[Federal Register Volume 71, Number 238 (Tuesday, December 12, 2006)]
[Rules and Regulations]
[Pages 74592-74615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9498]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Laguna Mountains Skipper (Pyrgus ruralis lagunae); 
Final Rule

  Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / 
Rules and Regulations  

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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 (Pyrgus ruralis 
lagunae)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Laguna Mountains skipper (Pyrgus 
ruralis lagunae) pursuant to the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 6,242 acres (ac) (2,525 hectares 
(ha)) fall within the boundaries of the critical habitat designation. 
The critical habitat is located in San Diego County, California, on 
lands under Federal (3,516 ac (1,423 ha)), State (381 ac (154 ha)), and 
private (2,345 ac (948 ha)) ownership.

DATES: This rule becomes effective on January 11, 2007.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011 (telephone 760/431-9440). The final rule, 
economic analysis, and maps are available via the Internet at http://www.fws.gov/carlsbad/.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, telephone, 760/431-9440; facsimile, 760/431-
9624.

SUPPLEMENTARY INFORMATION: 

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 ESA section 4(b)(2), there are significant limitations 
on the regulatory effect of designation under ESA section 7(a)(2). 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 decisionmaking 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 475 species or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service have 
designated critical habitat. We address the habitat needs of all 1,310 
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 originally 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 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 timeframe 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 
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

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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 in this document to reiterate and discuss only 
those topics directly relevant to the development and designation of 
critical habitat or relevant information obtained since the final 
listing. For more information on the biology and ecology of the Laguna 
Mountains skipper, refer to the final rule listing this species as 
endangered published in the Federal Register on January 16, 1997 (62 FR 
2313), and the proposed critical habitat rule for the Laguna Mountains 
skipper published in the Federal Register on December 13, 2005 (70 FR 
73699).

Previous Federal Actions

    Previous Federal actions for the Laguna Mountains skipper can be 
found in the proposed critical habitat rule published in the Federal 
Register on December 13, 2005 (70 FR 73699).
    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 final rule complies 
with the settlement agreement.

Summary of Comments and Recommendations

    We requested comments from the public on the proposed designation 
of critical habitat for the Laguna Mountains skipper during three 
comment periods. The first comment period opened on December 13, 2006, 
associated with the publication of the proposed rule (70 FR 73699) and 
closed on February 13, 2006. The second comment period opened on April 
13, 2006, associated with the announcement of a public hearing held on 
April 22, 2006, in Carlsbad, CA (71 FR 19157), and closed on May 15, 
2006. We also requested comments on the proposed rule and draft 
economic analysis (DEA) during a comment period that opened July 7, 
2006 (71 FR 38593) and closed on August 7, 2006. We contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule during these three comment periods.
    During the first comment period, we received 8 comment letters 
directly addressing the proposed critical habitat designation: 4 from 
peer reviewers, 1 from a Federal agency, and 3 from organizations or 
individuals. During the second comment period, we received 1 comment 
letter from a Federal agency and 1 transcribed statement from an 
organization during the public hearing directly addressing the proposed 
critical habitat designation. During the final comment period 
associated with the DEA, we received 1 comment letter from a Federal 
agency and 1 comment from an organization directly addressing the 
proposed critical habitat designation and the draft economic analysis.
    In total, seven commenters supported designation (2 comments were 
from the same commenter) of critical habitat for the Laguna Mountains 
skipper, two opposed designation (2 comments were from the same 
commenter), and one commenter expressed neither support nor opposition 
to the proposed critical habitat designation. Comments received are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from six knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received responses from four of the peer 
reviewers. Peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule. Peer reviewer 
comments are addressed in the following summary and incorporated into 
the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Laguna Mountains skipper, and addressed them in the 
following summary.

Peer Reviewer Comments

    (1) Comment: One peer reviewer stated that the PCEs appear 
appropriate; however use of the alternate hostplant Potentilla 
glandulosa may not be necessary or essential because its use may be 
limited to special circumstances.
    Our Response: We agree P. glandulosa use appears to be limited to 
special circumstances, but we believe the scientific information 
available (Pratt 2006, p. 4) indicates it increases population survival 
probability in circumstances where this alternate hostplant co-occurs 
with the most commonly utilized hostplant, Horkelia clevelandii. Under 
special circumstances (e.g. dry environmental conditions), the Laguna 
Mountains skipper is likely to use this alternate hostplant that grows 
more commonly in shaded areas, and have a higher survival rate as 
compared to use of H. clevelandii under the same special circumstances.
    (2) Comment: One peer reviewer commented that we should use 
presence of the hostplant, Potentilla glandulosa, as a criterion to 
identify critical habitat in addition to Horkelia clevelandii.
    Our Response: As stated in our response to Comment 1, we believe P. 
glandulosa may only be a necessary or essential hostplant for 
population survival in circumstances where it co-occurs with H. 
clevelandii. Also, while the use by the Laguna Mountains skipper of P. 
glandulosa as a hostplant has been documented (Pratt 1999, p. 10; 
Osborne 2005), we have no occurrence data for P. glandulosa. Therefore, 
we are unable to map areas occupied by this hostplant species as 
critical habitat.
    (3) Comment: Two peer reviewers suggested subunits should be 
connected because areas between subunits are essential for Laguna 
Mountains skipper movement. Both reviewers stated Laguna Mountains 
skippers disperse farther than 20 meters, and cautioned reliance on 
mark-release-recapture studies because they tend to underestimate 
dispersal ability. One reviewer stated he has observed a male Laguna 
Mountains skipper flying over trees; another stated he has seen Laguna 
Mountains skippers fly over 50 meters in seconds, and into forested 
areas without returning.
    Our Response: We appreciate the information and agree that 
connectivity between subunits should be maintained to provide for 
species' movement. However, we based the delineation of critical 
habitat on the presence of the species or the presence of the primary 
constituent elements (PCEs) (e.g. hostplants within forest openings). 
Most areas between subunits are not known

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to contain either the species or the PCEs. Movement areas cannot be 
identified as a PCE because, as reviewer comments indicated, areas that 
allow butterfly flight are relatively all-inclusive and thus cannot be 
specifically described in a relevant way that differentiates essential 
habitat from non-essential habitat. Also, as a result of movement areas 
being relatively all-inclusive, we do not know what specific geographic 
areas between subunits are essential for movement. Although a greater 
ability to disperse than commonly hypothesized would mean more frequent 
movement among habitat patches than indicated in the proposed critical 
habitat rule, it would not change how we identified critical habitat. 
See the Criteria Used To Identify Critical Habitat section below for 
more information.
    (4) Comment: One peer reviewer noted compatibility of grazing with 
Laguna Mountains skipper occupancy depends not only on cattle density, 
but also environmental conditions. He stated that while cattle do not 
normally eat hostplants during larval butterfly development, he has 
observed heavy grazing on hostplants during drought years on Laguna 
Mountain.
    Our Response: We appreciate this information and have incorporated 
it into the Special Management Considerations or Protection section of 
this final rule. We will also consider this information in future 
management recommendations.
    (5) Comment: One peer-reviewer stated that the Laguna Mountains 
skipper may be extirpated on Laguna Mountain, and captive breeding is 
the only way to ensure long-term survival of the species.
    Our Response: We acknowledge individuals have not been detected in 
this unit since 1999 (Pratt 1999, p. 7), and any remaining populations 
are not likely to be resilient enough to survive into the foreseeable 
future under current conditions. However, because insufficient evidence 
exists to conclude Laguna Mountain no longer supports an extant 
population in Unit 1, a presumption of extirpation would be premature. 
Even more detectable and highly surveyed butterfly populations that 
appeared to have been extirpated have been rediscovered, at least 
temporarily (e.g. Basu 1997, p.1, Essig Museum 2006). Surveys of 
varying intensity and duration were conducted in 8 of the 10 years 
between 1994 and 2003. During this 10-year period, only four adult 
skippers were found: A single individual in 1995 (Levy 1997, pp. i-
xxvi); one adult in 1996 (Levy 1997, pp. i-xxvi); and at least two 
adults in 1999 (Pratt 1999, p. 7). 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 Sunrise Highway 
(Pratt 1999, p. 27). Despite recent intensive survey efforts at 
historical locations and select areas considered to be suitable skipper 
habitat (Faulkner 2000, p. 2; 2001, p. 2; 2002, p. 1; 2003, p. 2; 2004, 
p. 2; Osborne 2002, p. 2; 2003, p. 2), such as Agua Dulce campground, 
adult skippers have not been seen on Laguna Mountain since 1999. 
However, not all suitable habitat has been intensively surveyed and low 
density populations are difficult to detect. We agree captive breeding 
may be necessary to ensure long-term survival of the species on Laguna 
Mountain.
    (6) Comment: One peer reviewer commented that the proposed critical 
habitat rule alluded to the Laguna Mountains skipper fitting a 
metapopulation distribution, while such distribution has not been 
established through research. He also stated the critical habitat 
designation was based on the species representing a metapopulation 
behavior.
    Our Response: We do not know what type of population dynamics the 
species exhibits and did not intend to imply that we did understand 
such dynamics. Under the Species Status and Distribution section of the 
proposed rule, our statement, ``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,'' was intended to 
convey that not all suitable habitat is occupied at the same time and 
habitat that does not appear to be occupied at a given time is still 
important for population viability. We delineated critical habitat on 
Palomar and Laguna Mountains based on the following criteria (and not 
on metapopulation behavior): (1) Meadow complexes occupied by the 
Laguna Mountains skipper at the time of listing; (2) meadow complexes 
known to be currently occupied; and (3) meadow complexes historically, 
but not known to be currently, occupied but considered essential to the 
conservation of the species. For more information see the Criteria Used 
To Identify Critical Habitat section below.
    (7) Comment: One peer reviewer stated that he agreed meadows are 
essential for survival of the species, and dependable water sources 
must be available. He expressed concern that loss of water in Laguna 
Mountain's ``upper Boiling Springs survey site'' has greatly reduced 
the abundance and diversity of skipper species in the past 3 to 4 
years. He expressed the opinion that water loss has resulted in 
extirpation of the ``Hilda blue butterfly'' from Palomar Mountain and 
stated that ground water monitoring is crucial for maintaining 
populations of the Laguna Mountains skipper.
    Our Response: We appreciate this information and concurrence with 
our PCEs and criteria used to identify critical habitat. We agree that 
water availability is important for the species' conservation which is 
why it was included as a primary constituent element in the proposed 
and this final critical habitat rule.
    (8) Comment: One peer reviewer disagreed with our statement ``few, 
incomplete or no recent surveys have been conducted at sites not known 
to be occupied [Subunits 1B & 1C].'' He stated that most sites on 
Laguna Mountain have been surveyed during the past 3 to 4 years, with 
negative results. He further stated that this does not mean the Laguna 
Mountains skipper is absent from those areas, but ``rather has not been 
encountered during first generation protocol surveys.''
    Our Response: We appreciate the correction. To clarify, the 
majority of high-quality habitat sites on Laguna Mountain have been 
regularly surveyed for the past 3 to 4 years; however, some areas 
remain unsurveyed or only sporadically surveyed. We also agree this 
does not mean the Laguna Mountains skipper is absent from those areas 
which are adjacent to occupied habitat or were historically occupied.
    (9) Comment: One peer reviewer questioned why subunits 1B and 1C 
were proposed for designation, because no Laguna Mountains skippers 
have been recorded from these units. She questioned why these specific 
areas were selected rather than other sites on Laguna Mountain where 
the hostplant grows.
    Our Response: As stated in our response to Comment 5 we acknowledge 
populations on Laguna Mountain appear to be small; however, 
insufficient evidence exists to conclude Laguna Mountain no longer 
supports an extant population. Subunits 1B and 1C were included in the 
designation because: (1) These areas were considered to be historically 
occupied by the species; (2) they are the nearest to the occupied unit 
1C where our data indicates they contain high densities of hostplant; 
and (3) they are likely to be important future species reintroduction 
sites on Laguna Mountain.

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    (10) Comment: One peer reviewer stated it was not known if all 
areas proposed as critical habitat were essential to conservation of 
the species. However, she also stated it seemed appropriate to 
designate patches of meadow habitat with hostplants between, and 
adjacent to, recent sightings of the Laguna Mountains skipper.
    Our Response: As described in the Criteria Used to Identify 
Critical Habitat section of the proposed rule and this final rule, we 
delineated critical habitat to include patches of meadow habitat with 
hostplants between and adjacent to recent sightings of Laguna Mountains 
skippers. We cannot determine what geographic scale the peer reviewer 
was referring to.
    (11) Comment: One peer reviewer stated she agreed that no areas 
outside of our proposed designation should have been proposed for 
designation. However, she also stated that of the areas not proposed 
for critical habitat designation, the area most likely to be essential 
is Dyche Valley on Palomar Mountain, south of Mendenhall Valley.
    Our Response: We appreciate this information and concurrence with 
our proposed designation. We included a discussion in the proposed rule 
of unoccupied areas that may contain suitable habitat for the species 
as part of a discussion of the species' current status and distribution 
(see Status and Distribution section of the proposed rule). We did not 
include Dyche Valley because we had no hostplant or species occurrence 
information for this area, and therefore could not conclude it was 
essential to the species' conservation.
    (12) Comment: Two peer reviewers stated Laguna Mountains skippers 
use more diverse nectar sources than indicated in the proposed critical 
habitat rule. One peer reviewer suggested the list of nectar sources 
should include Taraxacum vulgare (common dandelion) and the hostplant 
Horkelia clevelandii.
    Our Response: We appreciate this information, and will consider it 
in future management recommendations. We believe the PCEs are 
sufficiently broad with regard to use of diverse nectar sources, and 
already include the hostplant H. clevelandii, therefore we did not 
revise our PCEs.
    (13) Comment: One peer reviewer expressed concern that population 
size estimates and comparisons given in the proposed critical habitat 
rule were not reliable. He expressed particular concern that due to 
disease, parasitism, and predation, these kind of estimates 
extrapolated from immature life stages greatly overestimate population 
size.
    Our Response: We agree that there is a high amount of uncertainty 
inherent in the population estimates and the effect of factors such as 
disease, parasitism, and predation on the population may not be 
accurately reflected. However, even with these limitations, the 
population estimates outlined in the proposed rule are currently the 
best available information. We appreciate this information and will 
consider it in future management recommendations.

Public Comments

    (14) Comment: Two commenters stated that U.S. Forest Service 
(Forest Service or USFS) actions to date, and land management plans 
addressing conservation of Laguna Mountains skipper habitat, should 
result in exclusion of Cleveland National Forest lands from critical 
habitat designation.
    Our Response: We acknowledge the Cleveland National Forest has 
implemented measures to minimize impacts to the Laguna Mountains 
skipper. We also acknowledge two existing Forest Service management 
plans contain general provisions for conservation of the Laguna 
Mountains skipper: the Land Management Plan for the Cleveland National 
Forest (LMP, Forest Service 2005, pp. 1-57) and a habitat management 
guide for four sensitive plant species in mountain meadows (Cleveland 
National Forest 1991, pp. 1-36). The habitat management guide, while 
providing more specific conservation measures than the land management 
plan, is still specific to ``discrete [montane] meadow communities'' 
and the four sensitive plant species. While these mapped community 
areas (Cleveland National Forest 1991, pp. 5-7) do include some areas 
identified as essential for Laguna Mountains skipper (e.g. southern 
Mendenhall Valley; see unit descriptions below), many smaller forest 
openings and adjacent open-canopy woodland areas are not included, such 
as Observatory Campground and Trail. Also, habitat management guides 
and plans do not mandate conservation measures, and therefore do not 
provide adequate protection of essential habitat. For example, the 1993 
scheduled management action for Delphinium hesparium (Cleveland 
National Forest 1991 p.17), a grazing exclosure in the Garnet Kiosk 
area (southern Laguna Meadow area, also identified as essential to the 
Laguna Mountains skipper), has not yet been implemented. Existing 
Forest Service measures and management plans do not provide specific or 
sufficient enough conservation measures for Laguna Mountains skipper 
habitat, and the benefits of including these areas within critical 
habitat are not outweighed by any potential benefits of excluding the 
areas (see Exclusions Under Section 4(b)(2) of the Act section of this 
final rule for a detailed discussion). Therefore, we did not exclude 
Forest Service lands from the final designation under section 4(b)(2) 
of the Act.
    (15) Comment: One commenter stated that lands managed by the 
Cleveland National Forest should not be excluded from critical habitat 
designation based on their Land Management Plan because the plan 
provides few specific benefits to the species.
    Our Response: For reasons discussed in the response to Comment 14 
above, we did not exclude Forest Service lands from the final 
designation under section 4(b)(2) of the Act.
    (16) Comment: Two commenters asserted that the Laguna Mountains 
skipper may be extirpated on Laguna Mountain; therefore designation of 
critical habitat at that location is not appropriate.
    Our Response: As discussed in our response to Comment 5 above, 
insufficient information exists to conclude Laguna Mountain no longer 
supports an extant population in Unit 1. Therefore, we cannot agree at 
this time with the commenter's assertion. Also, if the Laguna Mountains 
skipper has been extirpated from Laguna Mountain, reintroduction will 
likely to be necessary to promote the conservation of the subspecies, 
and unoccupied habitat would still be considered essential. Current 
occupancy is not required for the designation of critical habitat if 
the area is essential to the conservation of the species.
    (17) Comment: One commenter stated that if critical habitat is 
designated, a greater conservation value could be achieved by further 
limiting critical habitat designation to a ``more refined boundary'' 
within proposed critical habitat. Specific recommended refined 
boundaries, primarily following the U.S. Forest Service's habitat model 
for Laguna Mountains skipper, were delineated on maps provided with 
these comments.
    Our Response: We re-evaluated the methodology used to delineate the 
proposed critical habitat unit boundaries and have revised the final 
critical habitat unit boundaries based on information provided by this 
commenter. In total, these revisions have resulted in the removal of 
approximately 420 ac (169 ha) from final critical habitat (see Summary 
of Changes from the Proposed Rule section below for a detailed 
discussion).

[[Page 74596]]

    (18) Comment: One commenter stated that designation of critical 
habitat will ``further hinder or destroy all economic activity'' and 
``terminate or curtail recreational use'' on Forest Service land on 
Laguna Mountain.
    Our Response: Although designation of critical habitat may increase 
the number of Forest Service consultations on projects in essential 
habitat, and should increase conservation measures for the species at a 
few key locations, the designation should not significantly increase 
restrictions on economic activities or restrict recreational activities 
relative to current levels. As stated below (under Special Management 
Considerations or Protection), economic activities, such as relatively 
low density grazing, should not adversely modify habitat if carefully 
managed to minimize or avoid destruction of hostplants. The total 
estimated future costs (loss of economic gain due to critical habitat 
designation) in the Draft Economic Analysis over the next 20 years to 
grazing on Laguna Mountain range from $42,000 to $76,000 (Industrial 
Economics, Incorporated, p. ES-10). Total estimated future cost for 
recreational activities is $3,305,000 (Industrial Economics, 
Incorporated, p. ES-10). Total future costs to grazing and recreation 
on Laguna Mountain average from $167,350 to $169,050 per year, a 
relatively low estimate. The Draft Economic Analysis states, ``While 
changes in [livestock production and recreational camping] could affect 
the regional economy, the magnitude of the expected change is 
insignificant (i.e., less than one percent for grazing and less than 
0.01 percent for camping) in light of the total size of the regional 
economy.'' (Industrial Economics, Incorporated, p. ES-13). Future cost 
value estimates will also be reduced by the reduction in area 
designated as critical habitat relative to what was proposed (see 
Summary of Changes from Proposed Rule below).
    (19) Comment: One commenter stated that subunits 1B and 1C on 
Laguna Mountain should not be designated as critical habitat because: 
(1) Subunit 1A provides substantial habitat already; (2) subunits 1B 
and 1C are not contiguous with Laguna Meadow as stated in the proposed 
critical habitat rule; and (3) designation based on potential 
reintroduction is not justified.
    Our Response: As stated in the proposed rule, Subunits 1B and 1C 
were proposed as critical habitat because they are connected to 
occupied habitat, were historically occupied, and contain physical and 
biological features essential to the conservation of the species. To 
clarify, while not physically connected, these subunits are 
ecologically connected to occupied habitat (Laguna Meadow) by 
relatively undisturbed forested habitat that allows for species 
movement between Laguna Meadow and Subunits 1B and 1C. We have 
clarified this in the Critical Habitat Designation section of this 
final rule. We also stated in the proposed rule that we believe that 
given the species' small population size and very limited range, 
reintroduction may be necessary for long-term persistence of the 
species. Since critical habitat identifies areas essential to species 
conservation, we believe inclusion of these unoccupied areas in final 
critical habitat is justified.
    (20) Comment: One commenter stated the designation of independent, 
non-connected subunits within each mountain contradicts the statement 
in the proposed rule that connectivity areas among meadows are required 
for species' survival. The commenter stated that Laguna Mountains 
skippers are ``highly mobile'' and known to fly through forested 
environments, and failure to designate critical habitat connecting 
subunits could reduce the likelihood of species survival.
    Our Response: See response to Comment 3 above.
    (21) Comment: One commenter stated because hostplant mapping and 
knowledge of habitat use by Laguna Mountains skippers is incomplete, 
all areas within hostplant elevation limits on Laguna Mountain should 
be designated as critical habitat.
    Our Response: We acknowledge that hostplant mapping and knowledge 
of habitat use by Laguna Mountains skippers is incomplete; however, we 
are required to use the best available information to designate habitat 
that contains the primary constituent elements required by the species 
and is essential to the conservation of the species. In the absence of 
more complete hostplant mapping information, we limited the designation 
to those areas that the available information indicates contain the 
PCEs and are essential to the conservation of the species.
    (22) Comment: One commenter wanted to make sure that critical 
habitat designation would not affect the fire safety of human and 
natural communities on Laguna Mountain.
    Our Response: The designation of critical habitat will not affect 
fire safety of human communities on Laguna Mountain. Public safety is 
always the first priority in the event of a fire. Also, the local 
Service field office has several biologists trained as resource 
advisors who work cooperatively with firefighters to ensure that 
impacts to natural communities are minimized to the maximum extent 
practicable during fire fighting activities. As stated below (under 
Special Management Considerations or Protection), fire management 
activities, such as tree and brush removal for fuel modification, 
should not adversely modify habitat if carefully managed to minimize or 
avoid destruction of hostplants.
    (23) Comment: One commenter objected to our assertion that critical 
habitat provides little benefit above that provided by other provisions 
of the Act.
    Our Response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, other 
conservation mechanisms provide greater incentives and conservation 
benefits than does the designation of critical habitat. These other 
mechanisms include the section 4 recovery planning process, section 6 
funding to the States, section 7 consultations, the section 9 
protective prohibitions of unauthorized take, the section 10 incidental 
take permit process, and cooperative programs with private and public 
landholders and tribal nations.

Comments Related to the Draft Economic Analysis (DEA)

    (24) Comment: One comment stated that the DEA fails to evaluate 
benefits associated with protecting critical habitat for the Laguna 
Mountains skipper. The same commenter noted that cost savings 
associated with protecting the hydrological function of meadows and 
conducting fire abatement around proposed new utility structures 
throughout critical habitat should be included in the DEA.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, impact on national 
security, and any other relevant impact, of specifying any particular 
area as critical habitat. The Service's approach for estimating 
economic impacts includes both economic efficiency and distributional 
effects. The measurement of economic efficiency is based on the concept 
of opportunity costs, which reflect the value of goods and services 
foregone in order to comply with the effects of the designation (e.g., 
lost economic opportunity associated with restrictions

[[Page 74597]]

on land use). Where data are available, the economic analyses do 
attempt to measure the net economic impact. However, no data was found 
that would allow for the measurement of such an impact, nor was such 
information submitted during the public comment period.
    While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus, we believe that 
explicit consideration of broader social values for the subspecies and 
its habitat, beyond the more traditionally defined economic impacts, is 
not necessary as Congress has already clarified the social importance.
    We note, as a practical matter, it is difficult to develop credible 
estimates of such values, as they are not readily observed through 
typical market transactions and can only be inferred through advanced, 
tailor-made studies that are time consuming and expensive to conduct. 
We currently lack both the budget and time needed to conduct such 
research before meeting our court-ordered final rule deadline. In 
summary, we believe that society places significant value on conserving 
any and all threatened and endangered species and the habitats upon 
which they depend and thus needs only to consider whether the economic 
impacts (both positive and negative) are significant enough to merit 
exclusion of any particular area without causing the species to go 
extinct.
    (25) Comment: One comment stated that the DEA overestimates costs 
associated with conserving the Laguna Mountains skipper, because it 
includes economic impacts attributable to listing under the ESA. The 
comment further stated that the costs associated with listing of a 
species are separate from critical habitat designation and therefore 
should not be included in the economic impacts analysis for critical 
habitat designation.
    Our Response: The economic analysis is intended to assist the 
Secretary in determining whether the benefits of excluding particular 
areas from the designation outweigh the biological benefits of 
including those areas in the designation. Also, this information allows 
us to comply with direction from the U.S. 10th Circuit Court of Appeals 
that ``co-extensive'' effects should be included in the economic 
analysis to inform decision-makers regarding which areas to designate 
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish 
and Wildlife Service (248 F.3d 1277)).
    This analysis identifies those potential activities believed to be 
most likely to threaten the Laguna Mountains skipper and its habitat 
and, where possible, quantifies the economic impact to avoid, mitigate, 
or compensate for such threats within the boundaries of the critical 
habitat designation. Where critical habitat is being proposed after a 
species is listed, some future impacts may be unavoidable, regardless 
of the final designation and exclusions under section 4(b)(2) of the 
Act. However, due to the difficulty in making a credible distinction 
between listing and critical habitat effects within critical habitat 
boundaries, this analysis considers all future conservation-related 
impacts to be co-extensive with the designation.
    (26) Comment: One comment stated the costs for fuel management 
projects are underestimated because they do not include increased costs 
associated with additional planning and analysis as well as higher 
treatment costs that might be associated with avoiding certain areas 
within proposed critical habitat areas.
    Our Response: We revised the DEA to include the costs associated 
with additional planning, analysis, and treatment required to ensure 
that Laguna Mountains skipper habitat is avoided. Cleveland National 
Forest staff estimate these costs to be approximately $2,000 per fuels 
management project and three fuels management projects per year in 
proposed critical habitat areas, or approximately $6,000 per year.
    (27) Comment: One comment stated the administrative costs 
associated with section 7 consultations for the Cleveland National 
Forest are ``very much underestimated.''
    Our Response: Based on information provided by the Cleveland 
National Forest, we revised the DEA's estimate of future administrative 
costs associated with section 7 consultations. As shown in Exhibit 8-8 
of the DEA, administrative costs are forecasted to be $1.4 million 
(undiscounted dollars) over the next 20 years. In present value terms, 
costs are $1.1 million, assuming a three percent discount rate; and 
$828,000, assuming a seven percent discount rate.

Summary of Changes From Proposed Rule

    Based on information received from Terrell (2006a, p. 3 and 4) 
during the public comment periods, we re-evaluated the proposed 
critical habitat boundaries. Terrell (2006a, p. 3 and 4) suggested we 
limit critical habitat designation to Cleveland National Forest's 
Laguna Mountains skipper modeled habitat (Winter 2000, pg. 1) within 
proposed critical habitat units. Methodology in Winter (2000, pg. 1) 
was described as follows:

    ``Elevation between 4000 and 6100 feet. Vegetation type is 
grassland that is within 100 meters of contact with oak woodland/
conifer forest vegetation type and conifer/woodland type that is 
within 100 meters of contact with grassland. As of 3/6 [2000], heb 
(herbaceous in veg cover was limited by 3 soil types, crouch, reiff, 
loamy alluvial). Additional work included incorporating entire 
meadows in addition to the edges based on the 100m contact above, 
and excluding the most southern (Corta Madera) portions of screen 
due to vegetation surveys indicating no presence of Horkelia [on] 
private lands.''

This qualitative method of delineating meadows in many areas on Laguna 
Mountain is similar to the information we used in our critical habitat 
proposal (see Criteria Used to Identify Critical Habitat section 
below). Terrell (2006a, pp. 5, 6) provided a map using Winter's (2000) 
methods to map habitat within proposed critical habitat units, and 
recommended limiting critical habitat designation to those areas. We 
considered this information and agreed that using the modeled habitat 
constituted the best available scientific information, thus justifying 
some unit boundary adjustments; however additional data on habitat type 
use (e.g., open oak woodland at Pine Hill (Osborne 2002)) and host 
plant distribution since 2000 justify including some areas not mapped 
by Winter (2000, pg.1).
    We overlaid the Cleveland National Forest's Laguna Mountains 
skipper modeled habitat (Winter 2000, pg. 1) boundaries on the proposed 
critical habitat boundaries for Unit 1 (Laguna Mountain) and removed 
those areas from proposed critical habitat which fell outside of the 
modeled habitat and for which we did not have main hostplant (Horkelia 
clevelandii) occurrence data (see the Criteria Used To Identify 
Critical Habitat section below for a detailed discussion). This re-
evaluation resulted in the removal of approximately 420 ac (169 ha) 
from Unit 1 (Laguna Mountain). The areas removed were primarily located 
in the northeastern portion of Subunit 1B, the southwestern portion of 
Subunit 1C, and the southeastern portion of Subunit 1A, as well as open 
woodland north of Boiling Springs Ravine in Subunit 1A. This re-
evaluation of proposed critical habitat boundaries did not result in 
any changes to lands designated in Unit 2.

[[Page 74598]]

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 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 only if the essential features thereon may require special 
management considerations 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)). Areas outside of the geographic area 
occupied by the species at the time of listing may only be included in 
critical habitat if they are essential for the conservation of the 
species. Accordingly, when the best available scientific data do not 
demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but not known to be 
occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, therefore, typically 
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.

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 designate as critical 
habitat within areas occupied by the species at the time of listing, we 
consider those physical and biological features (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 historical 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 Laguna 
Mountains skipper as described in the Background section of the 
proposed rule (70 FR 73699).

[[Page 74599]]

Food, Water, or Other Nutritional or Physiological Requirements

    Laguna Mountains skippers require sunlight provided in the open 
meadows, open woodlands, or other forest openings. Butterflies are 
exothermic (i.e., they remain at the same temperature as their 
environment) and, like most insects, body temperature is of overriding 
importance in limiting flight (Chapman 1982, p. 217-272). 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, p. 217-272). 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. Horkelia 
clevelandii, Lasthenia spp. (goldfields), Pentachaeta aurea (golden-
rayed pentachaeta), Ranunculus spp. (buttercups), and Sidalcea spp. 
(checkerbloom)).

Sites for Breeding and Reproduction

    Laguna Mountains skippers require Horkelia clevelandii to lay eggs 
on and for the caterpillars to eat and construct their pupal shelters. 
The species has also been documented on Potentilla glandulosa (Pratt 
1999, p. 10; Osborne 2005). However, P. glandulosa may only be used as 
a hostplant for population survival in special circumstances (e.g., dry 
environmental conditions) where it occurs near H. clevelandii. 
Hostplant 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 hostplants 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 to each other.

Space for Individual and Population Growth, and for Normal Behavior

    The species' 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 alien plants. Therefore, all landscape 
connectivity areas among occupied meadows and forest openings that 
adult Laguna Mountains skippers can move through are required for the 
conservation of the species. To facilitate the use of connectivity 
areas for adult movement between breeding sites, maintenance of 
populations of hostplants and adult nectar sources is important, even 
if they are not likely to be used for breeding.

Historical and Geographic Distribution of the Species

    The occupied areas designated as critical habitat are 
representative of the historical and geographical distribution of the 
species. Areas included in the final designation that are not known to 
be occupied were all historically occupied and will restore a portion 
of the historical geographic distribution of the 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 Constituents for the Laguna Mountains Skipper

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of the Laguna Mountains skipper. All areas designated as critical 
habitat for the Laguna Mountains skipper are within the species' 
historical geographic range and contain sufficient PCEs to support at 
least one life history function.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Laguna Mountains skipper's PCEs are:
    (1) The hostplants, Horkelia clevelandii or Potentilla glandulosa, 
in meadows or forest openings needed for reproduction.
    (2) Nectar sources suitable for feeding by adult Laguna Mountains 
skippers, 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 designation is designed for the conservation of areas 
supporting PCEs necessary to support the life history functions which 
were the basis for the proposal. In general, critical habitat units are 
designated based on sufficient PCEs being present to support one or 
more of the species' life history functions. In this instance, all 
units contain all PCEs and support multiple life processes. Because not 
all life history functions require all the PCEs, not all critical 
habitat will uniformly contain all the PCEs.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of the Laguna Mountains 
skipper. We have also reviewed available information that pertains to 
the habitat requirements of this species. Information sources 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. We identified 
critical habitat based on the assessment of those physical and 
biological components identified above, the known and historical 
occurrences of Laguna Mountains skipper, and available information on 
the distribution of H. clevelandii. We designated no areas outside the 
individual mountains presently occupied by the species.
    To delineate critical habitat, we identified meadow complexes 
(meadows and forest openings connected by open forest canopy) on 
Palomar and Laguna Mountains occupied by the Laguna Mountains skipper 
at the time of listing and known to be currently occupied. The species 
was known to occupy only one meadow complex (Laguna Meadow) on Laguna 
Mountain at the time of listing, but we also identified two meadow 
complexes on Laguna Mountain that contain habitat with features 
essential to the conservation of the species. These meadow complexes 
were not known to be occupied at the time of listing, however, they 
have not been extensively surveyed, and Laguna Mountain as a whole was 
historically considered to be 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 visually outlined meadows and 
forest openings that contained species or hostplant occurrence data. 
Maps were produced by overlaying a 328 square ft (100 square m) grid on 
the initial hand-drawn polygons and selecting those grid cells that 
fell within the hand drawn polygons. Specifically, on Palomar Mountain 
(Unit 2) we defined subunits

[[Page 74600]]

based on the selected grid cells because meadows were more clearly 
defined and species occupancy and distribution information was more 
clearly defined. On Laguna Mountain (Unit 1), where meadows were not as 
clearly defined and species distribution information and occupancy was 
less certain, we then overlaid the Cleveland National Forest's Laguna 
Mountains skipper modeled habitat boundaries and removed areas outside 
of the modeled habitat for which we did not have occurrence data for 
the species or its main hostplant (Horkelia clevelandii). Specifically, 
we removed: (1) All grid cells more than 328 ft (100 m) distant from 
species occurrence locations, hostplant occurrence locations, or Forest 
Service modeled habitat; (2) remaining grids cells not connected to the 
three subunits of Unit 1; and (3) all grid cells with over 97 percent 
of their area more than 328 ft (100 m) distant from species occurrence 
locations, hostplant occurrence locations habitat.
    When determining critical habitat boundaries, we made every effort 
to avoid including within the boundaries of the map contained within 
this final 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 final rule have been excluded by text in the final rule and are 
not designated as critical habitat. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultation, unless they 
may affect the species or primary constituent elements in adjacent 
critical habitat.
    We are designating 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 designating 
lands 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.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing support the primary 
constituent elements that may require special management considerations 
or protection. Threats to those essential features that define critical 
habitat (PCEs) 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 identified as critical habitat are composed of 38 percent 
private land holdings, where habitat is subject to rural development 
and overgrazing, potential stream and groundwater diversions, and 
recreational activities. State and Federal landholdings (6 and 56 
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 managed as well as levels of habitat degradation 
resulting from existing levels of grazing. Environmental conditions 
should also be considered when determining appropriate cattle density 
in meadow habitat occupied by the Laguna Mountains skipper. While 
cattle do not normally eat hostplants while larvae are developing, they 
have been observed grazing on hostplants during drought years on Laguna 
Mountain (Pratt 2006, p. 4). Adaptive management may be needed to 
adjust cattle grazing intensity, and protection measures may include 
exclosures to prevent grazing of hostplants. Monitoring of potential 
changes in hydrology caused by stream and groundwater diversions should 
be undertaken and any necessary management to prevent habitat 
conversion from wet to dry meadows, or open woody canopy to closed.
    On Palomar Mountain, commercial drinking water projects and stream 
alterations on private lands 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. hostplants and surface moisture, PCEs 1 
and 3). Recreational activities such as camping and horseback riding 
can cause direct mortality of Laguna Mountains skipper larvae by 
trampling, and may increase encroachment of exotic vegetation affecting 
the availability of hostplants (PCE 1) and nectar sources (PCE 2). 
Changes in surface and groundwater availability due to disturbance by 
cattle and humans can also result in meadow habitat conversion (PCE 1).
    The provisions within two Forest Service management documents 
promote the conservation of the Laguna Mountains skipper. The Land 
Management Plan provides long-term management direction for National 
Forest Service lands (Terrell 2006a, pg. 1; and b, pp. 1-2). In 
addition, the Cleveland National Forest has a habitat management guide 
for four sensitive plant species in mountain meadows habitat (Cleveland 
National Forest 1991, pp.1-36). While the USFS has completed some 
conservation actions for the species, the avoidance and mitigation 
standards in both management plans are general and do not specify what 
actions are needed, or what is considered essential habitat. Therefore, 
habitat essential to the Laguna Mountains skipper where special 
management actions may be needed to minimize impacts resulting from 
recreation, grazing, and exotic plant invasion needs to be identified.
    Areas designated as critical habitat contain physical and 
biological features essential for the conservation of the Laguna 
Mountains skipper that may require some level of management 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 
management primarily of recreation impacts. Fire management activities, 
such as logging, fuel modification, or relatively low density grazing, 
should not adversely modify habitat if carefully and adaptively managed 
to minimize or avoid destruction of hostplants.

Critical Habitat Designation

    We are designating 2 units, further divided into 7 subunits, as 
critical habitat for the Laguna Mountains skipper. Unit 1, Laguna 
Mountain, consists of subunits 1A, 1B, and 1C. Unit 2, Palomar 
Mountain, consists of subunits 2A, 2B, 2C, and 2D. Lands being 
designated are under Federal (3,516 ac (1,423 ha)), private (2,361 ac 
(954 ha)), and State (381 ac (154 ha)) ownership. Table 1 outlines the 
acreage and landownership of the areas designated 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

[[Page 74601]]

of listing, containing the primary constituent elements essential for 
the conservation of the species that may require special management 
considerations or protection, and those additional areas found to be 
essential to the conservation of the Laguna Mountains skipper. All 
three PCEs are generally distributed throughout all the subunits: 
Nectar sources are the most evenly distributed PCE (PCE 2); host plants 
(PCE 1) are generally concentrated near the edges of larger meadows, 
streams, and in forest openings; wet areas are the most localized (PCE 
3), found in association with natural seeps, cattle troughs, streams, 
and ponds or lakes.

 Table 1.--Area, in Acres (ac) and Hectares (ha), and Landownership of the Areas Designated as Critical Habitat
                                        for the Laguna Mountains Skipper
----------------------------------------------------------------------------------------------------------------
                                            Total area ac    Federal \1\ ac                       State \2\ ac
      Critical habitat unit/subunit             (ha)              (ha)         Private ac (ha)        (ha)
----------------------------------------------------------------------------------------------------------------
                                             Unit 1--Laguna Mountain
----------------------------------------------------------------------------------------------------------------
Subunit 1A (Laguna Meadow)..............     2,610 (1,056)     2,531 (1,024)           79 (32)                 0
Subunit 1B (Filaree Flat)...............          233 (94)          233 (94)                 0                 0
Subunit 1C (Agua Dulce Campground and            500 (202)         374 (151)          126 (51)                 0
 Horse Meadow)..........................
                                         -----------------------------------------------------------------------
    Unit 1 Total........................     3,343 (1,352)     3,138 (1,269)          205 (83)                 0
----------------------------------------------------------------------------------------------------------------
                                            Unit 2--Palomar Mountain
----------------------------------------------------------------------------------------------------------------
Subunit 2A (Mendenhall Valley and              1,092 (442)          231 (94)         861 (348)                 0
 Observatory Campground)................
Subunit 2B (Upper French Valley,                 998 (404)           93 (38)         905 (366)                 0
 Observatory Trail, and Palomar
 Observatory Meadows)...................
Subunit 2C (Upper Doane Valley and Girl          547 (221)           40 (16)         316 (128)          191 (77)
 Scout Camp)............................
Subunit 2D (Lower French Valley and              262 (106)            14 (6)           58 (23)          190 (77)
 Lower Doane Valley)....................
                                         -----------------------------------------------------------------------
    Unit 2 Total........................     2,899 (1,173)         378 (154)       2,140 (865)         381 (154)
                                         -----------------------------------------------------------------------
    Total of Units 1 and 2..............     6,242 (2,525)     3,516 (1,423)       2,345 (948)        381 (154)
----------------------------------------------------------------------------------------------------------------
\1\ Federal lands = U.S. Forest Service.
\2\ State Lands = California State Parks.

Unit 1: Laguna Mountain

    Unit 1 encompasses approximately 3,343 ac (1,352 ha) (Table 1), and 
is approximately centered on Laguna Mountain peak located in south-
central San Diego County, east of the community of Alpine, California. 
This unit is divided into three subunits which each contain all of the 
primary constituent elements. This unit is crucial to 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 to 
extirpate 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 (2,610 ac (1,056 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). Until 2000, adult skippers were consistently 
found in this area. The Cleveland National Forest lands in this unit 
are subject to grazing and recreational activities, and special 
management considerations such as grazing density adjustments or 
exclosures to protect hostplants may be required to maintain the PCEs. 
This subunit contains 2,531 (1,024 ha) of Forest Service managed lands 
and 79 ac (32 ha) of privately owned land (Table 1).

Unit 1B: Filaree Flat

    Subunit 1B (233 ac (94 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: (1) It 
contains habitat features essential to the conservation of any 
populations occupying Subunit 1A (2) provides for population expansion 
and enhancement; (3) minimizes habitat fragmentation; and (4) is 
representative of the historical geographical and ecological 
distribution of the species. This subunit contains 233 ac (94 ha) of 
Forest Service managed lands (Table 1).

Unit 1C: Agua Dulce Campground and Horse Meadow

    Subunit 1C (500 ac (202 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: (1) It contains habitat features essential to the 
conservation of any populations occupying Subunit 1A; (2) provides for 
population expansion and enhancement; (3) minimizes habitat 
fragmentation; and (4) is representative of the historical geographical 
and ecological distribution of the species. This subunit contains 374 
ac (151 ha) of Forest Service managed lands and 126 ac (51 ha) of 
privately owned land (Table 1).

Unit 2: Palomar Mountain

    Unit 2 encompasses approximately 2,899 ac (1,173 ha) (Table 1), 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 four subunits which each contain all of 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

[[Page 74602]]

separate units (i.e., Laguna and Palomar Mountains) and multiple 
subunits limits the potential for a catastrophic event to extirpate 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 conservation 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. Lands in this subunit 
are subject to grazing activities, and special management 
considerations such as hostplant distribution monitoring, exclosure 
maintenance, and grazing density adjustments may be required to 
maintain the PCEs. This subunit contains 231 ac (94 ha) of Forest 
Service managed lands and 861 ac (348 ha) of privately owned land 
(Table 1).

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 occurrence records along the 
Observatory Trail, indicate historical occupancy of Laguna Mountains 
skipper populations in unsurveyed portions of Upper French Valley. 
Lands in this subunit are subject to grazing and recreational 
activities, and special management considerations such as hostplant 
distribution monitoring, grazing and recreation exclosure maintenance, 
and grazing density adjustments may be required to maintain the PCEs. 
This subunit contains 93 ac (38 ha) of Forest Service managed lands and 
905 ac (366 ha) of privately owned land (Table 1).

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 
essential because: (1) It contains habitat features essential to the 
conservation of the species; (2) allows for population expansion and 
enhancement; and (3) minimizes habitat fragmentation. This subunit 
contains 40 ac (16 ha) of Forest Service managed lands, 316 ac (128 ha) 
of privately owned land, and 191 ac (77 ha) of State-owned land (i.e., 
California State Parks) (Table 1).

Unit 2D: Lower French Valley and Lower Doane Valley

    Subunit 2D (262 ac (106 ha)) is known to be currently occupied and 
was occupied at the time of listing. Reports of multiple Laguna 
Mountains skipper observations in this subunit in 2005 (Walker 2006) 
indicate relatively high current densities in these valleys, and has 
confirmed the importance of this subunit for species conservation. 
Lands in this subunit are subject to grazing activities, and special 
management considerations such as hostplant distribution monitoring, 
exclosure maintenance, and grazing density adjustments may be required 
to maintain the PCEs. This subunit contains 14 (6 ha) of Federal land 
(i.e., Forest Service), 58 ac (23 ha) of privately owned land, and 190 
ac (77 ha) of State-owned land (i.e., California State Parks) (Table 
1).

Effects of Critical Habitat Designation

Section 7 Consultation

    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 species proposed for listing 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.
    Once 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. Recent decisions by the 5th and 9th Circuit 
Courts of Appeals have invalidated our regulatory definition of 
``adverse modification'' at 50 CFR 402.02 (see Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) 
and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 
442F (5th Cir. 2001)). Pursuant to current national policy and the 
statutory provisions of the Act, we determine destruction or adverse 
modification based on 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 its intended conservation role 
for the species.
    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

[[Page 74603]]

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 a project is likely 
to result in jeopardy to a listed species or destruction or adverse 
modification of critical habitat, we also provide reasonable and 
prudent project alternatives, 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.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in certain instances, 
including where a new species is listed or critical habitat is 
subsequently designated that may be affected by the Federal action, 
where the Federal agency has retained discretionary involvement or 
control over the action or such discretionary involvement or control is 
authorized by law. Consequently, some Federal agencies may request 
reinitiation of consultation with us on actions for which formal 
consultation has been completed, if those actions may affect 
subsequently listed species or designated critical habitat or adversely 
modify or destroy proposed critical habitat.
    Federal activities that may affect the Laguna Mountains skipper or 
its designated critical habitat will require section 7 consultation 
under the Act. Activities on State, Tribal, local or private lands 
requiring a Federal permit (such as a permit from the Corps under 
section 404 of the Clean Water Act or a permit under section 
10(a)(1)(B) of the Act from the Service) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally-funded, authorized, or permitted, do not require 
section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Laguna Mountains Skipper and Its 
Critical Habitat

Jeopardy Standard
    When performing jeopardy analyses for the Laguna Mountains skipper, 
the Service applies an analytical framework 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 its 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 hostplants and 
immature life stages of the species. Such activities could include, but 
are not limited to overgrazing by livestock, vegetation removal, 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, over the long-term or permanently destroy 
habitat containing primary constituent elements. Such activities could 
include, but are not limited to: removal or destruction of hostplants 
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.
    Fire management activities, such as tree and brush removal for fuel 
modification, or relatively low density grazing should not adversely 
modify habitat if carefully managed to minimize or avoid destruction of 
hostplants.
    All of the units identified as critical habitat contain features 
essential to the conservation of the Laguna Mountains skipper. All 
units are within the geographic range of the species. Federal agencies 
already consult with us on activities in areas currently occupied by 
the Laguna Mountains skipper, or if the species may be affected by the 
action, to

[[Page 74604]]

ensure that their actions do not jeopardize the continued existence of 
the Laguna Mountains skipper.

Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless [s]he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under the 
section the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species.
    Forest Service actions, completed and ongoing, contribute to the 
conservation of the Laguna Mountains skipper and its habitat. The 
Cleveland National Forest has implemented measures to minimize impacts 
to the Laguna Mountains skipper, pursuant to consultation with the 
Service under section 7 of the Act (Service Biological Opinions 1-6-05-
F-773.9, 1-6-99-F-22, and 1-6-01-F-1694). Implemented post-listing 
impact minimization measures include: (1) An exclosure to reduce 
recreation impacts and tree thinning to enhance habitat in 1997 at 
Observatory Campground; (2) grazing exclosures to study grazing effects 
in 1996, 1999, and 2000, at Mendenhall Valley, Little Laguna Meadow, 
and Laguna Meadow; (3) visitor impact monitoring and visitor capacity 
reduction to minimize recreation impacts at Laguna Campground; and (4) 
habitat studies and surveys from 2000 to 2006 to increase biological 
knowledge of the species.
    Provisions within two Forest Service management documents also 
promote conservation of the Laguna Mountains skipper. The Cleveland 
National Forest has a habitat management guide for four sensitive plant 
species in mountain meadows habitat (Cleveland National Forest 1991, 
pp. 1-36). While the habitat management guide is designed to facilitate 
conservation of meadow habitat and protection of sensitive plant 
species affected by grazing and recreation, it does not specifically 
provide for conservation of the Laguna Mountains skipper. In addition, 
the 2005 Land Management Plan for the Cleveland National Forest (LMP) 
provides long-term strategic management direction for Forest Service 
lands (Terrell 2006a, pp. 1; 2006b, pp. 1-2). According to the Forest 
Service Land Management Plan Part 1: Southern California National 
Forests Vision (Forest Service 2005, p. 3):

    The purpose of the [LMP] is to articulate the long-term vision 
and strategic management direction for each southern California 
national forest and to facilitate the development of management 
activities . . . It is important to emphasize that the revised 
forest plans are completely strategic. They do not make project 
level decisions nor do they compel managers to implement specific 
actions or activities. Current uses are carried forward. Any changes 
made to existing uses or new proposals will be determined at the 
project level according to the requirements of the National 
Environmental Policy Act.

    New hostplant and Laguna Mountains skipper locations have been 
recorded since the Cleveland National Forest developed a model (map) of 
Laguna Mountains skipper habitat (Winter 2000, pg. 1). Although Forest 
Service modeled habitat (Winter 2000, pg. 1) comprised 67 percent 
(4,464 of 6,662 acres (1,807 of 2,696 ha)) of Laguna Mountains skipper 
proposed critical habitat, some areas of proposed critical habitat 
where hostplant occurrence data were concentrated fell outside of 
Forest Service modeled habitat (e.g., at the southern end of subunit 
1A).
    The Forest Service LMP provides some species-specific directions 
for protecting the Laguna Mountains skipper, including the standard, 
``[a]void or mitigate, following consultation, activities resulting in 
direct trampling or erosion problems to Laguna Mountains Skipper 
suitable and occupied habitat and adjacent areas.'' Because there are 
relatively large areas of habitat not known to be occupied on Laguna 
and Palomar Mountains, designation of critical habitat will help 
identify where consultation and conservation is needed for the Laguna 
Mountains skipper. Because the benefits of exclusion of the areas 
identified as critical habitat within the Cleveland National Forest do 
not outweigh the benefits of inclusion of these areas, we did not 
exclude Forest Service lands from the final designation under section 
4(b)(2) of the Act.
    Based on the best available information including the prepared 
economic analysis, we believe that all of the units known to occupied 
at the time of listing contain the features essential for conservation 
of the species and that the units not known to be currently occupied 
are essential for the conservation of the species. Our economic 
analysis indicates an overall low cost resulting from the designation. 
Therefore, we have found no areas for which the benefits of exclusion 
outweigh the benefits of inclusion, and have not excluded any areas 
from this designation of critical habitat for the Laguna Mountains 
skipper based on economic impacts.
    Pursuant to section 4(b)(2) of the Act, we must consider other 
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 final designation. 
Also, this designation does not include any Tribal lands or trust 
resources. Therefore, we anticipate no impact to national security, 
Tribal lands, partnerships, or habitat conservation plans from this 
critical habitat designation. As such, we have considered these 
potential impacts but are not excluding any lands from this designation 
under section 4(b)(2).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on July 7, 2006 (71 FR 38593). We 
accepted comments on the draft analysis until August 7, 2006. We 
respond to the comments we received on the draft

[[Page 74605]]

analysis in the Summary of Comments and Recommendations section above.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the Laguna Mountains skipper. This information is intended 
to assist the Secretary in making decisions about whether the benefits 
of excluding particular areas from the designation outweigh the 
benefits of including those areas in the designation. This economic 
analysis considers the economic efficiency effects that may result from 
the designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    Laguna Mountains skipper conservation activities are likely to 
primarily impact recreational camping and utility maintenance 
activities. The draft economic analysis estimates the potential total 
future impacts to range from $6.5 million to $8.9 million 
(undiscounted) over 20 years. Discounted future costs are estimated to 
be $3.7 million to $5.1 million over this same time period ($351,000 to 
$480,000 annually) using a real rate of 7 percent, or $5.0 million to 
$6.9 million ($337,000 to $461,000 annually) using a real rate of 3 
percent. Differences in the low and high impact estimates result 
primarily from uncertainty regarding the potential impacts to utility 
companies conducting maintenance activities and making repairs in 
proposed critical habitat. The low-end estimate of costs assumes 
grazing on private lands is not affected and biologists' time on site 
during utility repairs and maintenance is limited to one day per 
project. Costs under this estimate are dominated (88 percent) by 
welfare losses to campers in Subunits 1A and 1C. The high-end estimate 
of costs assumes grazing activities on private lands in proposed 
critical habitat will be restricted and that utility projects will last 
longer than a single day. Costs under this estimate are dominated by 
lost camping opportunities (64 percent) and to a lesser extent costs to 
utilities (22 percent). In the low-end estimate, 95 percent of the 
costs are associated with Subunits 1A and 1C. In the high-end estimate, 
Subunits 1A and 1C again dominate total costs, accounting for 83 
percent of total estimated impacts.
    A copy of the final economic analysis with supporting documents is 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES section) or for downloading from the Internet at http://www.fws.gov/carlsbad/.

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 will not 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. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA) (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 
effect 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 an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider

[[Page 74606]]

whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect the Laguna Mountains skipper. Federal agencies also must consult 
with us if their activities may affect critical habitat. Designation of 
critical habitat, therefore, could result in an additional economic 
impact on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities.
    Our economic analysis determined that costs involving conservation 
measures for the Laguna Mountains skipper would be incurred for 
activities involving: (1) Grazing activities; (2) recreational camping 
activities; (3) recreational hiking activities; (4) utility activities; 
(5) rural development; (6) other activities on Federal lands; and, (7) 
Laguna Mountains skipper management activities on State lands. As 
explained in our draft economic analysis, impacts of skipper 
conservation are not anticipated to affect small entities in five of 
these seven categories: hiking; utilities; rural development; other 
activities on Federal lands; and management activities on State lands. 
Since neither Federal nor State governments are defined as small 
entities by the Small Business Administration (SBA), the economic 
impacts borne by the Forest Service and the California Department of 
Fish and Game (CDFG) resulting from implementation of skipper 
conservation activities or modifications to activities on Federal lands 
are not relevant to this analysis. Likewise, neither of the major 
utility companies involved (SDG&E and AT&T) would fit the SBA 
definition of small entities. Accordingly, the small business analysis 
focuses on economic impacts to grazing and recreational camping 
activities.
    The designation includes areas of USFS and private lands that are 
used for livestock grazing. On some Federal allotments that contain 
Laguna Mountains skipper habitat, meadow areas have been excluded from 
grazing, thus reducing the carrying capacity, or permitted Animal Unit 
Months (AUMs), on those allotments. Historically, returns to cattle 
operations have been low throughout the West. In recent years, these 
returns have been lower due to the recent wildfires and droughts in 
California. As a result, any reductions in grazing effort for the 
Laguna Mountains skipper may affect the sustainability of ranching 
operations in these areas. The analysis assumes that in the future, 
grazing efforts on proposed critical habitat areas will be reduced, or 
in the high-end estimate, eliminated on private land due to skipper 
concerns. Private ranchers could be affected either by reductions in 
federally permitted AUMs that they hold permits to, or by reductions on 
grazing efforts on private property to avoid adverse impacts on Laguna 
Mountains skipper habitat. The expected reduction in AUMs is based on 
an examination of historical grazing levels, section 7 consultations, 
and discussions with range managers, wildlife biologist, and 
permittees. Based on this analysis, the high-end impact on grazing 
activities is estimated at an annual reduction of 1,979 AUMs, of which 
1,363 are federally permitted and 618 are private. The majority of 
these AUM reductions fall on two ranchers: one operating in Subunit 1A 
and another operating in Subunit 2A. Therefore, cumulatively over 20 
years, two ranchers could be affected by total reductions in AUMs due 
to Laguna Mountains skipper conservation activities.
    The economic analysis considers lower- and upper-bounds of 
potential economic impact on recreational camping activities. The 
lower-bound equals no economic impact. In the upper-bound, economic 
impacts are estimated for recreational campers whose activities may be 
interrupted by Laguna Mountains skipper conservation activities 
resulting in a decrease in the number of camping trips. Scenario 2 
concludes that camping trips may decrease by as many as 5,352 trips per 
year. If fewer camping trips were to occur within proposed critical 
habitat areas, local establishments providing services to campers may 
be indirectly affected by Laguna Mountains skipper conservation 
activities. Decreased visitation may reduce the amount of money spent 
in the region across a variety of industries, including food and 
beverage stores, food service and drinking places, accommodations, 
transportation and rental services.
    The economic analysis uses regional economic modeling--in 
particular a software package called IMPLAN--to estimate the total 
economic effects of the reduction in economic activity in camping-
related industries in the one county (San Diego County) associated with 
Laguna Mountains skipper conservation activities. Commonly used by 
State and Federal agencies for policy planning and evaluation purposes, 
IMPLAN translates estimates of initial trip expenditures (e.g., food, 
lodging, and gas) into changes in demand for inputs to affected 
industries. Changes in output and employment are calculated for all 
industries and then aggregated to determine the regional economic 
impact of reduced recreational camping-related expenditures potentially 
associated with Laguna Mountains skipper conservation activities.
    This analysis uses the average expenditures reported by the 2001 
National Survey of Fishing, Hunting, and Wildlife-Associated Recreation 
for California for fishing, hunting and wildlife-associated recreation, 
or approximately $26.23 per trip. This per-trip estimate of 
expenditures is then combined with the number of camping trips 
potentially lost due to Laguna Mountains skipper conservation 
activities (a 1-year loss of 5,352 trips per year) to estimate the 
regional economic impacts. When compared to the $192 billion dollar 
regional economy of San Diego County, the potential loss generated by a 
decrease in camping trips is a relatively small impact (i.e., less than 
0.01 percent). Therefore based on these results, this analysis 
determines no significant effect on camping-related industries due to 
Laguna Mountains skipper conservation activities in San Diego County.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on Laguna Mountains 
skipper and its habitat. First, if we conclude, in a biological 
opinion, that a proposed action is likely to jeopardize the continued 
existence of a species or adversely modify its critical habitat, we can 
offer ``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing

[[Page 74607]]

the reasonable and prudent alternative. However, unless an exemption 
were obtained, the Federal agency or applicant would be at risk of 
violating section 7(a)(2) of the Act if it chose to proceed without 
implementing the reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal, we may identify 
reasonable and prudent measures designed to minimize the amount or 
extent of take and require the Federal agency or applicant to implement 
such measures through non-discretionary terms and conditions. We may 
also identify discretionary conservation recommendations designed to 
minimize or avoid the adverse effects of a proposed action on listed 
species or critical habitat, help implement recovery plans, or to 
develop information that could contribute to the recovery of the 
species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
critical habitat units, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization implemented or licensed by Federal agencies;
    (3) Regulation of timber harvest, grazing, mining, and recreation 
by the USFS and BLM;
    (4) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect the Laguna Mountains 
skipper. The kinds of actions that may be included if future reasonable 
and prudent alternatives become necessary include conservation set-
asides, management of competing nonnative species, restoration of 
degraded habitat, and regular monitoring. These are based on our 
understanding of the needs of the species and the threats it faces, as 
described in the final listing rule and proposed critical habitat 
designation. These measures are not likely to result in a significant 
economic impact to project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
Federal involvement, and thus section 7 consultations, would be limited 
to a subset of the area designated. Only two potential small entities 
engaged in grazing may be impacted by the designation of critical 
habitat for the Laguna Mountains skipper, and the potential economic 
loss attributable to impacts to recreational activities is small (i.e., 
less than 0.01 percent). Therefore, for the above reasons and based on 
currently available information, we certify that the rule will not have 
a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 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 final rule to 
designated critical habitat for the Laguna Mountains skipper 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.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make 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 who receive Federal 
funding, assistance, permits or

[[Page 74608]]

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 will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, Small Government Agency Plan is 
not required.

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 final 
critical habitat designation with appropriate State resource agencies 
in California. The designation of critical habitat for the Laguna 
Mountains skipper may impose nominal additional regulatory restrictions 
to those currently in place and, therefore, may have an incremental 
impact on State and local governments and their activities. The 
designation may have some benefit to these governments in that the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the conservation 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 are designating critical habitat in accordance with 
the provisions of the Endangered Species Act. This final 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 have determined that 
there are no Tribal lands supporting Laguna Mountains skipper habitat 
that meets the definition of critical habitat. Therefore, critical 
habitat for the Laguna Mountains skipper has not been designated 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 authors of this package are staff from 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.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.11(h), revise the entry for ``Laguna Mountains skipper'' 
under ``INSECTS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 74609]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species
------------------------------------------------------------         Historic range           Vertebrate  population where        Status        When listed    Critical        Special rules
            Common name                  Scientific name                                       endangered or  threatened                                       habitat
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                                          * * * * * * *
INSECTS
 
                                                                                          * * * * * * *
Skipper, Laguna Mountains..........  Pyrgus ruralis lagunae  U.S.A. (CA)...................  Entire.......................  E.................          604     17.95(i)  NA
 
                                                                                          * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95(i), add an entry for Laguna Mountains Skipper 
(Pyrgus ruralis lagunae) under ``INSECTS'' in the same alphabetical 
order as this species appears in the table in Sec.  17.11(h) 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 hostplants, Horkelia clevelandii or Potentilla glandulosa, 
which are needed for reproduction, in meadows or forest openings.
    (ii) 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.
    (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 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:
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[[Page 74611]]

    (6) Unit 1: Laguna Mountain, San Diego County, California. From 
USGS 1:24,000 quadrangle maps Monument Peak and Mount Laguna.
    (i) Subunit 1A: lands bounded by the following UTM NAD27 
coordinates (E,N): 551900, 3635400; 551900, 3635600; 551800, 3635600; 
551800, 3635300; 552000, 3635300; 552000, 3634900; 551800, 3634900; 
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, 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, 3640000; 549400, 3640000; 
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; 550100, 3640600; 550100, 3640500; 550200, 3640500; 
550200, 3640400; 550300, 3640400; 550300, 3640000; 551000, 3640000; 
551000, 3639900; 551100, 3639900; 551100, 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, 3639700; 551700, 3639700; 551700, 3639400; 551800, 3639400; 
551800, 3639300; 551900, 3639300; 551900, 3639100; 551800, 3639100; 
551800, 3639000; 551900, 3639000; 551900, 3638900; 551800, 3638900; 
551800, 3638800; 551900, 3638800; 551900, 3638700; 552100, 3638700; 
552100, 3638800; 552200, 3638800; 552200, 3638700; 552500, 3638700; 
552500, 3638300; 552300, 3638300; 552300, 3638400; 552200, 3638400; 
552200, 3638300; 551900, 3638300; 551900, 3638100; 551500, 3638100; 
551500, 3637900; 551700, 3637900; 551700, 3637800; 551800, 3637800; 
551800, 3637700; 552100, 3637700; 552100, 3637600; 552200, 3637600; 
552200, 3637500; 552500, 3637500; 552500, 3637700; 552600, 3637700; 
552600, 3637800; 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, 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, 3635500; 552200, 3635500; 
552200, 3635400; 551900, 3635400.
    (ii) Subunit 1B: lands bounded by the following UTM NAD27 
coordinates (E,N): 549300, 3642300; 549400, 3642300; 549400, 3642400; 
549600, 3642400; 549600, 3642300; 549800, 3642300; 549800, 3642200; 
549900, 3642200; 549900, 3641900; 550000, 3641900; 550000, 3641400; 
550100, 3641400; 550100, 3640900; 549600, 3640900; 549600, 3641000; 
549300, 3641000; 549300, 3642300.
    (iii) Subunit 1C: lands bounded by the following UTM NAD27 
coordinates (E,N): 553000, 3634400; 553000, 3634500; 552900, 3634500; 
552900, 3634900; 552800, 3634900; 552800, 3635600; 553100, 3635600; 
553100, 3635400; 553300, 3635400; 553300, 3635300; 553400, 3635300; 
553400, 3635200; 553300, 3635200; 553300, 3635100; 553200, 3635100; 
553200, 3635000; 553300, 3635000; 553300, 3634900; 553400, 3634900; 
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; 552600, 3632800; 
552600, 3633000; 552700, 3633000; 552700, 3633400; 552800, 3633400; 
552800, 3633800; 552700, 3633800; 552700, 3634300; 552800, 3634300; 
552800, 3634400; 553000, 3634400.
    (iv) Note: Map of Unit 1 (Map 2, Subunits 1A, 1B, and 1C) follows:
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[GRAPHIC] [TIFF OMITTED] TR12DE06.002

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[[Page 74613]]

    (7) Unit 2: Palomar Mountain, San Diego County, California. From 
USGS 1:24,000 quadrangle maps Boucher Hill and Palomar Observatory.
    (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,

[[Page 74614]]

3689300; 508400, 3689400; 508200, 3689400; 508200, 3689800; 508000, 
3689800; 508000, 3690000; 507900, 3690000; 507900, 3690200; 507800, 
3690200; 507800, 3690400; 507500, 3690400; 507500, 3690300; 507400, 
3690300; 507400, 3690500; 507500, 3690500; 507500, 3690700; 507700, 
3690700; 507700, 3690800.
    (v) Note: Map of Unit 2 (Map 3, Subunits 2A, 2B, 2C, and 2D) 
follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR12DE06.003


[[Page 74615]]


* * * * *

    Dated: November 21, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-9498 Filed 12-11-06; 8:45 am]
BILLING CODE 4310-55-C