[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Proposed Rules]
[Page 74123-74129]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de08-28]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2008-0110; MO-9221050083 - B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the Sacramento Mountains Checkerspot Butterfly
(Euphydryas anicia cloudcrofti) as Endangered with Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of a status
review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the Sacramento Mountains
checkerspot butterfly (Euphydryas anicia cloudcrofti) as an endangered
species and designate critical habitat under the Endangered Species Act
of 1973, as amended (Act). We find the petition provides substantial
scientific or commercial information indicating that listing this
subspecies under the Act may be warranted. Therefore, with the
publication of this notice, we are initiating a status review of the
species, and we will issue a 12-month finding to determine if the
petitioned action is warranted. To ensure that the status review is
comprehensive, we are soliciting scientific and commercial data
regarding this species. We will make a determination on critical
habitat for this subspecies if and when we initiate a listing action.
DATES: To allow us adequate time to conduct this review, we request
that we receive information on or before February 3, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2008-0110; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information
received on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Information
Solicited section below for more details).
FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor,
New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM
87113; by (telephone at 505-346-2525, or by facsimile at 505-346-2542.
If you use a telecommunications devise for the deaf (TTD), you may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information indicating that listing a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting
information on the status of the Sacramento Mountains checkerspot
butterfly. We request information from the public, other concerned
governmental agencies, Tribes, the scientific community, industry, or
any other interested parties concerning the status of the Sacramento
Mountains checkerspot butterfly. We are seeking information regarding
the subspecies' historical and current status and distribution, its
biology and ecology, its taxonomy, ongoing conservation measures for
the subspecies and its habitat, and threats to either the subspecies or
its habitat.
If we determine that listing the Sacramento Mountains checkerspot
butterfly is warranted, we intend to propose critical habitat to the
maximum extent prudent and determinable at the time we would propose to
list the subspecies. Therefore, with regard to areas within the
geographical range currently occupied by the Sacramento Mountains
checkerspot butterfly, we also request data and information on what may
constitute physical or biological features essential to the
conservation of the subspecies, where these features are currently
found, and whether any of these features may require special management
considerations or protection. In addition, we request data and
information regarding whether there are areas outside the geographical
area occupied by the subspecies that are essential to the conservation
of the subspecies. Please provide specific
[[Page 74124]]
information as to what, if any, critical habitat should be proposed for
designation if the subspecies is proposed for listing, and why that
proposed habitat meets the requirements of the Act (16 U.S.C. 1531 et
seq.).
Please note that comments merely stating support or opposition to
the action under consideration without providing supporting
information, although noted, will not be considered in making a
determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.'' Based on the status review, we will issue
a 12-month finding on the petition, as provided in section 4(b)(3)(B)
of the Act.
You may submit your information concerning this finding by one of
the methods listed in the ADDRESSES section. We will not consider
submissions sent by e-mail or fax or to an address not listed in the
ADDRESSES section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files at
the time we make the determination. To the maximum extent practicable,
we are to make this finding within 90 days of our receipt of the
petition and publish our notice of this finding promptly in the Federal
Register.
Our standard for substantial information within the Code of Federal
Regulations (CFR) with regard to a 90-day petition finding is ``that
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted'' (50 CFR
424.14(b)). If we find that substantial information was presented, we
are required to promptly commence a review of the status of the
species.
In making this finding, we based our decision on information
provided by the petitioners and information available in our files at
the time of the petition review, and we evaluated that information in
accordance with 50 CFR 424.14(b). Our process for making a 90-day
finding under section 4(b)(3)(A) of the Act and Sec. 424.14(b) of our
regulations is limited to a determination of whether the information
contained in the petition meets the ``substantial information''
threshold.
Previous Federal Actions
On January 28, 1999, we received a petition from Mr. Kieran
Suckling of the Southwest Center for Biological Diversity (now Center
for Biological Diversity) requesting emergency listing of the
Sacramento Mountains checkerspot butterfly (Euphydryas anicia
cloudcrofti) (butterfly) as endangered with critical habitat. On
December 27, 1999, we published a 90-day finding that the petition
presented substantial information that listing the butterfly may be
warranted, but that emergency listing was not warranted; that document
also initiated a status review of the subspecies (64 FR 72300). On
September 6, 2001, we published a 12-month finding and proposed rule to
list the butterfly as endangered with critical habitat (66 FR 46575).
On October 7, 2004, we published a notice of availability of a draft of
the Conservation Plan for the Sacramento Mountains checkerspot
butterfly (Euphydryas anicia cloudcrofti) (Conservation Plan) (69 FR
60178), which was finalized in 2005 (Service et al. 2005). On November
8, 2004, we published a notice of availability of a draft economic
analysis and draft environmental assessment on our proposed designation
of critical habitat for the butterfly (69 FR 64710). On December 21,
2004, we published a withdrawal of the proposed rule (69 FR 76428),
concluding that the threats to the species were not as great as we had
perceived when we proposed it for listing.
Petition
On July 5, 2007, we received a petition dated June 28, 2007, from
Forest Guardians (now WildEarth Guardians) and the Center for
Biological Diversity requesting that we emergency list the butterfly as
endangered, and that we designate critical habitat concurrently with
the listing. The petition clearly identifies itself as a petition, and
includes the information required in 50 CFR 424.14(a). The petitioners
assert that insect control, climate change, private development, roads,
livestock grazing, wildfire, recreational impacts, and noxious weed
management threaten the butterfly. The petitioners state that many of
the threats identified in the September 6, 2001, proposed rule to list
the species (66 FR 46575) are still valid. They claim that the Service
erred in 2004 (69 FR 76428) when we withdrew the 2001 proposed listing
rule. The petitioners also claim that insect control and climate change
pose an imminent and significant risk to species and request that the
Service emergency list the butterfly.
Emergency listing is not a petitionable action under the Act.
Emergency listing is allowed under the Act whenever immediate
protection is needed to address a significant risk to the species' well
being. Based on currently available information evaluated below, we
determine that emergency listing is not needed for the butterfly.
On July 26, 2007, we notified the petitioners that, to the maximum
extent practicable, we would decide whether the petition presented
substantial information that the petitioned action may be warranted. On
October 16, 2007, we informed the petitioners that an emergency listing
of the butterfly was not warranted at that time because the insect
control that had been scheduled to occur had been postponed until later
in the autumn when the butterfly larvae were likely to be inactive and
not threatened by the insect control actions. On December 10, 2007, we
notified the petitioners that funding was available to complete the 90-
day finding in fiscal year 2008. On January 3, 2008, Forest Guardians
filed suit against the Service for failure to issue a 90-day finding on
the petition (Forest Guardians, et al. v. Kempthorne, 1:08-cv-00011-RMU
(D. D.C.)). On April 15, 2008, a settlement was reached that requires
the Service to submit to the Federal Register a determination of
whether the petition presents substantial information indicating that
the petitioned action of listing the butterfly may be warranted. The
settlement stipulated that the determination would be submitted to
[[Page 74125]]
the Federal Register on or before November 28, 2008. This 90-day
finding complies with the settlement agreement.
Species Information
The Sacramento Mountains checkerspot butterfly is a member of the
brush-footed butterfly family (Nymphalidae). The adults have a wingspan
of approximately 5 centimeters (cm) (2 inches (in)), and they are
checkered with dark brown, red, orange, white, and black spots and
lines. Larvae are black-and-white banded with orange dorsal bumps and
black spines. Checkerspot larvae reach a maximum length of about 2.5 cm
(1 in) (Pittenger and Yori 2003, p. 8). The taxon was described in 1980
(Ferris and Holland 1980).
The butterfly inhabits meadows within the mixed-conifer forest
(Lower Canadian Zone) at an elevation between 2,380 to 2,750 meters (m)
(7,800 to 9,000 feet (ft)) in the vicinity of the Village of
Cloudcroft, Otero County, New Mexico. The adult butterfly is often
found in association with the larval food plants Penstemon neomexicanus
(New Mexico penstemon) and Valeriana edulis (valerian) and adult nectar
sources, such as Helenium hoopesii (sneezeweed). Penstemon neomexicanus
is a narrow endemic species (Sivinski and Knight 1996), restricted to
the Sacramento and Capitan Mountains of south-central New Mexico.
Adult butterflies are only known to lay their eggs on Penstemon
neomexicanus (Service et al. 2005, p.10), although the larvae feed on
both P. neomexicanus and Valeriana edulis (Service et al. 2005, p.11).
After hatching, larvae feed on host plants and, during the 4th or 5th
instar (the period between molts in the larval stage of the butterfly),
enter an obligatory and extended diapause (maintaining a state of
extended inactivity), generally as the food plants die back in the
autumn from freezing. Some larvae may remain in diapause for more than
one year, depending on environmental conditions. During diapause,
larvae probably remain in leaf or grass litter near the base of shrubs,
under the bark of conifers, or in the loose soils associated with
pocket gopher (Thomomys bottae) mounds (Service et al. 2005, p.10).
Once the larvae break diapause, they feed and grow through three or
four more instars before pupating (entering the inactive stage within a
chrysalis) and emerging as adults. Diapause is generally broken in
spring (March and April) and adults emerge in summer (June and July).
We do not know the extent of the historical range of the butterfly
due to limited information collected on this subspecies prior to the
time it was formally acknowledged as a new subspecies (Ferris and
Holland 1980). The known range of the butterfly is restricted to the
Sacramento Mountains and is bordered on the north by the Mescalero
Apache Nation lands, on the west by Bailey Canyon at the mouth of
Mexican Canyon, on the east by Spud Patch Canyon, and on the south by
Cox Canyon (USFS 2000; Service et al. 2005, p. 12). The potential range
of the butterfly to the east and west is likely restricted because the
non-forested areas are below 7,800 ft in elevation and the checkerspot
butterfly does not occur below this elevation (Service et al. 2005, p.
9).
The U.S. Forest Service (USFS) estimates that there are about 1,096
hectares (ha) (2,712 acres (ac)) of suitable butterfly habitat on USFS
and private lands. Of this, 484 ha (1,196 ac) are occupied by the
butterfly on USFS lands and 314 ha (777 ac) are occupied on private
lands (USFS 2004a). About 298 ha (736 ac) of the 1,096 ha (2,712 ac) of
suitable habitat are unoccupied, with 79 ha (194 ac) on USFS lands and
219 ha (542 ac) on private lands (USFS 2004a). This estimate is the
best and most recent information we have regarding the range and
distribution of the butterfly and the same information we used in our
2004 withdrawal of the proposed rule (69 FR 76428).
For more information on the butterfly, refer to the September 6,
2001, proposed rule (66 FR 46575); the November 1, 2005, Conservation
Plan (Service et al. 2005); and the December 21, 2004, withdrawal of
the proposed rule (69 FR 76428). Some of this information is discussed
in our analysis below. The Conservation Plan (Service et al. 2005) with
the Village of Cloudcroft, Otero County, USFS, and the Service was
developed to identify and commit to implementing actions to conserve
the butterfly so it would not warrant future listing under the Act.
Threats Analysis
Section 4 of the Act and implementing regulations at 50 CFR 424 set
forth the procedures for adding species to the Federal Lists of
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of
the Act, we may list a species on the basis of any of five factors, as
follows: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
In making this 90-day finding, we evaluated whether information on
threats to the Sacramento Mountains checkerspot butterfly, as presented
in the petition and other information available in our files at the
time of the petition review, is substantial, thereby indicating that
the petitioned action may be warranted. Our evaluation of this
information is presented below.
A. Present or Threatened Destruction, Modification, or Curtailment of
the Species' Habitat or Range
The petition asserts that the following conditions under Factor A
threaten the butterfly: recreational impacts; roads, corridors, and
powerlines; livestock grazing; catastrophic wildfire and fire
suppression; noxious weeds; and private property development and the
potential expiration of the Otero County Subdivision Ordinance on July
1, 2011. The petitioners assert that, although development
(residential, commercial, and recreational associated with residential)
within the Village of Cloudcroft decreased following the 2001
publication of the proposed rule to list the butterfly (66 FR 46575),
development has nonetheless continued and, combined with other threats
to the butterfly, remains significant. The petitioners correctly note
that, as passed, the amended Otero County Subdivision Ordinance of 2005
will expire on July 1, 2011 (Otero County 2005, p. 2). The ordinance
requires that, for any new subdivision to be developed within potential
butterfly habitat, a survey be conducted for the butterfly, its
habitat, and its host plant Penstemon neomexicanus. If the survey is
positive, the developer is required to submit plans to address wildfire
control, avoidance of destruction of the butterfly and its habitat,
and, if avoidance is not possible, relocation of butterflies and
restoration of destroyed habitat. The ordinance also contains a section
on enforcement, penalties, and remedies. The amendment to the
subdivision ordinance was not in place when we made our withdrawal of
the proposed listing rule in 2004, so we did not rely on it when we
concluded that development was not a significant threat to the
butterfly. The Village of Cloudcroft has received no permit
applications for new subdivisions since the Ordinance became effective
in 2005. This may be because it has experienced water shortages in
recent years (Friederici 2007). The petition presents information on
these issues that was
[[Page 74126]]
previously submitted in comments on the 2004 draft Conservation Plan
(69 FR 60178), draft environmental assessment, and draft economic
analysis (69 FR 64710) for the butterfly. The draft environmental
assessment and draft economic analysis did not contemplate effects of
the future ordinance.
In our 2004 draft economic analysis, we found that approximately 8
to 10 new homes had been constructed annually since 2000 within the
boundary of the proposed critical habitat designation of approximately
140 square kilometers (54 square miles) in the vicinity of the Village
of Cloudcroft (Service 2004). Based upon this trend of 8 to 10 new
homes annually, over the next 20 years, approximately 160 to 200 new
residential projects may occur within the boundary of the then-proposed
critical habitat for the butterfly. Of these, the economic analysis
assumed that 55 to 69 of the landowners may conduct butterfly surveys
because they would be located within areas that were proposed as
critical habitat and that provide butterfly habitat. Our draft economic
analysis estimated that butterflies could be found in 8 to 24 of those
55 areas surveyed. Our draft economic analysis also estimated that the
median lot size of these developments was 0.14 ha (0.34 ac), indicating
that up to 3.4 ha (8.2 ac) of suitable butterfly habitat may be
impacted from commercial and private development activities. For a
detailed discussion see Service 2004. In the 2001 proposed rule, we
described an additional 4 ha (10 ac) of impacts from a private
development on the east side of the Village of Cloudcroft. Thus, we
continue to estimate that about 2 percent of the suitable butterfly
habitat on private lands (7.4 of 314 ha (18 of 777 ac), using the USFS
(2004a, p.2) estimate of occupied acres on private lands) may be
subject to commercial and private development. Based on this
information, we continue to believe that this level of impact is not a
significant threat to the butterfly. We find no substantial information
provided by the petitioners or in our files supporting the claim that
commercial and private development threaten the butterfly.
The petitioners acknowledge that USFS has taken measures to reduce
recreational impacts to the butterfly at two campgrounds and has
proposed measures to reduce impacts at five additional campgrounds
where the butterfly is present. However, the petitioners assert that
increasing recreation demands, including off-road vehicle use, camping,
and mountain biking, can result in harm to individual butterflies and
to their food plants.
In our 2004 withdrawal of the proposed rule, we discussed increased
efforts by the USFS to reduce off-road vehicle use in Bailey Canyon and
campgrounds where the butterfly occurs, and we evaluated information on
the extent and nature of off-road impacts to the butterfly and its food
plants. We concluded that the actions the USFS had taken to reduce off-
road vehicle impacts appeared to be effective, that only a small
proportion of occupied habitat would be impacted annually by continuing
off-road vehicle use, that the magnitude of the impact is low, and that
off-road vehicle use does not significantly threaten the butterfly (69
FR 76428, December 21, 2004). The petitioners do not present
information, and we have no information in our files, that off-road
vehicle use has increased since 2004.
In our 2004 withdrawal of the proposed rule, we discussed increased
efforts by the USFS to reduce impacts to the butterfly from dispersed
camping and camping at established campgrounds. Although the
petitioners acknowledge that USFS has taken measures to reduce
recreational impacts to the butterfly at established campgrounds, they
claim that increased camping can result in harm to the butterfly. We
agree that increased camping can result in increased impacts to the
butterfly. However, the petitioners did not present information that
camping has increased in habitats occupied by the butterfly, and we
have no information in our files that camping has increased.
In our 2004 withdrawal of the proposed rule, we acknowledged that
butterfly larvae were known to occur on and adjacent to mountain bike
trails, and we reviewed efforts routinely made by the USFS to address
potential impacts to the butterfly, including larvae, during large
events, such as mountain bike races (69 FR 76428). We concluded that,
while mountain biking does impact the butterfly and its host plants to
some extent, it did not appear that the impacts were likely significant
to the butterfly. The petitioners do not present information that
impacts from mountain biking have increased in habitats occupied by the
butterfly, and we have no information in our files that such impacts
have increased.
The petitioners discuss the impacts of roads, corridors, and
powerlines by comparing our discussion of those impacts in our 2004
withdrawal of the proposed rule (69 FR 76428) to our discussion of
those impacts in our 2001 proposed rule (66 FR 46575). Based on the
discussion in the petition, we assume they are addressing only service
roads and corridors related to powerline construction and maintenance.
In our withdrawal, we acknowledged that, although some restrictions
were likely to be placed on a powerline company when constructing a new
powerline, because of the linear nature of these impacts and the
recognition that adjacent habitat will remain intact, we concluded that
the activity represented only a limited threat to the species (69 FR
73428). We also noted that no new projects are currently planned by
that company, indicating no other powerline-related threats were
foreseeable. We have no new information in our files, and the
petitioners presented no new information on increased impacts to the
butterfly and its habitat from powerlines and associated roads and
corridors, since our withdrawal was published in 2004.
The petitioners claim that livestock grazing continues to threaten
butterfly habitat. In our 2004 withdrawal of the proposed rule, we
found that, because the USFS is managing these allotments for medium-
intensity grazing, the effects on the butterfly and its habitat will be
minimal and will not result in the butterfly population being
compromised (69 FR 76428). We concluded that the current and future
occurrence of grazing does not represent a principal factor in the
viability of the butterfly and its habitat. The petitioners present no
new information about livestock grazing since our 2004 withdrawal of
the proposed rule, and we have no new information in our files to
indicate that the threat from livestock grazing has increased.
In addressing the threat of fire suppression and wildfire, the
petitioners compare the analysis used in our 2001 proposed rule (66 FR
46575) to our analysis in the 2004 withdrawal of the proposed rule (69
FR 76428). In our withdrawal, we used information from the USFS,
assessed new and continued efforts to reduce the risk of catastrophic
wildfire in the Sacramento Mountains, and concluded that the threat to
the butterfly from catastrophic wildfire had been reduced and was no
longer significant. We found that fire and activities conducted to
reduce the risk of fire may be beneficial by increasing connectivity
between areas of suitable butterfly habitat. We have no new information
in our files that the threat of wildfires has increased since our 2004
withdrawal of the proposed rule.
The petitioners assert that the manual weed-pulling program to
control
[[Page 74127]]
noxious weeds does not fully address the threat of noxious weeds to the
butterfly. The USFS began the weed-pulling program in 2001, and the
program is described in the Conservation Plan (Service et al. 2005, p.
34). In our 2004 withdrawal of the proposed listing (69 FR 76428), we
found that nonnative vegetation and the application of herbicides are
currently being managed, and we concluded that the nonnative vegetation
is a not significant threat to the butterfly. The petitioners present
no new information since our 2004 withdrawal that the threat of
nonnative or noxious weeds has increased.
To support their claims of any threats to the species under Factor
A, the petitioners provided no information or references beyond those
available to us when we withdrew our proposal to list the butterfly in
2004. We find that the petition does not present substantial
information, and we have no information in our files, indicating that
the petitioned action may be warranted due to the present or threatened
destruction, modification, or curtailment of the habitat or range of
the butterfly due to development (including the explanation of the
Otero County subdivision Ordinance in 2011), recreation, powerlines and
associated roads and corridors, livestock grazing, fire suppression and
wildfire, and noxious weeds.
B. Overutilization For Commercial, Recreational, Scientific, or
Educational Purposes
The petition asserts that collection threatens the butterfly,
reiterating our preliminary finding from the 2001 proposed rule that
the butterfly's life history characteristics, attractiveness to
collectors due to rarity, and newspaper publications promote collection
(66 FR 46575). In our 2004 withdrawal, we concluded that the closure of
USFS lands to butterfly collecting in 2000 had reduced the threat of
collection and that overcollection was no longer a threat. The petition
presents no new information or explanation as to why the butterfly is
threatened by collection. We have no new information in our files since
the 2004 withdrawal indicating that overutilization for commercial,
recreational, scientific, or educational purposes is a threat to the
butterfly. Therefore, we find that the petition does not present
substantial information indication that the petitioned action may be
warranted due to overutilization for commercial, recreational,
scientific, or educational purposes.
C. Disease or Predation
The petitioners provide no information addressing this factor, and
we have no information in our files indicating that the petitioned
action may be warranted due to disease or predation. We agree that this
issue is not applicable to the subspecies at this time.
D. Inadequacy of Existing Regulatory Mechanisms
The petition asserts that the subspecies' status as a Forest
Sensitive Species does not provide the binding protections of listing
under the Act. The butterfly has been designated by the Regional
Forester as a Forest Sensitive Species. As a Forest Sensitive Species,
the USFS is required to analyze the butterfly in all applicable
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.)
documents. In addition, the petitioners claim that new USFS regulations
were recently passed that remove any species viability standard
protections that were previously provided in 36 CFR 219.20, a
regulation requiring the USFS to address ecological conditions
necessary to maintain species viability. The petition also asserts that
conservation measures resulting from section 7 (of the Act)
conferencing no longer apply because the species is no longer proposed
for listing. Additionally, the petitioners assert that the butterfly
has no State protection, as New Mexico does not recognize insects as
``wildlife.''
On April 21, 2008, a new USFS planning rule (73 FR 21468) was made
final. In that rule, species viability standard protections are removed
and there is no requirement similar to section 7 consultation under the
Act. However, as part of their multiple-use mandate, the National
Forest Management Act (NFMA) requires the USFS to ``provide for
diversity of plant and animal communities based on the suitability and
capability of the specific land area in order to meet overall multiple-
use objectives'' (16 U.S.C. 1604(g)(3)(B)). The NFMA does not mandate a
specific degree of diversity nor does it mandate viability. In
practice, the USFS has taken actions to conserve and avoid impacts to
the butterfly and its habitat (see USFS 2004a, 2004b, 2007a, 2007b,
2007c, 2007f). As a Forest Sensitive Species, the butterfly has been
analyzed in all applicable NEPA documents (USFS 2004b). We do not know
whether the butterfly would be designated a species of interest by the
USFS under the new planning rule, which would be applied when the
Lincoln National Forest Plan is revised in the coming years. Species of
interest are those for which the responsible official determines that
management actions may be necessary or desirable to achieve ecological
or other multiple-use objectives (USFS planning rule; 73 FR 21468;
April 21, 2008). The USFS's new planning rule indicated that once a
USFS land and resource management plan has been revised, the sensitive
species designation will no longer be needed because species of concern
(listed, proposed, or candidate species under the Act) or species of
interest will replace them. Although we have no information indicating
when the plan might be revised, the USFS' new planning rule states that
the responsible official would determine if the ecological conditions
to support species of interest would be provided by the plan components
for ecosystem diversity. If not, then additional species-specific plan
components would be included (73 FR 21468; April 21, 2008). The
Service's 2004 withdrawal of the proposed listing rule for the
butterfly relied partly on the butterfly's inclusion in the Forest
Sensitive Species designation for maintenance of certain protections
for the butterfly through NEPA (69 FR 76428). Since these particular
protections have been eliminated, and it is unclear whether the
butterfly will be designated a species of interest under the new rule,
it is unclear whether this change will be adequate to protect the
butterfly.
The petitioners state that the butterfly has no State protection,
because New Mexico does not recognize insects as ``wildlife.'' This
information is correct. We presented this information in the October 7,
2004, draft Conservation Plan for which we invited public comment (69
FR 60178), and we considered this information when we withdrew the
proposal to list the species. State statute does not address habitat
protection, threats to the larval food plant, or other threats that are
not directly related to taking (killing or otherwise harming)
individual butterflies. The petition does not indicate how a lack of
State regulations threatens the butterfly with extinction. New Mexico
State status as an endangered species would only convey protection from
collection or intentional harm. As noted above, we believe the USFS'
butterfly closure order adequately protects the species from
collection. Moreover, the petition and information in our files do not
contain substantial information that the butterfly is faced with
current and future threats that could be addressed by current State
statute.
In summary, the petitioners provide substantial information on
changes in
[[Page 74128]]
USFS regulations that remove the butterfly from the Forest Sensitive
Species status, but the petitioners provide no new information since
our 2004 withdrawal of the listing rule on the inadequacy of other
existing regulatory mechanisms. In light of all of this information, we
find that the petition presents substantial information that the
petitioned action may be warranted due to the inadequacy of existing
mechanisms.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
The petition asserts that insect control, climate change, and
extreme weather threaten the butterfly under Factor E. The petitioners
state that insect control on private lands was conducted within the
Village of Cloudcroft. Newspaper articles provided by the petitioners
substantiate that spraying of Confirm 2F was used on an area of private
land in June of 2007. In the proposed rule (66 FR 46575; September 6,
2001), we estimated that there were about 4 ha (10 ac) of potentially
suitable butterfly habitat within a private development on the east
side of the Village of Cloudcroft. From information in our files, we
believe this private development is the same area sprayed with Confirm
2F. It is unknown how much of the potentially suitable butterfly
habitat was sprayed, because no further information is available in our
files or the petition. That all of the 4 ha (10 ac) of potentially
suitable butterfly habitat was sprayed is unlikely, because insect
control was targeting a fir looper (Nepytia janetae) within mixed
conifer forests, whereas the butterfly is found within open meadow
habitat. If we assume a worst case scenario (that drift from the spray
affected all of the 4 ha (10 ac) of potentially suitable butterfly
habitat within this area), a small fraction (4 of 1,096 ha (10 of 2,709
ac)) of the suitable butterfly habitat throughout the subspecies' range
was affected, and that is not significant. As described below, the fir
looper population has declined (USFS 2008), and we do not have any
information to indicate that spraying for fir looper control will
continue.
The petitioners requested emergency listing due to the perceived
immediate threats to the species' continued existence from a proposed
aerial spraying in the autumn of 2007 of the biological insecticide
Bacillus thuringiensis var. kurstaki (Btk) to control the fir looper.
Btk is activated by the alkaline condition of the mid-gut of larvae
that ingest it. Consequently, larvae must ingest Btk for it to be
toxic. During summer and autumn 2007, Otero County and the USFS
requested, and we provided, technical assistance on appropriate
measures to minimize or avoid impacts to the butterfly (USFS 2007a;
Otero County 2007a, 2007b). We advised them that indirect effects to
the butterfly from Btk could be significant if the insecticide were
applied when larvae of the butterfly were actively feeding (Service
2007a, 2007b, 2007c, 2007d, 2007e, 2007f). The USFS conducted an
environmental assessment under NEPA that analyzed the effects to
private and Federal lands of Btk spraying on Federal lands (USFS 2007b,
2007c, 2007d). Following that environmental assessment, the USFS,
Village of Cloudcroft, and Otero County waited until they and the
Service determined from surveys that the larvae of the butterfly were
in diapause (inactive and not feeding) to spray Btk to control the fir
looper (USFS 2007e, 2007f; Service 2007g, 2007h). Surveys confirmed
that larvae of the butterfly were in diapause prior to spraying Btk on
November 5, 2007 (USFS 2007f, 2007g, Service 2007g). Btk is sensitive
to sunlight, usually becoming inactive within 3 to 7 days after
application (USFS 2007c). Therefore, Btk would have been inactive when
larvae of the butterfly emerged from diapause in the spring of 2008,
indicating that the spraying of Btk during November 2007 did not
measurably impact the butterfly. Post-spraying monitoring in the autumn
of 2007 determined that the fir looper population had declined to
nearly undetectable levels on the Lincoln National Forest and adjacent
lands (Anderson 2008). Therefore, the USFS concluded that no spraying
was needed during March 2008 (Anderson 2008).
Similar to the spraying that occurred in November 2007, any future
proposed insect control by the USFS would be analyzed under NEPA.
However, because new USFS regulations remove the butterfly's Forest
Sensitive Species status when the land management resource plan for the
Lincoln National Forest is revised (see discussion under Factor D), we
do not know whether the butterfly will be included in future NEPA
analyses. A NEPA analysis is not required for non-Federal agency
spraying on private lands, which comprise 49 percent of the butterfly's
suitable habitat. We note that the Conservation Plan provided the
framework under which the USFS and Otero County requested and received
technical assistance on the avoidance of impacts to the butterfly.
Through this framework and subsequent dialogue, we found that this
process was successful in avoiding impacts to the butterfly in the
autumn of 2007. One conservation action agreed to in the Conservation
Plan was for the Service to provide technical assistance on management
of the butterfly when requested by a party to the plan. We acknowledge
that if Btk or chemical insecticides, such as Carbaryl or Confirm 2F,
are applied when larvae of the butterfly are actively feeding, insect
control would pose a threat to the butterfly. That such spraying
actually occurred in 2007 during the butterfly's active feeding period,
although admittedly on only 4 ha (10 ac), indicates that private
landowner spraying on private lands may be a threat. The petition does
not present references or substantial information regarding insect
spraying beyond the autumn of 2007 and spring of 2008. However, insect
control may be a threat in the future, based on the fact that spraying
occurred in 2007; that the delay of additional spraying to a time when
the butterfly was inactive took considerable time and effort by the
Village of Cloudcroft, Otero County, USFS, and the Service; and there
is uncertainty over how the USFS will address insect control and the
butterfly under the new USFS regulations.
The petition asserts that climate change is likely a greater threat
to the butterfly than was previously considered by the Service. The
petitioners assert that scientific information not considered in, or
published subsequent to, the 2004 withdrawal indicates that the impact
of climate change will be especially severe in New Mexico and the
southwestern United States. They cite a State of New Mexico website,
which states that the impacts of climate change and climate variability
on the environment include the potential for prolonged drought, severe
forest fires, warmer temperatures, increased snowmelt, and reduced snow
pack (http://www.nmclimatechange.us/background-impacts.cfm). The
petitioners also note that harm from climate change to butterflies has
been particularly well documented for other species of checkerspot
butterflies.
The petitioners cite Parmesan (1996) to support their claim that
the Sacramento Mountains checkerspot butterfly will be imperiled by
climate change. Parmesan (1996, p. 765) documented a range shift due to
population extinctions in the non-migratory Edith's checkerspot
butterfly (Euphydryas editha) in western North America and presented
arguments on why the shift was attributable to climate change. The
petition correctly indicates that Penstemon neomexicanus, the only
plant on which the butterfly is known
[[Page 74129]]
to lay eggs, is known within portions of the Capitan Mountains, which
are adjacent to and north of the current range of the butterfly in the
Sacramento Mountains. The petition asserts that a slight shift in
either the butterfly's or P. neomexicanus' distribution, productivity,
phenology, or other factors resulting from climate change could imperil
the butterfly. The apparent northward range ``shift'' in the Edith's
checkerspot butterfly was due to greater population extinctions at
southern latitudes, not to a northward expansion of its range (Parmesan
1996, p. 765). Parmesan (1996, pp. 765-766) discussed why these
extinctions were most likely attributable to climate change rather than
habitat destruction. If the Sacramento Mountains checkerspot butterfly
were to respond similarly, it may decline at the southern portion of
its range, but not expand northward to the Capitan Mountains.
As noted under Species Information, the elevational range for the
Sacramento Mountains checkerspot butterfly is 2,380 to 2,750 m (7,800
to 9,000 ft), and that of Penstemon neomexicanus, on which the
butterfly lays its eggs, is 1,830 to 2,750 m (6,000 to 9,000 ft) (New
Mexico Rare Plant Technical Council 2008, webpage). Thus, the butterfly
is at the upper elevational range of the plant on which it depends, so
it would be dependent on an upward elevational shift of P. neomexicanus
for the butterfly to shift to higher elevations.
The petition asserts that extreme weather threatens the butterfly.
However, other than reiterating our preliminary finding from the 2001
proposed listing rule (66 FR 46575; September 6, 2001) that this may be
a threat to the species, the petition presents no information or
explanation regarding why the butterfly is threatened as a result of
extreme weather. In our 2004 proposed listing withdrawal, we found that
the butterfly can survive and persist despite natural events such as
drought (69 FR 76428; December 21, 2004). Since our finding in that
2004 withdrawal, we have no new information in our files indicating
that there is any such threat from extreme weather currently or in the
foreseeable future.
In summary, the petition and information readily available to us do
not provide substantial information that extreme weather threatens the
butterfly. The petition and information readily available to us provide
substantial information that indicate that the petitioned action may be
warranted because pesticide spraying and climate change are other
natural or manmade factors that may threaten the butterfly.
Finding
We have reviewed the petition and the literature cited in the
petition, and evaluated the information to determine whether the
sources cited support the claims made in the petition. We also reviewed
reliable information that was readily available in our files to clarify
and verify information in the petition. Based on our evaluation of the
information provided in the petition, and in accordance with recent
applicable court decisions pertaining to 90-day findings, we find that
the petition presents substantial scientific information indicating
that listing the Sacramento Mountains checkerspot butterfly may be
warranted. Our process for making this 90-day finding under section
4(b)(3)(A) of the Act is limited to a determination of whether the
information in the petition presents ``substantial scientific and
commercial information,'' which is interpreted in our regulations as
``that amount of information that would lead a reasonable person to
believe that the measure proposed in the petition may be warranted''
(50 CFR 424.14(b)).
The petitioners present substantial information indicating that the
butterfly may be threatened by Factor D (inadequacy of existing USFS
regulatory mechanisms) and Factor E (pesticide spraying and climate
change) throughout the entire range of the butterfly. The petitioners
do not present substantial information that Factors A, B, and C are
currently, or in the future, considered a threat to the butterfly.
Based on this review and evaluation, we find that the petition has
presented substantial scientific or commercial information that listing
the butterfly throughout all or a portion of its range may be warranted
due to current and future threats under Factors D and E. As such, we
are initiating a status review to determine whether listing the
butterfly under the Act is warranted. We will issue a 12-month finding
as to whether any of the petitioned actions are warranted. To ensure
that the status review is comprehensive, we are soliciting scientific
and commercial information regarding the butterfly.
It is important to note that the ``substantial information''
standard for a 90-day finding is in contrast to the Act's ``best
scientific and commercial data'' standard that applies to a 12-month
finding as to whether a petitioned action is warranted. A 90-day
finding is not a status assessment of the species and does not
constitute a status review under the Act. Our final determination as to
whether a petitioned action is warranted is not made until we have
completed a thorough status review of the species, which is conducted
following a positive 90-day finding. Because the Act's standards for
90-day and 12-month findings are different, as described above, a
positive 90-day finding does not mean that the 12-month finding also
will be positive.
We encourage interested parties to continue gathering data that
will assist with the conservation and monitoring of the butterfly. The
petitioners requested that critical habitat be designated for this
species. If we determine in our 12-month finding that listing the
butterfly is warranted, we will address the designation of critical
habitat at the time of the proposed rulemaking.
References Cited
A complete list of all references cited in this finding is
available upon request from the New Mexico Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this rule are the New Mexico Ecological
Services Office staff members (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: November 12, 2008.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service
[FR Doc. E8-28119 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-55-S