[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Proposed Rules]
[Pages 44966-44976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12744]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List the Hermes Copper Butterfly as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Hermes copper butterfly 
(Hermelycaena [Lycaena] hermes) as an endangered species under the 
Endangered Species Act of 1973, as amended. We find the petition does 
not present substantial scientific or commercial information indicating 
that listing the Hermes copper butterfly may be warranted. Therefore, 
are not initiating a status review in response to this petition. We ask 
the public to submit to us any new information that becomes available 
concerning the status of the species or threats to it.

DATES: The finding announced in this document was made on August 8, 
2006.

ADDRESSES: The complete file for this finding is available for public 
inspection, by appointment, during normal business hours at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Carlsbad, CA 92011. New information, materials, 
comments, or questions concerning this species may be submitted to us 
at any time at the above address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office (see ADDRESSES section above), by telephone at 
760-431-9440, or by facsimile to 760-431-9624. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.) requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial information to indicate that the petitioned action may be 
warranted. To the maximum extent practicable, this finding is to be 
made within 90 days of receipt of the petition, and the finding is to 
be published in the Federal Register.
    This finding summarizes information included in the petition and 
information available to us at the time of the petition review. A 90-
day finding under section 4(b)(3)(A) of the Act and Sec.  424.14(b) of 
our regulations is limited to a determination of whether the 
information in the petition meets the ``substantial information'' 
threshold. Substantial information is ``that amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted'' (50 CFR 424.14(b)).

Previous Federal Action

    The Hermes copper butterfly was included as a Category 2 candidate 
species in our November 21, 1991 (56 FR 58804), and November 15, 1994 
(59 FR 58982), Candidate Notices of Review (CNOR). Category 2 included 
taxa for which information in the Service's possession indicated that a 
proposed

[[Page 44967]]

listing rule was possibly appropriate, but for which sufficient data on 
biological vulnerability and threats were not available to support a 
proposed rule. In the CNOR published on February 28, 1996 (61 FR 7595), 
the Service announced a revised list of plant and animal taxa that were 
regarded as candidates for possible addition to the Lists of Endangered 
and Threatened Wildlife and Plants. The revised candidate list included 
only former Category 1 species. All former Category 2 species were 
dropped from the list in order to reduce confusion about the 
conservation status of these species, and to clarify that the Service 
no longer regarded these species as candidates for listing. Since the 
Hermes copper butterfly was a Category 2 species, it was no longer 
recognized as a candidate species as of the February 28, 1996, CNOR.
    On June 4, 1991, the Service received a petition dated May 27, 
1991, from David Hogan of the San Diego Biodiversity Project to list 
the Hermes copper butterfly, Laguna Mountains skipper (Pyrgus ruralis 
lagunae), Harbison's dun skipper (Euphyes vestries harbinsoni), and 
Thorne's hairstreak butterfly (Callophrys [Mitoura] grynea thornei) as 
endangered under the Act. In a Federal Register notice dated July 19, 
1993 (58 FR 38549), the Service announced its finding on the petition. 
We found that the petition presented substantial information for the 
Laguna Mountains skipper, but not for the other three butterflies. 
However, the finding also concluded that other substantial information 
existed to support a decision that listing may be warranted for Hermes 
copper butterfly, Harbison's dun skipper, and Thorne's hairstreak 
butterfly, and we announced our intention to continue a formal status 
review of these three species. In a proposed rule for the Laguna 
Mountain skipper and Quino checkerspot butterflies published on August 
4, 1994 (59 FR 39868), we clarified that the negative 90-day finding on 
the Hermes copper butterfly and the other two butterflies ``was made 
because sufficient information was not available regarding the threats 
to and biological vulnerability of these'' butterflies (59 FR 39869). 
Though we have continued, and will continue, to collect available data 
on the Hermes copper butterfly and the other two butterflies, we did 
not complete a formal status review of Hermes copper butterfly under 
section 4(b)(3)(A) of the Act.
    On October 25, 2004, the Service received an updated petition to 
list the Hermes copper and Thorne's hairstreak butterflies as 
endangered from David Hogan of the Center for Biological Diversity. The 
petitioner also sought emergency listing protection for Thorne's 
hairstreak and designation of critical habitat for both butterfly 
species concurrent with listing, if warranted. Included in the petition 
was information regarding the species' taxonomy, biology, ecology, 
historical and current distribution, present status, and potential 
causes of decline and imminent threats. In a letter dated May 9, 2005, 
the Service determined that despite apparent threats to the Thorne's 
hairstreak butterfly, such threats did not appear to be of a magnitude 
and severity to warrant emergency listing. In our response, we also 
advised the petitioner that we had insufficient funds to respond to the 
petition at that time. On March 15, 2005, we received a 60-day notice 
of intent to sue filed by the Center for Biological Diversity for lack 
of response to the Hermes copper and Thorne's hairstreak butterfly 
petition. On October 18, 2005, the Center for Biological Diversity 
filed a complaint for declaratory and injunctive relief challenging our 
failure to make the required 90-day findings for these two taxa. The 
Service agreed to submit 90-day petition findings for Hermes copper and 
Thorne's hairstreak butterflies to the Federal Register by August 1, 
2006, and if the 90-day findings was substantial, to submit 12-month 
findings to the Federal Register by June 1, 2007. This notice 
constitutes our 90-day finding on the petition to list the Hermes 
copper butterfly; the 90-day finding on the petition to list the 
Thorne's hairstreak butterfly will be published separately in the 
Federal Register.
    In completing this 90-day finding, the Service has reviewed not 
only the information submitted in the petition but also information in 
our files. This includes all of the data we had obtained prior to the 
July 19, 1993, not substantial finding that would have been considered 
in an internal status review (had one been completed), as well as all 
of the information we have collected on this species to date. Further, 
based on all new information and our analysis below, we have determined 
that the petition does not present substantial information indicating 
that listing the Hermes copper butterfly may be warranted or that a 
status review should be conducted.

Species Information

Taxonomy

    The Hermes copper butterfly was first described as Chrysophanus 
hermes by Edwards in 1870 (cited in Thorne 1963). Comstock placed the 
species in the genus Tharsalea in 1927 (cited in Thorne 1963). 
According to Faulkner and Klein (2005), Hoffman moved it to the genus 
Lycaena in 1940. In a subsequent study of American copper butterflies, 
Miller and Brown (1979) placed the species in the monotypic genus 
Hermelycaena on the basis of anatomical features that resemble two 
butterfly genera and other unique morphological characters. The authors 
concluded the Hermes copper butterfly was ``perhaps * * * our most 
evolved Copper.'' In an allozyme phylogenetic study of North American 
copper butterflies, Pratt and Wright (2002) suggested that the Hermes 
copper butterfly ``could belong to a separate genus or subgenus.'' 
Lycaena hermes is the name predominantly used in recent literature 
(North American Butterfly Association 2001; Opler and Warren 2003; 
Faulkner and Klein 2005), and we recognize it as such for the purposes 
of this finding.

Description

    The Hermes copper butterfly is a small, brightly-colored butterfly 
approximately 1 to 1.25 inches (2.5 to 3.2 centimeters) in length, with 
one tail on the hindwing. On the upperside, the forewing is brown with 
a yellow or orange area enclosing several black spots, and the hindwing 
has orange spots that may be merged into a band along the margin. On 
the underside, the forewing is yellow with 4 to 6 black spots, and the 
hindwing is bright yellow with 3 to 6 black spots (USGS 2006). Emmel 
and Emmel (1973) provide a description of the early stages of the 
species (eggs, larvae, and pupae).
    The Hermes copper butterfly has a single flight period per year 
(univoltine), and spends about two thirds of its life in the egg stage 
(Thorne 1963). The adult flight period is from mid-May through early 
July, depending on elevation. Its peak flight period is typically 
around June 10 for males and June 20 for females. Recent observations 
indicate that some diapausing (low metabolic rate resting stage) Hermes 
copper butterfly eggs may remain in that state for multiple years as a 
drought adaptation (Faulkner and Klein 2005). Eggs are laid singly on 
stems of its larval host plant, spiny redberry (Rhamnus crocea) 
(Faulkner and Klein 2005). Pupation also occurs on spiny redberry.

[[Page 44968]]

    Males are territorial and perch on plants along the edge of trails 
(Thorne 1963). Hermes copper butterflies are rarely seen far from their 
host or nectar plants, and form geographically small but locally 
abundant ``colonies'' that probably number in the hundreds. These 
``colonies'' are hypothesized to be relatively independent from each 
other, even when in close proximity; inter-colony dispersal, which 
helps maintain the gene pool, may be limited to occasional males 
(Thorne 1963; Faulkner and Klein 2005). Mark-release-recapture data 
recorded a maximum movement of 92 yards (84 meters) (Marschalek 2004).

Habitat

    The Hermes copper butterfly is restricted to areas that contain its 
larval host plant, spiny redberry (Thorne 1963; Emmel and Emmel 1973). 
This plant is a low-growing, spreading shrub with a widespread range 
that includes the coastal ranges of northern California, along the 
foothills of the Sierra Nevada, on the Channel Islands (including the 
Mexican islands), the Mojave Desert in southwestern Arizona, and south 
into Baja California Norte and Sonora, Mexico (Thorne 1963; Sawyer 
1993; Flesch and Hahn 2005; Christie et al. 2006). Spiny redberry 
commonly grows in coastal-sage scrub, chaparral, and woodlands in 
California (Sawyer 1993).
    Faulkner and Brown (1993) described the habitat of the Hermes 
copper butterfly's habitat as coastal sage scrub and open southern 
mixed chaparral communities in which spiny redberry ``is a common 
component.'' The authors further noted that ``these habitat types range 
from near sea level along the coast to 1250 m [4,100 feet] at the 
western edge of the Laguna Mountains.'' Habitat consists of continuous 
stands of mixed chaparral/sage scrub in well-drained soil, usually 
found in canyon bottoms or on hillsides with a northern exposure. Host 
and nectar plants need to be in close proximity to one another 
(Faulkner and Klein 2005). Adult butterflies are typically observed 
feeding on nectar from flat-topped buckwheat (Eriogonum fasciculatum) 
(Marschalek 2004), but have also been observed nectaring on chamise 
(Adenostoma fasciculatum), golden yarrow (Eriophyllum confertiflorum), 
slender sunflower (Helianthus gracilentus), other species in the 
sunflower family (Asteraceae), and short-podded mustard (Hirshfeldia 
incana) (Faulkner and Klein 2005). Klein and Faulkner (2003) 
hypothesized host plants must be mature to support Hermes copper 
butterflies, although the petitioner acknowledged such evidence is 
anecdotal.

Historical Range/Distribution

    Faulkner and Brown (1993) described the known range of the Hermes 
copper butterfly as from near Fallbrook in San Diego County, 
California, to 18 miles (mi) (29 kilometer (km)) south of Santo Tomas 
in Baja California Norte, Mexico (a north-south distance of 
approximately 155 mi (250 km)), and from near the immediate coast 
inland to Pine Valley in San Diego County (an east-west distance of 
about 40 mi (65 km)). Thorne's (1963) map had 33 unnamed ``known'' 
colony locations, all within San Diego County in the United States.
    According to the petition, Hermes copper butterflies have been 
reported approximately 100 mi (160 km) south of the U.S.-Mexico border, 
yet only three populations have been identified (Brown et al. 1992). 
The petitioner asserts the lack of Baja California populations may 
reflect both a dearth of suitable habitat and survey efforts and cites 
surveys conducted east of Tecate that yielded negative results despite 
extensive stands of high quality habitat (D. Faulkner, pers. comm.) 
[document not submitted with petition].

Current Range/Distribution

    According to the petition, the current species' distribution has 
been reduced to approximately 18 known populations following years of 
continuing urban development and the huge wildfires of 2003. The 
petition included ``Table 1: Hermes Copper Populations and Status,'' 
which outlines the site location, estimated population at each site, 
current land manager, and years the species has been observed at each 
site. According to information in Table 1, Hermes copper butterflies 
have been observed, or specimens collected from, 48 sites in San Diego 
County and 4 sites in Baja, Mexico, since the early 1900s. This table 
also highlights 22 sites ``presumed lost to fire,'' 6 sites ``presumed 
lost to urban development,'' 2 sites that have ``unknown specific 
locations and unknown status,'' and 8 sites ``identified during 
environmental review of development projects,'' leaving the 18 sites 
with known populations referred to above. The petitioner also stated 
that, while the status of the Baja populations is unknown, they are 
presumed to be extant for the purposes of the petition.
    Based on information available to us, Hermes copper butterfly has 
been recorded from at least 29 different sites in San Diego County 
(Engelhard 2004a, 2004b). Of these, 2 sites or areas have not been 
resurveyed since the 1930s (Fallbrook and Pala), 3 sites have 
incomplete survey information (surveyor name and/or date) (Scripps 
Gateway, East Elliott Ranch, Flinn Springs County Park), 3 sites were 
proposed for residential development or have been developed (the Crosby 
property, Scripps Gateway, Presky/Gonya property), and 5 sites were 
burned in the 2003 fires (Mission Trails Regional Park, Crestridge 
Ecological Reserve, Sycamore Canyon Open Space Preserve, Rancho Jamul 
Ecological Reserve, and portions of Miramar [Marine Corp Air Station]). 
However, as indicated in Engelhard's (2004a, 2004b) assessment, much of 
the information about the status of the site relative to development, 
extent of development (e.g., area impacted), and fire was not 
determined at that time. Therefore, this assessment did not constitute 
a complete review of the species' status at that time.
    Some of the sites identified as being historically or currently 
occupied in the petition are likely the same sites identified by 
Engelhard (2004a, 2004b), and both references likely utilized the same 
sources of information. However, information used to create Table 1 in 
the petition was not provided by the petitioner; therefore it was not 
possible for us to compare location information available to us to that 
provided in the petition. Therefore, it appears that between 18 
(according to the petition) and 21 (Engelhard 2004a, 2004b) sites were 
considered occupied by Hermes copper butterflies in 2004.

Population Estimates/Status

    According to the petition, the Crestridge Ecological Reserve 
supports the largest known population of the species, and field surveys 
of the reserve between 1999 and 2001 revealed population fluctuations 
ranging from 1,000 butterflies in 2001, to one single butterfly in 2002 
(M. Klein pers. comm.) [document not submitted with petition], to 400 
butterflies in 2003. The petitioner asserted these fluctuations may be 
due to variations in rainfall in San Diego County. Other occupied sites 
have not been systematically surveyed, as illustrated in Table 1 in the 
petition and in Engelhard (2004a, 2004b). Therefore, no quantitative 
data exist on the total population size of Hermes copper butterfly.

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal List of 
Endangered and Threatened Wildlife

[[Page 44969]]

and Plants. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. In making this finding, we 
evaluated whether threats to the Hermes copper butterfly presented in 
the petition and other information readily available to us may pose a 
concern with respect to the species' survival such that listing under 
the Act may be warranted. Our evaluation of these threats is presented 
below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Habitat or Range

    The petition, its appendices, and referenced documents discuss the 
following threats that we have grouped under Factor A: Urban 
development, wildfire, and prescribed fire.
Urban Development
    Information provided by the petitioner. The petitioner asserts the 
``Hermes copper [butterfly] is highly vulnerable to extinction due to 
loss of populations and dispersal habitat to expanding urban 
development in San Diego County and northern Baja California,'' and 
``the threat of urban development is compounded by the additional 
threat of wildfire.'' The petitioner cited two publications (Comstock 
1927; Wright 1930) that predict probable extinction if rapid expansion 
of development were to continue within San Diego County. The petitioner 
cited Brown (1991), ``[b]ecause continued development in the San Diego 
County threatens to eliminate additional colonies of this insect 
[Hermes copper butterfly], it is considered highly sensitive and 
vulnerable to extirpation.''
    The petitioner stated many populations recorded from El Cajon, 
Fairmont Canyon, Kearny Mesa, Scripps Gateway, and numerous sites near 
the urban core of the city of San Diego have been lost to urban 
development and cites Murphy (1991) [document not submitted with 
petition] as stating, ``[Hermes copper butterfly] has been virtually 
extirpated in nearly all of its best known historical localities around 
[the] City of San Diego.'' The petitioner also stated that loss of 
populations and dispersal habitat to urban development is a significant 
threat to the species in the unincorporated portion of the San Diego 
County foothills west of the Cleveland National Forest, especially 
unburned areas near Jamul and northern portions of San Diego County. 
The petitioner further stated that ongoing urban development in 
Harbison Canyon, Marine Air Corps Station Miramar, San Marcos Creek, 
and Santee reduces likelihood of recolonization by the species. The 
petition also stated that Hermes copper butterfly populations 
identified in several locations by recent development project 
biological surveys may not persist following construction, especially 
considering resulting habitat fragmentation and increased risk of fire 
with an expanded, proximate human population.
    Analysis of information provided in the petition. Rapid urban 
development is occurring within the current known range of the Hermes 
copper butterfly. Coastal and interior San Diego County is projected to 
grow about 44 percent by the year 2020 (San Diego Association of 
Governments 1999). While we acknowledge development has likely reduced 
the amount of occupied habitat for Hermes copper butterfly, the extent 
to which the reduction of habitat has impacted the species has not been 
quantitatively estimated.
    The petition stated many populations recorded from El Cajon, 
Fairmont Canyon, Kearny Mesa, Scripps Gateway, and numerous sites near 
the urban core of the city of San Diego have been lost to urban 
development. While not explicitly stated in the petition, we assumed 
for the purposes of our review that the above statements were based on 
information in Table 1 in the petition. According to Table 1, six 
sites/areas appear to correspond to these areas and are referred to as 
``presumed lost to urban development'': El Cajon (``3 miles south of El 
Cajon'' and ``El Cajon''), Fairmont Canyon (``Fairmont Canyon''), Kerny 
Mesa (``Kerny Mesa''), Scripps Gateway (``Scripps Gateway''), and 
numerous sites in San Diego (collectively referred to as ``San 
Diego''). However, no information was provided with the petition 
documenting site development, site location, the extent of the 
development (e.g., area developed), or the extent of habitat loss due 
to development.
    The petition also stated several populations have been identified 
during recent development project biological surveys and asserts these 
populations may not persist following construction. Table 1 identifies 
eight such sites. However, no information was provided documenting 
proposed or ongoing development at these sites, site location, the 
extent of development (e.g., area developed), or extent of habitat loss 
due to development.
    The status of Hermes copper butterfly distribution compiled by 
Engelhard (2004a, 2004b) lists 21 occupied locations known as of 2004; 
Table 1 in the petition lists 18 sites. As discussed above, information 
used to create Table 1 in the petition was not provided; therefore it 
was not possible for us to compare location information available to us 
(i.e., in Engelhard (2004a, 2004b)) to information provided in the 
petition. While Engelhard's (2004a, 2004b) assessment included total 
area and development status for some sites, such information for most 
sites was not determined at that time. Without complete and specific 
information about butterfly locations or past and proposed development 
projects and their associated impacts to habitat, we were unable to 
determine the extent to which urban development has reduced the known 
range of the Hermes copper butterfly. Further, according to Thorne 
(1963), urbanization is not as great a threat as commonly assumed:

    ``There is rather general belief that [the Hermes copper 
butterfly] is in a last ditch struggle for survival in San Diego 
County. This isn't true! Colonies have survived in areas that have 
been overrun with houses for many years; in areas being grazed by 
livestock; in areas being farmed (avocado orchards); and in areas 
that have been burned over with some frequency. The map * * * shows 
the wide distribution of known colonies which should ensure survival 
for the foreseeable future.''

    Thorne's (1963) map had 33 unnamed ``known'' colony locations, all 
within San Diego County in the United States. Although some colonies 
near urban centers referred to by Thorne (1963) have been destroyed by 
development, many recent discoveries (i.e., post-1993) of extant 
colonies within the known species' range have also been reported, and 
the range of the species remains relatively widely distributed. 
Examples of colonies that have been reported since 1993 include Black 
Mountain, and multiple colonies on both the California Department of 
Fish and Game (CDFG) Crestridge Ecological Reserve and San Diego 
National Wildlife Refuge (Engelhard 2004b). In addition, the biology of 
the species has not changed; therefore Thorne's (1963) assessment of 
individual colony resilience with regard to development and fire should 
still be considered valid.
    In addition, much uncertainty exists regarding the distribution of 
the species because the range of its host plant, spiny redberry, 
extends well beyond the known range of the butterfly, and

[[Page 44970]]

surveys have not been conducted throughout the host plant's range 
(especially inland San Diego County and northwestern Baja California 
Norte). Even the survey information for sites historically or currently 
occupied by the species is limited. The information in Table 1 of the 
petition and in Engelhard (2004a, 2004b) illustrates the fact that most 
occupied sites have only been surveyed on one or two occasions and many 
have not been surveyed since the 1950s or 1960s. Therefore, it is 
difficult to assess the species' current status in the absence of more 
current information.
    In conclusion, we agree with the petitioner that urban development 
has likely reduced and fragmented habitat for Hermes copper butterfly 
in San Diego County. However, the habitat loss and fragmentation has 
not been quantitatively estimated, and the species remains relatively 
widely distributed. Therefore, we have determined that information in 
the petition and available to us does not substantiate the claim that 
urban development has significantly reduced the amount of available 
Hermes copper butterfly habitat to the point at which the butterfly may 
become threatened or endangered in the foreseeable future.
Wildfire
    Information provided by the petitioner. The petitioner asserted 
Hermes copper butterfly is highly vulnerable to extinction due to the 
threat of fire as a result of direct mortality of individuals and 
indirect mortality due to loss of the species' larval host plant, spiny 
redberry. The petitioner further asserts, ``Excessive, human induced 
fire poses a significant threat to the survival of the species, even on 
lands otherwise protected from development.'' The threat of fire as it 
relates to direct mortality of individual butterflies is also discussed 
here.
    Table 1 of the petition identifies areas ``presumed to be burned'' 
during the October 2003 fires in San Diego County, which are estimated 
to have burned 39 percent of Hermes copper butterfly habitat (Betzler 
et al. 2003). According to the petition, the largest concentration of 
the species ever documented was lost when the 2003 fire burned nearly 
all of the California Department of Fish and Game's Crestridge 
Ecological Reserve. The petition further stated 2001 surveys at 
Crestridge identified approximately 52 Hermes copper butterfly colonies 
with a total estimated population of 1,000 butterflies (CDFG 2001), of 
which all appear to have been destroyed by the 2003 fires (M. Klein 
pers. comm.) [document not submitted with petition].
    The petition stated that fires in 2003 also impacted the second 
largest concentration of Hermes copper butterfly when they burned 
through 4 populations in the City of San Diego's Mission Trails 
Regional Park (Mission Grove, Mission Dam, Oak Creek, and Spring 
Canyon) and at least 15 populations (although only 14 were listed) 
throughout San Diego County: (1) Anderson Road (Viejas Mountain), (2) 
Boulder Creek Road, (3) Descanso, (4) El Monte County Park, (5) Flinn 
Springs, (6) Gooden Ranch reserve, (7) Harbison Canyon, (8) Little 
Cedar Canyon, (9) Miramar, (10) Old Viejas Grade Road, (11) Otay-
Foothill area, (12) Rancho Jamul, (13) Santee (Fanita Ranch area), and 
(14) Sycamore Canyon reserve. The petition also stated at least three 
Hermes copper butterfly populations were likely lost to past fires on 
Bernardo Mountain near Escondido, Dictionary Hill in Spring Valley, and 
San Marcos Creek.
    According to the petition, increased human population density and 
utilization of wildlands correlates with increased southern California 
wildfire frequency (Keeley et al. 1999; Keeley 2001 [document not 
submitted with petition]; Keeley and Fotheringham 2003; Wells et al. 
2004). The petitioner asserted close proximity to large human 
populations increases vulnerability of the Hermes copper butterfly and 
its host plant, the spiny redberry populations to ``excessive'' fire.
    The petitioner cited two references, Brooks et al. (2002 [correct 
citation 2004]) and Keeley and Fotheringham (2003), that provide 
examples of excessive fire harming chaparral ecosystems and dependent 
species in a number of ways. The petition quoted Keeley and 
Fotheringham (2003), ``* * * ecosystem health of shrublands is 
threatened not by lack of fire but by high fire frequencies that exceed 
the resilience of many species.''
    The petitioner stated excessive fire may prevent chaparral and 
coastal sage scrub plant species, like spiny redberry, from reaching 
maturity, thereby reducing or eliminating reproduction and recruitment 
of replacement chaparral plants. An example cited by the petitioner of 
an exotic species type conversion within an area occupied by Hermes 
copper butterflies was Bernardo Mountain. The petition stated that in 
2002, Michael Klein visited the known occupied area burned in 1986, and 
found it dominated by weedy exotic forbs and grasses, with no spiny 
redberry plants or Hermes copper butterflies (M. Klein pers. comm.) 
[document not submitted with petition].
    According to a supplemental letter and map provided by the 
petitioner, 44 fires had burned through known Hermes copper butterfly 
habitat, and 788 fires have burned through ``modeled'' habitat between 
1900 and 2003 (CBD 2005). The letter stated, ``This rate of fire return 
appears to exceed natural fire frequency in coastal sage scrub and 
chaparral ecosystems.'' The letter further stated that the combined 
effects of limited dispersal behavior, urban development, and excessive 
fires have reduced available habitat, limited re-colonization, and 
increased vulnerability of remaining Hermes copper butterfly 
populations, greatly increasing likelihood of the species' extinction.
    According to the petition, Hermes copper butterfly biology appears 
to reduce the likelihood of escape from fire, because adults, eggs, 
larvae, and pupae are likely killed when fire burns spiny redberry 
plants and other coastal sage scrub or chaparral vegetation. Also, 
excessive fires over the last several decades have reduced patches of 
mature spiny redberry used by Hermes copper butterfly, thereby reducing 
butterfly populations and disrupting metapopulation dynamics and 
stability. Due to the amount of past and potential future fires, any 
butterfly that escapes a fire is unlikely to locate other suitable 
habitat.
    Also according to the petition, Hermes copper butterfly recovery 
following a fire is confounded by very slow recovery of it host plant 
(Zedler et al. 1983) and very slow recolonization by the butterfly. The 
petition cited Brown (1991): ``Even after recovery of the host, the 
sedentary behavior of the butterfly may make natural colonization a 
very slow process, especially where sources of potential colonists 
previously have been extirpated.''
    Analysis of information provided in the petition. The petition 
claimed Hermes copper butterfly is highly vulnerable due to the threat 
of fire, citing a 39 percent loss of the species' habitat burned in the 
2003 fires. The petitioner also claimed that the 2003 fires destroyed 
or impacted two of the largest concentrations of the species and at 
least 15 other populations throughout San Diego County.
    As cited in the petition, 39 percent of Hermes copper butterfly 
habitat is believed to have burned during the 2003 fires, a reduction 
from 317,451 ac (128,468 ha) to 192,924 ac (78,074 ha) (Betzler et al. 
2003). However, this 39 percent reduction is an estimate based on 
vegetation mortality for areas occupied by the species (Betzler et al 
2003). Since this estimate is not based on actual post-fire surveys, it 
is not possible to determine the actual amount

[[Page 44971]]

of occupied Hermes copper habitat that burned in the 2003 fire.
    Table 1 of the petition highlights 22 sites that were ``presumed 
lost to fire.'' However, neither the petition nor the supplemental map 
provided by the petitioners had information on location of sites 
``presumed lost to fire'' or extent of habitat lost due to fire (i.e., 
area burned). While Engelhard (2004a, 2004b) attempted to compile 
information on specific sites known to be occupied by the species, the 
total acres of the site and the fire status (i.e., burned in 2003 
fires) for most of the sites was not determined at that time and is 
still unknown. Regardless, as discussed above, extant colonies continue 
to be discovered, and the species appears to have maintained a 
relatively wide range.
    The petitioner also claimed the largest known concentration of the 
species ever documented was lost in the 2003 fire that burned nearly 
all of the Crestridge Ecological Reserve, further asserting a total 
estimated population of 1,000 butterflies (per 2001 surveys) was lost. 
However, as discussed in the ``Population Estimate/Status'' section of 
this finding, the petitioner stated that surveys conducted between 1999 
and 2001 documented fluctuations in individual abundance ranging from 
1,000 butterflies in 2001, to a single butterfly in 2002 (M. Klein 
pers. comm.) [document not submitted with petition] to 400 butterflies 
in 2003 (pre-fire). The petition asserted that these fluctuations may 
be due to variations in rainfall in San Diego County. It is also not 
clear how good an index survey counts are of population size. While it 
is clear that the 2003 fire impacted the Hermes copper butterfly 
habitat at Crestridge, and presumably the butterfly itself, it is 
unclear how resilient this population is since wide fluctuations in the 
species' abundance had been documented prior to the fire. Also, while a 
few historically occupied territories burned in the 2003 fires were 
visited in 2004 (Faulkner and Klein 2005), we are unaware of any 
systematic post-fire monitoring conducted to document the extent of the 
impact of the fires on Hermes copper butterfly.
    The petitioner also claimed that the 2003 fires impacted a large 
concentration of Hermes copper butterflies at Mission Trails Regional 
Park and at least 15 other populations throughout San Diego County. 
However, the petitioner did not provide any information on the extent 
of the area impacted by fire (e.g., area burned) or on post-fire 
surveys done at these sites; additional monitoring is needed at these 
sites to determine their status, particularly as it relates to the 
impact of fire on butterfly populations and habitat.
    While it is unlikely that immature Hermes copper butterflies 
(larvae, pupae, and adults) can survive the burning of occupied 
habitat, it appears that adult butterflies will recolonize burned 
habitat over time. In an example of fire recovery, Brown (1991) noted 
that a 1982 fire apparently eliminated large stands of spiny redberry 
and a colony of Hermes copper butterfly in Mission Gorge (in Mission 
Trails Regional Park). Although the species was not observed again 
during annual surveys following the fire until 2000 (Klein and Faulkner 
2003), the host plant and butterfly did eventually return 18 years 
later. During limited post-fire monitoring at Crestridge, one adult 
male Hermes copper was observed in 2005 on three different dates by two 
observers (Klein 2006), indicating that the population had not been 
extirpated as hypothesized in Klein and Williams (2003). We are not 
aware of any additional surveys conducted at Crestridge in 2005. While 
Faulkner and Klein (2005) state that no butterflies were observed 
during 2004 visits to only a few of the historically occupied 
territories burned in the 2003 fires, we are unaware of any systematic 
post-fire monitoring conducted to document the extent of the impact of 
the fires to Hermes copper butterfly and its habitat or to document 
recolonization rates. Additional monitoring is needed to determine the 
survival and recolonization rate of immature and adult butterflies 
following a fire.
    The petition claimed increased human populations and utilization of 
wildlands correlates with increased southern California wildfire 
frequency. The petition also asserted that, between 1900 and 2003, from 
44 to 788 fires had burned through known and ``modeled'' habitat, 
respectively, and this rate of fire return appears to exceed natural 
fire frequency in coastal sage scrub and chaparral ecosystems.
    In a GIS modeling study, Wells et al. (2004) largely concurred with 
Keeley et al. (1999) (cited in the petition) that increasing human 
population (especially at lower elevations) has resulted in a greater 
number of fires and an increase in area burned overall in southern 
California. However, looking at fire frequency for coastal sage scrub 
and chaparral in San Diego County specifically, Wells et al. (2004) 
concluded that for ``coastal sage scrub habitats, there has been an 
increase in burning over the course of the past century'' but that the 
``trend in burning in chaparral is virtually flat over the past 
century, and if the years following 1950 are considered, there has been 
a marked decrease in area burned since then.'' Contrary to the 
interpretation of the petitioner, Keeley et al. (1999) actually 
reported that fire rotation intervals (i.e., the time needed to burn an 
equivalent area of shrubland) actually increased in San Diego County 
after 1950.
    The supplemental letter and map provided by the petitioner (stating 
that between 1900 and 2003, 44 fires had burned through known Hermes 
copper butterfly habitat, and 788 fires have burned through ``modeled'' 
habitat) does not provide sufficient information to allow us to verify 
the extent of the impact caused by these historic and more recent 
fires. In an attempt to outline fire frequency in Hermes copper 
butterfly habitat, the map overlays ``approximate location of past and 
current Hermes copper colonies'' and ``modeled'' Hermes copper habitat 
with a data layer indicating areas where from one to nine fires had 
occurred. ``Modeled'' habitat is defined on the map as being ``based on 
very broad vegetation, soil, elevation and other categories and 
therefore includ[ing] many unsuitable habitat areas.'' No information 
about the Hermes copper butterfly location data or the data on which 
the fire layer is based were provided by the petitioner. The petitioner 
did not explain how information on the map was used to determine that 
44 fires had burned through known Hermes copper butterfly habitat or 
788 fires have burned through ``modeled'' habitat. Also, the petitioner 
did not indicate where fires that burned between 1900 and 2003 
overlapped or calculate a fire frequency/rate of return for any 
particular geographic area. Therefore, it is not clear how the 
petitioner determined that ``This rate of fire return appears to exceed 
natural fire frequency in coastal sage scrub and chaparral 
ecosystems.'' Without specific information on the extent of the impact 
caused by historic and current fires, including the 2003 fires, it does 
not appear the Hermes copper butterfly is currently threatened with 
extinction due to fire.
    The petition also stated ``excessive'' fires prevent chaparral and 
coastal sage scrub species (like spiny redberry, the Hermes copper 
butterfly's host plant) from reaching maturity, thereby reducing or 
eliminating reproduction and recruitment of replacement chaparral, and 
allowing for the invasion of nonnative species.
    Spiny redberry plants, like other large-seeded shrubs, are 
``obligate resprouters'' after fires (Keeley 1998). Because such taxa 
resprout from a deep

[[Page 44972]]

root system or lignotuber and establish few seedlings immediately 
following fire, obligate resprouters ``successfully recruit in the 
long-term absence of fire'' (Keeley 1998). Post-fire seedling 
establishment of obligate resprouters is always quite limited, although 
seedling recruitment has been reported as ``abundant'' in older 
unburned chaparral stands (Keeley 1992a and 1992b). In the absence of 
fire, ``obligate resprouting species often gain dominance over obligate 
seeding species,'' but Rhamnus species and other obligate resprouters 
are also ``quite resilient to frequent burning'' (Keeley 1986). 
Moreover, Keeley (1986) stated obligate resprouters ``have a marked 
competitive advantage during the first decade after fire,'' which is 
within the current regrowth timeframe of butterfly-occupied spiny 
redberry stands burned in 2003. In a post-fire recovery and succession 
study of chaparral and sage scrub in southern California, Keeley et al. 
(2005) ``showed that all vegetation types exhibited a high proportion 
of structural similarity between pre- and postfire communities'' after 
5 years. Though Keeley and Fotheringham (2003) concluded that, with 
continued disturbance like fire, nonnative invasives may replace an 
entire ecosystem and type convert shrublands to alien grasslands, 
Keeley (2004) noted that invasive alien plants typically will not 
displace obligate resprouting species in mesic shrublands that burn 
once a decade ``because rapid resprout growth recaptures the site and 
replenishes vitality of roots and lignotubers.'' Therefore, based on 
the species' biology, it appears that spiny redberry should recover in 
these burned areas.
    Though recent fires may have temporarily reduced the extent of 
Hermes copper butterfly habitat (i.e., spiny redberry and associated 
chaparral/coastal sage scrub plants), information in the petition and 
available to us does not substantiate a permanent loss of or a downward 
trend in the extent of the species' habitat as a result of increased 
fire frequency and associated alien plant invasion.
    The petitioner did not provide information or data to substantiate 
the claim that excessive fires over the last several decades have 
reduced Hermes copper butterfly population numbers and disrupted 
metapopulation dynamics and stability. As stated in the ``Population 
Estimates/Status'' section of this finding, no quantitative data on 
population size exists nor do we have any information on the dispersal 
or movement behavior of this species. Without this information, it is 
not possible to determine the species' population structure (e.g., 
metapopulation or panmictic) and, subsequently, the impact of fire on 
population numbers and structure.
Prescribed Fire
    Information provided by the petition. The petitioner, citing 
Schlicht and Orwig (1999) [document not submitted with petition], 
claimed prescribed fire is likely to harm vulnerable Hermes copper 
butterfly populations by further contributing to excessive fire, and 
controlled burns often differ from natural fires in frequency, 
intensity, timing, and patchiness. These aforementioned factors could 
reduce the likelihood of the butterfly's survival through prescribed 
fire. The petitioners also maintained that the Cleveland National 
Forest has aggressively prescribed fire as a vegetation management tool 
in an attempt to benefit native wildlife. In addition, they asserted 
the County of San Diego ``has generally rejected effective fire safety 
techniques of limiting poorly planned rural [development] and 
retrofitting existing structures with fire resistant materials. The 
County has instead focused on * * * excessive brush clearing around 
homes and communities, and has pushed for expanded prescribed fire on 
both National Forest and private land.''
    Analysis of information provided in the petition. The petitioner 
asserted that a number of Hermes copper butterfly populations located 
under the jurisdiction of the Cleveland National Forest and San Diego 
County are being impacted by prescribed burning practices and policies 
undertaken by these entities. However, the petition does not provide 
documentation of instances where prescribed burning is being conducted 
in occupied Hermes copper butterfly habitat.
    Review of San Diego County fire management regulations and 
recommendations (San Diego County 2004, 2006a; California Fire Safety 
Council 2006) contradicts the petitioner's claim that San Diego County 
rejected effective fire safety techniques and has pushed for expanded 
prescribed fire. San Diego County does recommend clearing within 100 
feet (30.5 m) of structures (Sand Diego County 2006), and places 
emphasis on replacement of flammable roofing material with fire-
resistant shingles, planting of fire-resistant landscape vegetation, 
use of fire-resistant native plant species, avoidance of invasive 
exotic species in landscaping, and other effective conservation-
oriented fire management techniques (San Diego County 2006; California 
Fire Safety Council 2006). No readily available documents support a 
rejection of conservation-oriented rural planning in favor of fire-safe 
planning, or a recent push for prescribed fire. Koelander and Bowman 
(2004), in a report designed to identify how San Diego County (and the 
City of San Diego) could better prepare and respond to fire hazards, 
concluded, ``Adoption of new building codes will only resolve the 
problem for the new structures * * * For existing structures, the 
removal of highly flammable vegetation within 100-feet of structures 
and the replacement of combustible roofing will provide a heightened 
level of wildland fire protection.''
    Regarding the U.S. Forest Service, of the U.S. Department of 
Agriculture, the agency stated in its final environmental impact 
statement (Volume 1) that the Hermes copper butterfly ``[c]ould be 
affected by prescribed fire or fuel reduction projects in habitat that 
affect [its] host plant, Rhamnus crocea,'' but that Vegetation 
Management Standard 37 addressed this threat (USDA Forest Service 
2005a). However, according to the Forest Service's Land Management Plan 
(2005b), Standard 37 requires the Forest Service when implementing fire 
management activities to ``[d]esign and manage fuel treatments to 
minimize the risk that treated areas will be used by unauthorized 
motorized and mechanized vehicles [and to m]itigate impacts where such 
use does occur.'' It is not clear how Standard 37 (USDA Forest Service 
2005a) addresses the threat of prescribed fire to the species. In the 
Cleveland National Forest's Land Management Plan (USDA Forest Service 
2005c), the Forest Service's primary strategy for threatened, 
endangered, proposed, candidate, and sensitive species management is to 
``[m]anage habitat to move listed species toward recovery and 
delisting'' and ``[p]revent listing of proposed and sensitive species'' 
by implementing the priority conservation strategies in Table 529. 
According to this table (USDA Forest Service 2005c), a priority 
conservation strategy task over the next 3 to 5 years is to protect 
Hermes copper butterfly habitat by preventing and suppressing fires.
    Though the above guidance is general in nature, we could find no 
support for the claim that the Cleveland National Forest has 
aggressively prescribed fire as a vegetation management tool in an 
attempt to benefit other native wildlife at the expense of the Hermes 
copper butterfly. Based on the above discussion, we have determined 
that the petition does not substantiate the claim that prescribed 
burning impacts

[[Page 44973]]

occupied Hermes copper butterfly habitat.
    We have determined that information in the petition does not 
substantiate the claim that urban development, wildfire, and prescribed 
fire has significantly reduced the amount of available Hermes copper 
butterfly habitat. While we acknowledge that urban development and fire 
has likely reduced and fragmented habitat for Hermes copper butterfly 
in San Diego County, the extent of impact to the species and its 
habitat has not been quantitatively estimated, and the species appears 
to have multiple colonies within a relatively wide geographic range. 
Thus, we do not believe the petition has presented substantial 
information to suggest the butterfly is likely to become endangered in 
the foreseeable future.

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

Commercial Harvest
    Information provided in the petition. The petitioner stated the 
Hermes copper butterfly may be endangered by overutilization for 
commercial purposes and identifies one commercial enterprise that may 
contribute to the imperiled status of the butterfly. A company, 
``Morningstar Flower and Vibrational Essences,'' markets a ``Hermes 
copper butterfly essence'' over the Internet. These essences are 
available in 2-ounce and 4-ounce sizes by special order.
    The petitioner claimed that over-collection is another potential 
threat to the Hermes copper butterfly because of their value to 
butterfly collectors. They cite an example, in 1986, where a female 
Hermes copper butterfly was worth $20.00.
    Analysis of information provided in the petition. No evidence 
exists to support the use of Hermes copper butterfly in developing 
butterfly essences. According to Morning Star Essences (2006), no 
butterfly parts are used in ``essences'' production. While there are a 
number of other businesses that advertise sale of ``butterfly 
essences,'' no information exists to support the claim that this 
activity threatens the species.
    Some collection of Hermes copper butterflies may occur given their 
value to collectors. As the number of colonies is reduced, 
lepidopterists may increasingly collect individuals to include rare 
species in their collections, or obtain surplus specimens for exchange 
or sale. On June, 26, 2004, two different advertisements on the 
Internet offered specimens of Lycaena hermes for sale. Both were priced 
at 125 Euros (= approximately $152.00) (Martin 2004b). Nonetheless, no 
substantial data exist to substantiate such trade still exists or, if 
any trade continues, the extent to which it impacts the Hermes copper 
butterfly population. As a result, we conclude trade or collection 
probably does not pose a significant threat to the species at this 
time.

C. Disease or Predation

    The petitioner did not provide any information with respect to 
disease on Hermes copper butterfly.
Predation
    Information provided by the petition. The petitioner stated the 
Hermes copper butterfly may be endangered by predation. The petition 
claimed experts suspect birds, predatory insects, parasitic insects, 
and spiders prey upon Hermes copper butterfly, and that the harmful 
effects of otherwise normal predation or parasitism might be 
exacerbated by population reduction from urban development and 
excessive fires.
    Analysis of information provided in the petition. The petitioner 
did not provide specific information validating the claim that the 
Hermes copper butterfly may be endangered by predation. We are not 
aware of any documentation that suggests that predation poses a 
significant threat to the species, and, therefore, we are unable to 
validate whether predation may endanger the Hermes copper butterfly.

D. The Inadequacy of Existing Regulatory Mechanisms

    Information provided by the petition. The petition, its appendices, 
and referenced documents discuss five regulatory mechanisms that 
provide some potential for Hermes copper butterfly conservation, but 
the petition claimed none of these mechanisms have proven effective in 
reducing the primary threats to the butterfly from urban development, 
fire, and related habitat degradation. The five regulatory mechanisms 
include: (1) California Environmental Quality Act; (2) National 
Environmental Policy Act; (3) Forest Service Management; (4) San Diego 
Multiple Species Conservation Plan or ``San Diego MSCP''; and (5) 
County of San Diego Resource Protection Ordinance.
California Environmental Quality and National Environmental Policy Act
    The petitioner claimed the Service has previously provided 
extensive discussion of the inadequacy of the California Environmental 
Quality Act (CEQA) to protect imperiled species, identifying several 
listings in the Federal Register (62 FR 2318, January 16, 1997; 62 FR 
4935, February 3, 1997; 61 FR 25829, May 23, 1996; 69 FR 47236, August 
4, 2004). The petitioner implies the Service's previous conclusions are 
fully applicable in consideration of protections under CEQA for the 
Hermes copper butterfly.
    Analysis of information provided in the petition. California 
Department of Fish and Game can only designate ``native species or 
subspecies of a bird, mammal, fish, amphibian, or plant'' as either 
endangered or threatened under the California Endangered Species Act 
(Fish and Game Code, Sections 2062 and 2067). However, the California 
Environmental Quality Act or CEQA (Public Resources Code, Sections 
21000-21178, and Title 14 CCR, Section 753, and Sections 15000-15387) 
has and should continue to require proposed project effects to Hermes 
copper butterflies be evaluated under the provisions of this State 
environmental statute, although CEQA does not require any species to be 
protected. CEQA requires public agencies to disclose environmental 
impacts of a project on native species and natural communities during 
the land use planning process and to identify mitigation measures and 
project alternatives. This allows public comments to influence the 
planning process. The National Environmental Policy Act (NEPA) (42 
U.S.C. 4321-4347) requires the Federal Government to disclose adverse 
impacts of a proposed action that cannot be avoided, but NEPA does not 
require any species to be protected. Although these statutes provide 
limited protection for the Hermes copper butterfly, we are not aware of 
any documentation that suggests that implementation of these laws, 
especially land use development projects under CEQA, pose a significant 
threat to the species. Also, as discussed under Factor A above, 
information in the petition and available to us does not substantiate 
the claim that urban development subject to these laws has 
significantly reduced the amount of available Hermes copper butterfly 
habitat.
Forest Service Management
    Information provided in the petition. The petitioner claimed Forest 
Service regulations and management activities appear to provide few 
protections to the Hermes copper butterfly. The petitioner states that 
aside from monitoring survey results by others, there is no indication 
that the Cleveland National Forest is engaged in the conservation of 
the

[[Page 44974]]

Hermes copper butterfly. In addition, the petitioner states the Hermes 
copper butterfly is not formally recognized as a ``sensitive species'' 
by the Forest Service, and recognition of Hermes copper butterfly as a 
sensitive species would still be unlikely to generate any important, 
pro-active conservation activities necessary to improve the status of 
the species.
    Analysis of information provided in the petition. The Hermes copper 
butterfly was included in the table of ``Animal Species Evaluated for 
Viability Concerns (Species of Concern)'' by the Forest Service (USDA 
2005a); therefore, the petitioners claim the Hermes copper butterfly is 
not formally recognized as a ``sensitive species'' by the Forest 
Service is not currently accurate.
    In describing proposed management standards to address threats 
facing designated ``Animal Species-At-Risk,'' the Forest Service stated 
the Hermes copper butterfly ``[c]ould be affected by prescribed fire or 
fuel reduction projects in habitat that affect [its] host plant, 
Rhamnus crocea; wildfire risk'' and that Vegetation Management Standard 
37 addressed this threat (USDA 2005a). As discussed above, Standard 37 
of the Forest Service's Land Management Plan (USDA 2005b), requires the 
Forest Service to ``[d]esign and manage fuel treatments to minimize the 
risk that treated areas will be used by unauthorized motorized and 
mechanized vehicles [and to m]itigate impacts where such use does 
occur.'' However, it is not clear how this standard protects the 
butterfly from prescribed fire, nor is any other protection apparently 
provided by this standard because vehicle impacts are not considered a 
threat to the species.
    In the Cleveland National Forest's (USDA 2005c) Land Management 
Plan, the Forest Service's primary strategy for threatened, endangered, 
proposed, candidate, and sensitive species management is to ``[m]anage 
habitat to move listed species toward recovery and delisting'' and 
``[p]revent listing of proposed and sensitive species'' by implementing 
the priority conservation strategies in Table 529. According to this 
table (USDA 2005c), the priority tasks for the next 3 to 5 years in 
conservation strategy emphasis are to monitor/study ``[s]pecies 
recovery after wildfire (burned area monitoring)'' and protect its 
habitat by preventing and suppressing fires. Although the above 
guidance is general in nature, the Cleveland National Forest should be 
engaged to some degree in the conservation of the Hermes copper 
butterfly; however, no documentation of conservation activities was 
available.
    We acknowledge that Forest Service regulations provide limited 
protection of the Hermes copper butterfly. However, as discussed in 
Factor A and Factor E, information in the petition does not 
substantiate the claim that wildfire or prescribed fire pose a threat 
to the species or that there is a need to improve the species' status.
San Diego Multiple Species Conservation Plan
    Information provided in the petition. The petition stated: (1) The 
Hermes copper butterfly is not recognized as a ``covered species'' 
under the San Diego Multiple Species Conservation Plan (MSCP) (MSCP 
1998); (2) the MSCP cannot provide the necessary management to benefit 
the species because none is planned, described, or required by the 
Plan; and (3) the MSCP can benefit the Hermes copper butterfly only in 
the event of collaterally beneficial conservation activities for other 
species and habitats. The petitioner claimed the informal treatment of 
Hermes copper butterfly by the MSCP provides few conservation benefits. 
The petitioner also stated the MSCP identifies only three sites where 
the butterfly occurs in one area, the Metro-Lakeside-Jamul Segment, 
despite the additional occupied sites at the time of Plan approval in 
the Metro-Lakeside-Jamul and South County segments.
    Analysis of information provided in the petition. It is true this 
species is not specifically covered under the San Diego Multiple 
Species Conservation Plan; however, the San Diego MSCP appears to have 
already benefited the Hermes copper butterfly where it overlaps with 
conservation activities for other species (e.g., management of 
Crestridge Ecological Reserve and the San Diego National Wildlife 
Refuge). Also, not all potential habitat within the planned MSCP 
preserve has been fully surveyed yet, and the full distribution of the 
species within areas protected or managed by the MSCP is unknown.
    Land use restrictions within the MSCP County of San Diego Subarea 
plan will be implemented through the Biological Mitigation Ordinance 
(BMO). The BMO implements preserve design criteria for urban 
development and conservation of remaining private land, based on 
preserve design criteria that establish mitigation ratios and 
conditions. Mitigation may be required for the species recognized as 
``sensitive species'' as defined by CEQA on land identified as 
Biological Resource Core Area, and therefore should provide some 
protection for the species. However, Hermes copper butterfly 
populations, habitat, and dispersal corridors will not be protected 
outside of the Biological Resource Core Area. The BMO within the 
Biological Core Area requires the County to impose design criteria that 
could minimize additional losses of populations and habitat, but would 
not require avoidance of Hermes copper butterfly populations, habitat, 
or dispersal corridors.
City of San Diego and County Open Space Parks
    Information provided in the petition. The petition stated that 
remaining Hermes copper butterfly populations are not necessarily 
protected by nature of their location on the following open space park 
lands managed by the City or County of San Diego: Black Mountain, 
McGinty Mountain, and Mission Trails Regional Park. Lacking formal 
coverage, the Hermes copper butterfly cannot directly benefit from 
these open spaces.
    Analysis of the information provided in the petition. The Hermes 
copper butterfly is now known to occur on approximately 25 different 
properties in San Diego County, California. Of these, seven properties 
are under City or County of San Diego ownership. Many of these lands 
are ``designed'' open space areas and County parks, which include 
various types of trails, ball fields, picnic areas, restroom facilities 
and/or parking lots. Although the impact of recreation on the butterfly 
is unknown, it is unlikely that limited recreational development and 
foot and bicycle traffic will destroy significant numbers of host plant 
shrubs in existing designated open space parklands.
County of San Diego Resource Protection Ordinance
    Information provided in the petition. The petition claimed the 
County of San Diego's Resource Protection Ordinance (RPO) (County of 
San Diego 1991) imposes control on development of wetlands, 
floodplains, steep slopes, sensitive biological habitats, and 
prehistoric and historic sites. The petition stated RPO provisions 
address biological resources outside of the boundaries of the County's 
Subarea Plan under the San Diego MSCP. The RPO does not directly 
protect species or impose any species-specific management efforts, but 
rather attempts to minimize the impacts of urban development on 
habitat. The petition stated that the Hermes copper butterfly would be 
only inadvertently protected by the County RPO through the land 
protection ordinance, which would not require measures necessary to 
prevent extinction of the species, such as a requirement that new urban

[[Page 44975]]

development avoid remaining Hermes copper butterfly populations and 
dispersal corridors. The petition also stated the RPO does not provide 
measures that could improve the status of the species, such as special 
conservation management of the Hermes copper butterfly populations, 
habitat, and dispersal corridors.
    Analysis of the information provided in the petition. The RPO 
(County of San Diego 1991) imposes controls on development of wetlands, 
floodplains, steep slopes, sensitive biological habitat, and 
prehistoric and historic sites. The RPO requires the Resource 
Protection Study for certain discretionary projects in order to 
identify a number of objectives, including identification of 
environmentally sensitive lands. The County may require conditions to 
protect sensitive lands including habitats that may protect the Hermes 
copper butterfly.
    Based on the information and analysis provided above, we find that 
the petition does not present substantial information that the species 
is threatened at this time by the inadequacy of existing regulatory 
mechanisms across all or a significant portion of its range.

E. Other Natural or Manmade Factors Affecting Continued Existence

    The petition, its appendices, and referenced documents discuss the 
following threats that we have grouped under Factor E: Vulnerability of 
small and isolated populations, and global climate change.
Vulnerability of Small and Isolated Populations
    Information provided in the petition. The petitioner asserts that 
endemic species, such as the Hermes copper butterfly, are generally 
considered more prone to extinction than widespread species due to 
their restricted geographic range. The petitioner claims that the 
common factors that increase the vulnerability of a small and isolated 
population to extinction are demographic fluctuations, environmental 
stochasticity, and reduced genetic diversity.
    Analysis of the information provided in the petition. Although 
annual observations of the largest known pre-fire population 
(Crestridge Ecological Reserve) suggest that numbers of adult 
butterflies may fluctuate approximately two orders of magnitude from 
one year to the next, and may be correlated with rainfall (Klein and 
Faulkner 2003), it is not clear how these observations correlate with 
population densities of all individuals including immature diapausing 
(quiescent) stages. Also, much uncertainty exists regarding the 
distribution of the species because the range of its host plant, spiny 
redberry, extends well beyond the known range of the butterfly, and 
surveys have not been conducted throughout the host plant range 
(especially inland San Diego County and northwestern Baja California 
Norte). While it is possible that ``small'' populations and isolation 
could subject the butterfly to genetic drift and restricted gene flow 
that may decrease genetic variability over time and could adversely 
affect the species' viability, we do not have sufficient information 
about the species' distribution or population structure to determine 
that isolation and small population size pose a threat to the species.
Global Climate Change
    Information provided in the petition. The petitioner asserted 
butterflies are particularly sensitive to small changes in 
microclimates, such as fluctuations in moisture, temperature, or 
sunlight. Studies of Edith's checkerspot (Euphydryas chalceona edithi) 
have documented that whole ecosystems may move northward or upward in 
elevation as the Earth's climate warms.
    Analysis of the information provided in the petition. The 
petitioner did not provide specific information validating the claim 
that the Hermes copper butterfly may be endangered by global climate 
change. We recognize recent evaluations (e.g., Parmesan and Galbraith 
2004) that whole ecosystems are seemingly being shifted northward. We 
are not aware of any documentation available or provided by the 
petitioner directly linking global warming as a threat to the Hermes 
copper butterfly, or explaining how global warming specifically affects 
this species.
    We do not have sufficient information about the species' 
distribution or population structure to determine that isolation and 
small population size pose a threat to the species or that global 
warming poses a threat to the Hermes copper butterfly. Therefore, we 
have determined that information in the petition and available to us 
does not substantiate the claim that vulnerability of small and 
isolated populations and global climate change have significantly 
impacted Hermes copper butterfly.

Finding

    We evaluated each of the five listing factors individually, and 
because the threats to Hermes butterfly are not mutually exclusive, we 
also evaluated the collective effect of these threats. The petition 
focused primarily on three listing factors: Factor A (the Present or 
Threatened Destruction, Modification, or Curtailment of the Species' 
Habitat or Range), Factor D (Inadequacy of Existing Regulatory 
Mechanisms), and Factor E (Other Natural or Manmade Factors Affecting 
Its Continued Existence). More specifically, information in the 
petition suggests that urban development and fire pose the primary 
threats to Hermes copper butterfly habitat and populations because the 
species' range occurs on lands susceptible to both types of impacts.
    While it is likely that recent fires have temporarily reduced the 
extent of Hermes copper butterfly habitat (i.e., spiny redberry and 
associated chaparral/coastal sage scrub plants), information in the 
petition and available to us does not substantiate a permanent loss of, 
or a downward trend in, the extent of the species' habitat as a result 
of increased fire frequency. Also, within areas that have burned, the 
species appears able to re-colonize over time.
    We also acknowledge that urbanization and fire have further 
fragmented the species' habitat, but current information indicates 
development does not currently threaten the species with extinction. 
Also, much uncertainty exists regarding the distribution of the species 
because the range of its host plant, spiny redberry, extends well 
beyond the known range of the butterfly, and surveys have not been 
conducted throughout the host plant's range.
    We have determined that the petition and other information in our 
files does not present substantial information that the species is 
threatened at this time by the inadequacy of existing regulatory 
mechanisms across all or a significant portion of the species' range 
and that Federal listing would not necessarily provide additional 
benefits to the species. We will continue to work with the appropriate 
Federal, State, and local entities to avoid and minimize impacts to 
this species on their lands.
    We have reviewed the petition and literature cited in the petition 
and evaluated that information in relation to information available to 
us. After this review and evaluation, we find the petition does not 
present substantial scientific or commercial information to indicate 
listing the Hermes copper butterfly may be warranted at this time. 
Although we are not commencing a status review in response to this 
petition, we will continue to monitor potential threats and ongoing 
management actions that might be important with regard to the 
conservation of the Hermes copper butterfly across its range. We 
encourage

[[Page 44976]]

interested parties to continue to gather data that will assist with the 
conservation of the species. Information regarding the Hermes copper 
butterfly may be submitted to the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES section above) at any time.

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Carlsbad Fish and Wildlife Office (see ADDRESSES 
section above).

Author

    The primary authors of this notice are staff of the Carlsbad Fish 
and Wildlife Office (see ADDRESSES section above).

Authority

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

    Dated: August 1, 2006.
H. Dale Hall,
Director, U.S. Fish and Wildlife Service.
 [FR Doc. E6-12744 Filed 8-7-06; 8:45 am]
BILLING CODE 4310-55-P