involved with
the Sacramento Mountains checkerspot butterfly working group have
planted New Mexico beardtongue, orange sneezeweed, and other pollinator
plants within exclosures for habitat restoration. These efforts will
help ensure the individual needs of larvae and adult butterflies are
met.
In 2021, the Institute for Applied Ecology, Forest Service, and
other partners initiated a conservation project to address, enhance,
and restore Sacramento Mountains checkerspot butterfly habitat.
Biologists collected, cleaned, propagated, and mixed seeds containing
New Mexico beardtongue and four nectar species, including orange
sneezeweed. These plants and seeds were then planted into prepared
sites within both grazing exclosure fences and protective tubing.
Plants were watered by Forest Service staff. Survival rates of
plantings were assessed by the Forest Service in late fall and
determined to be high (greater than 90 percent). Funds were provided by
the Forest Service and the Native Plant Society of New Mexico (Gisler
2022, pers. comm.).
The Forest Service has proposed that fire management aimed at
reducing tree stocking within forested areas surrounding meadows might
also help restore suitable habitat and connectivity throughout the
range of the butterfly. Maintaining edge habitat and connectivity could
greatly improve the butterfly's viability in the long term.
Determination of Sacramento Mountains Checkerspot Butterfly's 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 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.
Status Throughout All of Its Range
After evaluating threats to the subspecies and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the Sacramento Mountains checkerspot butterfly
has declined in abundance, density, and number of populations.
Currently, there are only two extant populations where the subspecies
exists in very low abundances and are isolated from one another.
Furthermore, existing available habitat is reduced in quantity and
quality relative to historical conditions. Our analysis revealed
several threats that caused these declines and pose a meaningful risk
to the viability of the subspecies. These threats are primarily related
to habitat changes (Factor A) and include incompatible grazing,
recreation, invasive and nonnative plants, and an altered wildfire
regime, in addition to climate change (Factor E).
Over the past two decades, the Sacramento Mountains checkerspot
butterfly has declined, both in abundance and in the area occupied
(Forest Service 2020, p. 2). Because of increased populations of
ungulates (i.e., horses), grazing has increased in the subalpine
meadows that support the Sacramento Mountains checkerspot butterfly,
reducing the availability of host plants and nectar sources. The
reduction in habitat quality and quantity is further exacerbated by the
impact of drought associated with climate change. Additionally, the
altered wildfire regime has decreased habitat connectivity, and now
populations are more isolated from one another, with no dispersal among
populations.
We considered sites with butterfly detections during the last 3
years to be extant for the purposes of this determination. Because
adults or larvae have not been observed in the past 3 consecutive years
in 8 of the 10 populations, we consider those 8 populations
functionally extirpated. The two remaining populations are extremely
small and isolated. The habitat at those sites is currently in very low
condition due to a lack of both host plants for larvae and nectar
sources for adults.
Historically, the subspecies, with more abundant and larger
populations, would have been more resilient to stochastic events. Even
if such events extirpated some populations, they could be recolonized
over time by dispersal from nearby surviving populations. Because many
of the areas of suitable habitat may be small and support small numbers
of butterflies, local extirpation
[[Page 6189]]
of these small populations is probable. A metapopulation's persistence
depends on the combined dynamics of these local extirpations and the
subsequent recolonization of these areas by dispersal (Murphy and Weiss
1988, pp. 192-194). Habitat loss and the altered wildfire regime have
reduced the size of and connectivity between patches of suitable
butterfly habitat. The reduction in the extent of meadows and other
suitable non-forested areas has likely eliminated connectivity among
some localities and may have increased the distance beyond the normal
dispersal capability of the Sacramento Mountains checkerspot butterfly,
making recolonization of some patches following local extirpation more
difficult. In addition, habitat deterioration or reduction lowers the
quality of remaining habitat by reducing the diversity of microclimates
and food plants for larvae and adult butterflies (Murphy and Weiss
1988, p. 190).
Preliminary genetic evidence suggests little gene flow between
these units (Ryan 2021, pers. comm.). Connectivity, which would promote
resiliency and representation, has been lost. Eight populations are
functionally extirpated, and the remaining two populations are in very
low condition in terms of demographic factors, are in low condition in
terms of habitat factors, and are at high risk of loss. The Sacramento
Mountains checkerspot butterfly is extremely vulnerable to catastrophic
events (i.e., high-intensity, large wildfires) in suitable butterfly
habitats.
In summary, much of the remaining suitable butterfly habitat, and
therefore the long-term viability of the subspecies, is at risk due to
the direct and indirect effects of incompatible grazing, recreation,
climate change, invasive and nonnative plants, and an altered wildfire
regime. The remaining populations are fragmented, isolated from one
another, and unable to recolonize naturally. The populations are
largely in a state of chronic ongoing, intensifying degradation due to
habitat loss, which is exacerbated by climate change, limiting the
subspecies' resiliency. The limited geographic range of the Sacramento
Mountains checkerspot butterfly increases the threat of extinction for
this subspecies given the expected continuing loss and degradation of
suitable habitat and increased risks of extinction from catastrophic
events, such as wildfire. Historically, with a larger range of
interconnected populations, the butterfly would have been more
resilient to stochastic events because even if some populations were
extirpated by such events, they could be recolonized over time by
dispersal from nearby surviving populations. This connectivity, which
would have made for a sufficiently resilient subspecies overall, has
been lost, and with two populations in very low demographic condition
and low habitat condition, the remnant populations are at serious risk
of imminent loss. A threatened status for the Sacramento Mountains
checkerspot butterfly is not appropriate because the subspecies has
already shown significant declines in current resiliency, redundancy,
and representation due to the threats mentioned above.
Thus, after assessing the best available information, we determine
that the Sacramento Mountains checkerspot butterfly is in danger of
extinction 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. We have determined that the Sacramento Mountains checkerspot
butterfly is in danger of extinction throughout all of its range and
accordingly did not undertake an analysis of any significant portion of
its range. Because the Sacramento Mountains checkerspot butterfly
warrants listing as endangered throughout all of its range, our
determination does not conflict with the decision in Center for
Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020)
(Everson), which vacated the provision 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'' (Final Policy) (79 FR 37578, July 1, 2014)
providing that if the Services determine that a species is threatened
throughout all of its range, the Services will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Sacramento Mountains checkerspot
butterfly meets the Act's definition of an endangered species.
Therefore, we are listing the Sacramento Mountains checkerspot
butterfly as an endangered species in accordance with sections 3(6) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition as a listed species,
planning and implementation of 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,
including the Service, 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 such 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 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 and making
it 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. Revisions of the plan may be done 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
reclassification to threatened status (``downlisting'') or 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
[[Page 6190]]
our website (https://www.fws.gov/program/endangered-species), or from
our New Mexico 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.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of New Mexico will be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Sacramento Mountains checkerspot
butterfly. 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 the Sacramento Mountains checkerspot butterfly.
Additionally, we invite you to submit any new information on this
butterfly whenever it becomes available and any information you may
have for recovery planning purposes (see FOR FURTHER INFORMATION
CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or 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 (action agency) must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
conference, consultation, or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Forest Service.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
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 listed species.
Based on the best available information, the following actions are
unlikely to result in a violation of section 9, if these activities are
carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Possession, delivery, or movement, including interstate
transport and import into or export from the United States, involving
no commercial activity, of dead specimens of this taxon that were
collected prior to the effective date of this final rule (see DATES,
above);
(2) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing management, non-forested area management,
private or commercial development, recreational trail or forest road
development or use, road construction, prescribed burns, timber
harvest, pesticide/herbicide application, or pipeline or utility line
construction crossing suitable habitat) when such activity is conducted
in accordance with a biological opinion from the Service on a proposed
Federal action;
(3) Low-impact, infrequent, dispersed human activities on foot or
horseback that do not degrade butterfly habitat (e.g., bird watching,
sightseeing, backpacking, hunting, photography, camping, hiking);
(4) Activities on private lands that do not result in the take of
the Sacramento Mountains checkerspot butterfly, including those
activities involving loss of habitat, such as normal landscape
activities around a personal residence, proper grazing management, road
construction that avoids butterfly habitat, and pesticide/herbicide
application consistent with label restrictions; and
(5) Activities conducted under the terms of a valid permit issued
by the Service pursuant to section 10(a)(1)(A) or 10(a)(1)(B) of the
Act.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Capture (i.e., netting), survey, or collection of specimens of
this taxon without a permit from the Service pursuant to section
10(a)(1)(A) of the Act;
(2) Incidental take of Sacramento Mountains checkerspot butterfly
without a permit pursuant to section 10(a)(1)(B) of the Act;
(3) Sale or purchase of specimens of this taxon, except for
properly documented antique specimens of this taxon at least 100 years
old, as defined at section 10(h)(1) of the Act;
(4) Use of pesticides/herbicides that results in take of Sacramento
Mountains checkerspot butterfly;
[[Page 6191]]
(5) Unauthorized release of biological control agents that attack
any life stage of this taxon;
(6) Removal or destruction of the native food plants being used by
Sacramento Mountains checkerspot butterfly, defined as Penstemon
neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that
are used by this taxon that results in harm to this butterfly; and
(7) Destruction or alteration of Sacramento Mountains checkerspot
butterfly habitat by grading, leveling, plowing, mowing, burning,
herbicide or pesticide spraying, incompatible grazing, or otherwise
disturbing non-forested openings that result in the death of or injury
to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies
through significant impairment of the taxon's essential breeding,
foraging, sheltering, or other essential life functions.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the New Mexico
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that we designate critical habitat at the time a
species is determined to be an endangered or threatened species, to the
maximum extent prudent and determinable. In the January 25, 2022,
proposed listing rule (87 FR 3739), we determined that designation of
critical habitat was prudent but not determinable because specific
information needed to analyze the impacts of designation was lacking.
We are still in the process of assessing this information. We plan to
publish a proposed rule to designate critical habitat for the
Sacramento Mountains checkerspot butterfly in the near future.
Required Determinations
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 Endangered Species 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 the
Mescalero Apache Nation within the range of the Sacramento Mountains
checkerspot butterfly to inform the development of the current
condition assessment report, but we did not receive a response. We also
provided the Mescalero Apache Nation the opportunity to review a draft
of the current condition assessment report and provide input prior to
making our final determination on the status of the Sacramento
Mountains checkerspot butterfly, but also did not receive a response.
As we move forward with recovery planning and developing a proposed
critical habitat designation for the Sacramento Mountains checkerspot
butterfly, we will continue to coordinate with affected Tribes.
References Cited
A complete list of references cited in this rule is available on
the internet at https://www.regulations.gov and upon request from the
New Mexico 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 New Mexico
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and 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; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11, amend paragraph (h) by adding an entry for
``Butterfly, Sacramento Mountains checkerspot'' to the List of
Endangered and Threatened Wildlife in alphabetical order under INSECTS
to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects...........................................................................................
* * * * * * *
Butterfly, Sacramento Mountains Euphydryas anicia Wherever found.... E 88 FR [INSERT FEDERAL
checkerspot. cloudcrofti. REGISTER PAGE WHERE
THE DOCUMENT BEGINS],
1/31/2023.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-01146 Filed 1-30-23; 8:45 am]
BILLING CODE 4333-15-P