[Federal Register: January 25, 2006 (Volume 71, Number 16)]
[Proposed Rules]               
[Page 4092-4097]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Petitions To 
Reclassify the Florida Scrub-Jay From Threatened to Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on two petitions to reclassify the Florida scrub-jay 
(Aphelocoma coerulescens) from threatened to endangered under the 
Endangered Species Act of 1973, as amended (Act). We find the petitions 
do not provide substantial scientific information indicating that 
reclassification of the Florida scrub-jay may be warranted. Therefore, 
we will not initiate a further status review in response to these 
petitions. However, the public may submit to us any new information 
that becomes available concerning the status of the species or threats 
to it at any time.

DATES: The administrative finding announced in this document was made 
on January 25, 2006.

ADDRESSES: Data, comments, information, or questions concerning these 
petitions should be sent to the Field Supervisor, Jacksonville 
Ecological Services Office, 6620 Southpoint Drive South, Suite 310, 
Jacksonville, FL 32216; or by electronic mail (e-mail) to 
floridascrubjay@fws.gov. The petition finding, supporting information, 

and comments are available for public inspection, by appointment, 
during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: David L. Hankla, Field Supervisor, at 
the above address (telephone 904/232-2580; facsimile 904/232-2404).



    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial information to indicate that 
the petitioned action may be warranted. To the maximum extent 
practicable, we are to make this finding within 90 days of our receipt 
of the petition, and publish our notice of this finding promptly in the 
Federal Register.
    This finding summarizes information included in the petitions and 
information available to us at the time of the petition review. Under 
section 4(b)(3)(A) of the Act and our regulations in 50 CFR 424.14(b), 
our review of a 90-day finding is limited to a determination of whether 
the information in the petition meets the ``substantial scientific 
information'' threshold. Our standard for substantial information with 
regard to a 90-day petition finding is ``that amount of information 
that would lead a reasonable person to believe that the measure 
proposed in the petition may be warranted'' (50 CFR 424.14(b)).
    We have to satisfy the Act's requirement that we use the best 
available science to make our decisions. However, we do not conduct 
additional research at this point, nor do we subject the petition to 
rigorous critical review. Rather, at the 90-day finding stage, we 
accept the petitioner's sources and characterizations of the 
information, to the extent that they appear to be based on accepted 
scientific principles (such as citing published and peer reviewed 
articles, or studies done in accordance with valid methodologies), 
unless we have specific information to the contrary. Our finding 
considers whether the petition states on its face a reasonable case for 
reclassification. Thus our 90-day finding expresses no view as to the 
ultimate issue of whether the species should be reclassified.


    On March 13, 2002, we received a petition, dated March 13, 2002, 
from John A. Fritschie on behalf of the Partnership for a Sustainable 
Future of Brevard County, Florida; Indian River Audubon Society; 
Friends of the Scrub; Sierra Club Turtle Coast Group; Conradina Chapter 
of the Florida Native Plant Society; Sea Turtle Preservation Society; 
League of Women Voters of the Space Coast, Inc.; and Barrier Island 
Preservation Association, Inc. (hereafter referred to as the 2002 
petition). The 2002 petition requested that the Florida scrub-jay be 
reclassified from threatened to endangered and that critical habitat be 
designated with reclassification. The 2002 petition contained 
supporting information regarding the species' taxonomy and ecology, 
historical and current distribution, present status, and potential 
causes of decline. We acknowledged the receipt of the 2002 petition in 
a letter to Mr. Fritschie, dated April 12, 2002.
    On May 1, 2003, we received a petition, dated April 22, 2003, from 
Brett M. Paben, WildLaw Florida Office, on behalf of Save Our Big 
Scrub, Inc. (hereafter referred to as the 2003 petition). The 2003 
petition requested that the Florida scrub-jay be reclassified from 
threatened to endangered and that critical habitat be designated with 
reclassification. The 2003 petition contained supporting information 
regarding the species' taxonomy and ecology, historical and current 
distribution, present status, and potential causes of decline. We 
acknowledged the receipt of the 2003 petition in a letter to Mr. Brett 
Paben, dated June 20, 2003.
    On March 14, 2004, several of the petitioners filed a complaint 
(Save Our Big Scrub, Inc. v. Norton, Case No. 6:04cv349-Orl-28KRS) 
(M.D. Fla.) alleging our failure to make 90-day and 12-month petition 
findings on reclassifying the Florida scrub-jay and to revise the 
critical habitat designation. In a stipulated settlement agreement 
adopted by the court on December 20, 2004, we agreed to submit one 90-
day finding for both petitions to the Federal Register by January 15, 
2006, and to

[[Page 4093]]

complete, if applicable, a combined 12-month finding for both petitions 
by January 15, 2007. A decision on whether or not to designate critical 
habitat will be considered if reclassification is warranted.
    On August 1, 2005, the Service received two supplements to the 2003 
petition (dated July 12, 2005 and July 14, 2005), containing additional 
information for our consideration in making a finding on the 2003 
petition. References to the 2003 petition in the following discussion 
includes the supplements.

Species Information

    For more information on the Florida scrub-jay, please refer to the 
final listing rule published in the Federal Register on June 3, 1987 
(52 FR 20715), and the most recent recovery plan for this species (see 
information on how to obtain a hard or electronic copy of the plan).
    The Florida scrub-jay is in the order Passeriformes and the family 
Corvidae. It was considered a subspecies (A. c. coerulescens) for 
several decades (AOU 1957). It regained recognition as a full species 
(Florida scrub-jay, Aphelocoma coerulescens) from the American 
Ornithologists' Union (AOU 1995) because of genetic, morphological, and 
behavioral differences from the other members of this group: The 
western scrub-jay (A. californica) and the island scrub-jay (A. 
insularis). In this notice, Florida scrub-jays will be referred to as 
    Scrub-jays are about 25 to 30 centimeters (cm) (10 to 12 inches 
(in)) long and weigh about 77 grams (3 ounces). They are similar in 
size and shape to blue jays (Cyanocitta cristata) but differ 
significantly in coloration (Woolfenden and Fitzpatrick 1996a). It 
lacks the crest, conspicuous white-tipped wing and tail feathers, black 
barring, and bridle of the blue jay. The scrub-jay's head, nape, wings, 
and tail are pale blue, and its body is pale gray on its back and 
belly. Its throat and upper breast are lightly striped and bordered by 
a pale blue-gray ``bib'' (Woolfenden and Fitzpatrick 1996a).
    Scrub-jays forage mostly on or near the ground, often along the 
edges of natural or man-made openings. They visually search for food 
while hopping or running along the ground beneath the scrub or by 
jumping from shrub to shrub. Insects, particularly orthopterans (such 
as locusts, crickets, grasshoppers, beetles) and lepidopteran 
(butterfly and moth) larvae, form most of the animal diet throughout 
most of the year (Woolfenden and Fitzpatrick 1984). Small vertebrates 
are eaten when encountered, including frogs and toads, lizards, snakes, 
rodents, and some young birds. Acorns are the principal plant food 
(Woolfenden and Fitzpatrick 1984; Fitzpatrick et al. 1991).
    Scrub-jays have a social structure that involves cooperative 
breeding, a trait that the other North American species of scrub-jays 
do not show (Woolfenden and Fitzpatrick 1984, 1990). Scrub-jays live in 
families ranging from two birds (a single mated pair) to extended 
families of eight adults (Woolfenden and Fitzpatrick 1984) and one to 
four juveniles.
    Scrub-jay pairs occupy year-round, multi-purpose territories 
(Woolfenden and Fitzpatrick 1978, 1984; Fitzpatrick et al. 1991). 
Territory size averages 9 to 10 hectares (ha) (22 to 25 acres (ac)) 
(Woolfenden and Fitzpatrick 1990; Fitzpatrick et al. 1991), with a 
minimum size of about 5 ha (12 ac) (Woolfenden and Fitzpatrick 1984; 
Fitzpatrick et al. 1991). Persistent breeding populations of scrub-jays 
exist only where there are scrub oaks in sufficient quantity and form 
to provide an ample winter acorn supply, cover from predators, and nest 
sites during the spring (Woolfenden and Fitzpatrick 1996b).
    The scrub-jay has specific habitat needs. It is endemic to 
peninsular Florida's ancient dune ecosystems or scrubs, which occur on 
well-drained to excessively well-drained sandy soils (Laessle 1958, 
1968; Myers 1990; Fitzpatrick et al. unpubl. data). This community type 
is adapted to nutrient-poor soils, periodic drought, and frequent fires 
(Abrahamson 1984). Xeric oak scrub on the Lake Wales Ridge is 
predominantly made up of four species of stunted, low-growing oaks: 
sand live oak (Quercus geminata), Chapman oak (Q. chapmanii), myrtle 
oak (Q. myrtifolia), and scrub oak (Q. inopina) (Myers 1990). In 
optimal habitat for scrub-jays, these oaks are 1 to 3 m (3 to 10 ft) 
high, interspersed with 10 to 50 percent unvegetated, sandy openings, 
and a sand pine (Pinus clausa) canopy of less than 20 percent 
(Woolfenden and Fitzpatrick 1991). Trees and dense herbaceous 
vegetation are rare. Other vegetation noted along with the oaks 
includes saw palmetto (Serenoa repens), scrub palmetto (Sabal etonia), 
and such woody shrubs as Florida rosemary (Ceratiola ericoides) and 
rusty lyonia (Lyonia ferruginea).

Status and Distribution

    The Florida scrub-jay was federally listed as threatened in June 3, 
1987, primarily because of habitat fragmentation, degradation, and loss 
(52 FR 20715). A threatened species is one that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. Scrub habitats associated with 
Florida's barrier islands, mainland coasts, and Lake Wales Ridge are 
some of the most imperiled natural communities in the United States, 
with estimates of habitat loss since pre-European settlement times 
ranging from 70 to more than 80 percent (Woolfenden and Fitzpatrick 
1996a; Fitzpatrick et al. unpubl. data). Historically, oak scrub 
occurred as numerous isolated patches in peninsular Florida. These 
patches were concentrated along both the Atlantic and Gulf coasts and 
on the central ridges of the peninsula (Davis 1967). Today, only relict 
patches of xeric oak scrub remain. Fitzpatrick et al. (1994) believed 
that fire suppression was just as responsible as habitat loss in the 
decline of the scrub-jay, especially in the northern third of its 
range. Cox (1987) noted local extirpations and major decreases in 
numbers of scrub-jays and attributed them to the clearing of scrub for 
housing and citrus groves. The greatest population decline had occurred 
during the early 1980s with an estimated 25 to 50 percent reduction in 
scrub-jay numbers (Fitzpatrick et al. 1994).
    A Statewide scrub-jay census was last conducted in 1992-1993, at 
which time there were an estimated 4,000 pairs of scrub-jays in 31 
counties in Florida (Fitzpatrick et al. 1994). The scrub-jay was 
considered extirpated in 10 counties (Alachua, Broward, Clay, Dade, 
Duval, Gilchrist, Hernando, Hendry, Pinellas, and St. Johns), and was 
considered functionally extinct in an additional 5 counties (Flagler, 
Hardee, Levy, Orange, and Putnam), where 10 or fewer pairs remained. 
Recent information indicates that there are at least 12 to 14 breeding 
pairs of scrub-jays located within Levy County, higher than previously 
thought (K. Miller, FWC, in litt. 7/16/04), and there is at least one 
breeding pair of scrub-jays remaining in Clay County (K. Miller, FWC, 
in litt. 7/16/04). A scrub-jay has been documented in St. Johns County 
as recently as 2003 (J.B. Miller, FDEP, in litt. 5/13/03). In 1992-
1993, population numbers in 21 of the counties were below 30 or fewer 
breeding pairs (Fitzpatrick et al. 1994).
    Results from a population viability analysis indicated that a 
population of scrub-jays with fewer than 10 breeding pairs had a 50 
percent probability of extinction over 100 years (Stith 1999). 
Populations with at least 100 pairs had a 2 to 3 percent chance of 
extinction. Results from this population viability analysis indicated 
that 3 of 21

[[Page 4094]]

metapopulations identified had enough breeding pairs to have a low 
extinction risk and an estimated 99 percent probability of survival 
over 100 years (Stith 1999).

Threats Analysis

    Pursuant to section 4 of the Act, we may determine whether a 
species, subspecies, or distinct population segment of vertebrate taxa 
is endangered or threatened because of any of the following five 
factors: (A) Present or threatened destruction, modification, or 
curtailment of habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) inadequacy of existing regulatory mechanisms; and (E) 
other natural or manmade factors affecting its continued existence. In 
making this 90-day finding, we evaluated whether the scientific 
information presented and referenced in the petitions would lead a 
reasonable person to believe that the species may now meet the 
definition of endangered (that is, in danger of extinction throughout 
all or a significant portion of its range) instead of threatened, and 
thus reclassification may be warranted. Our evaluation of these 
threats, based on information provided in the petition and available in 
our files, is presented below.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

Information Provided in the Petitions
    The 2003 petition stated that, historically, scrub habitat occurred 
as large contiguous patches, some more than hundreds of miles (Cox 
1987). Today, only relict patches remain. The 2002 petition stated that 
most of the remaining populations of scrub-jays are vulnerable to 
extinction due to low population size and the continued loss, 
degradation, and fragmentation of scrub habitat. The 2002 and 2003 
petitions estimate that the historic range of the scrub-jay has 
decreased anywhere from 70 to 90 percent, and that these losses of 
habitat equate to equal loss of scrub-jays. The 2002 petition contained 
no references for the estimate provided, but the 2003 petition 
referenced Bergen (1994). The 2003 petition states that habitat losses 
are a result of conversion to citrus and residential development 
(Fernald 1989; Fitzpatrick et al. 1991) due to Florida's rapidly 
growing human population (USCB 1995, 1997, undated; FHDC undated). The 
population growth and resulting urbanization bring transportation 
projects, and any increase in roads, traffic volumes, and speeds 
through scrub-jay habitat are significant concerns for the continued 
survival of the scrub-jay (Noss undated; Mumme et al. 2000).
    As an example of habitat loss, the 2002 and 2003 petitions noted 
the vulnerability of the central Brevard County, Florida, population of 
scrub-jays to human population expansion there. The petitioners stated 
that the area provides the necessary link between the relatively large 
southern population and potentially large northern population of scrub-
jays and that loss of the link will put the core population at risk of 
extinction (Breininger et al. 2001, 2003). As other examples of habitat 
loss, the 2003 petition also expressed concern about the decline in the 
scrub-jay populations in and around the Cedar Key State Reserve in Levy 
County (Miller et al. 2003) and scrub-jay population declines in 
southwest Florida (Service 1999).
Evaluation of Information in the Petitions
    While Cox (1987) did discuss the historical range of scrub-jays, he 
did not make any statements about how scrub historically was situated 
within the state of Florida, as stated in the 2003 petition. The 2002 
petition did not provide documentation that the remaining populations 
of scrub-jays are more vulnerable to extinction due to a reduced 
population size, and the claim of continued loss, degradation, and 
fragmentation of scrub habitat was provided with no supporting 
    In the 2002 petition, no reference was given to support estimates 
of scrub loss, but the 2003 petition cited Bergen (1994). However, 
Bergen (1994) made no estimates of scrub loss Statewide, because his 
work dealt only with Brevard County, Florida. Within Brevard County, 
however, Bergen (1994) estimated that 68.8 percent of scrub habitat was 
lost between 1943 and 1991. Bergen (1994) does not provide an estimate 
of the amount of scrub lost in Brevard County between 1987 (the year 
that the scrub-jay was listed as threatened) and 1991, the year of the 
most recent information utilized in his review. Other studies report 
that the majority of the habitat loss occurred prior to 1987 and was 
one of the reasons the scrub-jay was listed as threatened. Cox (1987) 
relayed a 1980 report that the number of scrub-jays in Brevard County 
had declined sharply since 1955. Further, Fitzpatrick et al. (1994) 
report that the greatest population decline had occurred during the 
early 1980s with an estimated 25 to 50 percent reduction in scrub-jay 
numbers. The petition also stated that the scrub habitat rangewide has 
been fragmented by agriculture and commercial and residential 
development (Fernald 1989; Fitzpatrick et al. 1991). No substantial 
information was presented by the petitioner that indicates what 
proportion of the scrub loss has occurred since the time of the scrub-
jays' listing, nor has the petitioner provided justification that as a 
result of the land-clearing activity, and destruction and fragmentation 
of scrub habitat, the species is now in danger of extinction throughout 
all or a significant portion of its range.
    The 2003 petition cites U.S. Census Bureau and Florida Housing Data 
Clearinghouse figures to support its claim that the extensive loss of 
scrub-jay habitat is a result of Florida's rapidly growing human 
population. These data, however, do not provide an analysis of whether 
or not the new development is occurring in scrub habitat. Further, the 
2003 petition acknowledged that a growing human population alone is not 
proof that scrub habitat has been destroyed. There has been no 
substantial information presented by the petitioner that the growing 
human population of Florida is placing the scrub-jay in danger of 
extinction throughout all or a significant portion of its range.
    Both petitions stated that along with population growth and 
urbanization comes an increase in transportation projects. Roadsides 
often provide attractive habitat for scrub-jays to hunt insects and 
cache acorns, and scrub-jay territories often spread across roads 
(meaning that the scrub-jays will frequently cross the roads). The 2003 
petition alleged that the construction of high-speed roads adjacent to 
scrub habitat occupied by scrub-jays has been shown to impact 
negatively the scrub-jay populations living there (Mumme et al. 2000). 
However, Mumme et al.'s work looked at only a small portion of one 
high-speed road, so we are unable to draw conclusions about the 
rangewide effect of this threat and whether the scrub-jay is threatened 
with extinction because of it.
    As examples of loss of scrub habitat and scrub-jay populations 
since the species was listed in 1987, the 2002 and 2003 petitions 
discuss in detail human impacts to scrub-jay habitat serving as 
critical connectors between metapopulations in central Brevard County, 
Florida (Breininger et al. 2001, 2003). However, Breininger et al.'s 
(2001, 2003) work only focused on the non-Federal lands in Brevard and 
a small portion of Indian River County. Regarding the risk of 
extinction for this

[[Page 4095]]

portion of the range, Breininger et al. (2001) acknowledges that their 
``ideas about population dynamics are untested and insufficient data on 
edge effects, density dependence, and metapopulation dynamics provide 
much uncertainty.'' The 2003 petition also raised concerns about loss 
of scrub habitat and scrub-jays in the area in and around Cedar Key 
State Reserve (Miller et al. 2003) and the scrub-jay population 
declines in southwest Florida (FWS 1999). While we acknowledge that 
some scrub-jay populations have declined, the petitioners have not 
provided substantial information indicating that the species is now in 
danger of extinction throughout all or a significant portion of the 
    While a variety of activities that affect scrub habitat are 
occurring in Florida (such as agriculture and development (Cox 1987; 
Fernald 1989; Fitzpatrick et al. 1991; Bergen 1994; Mumme et al. 2000; 
Breininger et al. 2001, 2003; Miller et al. 2003)), the petitions do 
not provide substantial information that these activities, either 
singly or in combination, may be destroying or modifying the Florida 
scrub-jay's habitat to the extent that the species is now in danger of 
extinction throughout all or a significant portion of the species' 
range. Also, with some exceptions, the petitions fail to provide 
scientific documentation to demonstrate that the areas where habitat 
loss has occurred are also the areas where scrub-jay populations occur.
    Although the limited amount of scrub habitat in Florida makes this 
species vulnerable to additional habitat loss and fragmentation, the 
petitions do not address what the effects of these changes have been on 
scrub-jay population numbers across the range of the species since the 
time the species was listed. Based on the preceding discussion, we do 
not believe that substantial information has been presented by the 
petitioners indicating that the present or threatened destruction, 
modification, or curtailment of habitat or range may, either singularly 
or in combination with other factors, rise to the level at which the 
scrub-jay is now in danger of extinction throughout all or a 
significant portion of its range and should be reclassified from 
threatened to endangered status.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Information Provided in the Petitions
    The petitions cited the original listing rule (52 FR 20715) as 
evidence that malicious shooting of the birds by vandals continues to 
pose a threat to the scrub-jay.
Evaluation of Information in the Petitions
    The information presented is not different from that addressed in 
the original listing rule and the petitioners did not present any 
information about how this threat has affected population viability. 
Therefore, the petitions did not present substantial information 
indicating that the scrub-jay may now be in danger of extinction 
throughout all or a significant portion of its range as a result of 
malicious shooting by vandals.

C. Disease or Predation

Information Provided in the Petitions
    The 2003 petition stated that scrub-jay populations are affected by 
the frequency and severity of catastrophic mortalities (Fitzpatrick et 
al. unpubl. data) and that epidemic disease is the only known 
catastrophe that affects scrub-jay populations (Fitzpatrick et al. 
1991). Both petitions expressed concern for the arrival of West Nile 
virus in Florida and its potential negative impacts on scrub-jays, 
since scrub-jays are in the same family (Corvidae) as are blue jays, 
American crows, fish crows, and Western scrub-jay; all of these species 
have been negatively affected by West Nile virus (Root 1996; Allison 
2001; CDC undated; USGS 2003). In addition, the 2003 petition expressed 
concern for scrub-jays' vulnerability to predation from domestic 
animals, particularly feral cats (Fitzpatrick et al. unpubl. data; FWC 
2001; ABC undated).
Evaluation of Information in the Petitions
    We acknowledge the vulnerability of scrub-jays to catastrophic 
mortalities (Woolfenden and Fitzpatrick 1984; Breininger et al. 1999; 
Stevens and Hardesty 1999; Fitzpatrick et al. unpubl. data), especially 
that resulting from epidemic disease (Woolfenden and Fitzpatrick 1984; 
Fitzpatrick et al. 1991; Breininger et al. 1999; Stevens and Hardesty 
1999; Breininger et al. 2001, 2003). The arrival of the West Nile virus 
in Florida in 2001 (Stark and Kazanis 2001; Wallace 2001; Breininger et 
al. 2001, 2003) is of particular concern because of the scrub-jay's 
close familial relationship to other species which have been negatively 
impacted by this virus (CDC undated), even though it has not been 
confirmed that scrub-jays have been affected in Florida (Stark and 
Kazanis 2001; Collins et al. 2002, 2003; Rivers et al. 2004). Local 
die-offs of scrub-jays have been reported since the arrival of West 
Nile Virus in Florida, with the causes not yet determined (Breininger 
et al. 2001, 2003). The petitioners have presented no substantial 
information that the scrub-jay may now be in danger of extinction 
throughout all or a significant portion of its range as a result of the 
arrival of West Nile virus in Florida.
    Scrub-jays are vulnerable to predation by feral and domestic cats, 
as alleged in the petitions (Fitzpatrick et al. 1991; Bowman and 
Averill 1993; Bergen 1994; Breininger et al. 1995, 2001; Woolfenden and 
Fitzpatrick 1996a, 1996b; Breininger 1999; Toland 1999; Christman 
2000). These references, however, do not discuss the extent of the 
threat by feral and domestic cats to scrub-jays. Woolfenden and 
Fitzpatrick (1996b) state that in suburban habitats, house cats are 
``important'' predators to young and adult scrub-jays. Fitzpatrick et 
al. (1991) suspect that domestic cats supported by human food offerings 
could eliminate a small local population of scrub-jays, but there has 
not been any quantitative work done on this issue to date. Thus, the 
petitioner did not provide substantial information that such predation 
has placed the scrub-jay in danger of extinction throughout all or a 
significant portion of its range.

D. Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petitions
Service Regulatory Process
    Both petitions claim that, because critical habitat has not been 
designated for the scrub-jay, the section 7 consultation process of the 
Act does not consider impacts to unoccupied suitable habitat and the 
loss of both occupied and adjacent unoccupied suitable habitat (Service 
2002a cited in the 2002 petition; FEAR 2003 cited in the 2003 
petition). The 2003 petition claims that without the designation of 
critical habitat, section 7 consultation with the U.S. Army Corps of 
Engineers (USACE) has proven to be difficult for the protection of 
unoccupied habitat of listed species (Defenders of Wildlife v. Ballard, 
73F. Supp.2d at 1094 (D. Ariz. 1999), concerning pygmy owls; Fund for 
Animals v. Rice, 85 F.3d 535 (11th Cir. 1996), concerning Florida 
panthers). The 2003 petition, therefore, asks that critical habitat be 
designated for the scrub-jay.
    The 2002 petition contends that the USACE is failing to consider 
the cumulative impact of its actions (Service 2001b). Both petitions 
express concern for the Service regulatory program regarding scrub-jays 
(Fritschie 2002, Attachment B; Service 2003), with

[[Page 4096]]

the 2002 petition citing the Plantation Point biological opinion as an 
example (Service 2001b; Fritschie 2002, Attachment B). The 2003 
petition contends that the location of incidental take permits issued 
between 1994 and 2002 demonstrates that a lot of development activity 
is occurring in scrub-jay habitat without the necessary permits 
required by the Act (USCB 1995, 1997; Service 2003). The 2002 petition 
further cites the failure of the Service to develop a county-wide 
approach to deal with scrub-jay mitigation as evidence of the 
inadequacy of existing regulatory mechanisms in protecting the scrub-
jay (Service 2001a). The 2003 petition contends that the Service fails 
to follow its own mitigation guidance when consulting under section 7 
of the Act (Service 1999; 2002b) and that the Service doesn't hold 
local counties responsible for illegal taking of scrub-jays (Service 
1991a, 1991b, 1992, 1993, 1998; Brevard County 1996; PSF 1998). The 
petitioners believe that, as a result, local governments do not require 
Federal permits prior to issuing local ones (Service 1994a, 1994b), 
which could facilitate unauthorized take of scrub-jays.
    The 2003 petition claims that, despite Federal agencies' knowledge 
of the presence of scrub-jays on lands they manage, scrub-jay numbers 
have continued to decline on those lands since the species was listed 
as threatened (52 FR 20715). In the Ocala National Forest, for example, 
the petitioner states that there has been a 31 percent decrease in 
scrub-jays since the estimate made during the period of 1981 to 1983 
(U.S. Forest Service (USFS) 2002; Cox 1987). One reason hypothesized by 
the petitioner for the decline is that naturally-occurring fires are 
suppressed at Ocala National Forest (outside of congressionally 
designated wilderness areas) and by the State of Florida (USFS 1999; 
F.S. section 590.01).
    In addition, both petitions contend that the scrub-jay recovery 
plan needs to be revised and implemented because it is out-of-date.
State Regulatory Process
    The 2003 petition contends that Florida law does not protect scrub-
jays from habitat destruction, which is the major cause of the species' 
decline in Florida (F.A.C. 68A-27.004(1)(a); 52 FR 20717). In addition, 
the 2003 petition claims that in 1999, the Florida Fish and Wildlife 
Conservation Commission (FWC) adopted a new process for classifying 
species as endangered, threatened, or species of special concern (IUCN 
1994); therefore, it is questionable whether the scrub-jay still 
classifies as a threatened species under the Florida statute. The 
International Union for Conservation of Nature and Natural Resources 
(IUCN) classifies the scrub-jay as ``vulnerable'' (IUCN 2002), which 
would be the equivalent of a ``species of special concern'' for the 
purposes of the FWC classification, meaning that the scrub-jay would 
receive less protection if the status is subsequently adopted by FWC. 
Such a designation would allow catastrophic losses to the scrub-jay 
population before it could be classified as threatened by the FWC.
Evaluation of Information in the Petitions
Service Regulatory Process
    Under the section 7 consultation process, Federal agencies are 
required to consult with us when their actions may affect a listed 
species. Therefore, impacts to unoccupied habitat may not be considered 
unless the unoccupied habitat has been designated as critical habitat 
for the species under consultation. The petitions, therefore, present a 
factual statement about the Act. The 2002 petition cites a letter from 
the Service, in which we acknowledge that there are many areas with 
potentially suitable scrub habitat that have become overgrown due to 
fire suppression. Most of these sites are unoccupied by scrub-jays due 
to the unsuitable condition of the site's habitat, and therefore, the 
consultation requirement is not triggered. The 2003 petition cites 
court cases that do not relate specifically to the scrub-jay. The 
petitions do not provide substantial information showing a clear link 
between the section 7 process and their assertion that the species 
should be reclassified. We do, however, address the petitions' claims 
regarding threats of habitat destruction and fragmentation under Factor 
A. We also note that designation of unoccupied areas as critical 
habitat would not impose any requirement that land owners or land 
managers not suppress fires or conduct prescribed burns on that land.
    The Service and the USACE have permitted numerous developments in 
central Brevard County and other portions of the species' range, as 
claimed by the petitioners. These permits are processed in accordance 
with applicable laws, regulations, and agency policies. The 2002 
petition cited a project for Plantation Point (Service 2002b; Fritschie 
2002, Attachment B) as evidence that development in central Brevard 
County that may affect scrub-jays continues to occur. The court 
determined that the biological opinion for this project followed the 
provisions of the Act (U.S. District Court 2002). Further, the claim 
raised by the 2002 petition is not different from that addressed in the 
1987 final rule listing the species, because section 7 of the Act has 
not been radically changed since that time. As for the evidence cited 
by the 2003 petition (Service 2003), that 28 incidental take permits 
had been issued by the Service for projects involving scrub-jay habitat 
between 1994 and 2002 and that additional applications have been 
received and processed to date, this information is factual. However, 
cumulative impacts of these actions are addressed as part of compliance 
with the National Environmental Policy Act (42 U.S.C. 4371 et seq.) and 
in the individual intra-Service section 7 consultations conducted on 
the actions. The petitions do not provide substantial information 
showing a link between these regulatory actions and their assertion 
that the scrub-jay should be reclassified to endangered. We do, 
however, address the petitions' claims regarding threats of habitat 
destruction and fragmentation under Factor A.
    The Service has a rangewide approach to scrub-jay mitigation for 
development activity, which has been revised most recently in 2004 
(Service 2004). The 2003 petition claims that we fail to follow our own 
mitigation guidance for impacts to scrub-jays, as shown in the outcome 
of the Plantation Point project (Service 1999, 2002b). The mitigation 
guidelines referenced (Service 1999) are written for incidental take 
permit actions under section 10(a)(1)(B) of the Act, which requires 
that impacts be avoided, minimized, and mitigated to the maximum extent 
practicable. The project used as an example to demonstrate our failure 
to follow the guidelines, however, was not processed under the 
provisions of section 10, but rather section 7. Under section 7, the 
action agency is required only to minimize impacts; the measures 
outlined in the mitigation guidance are utilized for section 7 subject 
to the ``ultimate determination of acceptability by the action agency'' 
(Service 2002b, 2004). The petitioners have not presented substantial 
information that indicates that as a result of this mitigation 
guidance, the scrub-jay is now in danger of extinction throughout all 
or a significant portion of its range.
    All counties in which scrub-jays are present, as well as many of 
the local municipalities, have been advised of their responsibilities 
under the Act. Even though Brevard County did not

[[Page 4097]]

adopt a regional HCP, numerous individual permit applications have been 
reviewed by the Service. The petition does not provide substantial 
information to support their claim that take is occurring as a result 
of local governments that are not requiring Federal permits. Further, 
the petition does not identify a clear link between the claim and the 
need to reclassify the species to endangered status.
    The 2003 petition cites the Ocala National Forest as an example of 
the inadequacies of regulatory programs, citing a 31 percent drop in 
the number of scrub-jays from the early 1980s to the early 2000s. (Cox 
1987; USFS 2002). We contend, however, that the survey methodologies 
cited in these two studies were different from one another and cannot 
be compared to demonstrate a drop in scrub-jay numbers. Further, no 
substantial information was presented by the petitioner that population 
declines on Federal lands in Florida are placing the scrub-jay in 
danger of extinction throughout all or a significant portion of its 
    Finally, both the 2002 and 2003 petitions contend that the scrub-
jay recovery plan is in need of revision. Recovery plans are not 
regulatory documents; therefore, this claim is not relevant to this 
factor. Further, the petitions do not provide substantial information 
that as a result of the lack of revision to the scrub-jay recovery 
plan, the scrub-jay is now in danger of extinction throughout all or a 
significant portion of its range. We note, however, that the recovery 
plan is being revised.
State Regulatory Process
    The 2003 petition's contention that Florida law does not protect 
scrub-jays from habitat destruction is not different from that 
addressed in the 1987 final rule. In addition, while the information 
that a new process has been adopted by FWC for classifying species as 
endangered, threatened, or species of special concern is factual, 
according to the most recent list of imperiled species for the State of 
Florida (FWC 2004), the scrub-jay is still listed as threatened. The 
petition provides no substantial information that indicates as a result 
of the existing State laws, the scrub-jay is now in danger of 
extinction throughout all or a significant portion of its range.

E. Other Natural or Manmade Factors Affecting the Species Continued 

Information Provided in the Petitions
    Both the 2002 and 2003 petitions claim that the fire regime in 
scrub habitat has been altered, which has negatively affected scrub-
jays (TNC 2001). Scrub-jay habitat, if not continuously managed, can 
quickly become population sinks for scrub-jays, creating difficulties 
for land managers and negatively impacting scrub-jays (Breininger and 
Carter 2003; Breininger and Oddy 2004). Throughout the northern portion 
of the species' range, the petitioners attribute population declines of 
scrub-jays to scrub fragmentation and degradation, due primarily to 
widespread fire suppression (Cox et al. 1994). In addition, the 2003 
petition claims that a previous model for the scrub-jay (Root 1998) may 
have been too optimistic, because the possibility that certain kinds of 
impacts of environmental noise (such as loud sounds) on scrub-jays was 
ignored (Heino and Sabadell 2003).
Evaluation of Information in the Petitions
    We share opinions provided in both the 2002 and 2003 petitions 
regarding the negative effects to scrub-jays from fire suppression 
(Breininger and Carter 2003; Breininger and Oddy 2004). However, fire 
suppression was considered a threat to the scrub-jay when the species 
was first listed as threatened in 1987 (52 FR 20715). The petitions 
provided no substantial information that indicates as a result of fire 
suppression, the scrub-jay is now in danger of extinction throughout 
all or a significant portion of its range.
    The work presented by Heino and Sabadell (2003) indicates that 
ignoring the effects of environmental noise on scrub-jays in population 
viability analysis can result in serious biases to a model. However, 
the petitioner did not provide substantial information that by not 
considering environmental noise, the scrub-jay is now in danger of 
extinction throughout all or a significant portion of its range.
    We have reviewed the petitions and literature cited in the 
petitions, and we have evaluated that information in relation to other 
pertinent literature. After this review and evaluation, we find the 
petitions do not present substantial scientific information to indicate 
that reclassification of the Florida scrub-jay from threatened to 
endangered may be warranted at this time. Although we will not be 
commencing a status review in response to these petitions, we will 
continue to monitor the species' population status and trends, 
potential threats, and ongoing management actions that might be 
important with regard to the conservation of the scrub-jay across its 
    We encourage interested parties to continue to gather data that 
will assist with the conservation of the species. If you wish to 
provide information regarding scrub-jays, you may submit your 
information or materials to the Field Supervisor, Jacksonville Fish and 
Wildlife Office (see ADDRESSES section).

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Jacksonville Fish and Wildlife Office (see ADDRESSES 


    The primary author of this notice is Dawn Zattau, U.S. Fish and 
Wildlife Service, Jacksonville Field Office (see ADDRESSES section).


    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 13, 2006.
Matt Hogan,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 06-551 Filed 1-24-06; 8:45 am]