[Federal Register Volume 70, Number 238 (Tuesday, December 13, 2005)]
[Proposed Rules]
[Pages 73699-73717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23691]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU50
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Laguna Mountains Skipper
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Laguna Mountains skipper (Pyrgus
ruralis lagunae), pursuant to the Endangered Species Act of 1973, as
amended (Act). In total, approximately 6,662 acres (ac) (2,696 hectares
(ha)) fall within the boundaries of the proposed critical habitat in
two units that are divided into a total of seven subunits on Laguna and
Palomar Mountains in San Diego County, California. Five subunits are
occupied. Two subunits are not known to be currently occupied or
occupied at the time of listing, but are connected to occupied habitat,
were historically occupied, and also contain physical and biological
features essential to the conservation of the species.
DATES: We will accept comments from all interested parties until
February 13, 2006. We must receive requests for public hearings, in
writing, at the address shown in the ADDRESSES section by January 27,
2006.
ADDRESSES: If you wish to comment, you may submit your comments and
materials--identified by RIN 1018-AU50--concerning this proposal by any
one of several methods:
1. You may submit written comments and information to Jim Bartel,
Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley Rd., Carlsbad, CA 92011.
2. You may hand-deliver written comments to our Office, at the
above address.
3. You may fax your comments to 760-431-9624.
4. You may send comments by electronic mail (e-mail) to
[email protected]. Please see the Public Comments Solicited section
below for file format and other information about electronic filing.
5. Federal Rulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Rd.,
Carlsbad, CA 92011 (telephone 760-431-9440).
FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley Rd., Carlsbad, CA 92011, (telephone
760/431-9440; facsimile 760/431-9624).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
et seq.), including whether the benefit of designation will outweigh
any threats to the species due to designation;
(2) Specific information on the amount and distribution of Laguna
Mountains skipper habitat, and which areas should be included in the
designations that were occupied at the time of listing that contain the
features that are essential for the conservation of the species and
why, and which areas not occupied at the listing are essential to the
conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas
[[Page 73700]]
and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities; and
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES).
Please submit Internet comments to [email protected] in ASCII file
format and avoid the use of special characters or any form of
encryption. Please also include ``Attn: Laguna Mountains skipper'' in
your e-mail subject header and your name and return address in the body
of your message. If you do not receive a confirmation from the system
that we have received your Internet message, contact us directly by
calling our Carlsbad Fish and Wildlife Office at phone number 760-431-
9440. Please note that the Internet address [email protected] will
be closed out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under section 4(b)(2) of the Act, there are significant
limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional
protection to habitat only where there is a Federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat, but it does not
require specific actions to restore or improve habitat.
Currently, only 471 species, or 37 percent of the 1,272 listed
species in the United States under the jurisdiction of the Service,
have designated critical habitat. We address the habitat needs of all
1,272 listed species through conservation mechanisms such as listing,
section 7 consultations, the Section 4 recovery planning process, the
Section 9 protective prohibitions of unauthorized take, Section 6
funding to the States, the Section 10 incidental take permit process,
and cooperative, nonregulatory efforts with private landowners. The
Service believes that it is these measures that may make the difference
between extinction and survival for many species.
In considering exclusions of areas proposed for designation, we
evaluated the benefits of designation in light of Gifford Pinchot Task
Force v. United States Fish and Wildlife Service. In that case, the
Ninth Circuit invalidated the Service's regulation defining
``destruction or adverse modification of critical habitat.'' In
response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This proposed critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
[[Page 73701]]
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA). These costs, which are not
required for many other conservation actions, directly reduce the funds
available for direct and tangible conservation actions.
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the Laguna Mountains skipper, refer to the final rule
listing the species as endangered, published in the Federal Register on
January 16, 1997 (62 FR 2313).
Species Description
The Laguna Mountains skipper is a member of the family Hesperiidae
(skippers), and is one of two recognized subspecies of Pyrgus ruralis.
Skippers are generally small bodied with a fast, erratic flight
pattern. Adult Laguna Mountains skippers have a wingspan of
approximately one inch (two and a half centimeters) (Garth and Tilden
1986; Osborne in litt. 2004) and are distinguished from other co-
occurring skipper species by their checkered dark brown and white
appearance (Osborne in. litt. 2004). The submarginal spots on the hind
wing form a distinguishing ``X'' shape, and the dark bands on the
marginal fringe of the hind wing extend prominently across the fringe
(Levy 1994).
Adult females lay their eggs on the outer leaves of their hostplant
(i.e., a plant on which the larvae feed and develop). In many species
of butterfly, the hostplants are limited to one or two species. The
main hostplant for the Laguna Mountains skipper is Horkelia clevelandii
(Cleveland's horkelia). Eggs of the Laguna Mountains skipper develop
and hatch in approximately 12 to14 days (Mattoni and Longcore 1998;
Pratt 1999), with some variation likely due to habitat microsite
conditions and local weather. Development from egg to pupa takes
approximately 7 weeks.
Habitat
The Laguna Mountains skipper has specialized habitat requirements
within a narrow geographic distribution. The Laguna Mountains skipper
is known to occur in a matrix of pine and mixed conifer/oak forests,
meadows, small forest openings, and forest edges that support larval
host plants between 3,800 and 6,000 feet (ft) (1,158 and 2,000 meters
(m)) in elevation (Emmel and Emmel 1973; Levy 1997; Mattoni and
Longcore 1998; Pratt 1999; Osborne 2002).
Habitat has been primarily identified by the presence or abundance
of the species' main larval host plant, Horkelia clevelandii. However,
habitat also consists of all resources, such as nectar-producing plants
and surface moisture, or puddles, that provide feeding, breeding and
sheltering for adult butterflies. One scientific study of Laguna
Mountains skipper habitat has been conducted. Williams and Bailey
(2004) investigated geographic variation in presumed habitat
characteristics among geographic locations, and differences in habitat
characteristics between sites with and without a known history of
Laguna Mountains skipper observations. Research indicates that sites
with a known history of Laguna Mountains skipper sightings had more
bare ground, larger host plant patches, and larger, taller H.
clevelandii plants than sites where Laguna Mountains skippers had not
been seen.
Until recently, Horkelia clevelandii was thought to be the only
host plant species used by the Laguna Mountains skipper. However, the
use of Potentila glandulosa as a host plant in the wild was first
documented on Palomar Mountain by Pratt (1999). This was later
confirmed in 2004 in Mendenhall Valley (Ken Osborne, pers. comm. 2004).
Both host plant species grow in clusters low to the ground and are
relatively small, long-lived, non-woody (herbaceous) plants in the rose
family (Rosacae).
Status and Distribution
When the Laguna Mountains skipper was listed in 1997, the species
was known from Palomar and Laguna Mountains in San Diego County (62 FR
2313). However, its primary host plant, Horkelia clevelandii, has a
much wider distribution, extending from the San Jacinto, Palomar,
Cuyamaca, and Laguna Mountains of southwestern California, south to
Sierra San Pedro Martir, in Baja, California, Mexico (Keck 1938;
Hickman 1993). Within the Laguna Mountains, the surrounding forests are
dominated by Jeffery pine (Pinus jefferii) and black oak (Quercus
kelloggii), while the Palomar Mountains are dominated by a mixed forest
comprised of Jeffery pine, white fir (Abies concolor), incense cedar
(Calocedrus decurrens), and black oak.
During the 1950s and 1960s, Laguna Mountains skippers were commonly
recorded from several locations on Laguna Mountain, including Big
Laguna, Boiling Springs, East Laguna, Horse Haven Springs, Laguna Lake
and Little Laguna Meadow (Levy 1994). Surveys conducted since 1994 have
detected adult Laguna Mountains skippers only near Little Laguna
Meadow, at the El Prado/Laguna Campground (Pratt 1999). Although
historic records of the species in the Laguna Mountains with specific
location descriptions are all in the vicinity of the greater Laguna
Meadow, this is likely an artifact of access and where sites were known
to collectors (Levy 1994). Other areas, such as Horse Meadow to the
south, also contain features identified as essential for sustaining
Laguna Mountains skipper populations (Levy 1994).
The Laguna Mountains skipper was first recorded on Palomar Mountain
in 1947, at an unspecified location (San Diego Natural History Museum,
in Levy 1994). In 1991 Dan Lindsley collected two specimens in ``the
last small meadow before the Palomar Observatory'' (Levy 1994). Since
its discovery, the Laguna Mountains skipper has been recorded at
several Palomar Mountain locations on Federal, State, and private
lands, but only one site (Mendenhall Valley) exists where adults can be
reliably found (Levy 1994, 1996, 1997; Pratt 1999; Faulkner in litt.
2000; Osborne 2002, 2003). New sightings in 2001 in the Pine Hills area
(a location not known at the time of listing) provide the lowest
elevation observation record of this species, recorded at 3,840 ft
(1,170 m) (Osborne 2002).
The listing rule (62 FR 2313) stated that the Laguna Mountains
skipper had been reported from four (unspecified) sites on Palomar
Mountain. Upon evaluation of GIS data available at the time of listing,
and other data available at time of listing (e.g., Levy 1994), we
identified these sites as lower French Valley, Palomar Observatory
Campground, Palomar Observatory Meadow, and Mendenhall Valley. The more
recent Observatory Trail locations are in a meadow/woodland transition
area at the southeastern end of Upper French Valley, and the campground
location is between Mendenhall Valley and Upper French Valley. The
campground and trail sites are small
[[Page 73702]]
woodland openings that are unlikely to support an isolated population
long-term. Mark-release-recapture studies of a related skipper species
(the grizzled skipper, Pyrgus malvae) occupying similar habitat
recorded adult movement among forest openings of more than 0.62 mi (1
km) (M. Brereton in Levy 1994). Therefore, small forest openings create
landscape connectivity (habitat the species is capable of occupying and
moving through) among larger meadows. The distributions of small
occupied forest openings and meadows (meadow complexes) indicate
historic occupancy of Laguna Mountains skipper populations throughout
the northern Palomar Mountains meadow system, including unsurveyed
portions of Upper French Valley.
Based on the findings of the mark-release recapture study (M.
Brereton in Levy 1994), grizzled skipper adults are sedentary most of
the time, rarely moving further than 20 m, but do move distances
greater than 1 km. This movement pattern and the distribution of
observations among several small forest openings and meadows are
characteristic of local alpine butterfly populations belonging to a
greater metapopulation distribution (e.g., Boughton 1999). If the
Laguna Mountains skipper populations are characterized by
metapopulation dynamics, habitat patches within the population
distribution not occupied at any given time are still required for
population viability.
No repeated, systematic population status studies of the Laguna
Mountains skipper have been conducted. While individuals can regularly
be found in the Mendenhall Valley on Palomar Mountain, the long-term
viability of the species on Laguna Mountain is uncertain. Surveys
suggest the species has declined in the Laguna Mountains, although very
little is known regarding the species' population status or dynamics
throughout its range. The Laguna Mountains skipper has never been
recorded outside of Laguna or Palomar Mountains; however, the species
may have been more widespread historically throughout the higher
elevations of San Diego County (Brown in litt. 1991). The species could
potentially occupy the Cuyamaca Mountains north of Laguna Mountain and
the San Jacinto Mountains in Riverside County, as these areas all
contain meadows and host plants (Keck 1938) at appropriate elevations,
and are proximal to occupied mountains. However, few survey data exist
for mountains where the Laguna Mountains skippers were not known to
historically occur.
Historically, Palomar Mountain populations were considered small
compared to Laguna Mountain populations, with only 5 specimens reported
prior to 1991 (Brown in litt. 1991). Today, Palomar Mountain appears to
sustain the largest known population of the Laguna Mountains skipper.
The number of individuals occupying Mendenhall Valley has been
estimated between approximately 240 individuals in 1994 (Levy 1994) and
approximately 1,470 individuals in 1998 (Mattoni and Longcore 1998).
Levy (1994) based his estimate on adult surveys and stated that his
estimate of approximately 240 adult butterflies could be much higher
than the actual number. Mattoni and Longcore (1998) based their
estimate on the number of eggs and larvae found on host plants within a
specific area. From this they extrapolated to an adult population
estimate based on the abundance of host plants, average fecundity, and
equal sex ratios. These estimates differ significantly, at least in
part due to differences in methodology.
Populations in the Laguna Mountains appear to be small, and
possibly bordering on extirpation. Surveys of varying intensity and
duration were conducted in 8 of the 10 years between 1994 and 2003.
During this 10-year period, only 4 adult skippers were found: a single
individual in 1995 (Levy 1997), 1 adult in 1996 (Levy 1997), and 2
adults in 1999 (Pratt 1999). All observations of adult skippers have
been at the El Prado/Laguna Campground. A single skipper larval shelter
was found in 1997 at the Meadow Kiosk along the Sunrise Highway (Pratt
1999), documenting a new location of occupied habitat. However, no
adults were observed at this location. Adult skippers have not been
documented in the Laguna Mountains since 1999.
Previous Federal Actions
For information on previous Federal actions for the Laguna
Mountains skipper, refer to the final rule listing for this species and
the Quino Checkerspot Butterfly (Euphydryas editha quino) as endangered
(62 FR 2313). At the time of listing, the Service determined that
critical habitat was not prudent, citing that the publication of
precise maps and descriptions of critical habitat could result in
additional habitat destruction through trampling, discing, and grading
as well as collection (62 FR 2313). On January 10, 2003, the Center for
Biological Diversity (Center) filed a lawsuit against the Service for
violations under the Act and the Administrative Procedure Act (5 U.S.C.
Subchapter II) for the Service's failure to designate critical habitat
for the species (CBD v. USFWS Civ. No. 03-0058-BTM (NLS)). In a
stipulated settlement agreement dated July 29, 2003, the Service agreed
to reconsider its ``not prudent'' finding and propose critical habitat,
if prudent, on or before November 30, 2005, and to publish a final
critical habitat rule, if prudent, on or before November 30, 2006. This
proposed rule complies with the settlement agreement. We have
reconsidered our not prudent finding, and now believe that
identification of primary constituent elements and essential areas
(critical habitat designation) may provide educational information to
individuals, local and State governments, and other entities. Because
this species is so limited in geographic range, most landowners and
collectors have been aware of its presence since listing. Unlike the
Quino checkerspot butterfly listed in the same rule, collectors have
always known where to find the Laguna Mountains skipper, however,
access to the best site is restricted because it can only be reached
through private land (Mendenhall Valley).
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or
[[Page 73703]]
adverse modification of critical habitat with regard to actions carried
out, funded, or authorized by a Federal agency. Section 7 requires
consultation on Federal actions that are likely to result in the
destruction or adverse modification of critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow government or public
access to private lands. Section 7 is a purely protective measure and
does not require implementation of restoration, recovery, or
enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat when the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) In addition, when the best available scientific data
do not demonstrate that the conservation needs of the species so
require, we will not designate critical habitat in areas outside the
geographical area occupied by the species at the time of listing.
However, an area currently occupied by the species that was not known
to be occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, may therefore, be
included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service 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 recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b)(2) the Act we use the best scientific
data available in determining areas that contain features that are
essential to the conservation of the Laguna Mountains skipper. These
include data from field surveys for Horkelia clevelandii, regional
Geographic Information System (GIS) vegetation and species coverages,
data compiled in the California Natural Diversity Database (CNDDB), and
survey data for the Laguna Mountains skipper from reports submitted by
biologists holding section 10(a)(1)(A) recovery permits. Based on the
assessment of those physical and biological components identified
above, the known and historic occurrences of Laguna Mountains skipper,
and available information on the distribution of H. clevelandii, we
identified proposed critical habitat.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat determinations on the
best scientific and commercial data available and to consider those
physical and biological features (primary constituent elements (PCEs))
that are essential to the conservation of the species, and that may
require special management considerations or protection. These include,
but are not limited to: Space for individual and population growth and
for normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The specific primary constituent elements required for the Laguna
Mountains skipper are derived from the biological needs of the species
as described in the Background section of this proposal and the final
listing rule.
Food, Water, or other Nutritional or Physiological Requirements
Laguna Mountain skippers require sunlight provided in the open
meadows, open woodlands, or other forest openings. Butterflies are
exothermic and, like most insects, body temperature is of overriding
importance in limiting flight (Chapman 1982). Butterfly flight activity
is limited by light intensity. Therefore, they require areas for
basking in the sun in order to raise their body temperature for flight
(Chapman 1982). Additionally, surface moisture such as puddles and
seeps (not flowing water) provide water and minerals for adults. Adult
Laguna Mountains skippers need annual or perennial nectar sources
including meadow and woodland-associated herbaceous annual wildflowers,
and perennial herbs (e.g.
[[Page 73704]]
Lasthenia spp. (goldfields), Pentachaeta aurea (golden-rayed
pentachaeta), Ranunculus spp. (buttercups), and Sidalcea spp.
(checkerbloom)).
Sites for Breeding and Reproduction
The Laguna Mountains skippers requires Horkelia clevelandii host
plants to lay eggs on and for the caterpillars to eat and construct
pupal shelters, and may also require Potentila glandulosa. Host plant
patches must be dense enough to support breeding (provide multiple and
diverse sites for depositing eggs), although the exact host-plant patch
size and density required for breeding is not known. A ``patch'' of
host plants may consist of one to several clumps of H. clevelandii or
P. glandulosa growing together, as well as numerous individual plants
that are growing in close proximity.
Space for Individual and Population Growth, and for Normal Behavior
Because the current geographic range is fragmented and small,
population densities are relatively low, and the quality of most
breeding habitat has been compromised to some degree by grazing,
recreation impacts, or exotic plant invasion, all landscape
connectivity areas among occupied meadows and forest openings that
adult Laguna Mountains skippers can move through are required for
survival of the species. In order to facilitate the use of connectivity
areas for adult movement between breeding sites, it is important to
maintain populations of hostplants and adult nectar sources, even if
they are not likely to be used for breeding.
Historic and Geographic Distribution of the Species
The occupied areas proposed for designation are representative of
the historic and geographical distribution of the species. Areas
proposed for designation that are not known to be occupied were all
historically occupied and will restore a portion of the historic
geographic distribution of Laguna Mountains skipper. Connectivity is
required for recolonization of habitat to occur (e.g., after
extirpation by fire) and for genetic diversity to be maintained.
Primary Constituent Elements for the Laguna Mountains skipper
The specific primary constituent elements required for the Laguna
Mountains skipper are derived from the biological needs as described in
the Background section of this proposal. These include all areas within
Palomar and Laguna Mountains that sustain the main host plant of the
Laguna Mountains skipper, Horkelia clevelandii, and associated habitat
containing Potenetila gandulosa, including movement areas between
meadows and forest openings. The specific biological and physical
habitat features identified as essential for sustaining Laguna
Mountains skipper populations are:
1. The host plants, Horkelia clevelandii or Potentila glandulosa,
in meadows or forest openings needed for reproduction.
2. Nectar sources suitable for feeding by adult Laguna Mountains
skipper, including Lasthenia spp., Pentachaeta aurea, Ranunculus spp.,
and Sidalcea spp. found in woodlands or meadows.
3. Wet soil or standing water associated with features such as
seeps, springs, or creeks where water and minerals are obtained during
the adult flight season.
This proposed designation is designed for the conservation of PCEs
necessary to support the life history functions which were the basis
for the proposal. Because not all life history functions require all
the PCEs, not all proposed critical habitat will contain all the PCEs.
Each of the areas proposed in this rule have been determined to
contain sufficient PCEs to provide for one or more of the life history
functions of the Laguna Mountains skipper. In some cases, the PCEs
exist as a result of ongoing Federal actions. As a result, ongoing
Federal actions at the time of designation will be included in the
baseline in any consultation conducted subsequent to this designation.
Criteria Used To Identify Critical Habitat
To delineate proposed critical habitat, we identified meadow
complexes (meadows and forest openings connected by open forest canopy)
on Palomar and Laguna Mountains known to be occupied by the Laguna
Mountains skipper at the time of listing and known to be currently
occupied. The species is currently known to occupy only one meadow
complex (Laguna Meadow) on Laguna Mountain, but we also identified two
other meadow complexes on Laguna Mountain that contain habitat with
features essential to the conservation of the species. These meadow
complexes have not been extensively surveyed and are not currently
known to be occupied. However, Laguna Mountain as a whole was known to
be historically occupied by the skipper. These areas are important for
expansion and enhancement of populations in Laguna Meadow and are
therefore considered essential to the conservation of the species.
Using infrared satellite imagery, we delineated the proposed
critical habitat boundaries by outlining identified meadow complexes.
In delineating proposed critical habitat boundaries, we included areas
within meadow complexes containing relatively dense Horkelia
clevelandii observations. Finally, maps were produced by fitting a 100
meter grid outline to the initial hand-drawn outlines.
When determining proposed critical habitat boundaries, we made
every effort to avoid including within the boundaries of the map
contained within this proposed rule developed areas such as buildings,
paved areas, and other structures that lack PCEs for the Laguna
Mountains skipper. The scale of the maps prepared under the parameters
for publication within the Code of Federal Regulations may not reflect
the exclusion of such developed areas. Any such structures and the land
under them inadvertently left inside critical habitat boundaries shown
on the maps of this proposed rule have been excluded by text in the
proposed rule and are not proposed for designation as critical habitat.
Therefore, Federal actions limited to these areas would not trigger
section 7 consultation, unless they affect the species and/or primary
constituent elements in adjacent critical habitat.
We are proposing to designate critical habitat on lands that we
have determined were occupied at the time of listing and contain
sufficient primary constituent elements to support life history
functions essential for the conservation of the species. We are also
proposing subunits that were not known to be occupied at the time of
listing but have been determined to be essential for the conservation
of the Laguna Mountains skipper. Occupied subunits were designated
based on sufficient PCEs being present to support Laguna Mountains
skipper life processes. All subunits contain all of the PCEs and
support multiple life processes.
At this time, based on the best available information, we have
determined that without management and protection for the habitat of
the Laguna Mountains skipper in the areas not known to be occupied at
the time of listing or known to be currently occupied, conservation of
the species will not be possible in the foreseeable future, and these
areas are accordingly essential to the conservation of the species.
Special Management Considerations or Protections
As we undertake the process of designating critical habitat for a
species, we first evaluate lands defined by those
[[Page 73705]]
physical and biological features essential to the conservation of the
species pursuant to section 3(5)(A) of the Act. Secondly, we evaluate
lands defined by those features to assess whether they may require
special management considerations or protection. Threats to those
essential features that define critical habitat (primary constituent
elements) for the Laguna Mountains skipper include the direct and
indirect impacts of human development and recreation, surface and
groundwater management practices, and grazing intensity.
Areas proposed as critical habitat are composed of 36 percent
private land holdings, where habitat is subject to rural development
and other land use changes, overgrazing, potential stream and
groundwater diversions, and recreational activities. State and Federal
landholdings (6 and 36 percent, respectively) are also subject to
grazing and recreational activities. While designation of critical
habitat does not impose any management requirements, particularly on
State or private land, the following are measures that could be
undertaken to benefit the species.
Grazing can cause direct mortality of larvae and eggs by trampling
and consumption. The density of cattle grazed in meadow habitat should
be monitored and regulated, as well as levels of habitat degradation
resulting from existing grazing. Adaptive management may be needed to
adjust cattle grazing intensity, and protection measures may include
exclosures to prevent grazing. Monitoring of potential changes in
hydrology caused by stream and groundwater diversions should be
undertaken as well as any necessary management to prevent habitat
conversion.
On Palomar Mountain, commercial drinking water projects and private
stream alterations are currently diverting stream and groundwater to an
unknown extent. Drying of meadows results in vegetation changes (for a
general discussion see Naumburg et al. 2005) that could eliminate
primary constituent elements within Laguna Mountains skipper habitat
(e.g. host plants and surface moisture, PCEs 1 and 3). Recreational
activities such as camping and horseback riding increase encroachment
of exotic vegetation and can cause direct mortality of Laguna Mountains
skipper larvae by trampling (Pratt 1999). Alteration of host plant
distribution and availability, plant canopy closure, and availability
of resources such as nectar and moisture (all PCEs) can result from
disturbance by cattle and humans, and habitat conversion due to changes
in surface and groundwater availability.
Pursuant to a consultation with the Service under section 7 of the
Act, the Cleveland National Forest has implemented some measures on
their land to minimize impacts to the Laguna Mountains skipper.
However, no management plan exists that addresses conservation of this
species in the Cleveland National Forest. Therefore, special management
may be needed to minimize impacts to the skipper resulting from
recreation and exotic plant invasion.
We believe areas proposed for designation as critical habitat
contain physical and biological features essential for the conservation
of the Laguna Mountains skipper, and may require some level of
management and/or protection to address current and future threats to
the Laguna Mountains skipper. Subunits 2A, 2B, and 2C may require
special management due to all threats described above. All subunits in
Unit 1 may require special management due to all threats described
above except diverting stream and groundwater. Subunit 2D may require
primarily management of recreation impacts. Economic or fire management
activities, such as logging, fuel modification, and relatively low
density grazing, should not adversely modify habitat if carefully
managed to minimize or avoid destruction of host plants.
Proposed Critical Habitat Designation
We are proposing 2 units made up of 7 subunits, totaling 6,662 ac
(2,696 ha) as critical habitat for the Laguna Mountains skipper. The
critical habitat areas described below constitute our best assessment
at this time of areas determined to be occupied at the time of listing,
contain the primary constituent elements and may require special
management, and those additional areas that were not known to be
occupied at the time of listing but found to be essential to
conservation of the Laguna Mountains skipper. Proposed critical habitat
areas encompass approximately 3,887 ac (1,574 ha; 58 percent) of
Federal land ownership, 381 ac (154 ha; 6 percent) of State land
ownership, and 2,394 ac (968 ha; 36 percent) of private land ownership.
No Tribal lands were included in this proposed designation.
The 2 units proposed as critical habitat are: (1) Palomar Mountain;
and, (2) Laguna Mountain. Brief descriptions of the units are presented
below. Four subunits (1A, 2A, 2B, 2D) were known to be occupied at the
time of listing, one subunit was not known to be occupied at the time
of listing but is known to be currently occupied (2C), and two subunits
(1B and 1C) were not known to be occupied at the time of listing and
are not known to be currently occupied, but are connected to occupied
habitat, were historically occupied, and contain physical and
biological features essential to the conservation of the species and
are themselves essential to the conservation of the species.
All subunits not currently known to be occupied are contiguous with
occupied subunits and ensure representation of the historic
geographical distribution not otherwise represented by the occupied
subunits. There is potential for current occupancy in subunits not
currently known to be occupied, as survey efforts in these areas have
been limited. No conclusive evidence is available to indicate complete
absence of Laguna Mountains skipper at any of these sites; few,
incomplete, or no recent surveys have been conducted at sites not
currently known to be occupied. Species detectability is generally low
(e.g. Pratt 1999), particularly if the population occurs in low
numbers. Surveys may have missed sightings, as shown by repeated
collections near Little Laguna Lake where historically there were many
observations, followed by repeated reports of no occurrences, with
subsequent population ``re-discovery'' (Pratt 1999). The current,
overall population size of the Laguna Mountains skipper is at such a
low level that it was thought to have possibly been extirpated in the
Laguna Mountains at the time of listing (Levy 1994; 62 FR 2313).
While occupied subunits provide some habitat for current
populations, unoccupied subunits would provide habitat for population
augmentation either through natural means, or by re-introduction.
(Note: We believe that given the species' small population size and
very limited range, reintroduction may be necessary for long-term
persistence of the species. We are not currently developing a
reintroduction plan. However, we've identified the potential need for a
propagation and reintroduction program as a recovery task in the draft
recovery plan citing that such a program may be necessary for recovery
of the species, especially in the Laguna Mountains where the species
has been documented to occur in one meadow area. We do not anticipate
that section 10(j) would apply to any reintroduction (or augmentation)
of Laguna Mountains skipper on either the Palomar or Laguna Mountains
since they would not be separated geographically from the existing
populations.) As stated in the final rule
[[Page 73706]]
listing the species as endangered (62 FR 2313), one of several
naturally occurring events could extirpate the existing population due
to its very restricted range and extremely localized distribution. The
inclusion of unoccupied subunits in critical habitat would reduce the
threat that catastrophic naturally occurring events such as the Cedar
Fire that burned part of Laguna Mountain in 2003 (e.g., IBAERT 2003)
would extirpate the population by providing additional available
habitat that the species could expand into. Therefore, we have
determined that expansion of the species into habitat not currently
known to be occupied and connectivity with existing occupied habitat is
necessary to conserve the species. Based on the best available
information, we have determined that management and protection for the
Laguna Mountains skipper in areas historically occupied and known to be
currently occupied on Laguna Mountain is necessary.
Unit Descriptions
Unit 1: Laguna Mountain
Unit 1 encompasses approximately 3,763 ac (1,523 ha), and is
approximately centered on Laguna Mountain peak located in south-central
San Diego County east of the community of Alpine. This unit is divided
into three subunits containing all the primary constituent elements.
This unit is crucial to the species the species primarily because the
species was first described from this unit and represents the
southernmost portion of the species range. Maintaining two widely
separate units (i.e., Laguna and Palomar Mountains) and multiple
subunits limits the potential for a catastrophic event from extirpating
all remaining populations. Because the number of known occupied sites
and low population densities are not sufficient to overcome the threat
of extirpation, connectivity and expansion into unoccupied meadow
complexes is necessary for the conservation of the Laguna Mountains
skipper. Connectivity is important for recolonization of habitat to
occur (e.g. after extirpation by fire) and genetic diversity to be
maintained among local populations.
Unit 1A: Laguna Meadow
Unit 1A (2,829 ac (1,145 ha)) is currently occupied and was known
to be occupied at the time of listing. This subunit contains habitat
features essential to the conservation of the species and is the site
where the species was first described (i.e., northern Laguna Meadow,
near Little Laguna Lake), and is where adults could be reliably found
historically. The Cleveland National Forest lands in this unit is
subject to grazing and recreational activities and may require special
management such as grazing density adjustments or additional exclosures
to protect host plants. This subunit contains 2,724 (1,102 ha) of
Federal land (i.e., U.S. Forest Service) and 105 ac (43 ha) of
privately owned land.
Unit 1B: Filaree Flat
Subunit 1B (388 ac (157 ha)) is not currently known to be occupied,
and was not known to be occupied at the time of listing, but was
historically occupied. This subunit is essential because it (1)
contains habitat features essential to the conservation of populations
known to occupy Subunit 1A, (2) provides for population expansion and
enhancement, (3) minimizes habitat fragmentation, and (4) is
representative of the historic geographical and ecological distribution
of the species. Lands in this subunit are subject to grazing and
recreational activities and may require special management such as
grazing density adjustments or additional exclosures to protect host
plants. This subunit contains 368 ac (149 ha) of Federal land (i.e.,
U.S. Forest Service) and 20 ac (8 ha) of privately owned land.
Unit 1C: Agua Dulce Campground and Horse Meadow
Subunit 1C (546 ac (221 ha)) is not currently known to be occupied
and was not known to be occupied at the time of listing. This subunit
is essential because it (1) contains habitat features essential to the
conservation of populations known to occupy Subunit 1A; (2) provides
for population expansion and enhancement; (3) minimizes habitat
fragmentation; and, (4) is representative of the historic geographical
and ecological distribution of the species. Habitat in this subunit is
subject to grazing and recreational activities and may require special
management such as grazing density adjustments or additional exclosures
to protect host plants. This subunit contains 417 ac (169 ha) of
Federal land (i.e., U.S. Forest Service) and 129 ac (52 ha) of
privately owned land.
Unit 2: Palomar Mountain
Unit 2 encompasses approximately 2,899 ac (1,173 ha), and is
approximately centered on Palomar Mountain peak located in north-
central San Diego County near the border of Riverside County. Unit 2
consists of subunits containing all the primary constituent elements.
Unit 2 includes the most densely populated area in the species' range
and encompasses the northernmost portion of the range. Maintaining two
widely separate units (i.e., Laguna and Palomar Mountains) and multiple
subunits limits the potential for a catastrophic event from extirpating
all remaining populations.
Unit 2A: Mendenhall Valley and Observatory Campground
Subunit 2A (1,092 ac (442 ha)) is known to be currently occupied
and was occupied at the time of listing. Subunit 2A supports the
largest known population of Laguna Mountains skipper and represents the
best opportunity for the survival of this species. This unit is
composed of a large amount of private land holdings with habitat
potentially subject to future rural development and other land use
changes, overgrazing, stream diversion, and private recreational use.
This subunit is the only meadow complex (i.e., Mendenhall Valley and
associated forest openings) where multiple adults have been
consistently detected since the time of listing. Subunit 2A (1)
contains habitat features essential for conservation of the species;
(2) conserves at least part of the only relatively stable, highest
density local population; and (3) minimizes habitat fragmentation. This
area may require special management such as host plant distribution
monitoring, exclosure maintenance, and grazing density adjustments.
This subunit contains 231 (94 ha) of Federal land (i.e., U.S. Forest
Service) and 861 (348 ha) of privately owned land.
Unit 2B: Upper French Valley, Observatory Trail, and Palomar
Observatory Meadows
Subunit 2B (998 ac (404 ha)) is known to be currently occupied and
was occupied at the time of listing. The distribution of small forest
openings and meadows and the five observation locations along the
Observatory Trail indicate historic occupancy of Laguna Mountains
skipper populations in unsurveyed portions of Upper French Valley.
Subunit 2B: (1) Contains habitat features essential for conservation of
the species; (2) provides for population expansion and enhancement;
and, (3) minimizes habitat fragmentation. This area may require special
management such as host plant distribution monitoring, grazing and
recreation exclosure maintenance, and grazing density adjustments. This
subunit contains 93 (38 ha) of Federal land (i.e.,
[[Page 73707]]
U.S. Forest Service) and 905 ac (366 ha) of privately owned land.
Unit 2C: Upper Doane Valley and Girl Scout Camp
Subunit 2C (547 ac (221 ha)) is known to be currently occupied, but
was not known to be occupied at the time of listing. Subunit 2C is also
essential to the conservation of this species because it (1) contains
habitat features essential to the conservation of populations known to
occupy Subunit 2A, (2) allows population expansion and enhancement, and
(3) minimizes habitat fragmentation. This area may require special
management such as host plant distribution monitoring, exclosure
maintenance, and grazing density adjustments. This subunit contains 40
(16 ha) of Federal land (i.e., U.S. Forest Service), 316 ac (128 ha) of
privately owned land, and 191 ac (77 ha) of State owned land (i.e.
California State Parks).
Unit 2D: Lower French Valley and Lower Doane Valley
Subunit 2D (547 ac (221 ha)) is known to be currently occupied and
was occupied at the time of listing. Subunit 2C (1) contains habitat
features essential to the conservation of populations known to occupy
Subunit 2A, (2) allows population expansion and enhancement, and (3)
minimizes habitat fragmentation. This area may require special
management such as hostplant distribution monitoring, exclosure
maintenance, and grazing density adjustments. This subunit contains 14
(6 ha) of Federal land (i.e., U.S. Forest Service), 58 ac (23 ha) of
privately owned land, and 190 ac (77 ha) of State owned land (i.e.
California State Parks).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, 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 such a species or to 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 us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Federal activities that may affect the Laguna Mountain skipper or
their designated critical habitat will require section 7 consultation.
Activities on private or State lands requiring a permit from a Federal
agency, such as a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from
the Service, or some other Federal action, including funding (e.g.,
Federal Highway Administration or Federal
[[Page 73708]]
Emergency Management Agency funding), will also continue to be subject
to the section 7 consultation process. Federal actions not affecting
listed species or critical habitat and actions on non-Federal and
private lands that are not federally funded, authorized, or permitted
do not require section 7 consultation.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Laguna Mountains Skipper and Its
Critical Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for Laguna Mountains skipper
jeopardy analyses that relies heavily on the importance of core area
populations to the survival and recovery of the Laguna Mountains
skipper. The section 7(a)(2) analysis is focused not only on these
populations but also on the habitat conditions necessary to support
them.
The jeopardy analysis usually expresses the survival and recovery
needs of the Laguna Mountains skipper in a qualitative fashion without
making distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population to the survival and recovery of the species
as a whole.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum is used to complete section 7(a)(2) analyses for
Federal actions affecting Laguna Mountains skipper critical habitat.
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the primary constituent elements to be functionally
established) to serve the intended conservation role for the species.
Generally, the conservation role of Laguna Mountains skipper critical
habitat units is to support viable core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for the Laguna Mountains skipper is appreciably
reduced. Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the Laguna Mountains skipper include, but are not
limited to:
(1) Actions that destroy Laguna Mountains skipper host plants and
immature life stages of the species. Such activities could include, but
are not limited to overgrazing by livestock, logging, and recreational
activities. These activities could eliminate breeding and nectaring
resources for the adults, and directly destroy eggs, pupae, or larvae.
(2) Actions that would long-term or permanently destroy habitat
containing primary constituent elements. Such activities could include,
but are not limited to, removal or destruction of host plants and
nectar sources by paving or piling logs; erection of permanent
structures or cultivation of large shrubs or trees that impede adult
movement; manipulation of seeps, springs, or creeks that eliminates
surface moisture; paved road construction in occupied habitat; and
rural development that eliminates or fragments habitat. These
activities reduce the amount of available habitat and directly and
indirectly increase the extirpation probability of associated Laguna
Mountains skipper populations.
(3) Actions that would alter the vegetation of meadow habitat, for
example invasion of exotic species or forest encroachment. Such
activities could include, but are not limited to, stream or groundwater
diversion. These activities could decrease the area of open meadow and
soil moisture content and eliminate suitable Laguna Mountains skipper
oviposition sites.
Economic or fire management activities, such as logging, fuel
modification, and relatively low density grazing should not adversely
modify habitat if carefully managed to minimize or avoid destruction of
host plants.
Exclusions Under Section 4(b)(2) of the Act
Pursuant to section 4(b)(2) of the Act, we must consider relevant
impacts in addition to economic ones. We are not aware of any habitat
conservation plans currently being developed for Laguna Mountains
skipper on any lands included in this proposal and the proposed
designation does not include any Tribal lands or trust resources.
Therefore, we are not proposing any exclusion of critical habitat under
section 4(b)(2) of the Act.
The Service is conducting an economic analysis of the impacts of
the proposed critical habitat designation and related factors, which
will be available for public review and comment. Based on public
comment on that document, the proposed designation itself, and the
information in the final economic analysis, habitat containing
essential features for the Laguna Mountains skipper may be excluded
from critical habitat by the Secretary under the provisions of section
4(b)(2) of the Act. This is provided for in the Act, and in our
implementing regulations at 50 CFR 242.19.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for the Laguna Mountains skipper is being prepared. We will announce
the availability of the draft economic analysis as soon as it is
completed, at which time we will seek public review and comment. At
that time, copies of the draft economic analysis will be available for
downloading from the Internet at http://carlsbad.fws.gov, or by
contacting the Carlsbad Fish and Wildlife Office directly (see
ADDRESSES section).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least 3 appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send these peer reviewers
copies of this proposed rule immediately following publication in the
Federal Register. We will invite these peer reviewers to comment,
during the public comment period, on the specific assumptions and
conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
[[Page 73709]]
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing at
least 15 days prior to the close of the public comment period. We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings in the Federal
Register and local newspapers at least 15 days prior to the first
hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? (5) What
else could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: [email protected].
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat. This
economic analysis also will be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement Fairness Act, and Executive Order 12630.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Under
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement pursuant to the Act, we must then evaluate
alternative regulatory approaches, where feasible, when promulgating a
designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are listed
above in the section on Section 7 Consultation. The availability of the
draft economic analysis will be announced in the Federal Register so
that it is available for public review and comments. The draft economic
analysis can be obtained from the internet website at http://www.fws.gov/carlsbad/ or by contacting the Laguna Mountains skipper
directly (see ADDRESSES).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA
and E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft
economic analysis, the Service will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designation for an additional 60
days. The Service will include with the notice of availability, as
appropriate, an initial regulatory flexibility analysis or a
certification that the rule will not have a significant economic impact
on a substantial number of small entities accompanied by the factual
basis for that determination. The Service has concluded that deferring
the RFA finding until completion of the draft economic analysis is
necessary to meet the purposes and requirements of the RFA. Deferring
the RFA finding in this manner will ensure that the Service makes a
sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for the Laguna
Mountains skipper is considered a significant regulatory action under
Executive Order 12866 as it may raise novel legal and policy issues.
However, this designation is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required. We will, however, further evaluate this issue as we conduct
our economic analysis and, as appropriate, review and revise this
assessment as warranted.
[[Page 73710]]
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it is a relatively small designation
on mostly public and private land. The public lands being proposed for
critical habitat designation are owned by the United States Forest
Service and the State of California. None of these government entities
fit the definition of ``small governmental jurisdiction.'' As such, a
Small Government Agency Plan is not required. We will, however, further
evaluate this issue as we conduct our economic analysis and as
appropriate, review and revise this assessment as warranted.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
proposing critical habitat for the Laguna Mountains skipper in a
takings implications assessment. The takings implications assessment
concludes that the proposed designation of critical habitat will not
result in significant takings implications.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in California. The designation of critical habitat in areas
currently occupied by the Laguna Mountains skipper imposes no
additional restrictions to those currently in place and, therefore, has
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas essential to the conservation of the species are more
clearly defined, and the primary constituent elements of the habitat
necessary to the survival of the species are specifically identified.
While making this definition and identification does not alter where
and what federally sponsored activities may occur, it may assist these
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Endangered Species Act. This
proposed rule uses standard property descriptions and identifies the
primary constituent elements within the designated areas to assist the
public in understanding the habitat needs of the Laguna Mountains
skipper.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
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, and the Department
of 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. We will be working with the
tribes on
[[Page 73711]]
whose land where there is a possibility of Laguna Mountains skipper
occupancy to more precisely determine the distribution of Laguna
Mountains skipper habitat and occupancy, and management options. No
Laguna Mountains skippers have been reported from Tribal lands.
Therefore, no designation of critical habitat for the Laguna Mountains
skipper has been proposed on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary author of this package is the Carlsbad Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Skipper, Laguna
Mountains `` under ``INSECTS'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Historic range Vertebrate
-------------------------------------------------------- population where Critical Special
endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Skipper, Laguna Mountains........ Pyrgus ruralis U.S.A.............. Entire............. E 604 17.95(i) NA
lagunae.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95(i), add the entry for Laguna Mountains Skipper
(Pyrgus ruralis lagunae) under ``INSECTS'' to read as follows:
Sec. 17.95 Critical habitat-fish and wildlife.
* * * * *
(i) Insects.
* * * * *
Laguna Mountains Skipper (Pyrgus ruralis lagunae)
(1) Critical habitat units are depicted for San Diego County,
California, on the maps below.
(2) The primary constituent elements of critical habitat for the
Laguna Mountains skipper are the habitat components that provide:
(i) The host plants, Horkelia clevelandii or Potentila glandulosa,
in meadows or forest openings needed for reproduction.
(ii) Nectar sources suitable for feeding by adult Laguna Mountains
skipper, including Lasthenia spp., Pentachaeta aurea, Ranunculus spp.,
and Sidalcea spp.
(iii) Wet soil or standing water associated with features such as
seeps, springs, or creeks where water and minerals are obtained during
the adult flight season.
(3) Critical habitat does not include man-made structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, aqueducts,
airports, and roads, and the land on which such structures are located.
(4) Data layers defining map units were created on a., on a base of
USGS 1:24,000 quadrangle maps, and critical habitat units were then
mapped using Universal Transverse Mercator (UTM) coordinates.
(5) Note: Map 1 (index map) follows.
BILLING CODE 4310-55-U
[[Page 73712]]
[GRAPHIC] [TIFF OMITTED] TP13DE05.005
BILLING CODE 4310-55-C
(6) Unit 1: Laguna Mountain, San Diego County, California. From
USGS 1:24,000 quadrangle maps Monument Peak and Mount Laguna.
[[Page 73713]]
(i) Subunit 1A: lands bounded by the following UTM NAD27
coordinates (E,N): 553000, 3637800; 553000, 3638000; 553100, 3638000;
553100, 3638100; 553600, 3638100; 553600, 3638000; 553800, 3638000;
553800, 3637900; 553700, 3637900; 553700, 3637600; 553800, 3637600;
553800, 3637400; 553700, 3637400; 553700, 3637500; 553500, 3637500;
553500, 3637200; 553100, 3637200; 553100, 3637100; 553200, 3637100;
553200, 3637000; 553300, 3637000; 553300, 3636800; 553400, 3636800;
553400, 3636700; 553200, 3636700; 553200, 3636800; 553000, 3636800;
553000, 3636900; 552900, 3636900; 552900, 3637000; 552800, 3637000;
552800, 3637100; 552700, 3637100; 552700, 3637000; 552600, 3637000;
552600, 3637100; 552400, 3637100; 552400, 3637200; 552300, 3637200;
552300, 3637100; 552200, 3637100; 552200, 3637000; 552000, 3637000;
552000, 3637100; 551900, 3637100; 551900, 3637300; 551500, 3637300;
551500, 3637200; 551400, 3637200; 551400, 3637100; 551200, 3637100;
551200, 3636700; 551300, 3636700; 551300, 3636600; 551400, 3636600;
551400, 3636500; 551600, 3636500; 551600, 3636400; 551700, 3636400;
551700, 3636300; 551800, 3636300; 551800, 3636200; 552000, 3636200;
552000, 3636100; 552100, 3636100; 552100, 3636000; 552200, 3636000;
552200, 3635900; 552300, 3635900; 552300, 3635800; 552400, 3635800;
552400, 3635600; 552500, 3635600; 552500, 3635500; 552300, 3635500;
552300, 3635400; 552100, 3635400; 552100, 3635100; 552000, 3635100;
552000, 3634800; 551800, 3634800; 551800, 3635000; 551600, 3635000;
551600, 3634900; 551400, 3634900; 551400, 3635300; 551300, 3635300;
551300, 3635600; 551200, 3635600; 551200, 3635700; 551100, 3635700;
551100, 3636000; 551000, 3636000; 551000, 3636100; 550900, 3636100;
550900, 3636200; 550800, 3636200; 550800, 3636100; 550700, 3636100;
550700, 3636000; 550800, 3636000; 550800, 3635800; 550600, 3635800;
550600, 3635700; 550500, 3635700; 550500, 3635500; 550400, 3635500;
550400, 3635400; 550300, 3635400; 550300, 3635300; 550100, 3635300;
550100, 3635500; 550000, 3635500; 550000, 3635600; 549900, 3635600;
549900, 3635900; 550000, 3635900; 550000, 3636200; 549800, 3636200;
549800, 3636500; 549900, 3636500; 549900, 3636600; 549800, 3636600;
549800, 3636700; 549700, 3636700; 549700, 3637000; 549800, 3637000;
549800, 3637100; 549900, 3637100; 549900, 3637600; 550200, 3637600;
550200, 3637900; 550100, 3637900; 550100, 3638500; 550000, 3638500;
550000, 3638600; 549900, 3638600; 549900, 3638500; 549800, 3638500;
549800, 3638000; 549700, 3638000; 549700, 3637700; 549500, 3637700;
549500, 3638000; 549600, 3638000; 549600, 3638100; 549500, 3638100;
549500, 3638200; 549100, 3638200; 549100, 3638400; 549200, 3638400;
549200, 3638500; 549300, 3638500; 549300, 3638800; 549400, 3638800;
549400, 3638900; 549300, 3638900; 549300, 3639000; 549600, 3639000;
549600, 3638600; 549700, 3638600; 549700, 3638700; 549800, 3638700;
549800, 3638900; 549900, 3638900; 549900, 3639000; 549700, 3639000;
549700, 3639200; 549600, 3639200; 549600, 3639300; 549500, 3639300;
549500, 3639500; 549400, 3639500; 549400, 3639600; 549300, 3639600;
549300, 3639800; 549200, 3639800; 549200, 3639900; 549100, 3639900;
549100, 3640200; 549400, 3640200; 549400, 3640100; 549700, 3640100;
549700, 3640000; 549800, 3640000; 549800, 3640100; 549900, 3640100;
549900, 3640200; 549700, 3640200; 549700, 3640300; 549600, 3640300;
549600, 3640500; 549800, 3640500; 549800, 3640600; 549900, 3640600;
549900, 3640700; 550200, 3640700; 550200, 3640600; 550500, 3640600;
550500, 3640500; 550600, 3640500; 550600, 3640400; 550700, 3640400;
550700, 3640200; 550300, 3640200; 550300, 3640000; 551000, 3640000;
551000, 3639900; 551100, 3639900; 551100, 3639700; 550800, 3639700;
550800, 3639600; 550600, 3639600; 550600, 3639700; 550500, 3639700;
550500, 3639400; 550400, 3639400; 550400, 3639300; 550500, 3639300;
550500, 3639200; 550600, 3639200; 550600, 3639100; 550700, 3639100;
550700, 3639000; 550800, 3639000; 550800, 3638900; 551000, 3638900;
551000, 3639300; 551100, 3639300; 551100, 3639500; 551300, 3639500;
551300, 3639900; 551600, 3639900; 551600, 3639700; 551700, 3639700;
551700, 3639400; 551800, 3639400; 551800, 3639300; 551900, 3639300;
551900, 3639100; 551800, 3639100; 551800, 3639000; 551900, 3639000;
551900, 3638900; 552000, 3638900; 552000, 3638800; 552200, 3638800;
552200, 3638700; 552500, 3638700; 552500, 3638300; 552300, 3638300;
552300, 3638400; 552200, 3638400; 552200, 3638300; 551900, 3638300;
551900, 3637900; 552000, 3637900; 552000, 3637800; 553000, 3637800.
(ii) Subunit 1B: lands bounded by the following UTM NAD27
coordinates (E,N): 550000, 3643000; 550200, 3643000; 550200, 3642800;
550100, 3642800; 550100, 3642700; 550000, 3642700; 550000, 3642400;
550200, 3642400; 550200, 3642200; 550000, 3642200; 550000, 3642100;
549900, 3642100; 549900, 3642000; 550100, 3642000; 550100, 3641800;
550500, 3641800; 550500, 3641600; 550400, 3641600; 550400, 3641300;
550200, 3641300; 550200, 3641200; 550100, 3641200; 550100, 3641100;
550200, 3641100; 550200, 3640900; 549600, 3640900; 549600, 3641000;
549300, 3641000; 549300, 3642000; 549200, 3642000; 549200, 3642400;
549300, 3642400; 549300, 3642300; 549400, 3642300; 549400, 3642500;
549700, 3642500; 549700, 3642600; 549800, 3642600; 549800, 3642700;
549900, 3642700; 549900, 3642900; 550000, 3642900; 550000, 3643000.
(iii) Subunit 1C: lands bounded by the following UTM NAD27
coordinates (E,N): 552800, 3635600; 553100, 3635600; 553100, 3635400;
553300, 3635400; 553300, 3635300; 553400, 3635300; 553400, 3635200;
553300, 3635200; 553300, 3635100; 553200, 3635100; 553200, 3635000;
553400, 3635000; 553400, 3634800; 553600, 3634800; 553600, 3634600;
553700, 3634600; 553700, 3634200; 553600, 3634200; 553600, 3634100;
553500, 3634100; 553500, 3634000; 553400, 3634000; 553400, 3633800;
553300, 3633800; 553300, 3633600; 553200, 3633600; 553200, 3633300;
553300, 3633300; 553300, 3633200; 553500, 3633200; 553500, 3633300;
553600, 3633300; 553600, 3633000; 553700, 3633000; 553700, 3632300;
553600, 3632300; 553600, 3632200; 553300, 3632200; 553300, 3632300;
553200, 3632300; 553200, 3633000; 553100, 3633000; 553100, 3633200;
553000, 3633200; 553000, 3633300; 552900, 3633300; 552900, 3632800;
552800, 3632800; 552800, 3632600; 552700, 3632600; 552700, 3632500;
552600, 3632500; 552600, 3632400; 552500, 3632400; 552500, 3632300;
552300, 3632300; 552300, 3632600; 552400, 3632600; 552400, 3632700;
552500, 3632700; 552500, 3632800; 552600, 3632800; 552600, 3633000;
552700, 3633000; 552700, 3633400; 552800, 3633400; 552800, 3633800;
552700, 3633800; 552700, 3634300; 552800, 3634300; 552800, 3634500;
552900, 3634500; 552900, 3634900; 552800, 3634900; 552800, 3635600.
(iv) Note: Unit 1 (Map 2) follows.
BILLING CODE 4310-55-U
[[Page 73714]]
[GRAPHIC] [TIFF OMITTED] TP13DE05.006
BILLING CODE 4310-55-C
(7) Unit 2: Palomar Mountain, San Diego County, California. From
USGS 1:24,000 quadrangle maps Boucher Hill and Palomar Observatory.
[[Page 73715]]
(i) Subunit 2A: lands bounded by the following UTM NAD27
coordinates (E, N): 511300, 3689300; 511400, 3689300; 511400, 3689200;
511600, 3689200; 511600, 3689100; 511700, 3689100; 511700, 3689000;
511800, 3689000; 511800, 3688900; 512300, 3688900; 512300, 3688800;
512400, 3688800; 512400, 3689000; 512900, 3689000; 512900, 3688900;
513200, 3688900; 513200, 3688800; 513400, 3688800; 513400, 3688700;
513700, 3688700; 513700, 3688600; 513900, 3688600; 513900, 3688500;
514000, 3688500; 514000, 3688400; 514100, 3688400; 514100, 3688300;
514400, 3688300; 514400, 3688200; 514500, 3688200; 514500, 3688100;
515300, 3688100; 515300, 3688000; 515400, 3688000; 515400, 3687900;
515500, 3687900; 515500, 3687800; 515700, 3687800; 515700, 3687600;
515900, 3687600; 515900, 3687300; 515800, 3687300; 515800, 3687200;
515900, 3687200; 515900, 3687100; 516000, 3687100; 516000, 3687000;
516300, 3687000; 516300, 3686900; 516400, 3686900; 516400, 3686800;
516500, 3686800; 516500, 3686700; 516600, 3686700; 516600, 3686600;
517000, 3686600; 517000, 3686300; 517200, 3686300; 517200, 3686200;
517300, 3686200; 517300, 3686000; 517100, 3686000; 517100, 3685800;
517200, 3685800; 517200, 3685700; 516700, 3685700; 516700, 3685800;
516600, 3685800; 516600, 3686000; 516500, 3686000; 516500, 3686100;
516400, 3686100; 516400, 3686200; 516300, 3686200; 516300, 3686300;
516200, 3686300; 516200, 3686400; 516000, 3686400; 516000, 3686600;
515900, 3686600; 515900, 3686700; 515800, 3686700; 515800, 3686800;
515700, 3686800; 515700, 3686900; 515500, 3686900; 515500, 3687000;
515200, 3687000; 515200, 3687100; 514900, 3687100; 514900, 3687200;
514800, 3687200; 514800, 3687300; 514500, 3687300; 514500, 3687500;
514400, 3687500; 514400, 3687600; 514300, 3687600; 514300, 3687700;
514200, 3687700; 514200, 3687800; 514100, 3687800; 514100, 3687900;
514000, 3687900; 514000, 3688000; 513700, 3688000; 513700, 3688100;
513500, 3688100; 513500, 3688000; 513400, 3688000; 513400, 3687700;
513300, 3687700; 513300, 3687400; 513200, 3687400; 513200, 3687300;
513000, 3687300; 513000, 3687600; 512900, 3687600; 512900, 3688000;
512800, 3688000; 512800, 3688100; 512500, 3688100; 512500, 3688200;
512400, 3688200; 512400, 3688400; 512300, 3688400; 512300, 3688500;
512000, 3688500; 512000, 3688600; 511900, 3688600; 511900, 3688500;
511700, 3688500; 511700, 3688800; 511500, 3688800; 511500, 3688900;
511400, 3688900; 511400, 3689000; 511300, 3689000; 511300, 3689100;
511200, 3689100; 511200, 3689200; 511300, 3689200; 511300, 3689300.
(ii) Subunit 2B: lands bounded by the following UTM NAD27
coordinates (E,N): 513000, 3690900; 513000, 3690800; 513200, 3690800;
513200, 3690600; 513100, 3690600; 513100, 3690400; 513200, 3690400;
513200, 3690300; 513300, 3690300; 513300, 3690000; 513200, 3690000;
513200, 3689900; 513300, 3689900; 513300, 3689600; 512900, 3689600;
512900, 3689400; 512700, 3689400; 512700, 3689500; 512600, 3689500;
512600, 3689300; 512300, 3689300; 512300, 3689400; 512200, 3689400;
512200, 3689500; 512000, 3689500; 512000, 3689700; 511900, 3689700;
511900, 3689900; 511800, 3689900; 511800, 3690200; 511700, 3690200;
511700, 3690300; 511600, 3690300; 511600, 3690500; 511500, 3690500;
511500, 3690600; 511200, 3690600; 511200, 3690700; 511100, 3690700;
511100, 3690800; 510800, 3690800; 510800, 3690900; 510700, 3690900;
510700, 3690800; 510600, 3690800; 510600, 3690900; 510500, 3690900;
510500, 3691000; 510200, 3691000; 510200, 3690900; 510300, 3690900;
510300, 3690600; 510400, 3690600; 510400, 3690300; 510200, 3690300;
510200, 3690400; 509800, 3690400; 509800, 3690500; 509700, 3690500;
509700, 3690600; 509500, 3690600; 509500, 3690700; 509400, 3690700;
509400, 3690800; 509300, 3690800; 509300, 3690900; 509100, 3690900;
509100, 3691000; 509000, 3691000; 509000, 3691200; 509200, 3691200;
509200, 3691100; 509400, 3691100; 509400, 3691300; 509300, 3691300;
509300, 3691500; 509500, 3691500; 509500, 3691400; 510000, 3691400;
510000, 3691500; 510100, 3691500; 510100, 3691600; 510200, 3691600;
510200, 3691700; 510700, 3691700; 510700, 3691600; 511000, 3691600;
511000, 3691500; 511100, 3691500; 511100, 3691400; 511400, 3691400;
511400, 3691200; 511600, 3691200; 511600, 3691100; 511700, 3691100;
511700, 3691000; 511900, 3691000; 511900, 3690900; 512000, 3690900;
512000, 3690700; 511800, 3690700; 511800, 3690600; 511900, 3690600;
511900, 3690500; 512000, 3690500; 512000, 3690400; 512100, 3690400;
512100, 3690300; 512200, 3690300; 512200, 3690200; 512500, 3690200;
512500, 3690300; 512700, 3690300; 512700, 3690400; 512600, 3690400;
512600, 3690600; 512500, 3690600; 512500, 3690700; 512400, 3690700;
512400, 3690800; 512300, 3690800; 512300, 3691100; 512500, 3691100;
512500, 3691200; 513100, 3691200; 513100, 3691300; 513200, 3691300;
513200, 3691200; 513300, 3691200; 513300, 3690900; 513000, 3690900;
excluding lands bounded by the following UTM NAD27 coordinates (E,N):
509900, 3691000; 510100, 3691000; 510100, 3690900; 510000, 3690900;
510000, 3690800; 509900, 3690800; 509900, 3691000; and 512800, 3691000;
513000, 3691000; 513000, 3690900; 512800, 3690900; 512800, 3691000.
(iii) Subunit 2C: lands bounded by the following UTM NAD27
coordinates (E, N): 509200, 3689100; 509400, 3689100; 509400, 3689000;
509700, 3689000; 509700, 3688700; 509800, 3688700; 509800, 3688600;
510200, 3688600; 510200, 3688900; 510800, 3688900; 510800, 3688800;
511100, 3688800; 511100, 3688600; 511200, 3688600; 511200, 3688500;
511300, 3688500; 511300, 3688400; 511200, 3688400; 511200, 3688300;
511500, 3688300; 511500, 3688200; 511600, 3688200; 511600, 3687900;
511300, 3687900; 511300, 3687600; 511200, 3687600; 511200, 3687500;
511100, 3687500; 511100, 3687400; 511200, 3687400; 511200, 3687100;
511000, 3687100; 511000, 3687200; 510900, 3687200; 510900, 3687300;
510600, 3687300; 510600, 3687500; 510500, 3687500; 510500, 3687400;
510400, 3687400; 510400, 3687500; 510300, 3687500; 510300, 3687600;
510400, 3687600; 510400, 3687700; 510500, 3687700; 510500, 3687800;
510400, 3687800; 510400, 3687900; 510300, 3687900; 510300, 3687800;
510100, 3687800; 510100, 3687900; 509900, 3687900; 509900, 3688200;
509800, 3688200; 509800, 3688300; 509700, 3688300; 509700, 3688400;
509500, 3688400; 509500, 3688500; 509300, 3688500; 509300, 3688600;
509200, 3688600; 509200, 3689100.
(iv) Subunit 2D: lands bounded by the following UTM NAD27
coordinates (E,N): 507700, 3690800; 508000, 3690800; 508000, 3690700;
508100, 3690700; 508100, 3690800; 508300, 3690800; 508300, 3690600;
508400, 3690600; 508400, 3690500; 508500, 3690500; 508500, 3690300;
508400, 3690300; 508400, 3690100; 508500, 3690100; 508500, 3690000;
508600, 3690000; 508600, 3689900; 508700, 3689900; 508700, 3689700;
508800, 3689700; 508800, 3689600; 508900, 3689600; 508900, 3689100;
508700, 3689100; 508700, 3689200; 508600, 3689200; 508600, 3689300;
508400, 3689300; 508400, 3689400; 508200, 3689400; 508200, 3689800;
508000, 3689800; 508000, 3690000; 507900, 3690000; 507900, 3690200;
507800,
[[Page 73716]]
3690200; 507800, 3690400; 507500, 3690400; 507500, 3690300; 507400,
3690300; 507400, 3690500; 507500, 3690500; 507500, 3690700; 507700,
3690700; 507700, 3690800.
(v) Note: Unit 2 (Map 3) follows.
[GRAPHIC] [TIFF OMITTED] TP13DE05.007
[[Page 73717]]
* * * * *
Dated: November 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23691 Filed 12-12-05; 8:45 am]
BILLING CODE 4310-55-C