[Federal Register Volume 73, Number 235 (Friday, December 5, 2008)]
[Proposed Rules]
[Pages 74123-74129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28119]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0110; MO-9221050083 - B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Sacramento Mountains Checkerspot Butterfly 
(Euphydryas anicia cloudcrofti) as Endangered with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of a status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Sacramento Mountains 
checkerspot butterfly (Euphydryas anicia cloudcrofti) as an endangered 
species and designate critical habitat under the Endangered Species Act 
of 1973, as amended (Act). We find the petition provides substantial 
scientific or commercial information indicating that listing this 
subspecies under the Act may be warranted. Therefore, with the 
publication of this notice, we are initiating a status review of the 
species, and we will issue a 12-month finding to determine if the 
petitioned action is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial data 
regarding this species. We will make a determination on critical 
habitat for this subspecies if and when we initiate a listing action.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before February 3, 2009.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2008-0110; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all information 
received on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Information 
Solicited section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM 
87113; by (telephone at 505-346-2525, or by facsimile at 505-346-2542. 
If you use a telecommunications devise for the deaf (TTD), you may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information on the status of the Sacramento Mountains checkerspot 
butterfly. We request information from the public, other concerned 
governmental agencies, Tribes, the scientific community, industry, or 
any other interested parties concerning the status of the Sacramento 
Mountains checkerspot butterfly. We are seeking information regarding 
the subspecies' historical and current status and distribution, its 
biology and ecology, its taxonomy, ongoing conservation measures for 
the subspecies and its habitat, and threats to either the subspecies or 
its habitat.
    If we determine that listing the Sacramento Mountains checkerspot 
butterfly is warranted, we intend to propose critical habitat to the 
maximum extent prudent and determinable at the time we would propose to 
list the subspecies. Therefore, with regard to areas within the 
geographical range currently occupied by the Sacramento Mountains 
checkerspot butterfly, we also request data and information on what may 
constitute physical or biological features essential to the 
conservation of the subspecies, where these features are currently 
found, and whether any of these features may require special management 
considerations or protection. In addition, we request data and 
information regarding whether there are areas outside the geographical 
area occupied by the subspecies that are essential to the conservation 
of the subspecies. Please provide specific

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information as to what, if any, critical habitat should be proposed for 
designation if the subspecies is proposed for listing, and why that 
proposed habitat meets the requirements of the Act (16 U.S.C. 1531 et 
seq.).
    Please note that comments merely stating support or opposition to 
the action under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.'' Based on the status review, we will issue 
a 12-month finding on the petition, as provided in section 4(b)(3)(B) 
of the Act.
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. We will not consider 
submissions sent by e-mail or fax or to an address not listed in the 
ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time we make the determination. To the maximum extent practicable, 
we are to make this finding within 90 days of our receipt of the 
petition and publish our notice of this finding promptly in the Federal 
Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial information was presented, we 
are required to promptly commence a review of the status of the 
species.
    In making this finding, we based our decision on information 
provided by the petitioners and information available in our files at 
the time of the petition review, and we evaluated that information in 
accordance with 50 CFR 424.14(b). Our process for making a 90-day 
finding under section 4(b)(3)(A) of the Act and Sec. 424.14(b) of our 
regulations is limited to a determination of whether the information 
contained in the petition meets the ``substantial information'' 
threshold.

Previous Federal Actions

    On January 28, 1999, we received a petition from Mr. Kieran 
Suckling of the Southwest Center for Biological Diversity (now Center 
for Biological Diversity) requesting emergency listing of the 
Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti) (butterfly) as endangered with critical habitat. On 
December 27, 1999, we published a 90-day finding that the petition 
presented substantial information that listing the butterfly may be 
warranted, but that emergency listing was not warranted; that document 
also initiated a status review of the subspecies (64 FR 72300). On 
September 6, 2001, we published a 12-month finding and proposed rule to 
list the butterfly as endangered with critical habitat (66 FR 46575). 
On October 7, 2004, we published a notice of availability of a draft of 
the Conservation Plan for the Sacramento Mountains checkerspot 
butterfly (Euphydryas anicia cloudcrofti) (Conservation Plan) (69 FR 
60178), which was finalized in 2005 (Service et al. 2005). On November 
8, 2004, we published a notice of availability of a draft economic 
analysis and draft environmental assessment on our proposed designation 
of critical habitat for the butterfly (69 FR 64710). On December 21, 
2004, we published a withdrawal of the proposed rule (69 FR 76428), 
concluding that the threats to the species were not as great as we had 
perceived when we proposed it for listing.

Petition

    On July 5, 2007, we received a petition dated June 28, 2007, from 
Forest Guardians (now WildEarth Guardians) and the Center for 
Biological Diversity requesting that we emergency list the butterfly as 
endangered, and that we designate critical habitat concurrently with 
the listing. The petition clearly identifies itself as a petition, and 
includes the information required in 50 CFR 424.14(a). The petitioners 
assert that insect control, climate change, private development, roads, 
livestock grazing, wildfire, recreational impacts, and noxious weed 
management threaten the butterfly. The petitioners state that many of 
the threats identified in the September 6, 2001, proposed rule to list 
the species (66 FR 46575) are still valid. They claim that the Service 
erred in 2004 (69 FR 76428) when we withdrew the 2001 proposed listing 
rule. The petitioners also claim that insect control and climate change 
pose an imminent and significant risk to species and request that the 
Service emergency list the butterfly.
    Emergency listing is not a petitionable action under the Act. 
Emergency listing is allowed under the Act whenever immediate 
protection is needed to address a significant risk to the species' well 
being. Based on currently available information evaluated below, we 
determine that emergency listing is not needed for the butterfly.
    On July 26, 2007, we notified the petitioners that, to the maximum 
extent practicable, we would decide whether the petition presented 
substantial information that the petitioned action may be warranted. On 
October 16, 2007, we informed the petitioners that an emergency listing 
of the butterfly was not warranted at that time because the insect 
control that had been scheduled to occur had been postponed until later 
in the autumn when the butterfly larvae were likely to be inactive and 
not threatened by the insect control actions. On December 10, 2007, we 
notified the petitioners that funding was available to complete the 90-
day finding in fiscal year 2008. On January 3, 2008, Forest Guardians 
filed suit against the Service for failure to issue a 90-day finding on 
the petition (Forest Guardians, et al. v. Kempthorne, 1:08-cv-00011-RMU 
(D. D.C.)). On April 15, 2008, a settlement was reached that requires 
the Service to submit to the Federal Register a determination of 
whether the petition presents substantial information indicating that 
the petitioned action of listing the butterfly may be warranted. The 
settlement stipulated that the determination would be submitted to

[[Page 74125]]

the Federal Register on or before November 28, 2008. This 90-day 
finding complies with the settlement agreement.

Species Information

    The Sacramento Mountains checkerspot butterfly is a member of the 
brush-footed butterfly family (Nymphalidae). The adults have a wingspan 
of approximately 5 centimeters (cm) (2 inches (in)), and they are 
checkered with dark brown, red, orange, white, and black spots and 
lines. Larvae are black-and-white banded with orange dorsal bumps and 
black spines. Checkerspot larvae reach a maximum length of about 2.5 cm 
(1 in) (Pittenger and Yori 2003, p. 8). The taxon was described in 1980 
(Ferris and Holland 1980).
    The butterfly inhabits meadows within the mixed-conifer forest 
(Lower Canadian Zone) at an elevation between 2,380 to 2,750 meters (m) 
(7,800 to 9,000 feet (ft)) in the vicinity of the Village of 
Cloudcroft, Otero County, New Mexico. The adult butterfly is often 
found in association with the larval food plants Penstemon neomexicanus 
(New Mexico penstemon) and Valeriana edulis (valerian) and adult nectar 
sources, such as Helenium hoopesii (sneezeweed). Penstemon neomexicanus 
is a narrow endemic species (Sivinski and Knight 1996), restricted to 
the Sacramento and Capitan Mountains of south-central New Mexico.
    Adult butterflies are only known to lay their eggs on Penstemon 
neomexicanus (Service et al. 2005, p.10), although the larvae feed on 
both P. neomexicanus and Valeriana edulis (Service et al. 2005, p.11). 
After hatching, larvae feed on host plants and, during the 4th or 5th 
instar (the period between molts in the larval stage of the butterfly), 
enter an obligatory and extended diapause (maintaining a state of 
extended inactivity), generally as the food plants die back in the 
autumn from freezing. Some larvae may remain in diapause for more than 
one year, depending on environmental conditions. During diapause, 
larvae probably remain in leaf or grass litter near the base of shrubs, 
under the bark of conifers, or in the loose soils associated with 
pocket gopher (Thomomys bottae) mounds (Service et al. 2005, p.10). 
Once the larvae break diapause, they feed and grow through three or 
four more instars before pupating (entering the inactive stage within a 
chrysalis) and emerging as adults. Diapause is generally broken in 
spring (March and April) and adults emerge in summer (June and July).
    We do not know the extent of the historical range of the butterfly 
due to limited information collected on this subspecies prior to the 
time it was formally acknowledged as a new subspecies (Ferris and 
Holland 1980). The known range of the butterfly is restricted to the 
Sacramento Mountains and is bordered on the north by the Mescalero 
Apache Nation lands, on the west by Bailey Canyon at the mouth of 
Mexican Canyon, on the east by Spud Patch Canyon, and on the south by 
Cox Canyon (USFS 2000; Service et al. 2005, p. 12). The potential range 
of the butterfly to the east and west is likely restricted because the 
non-forested areas are below 7,800 ft in elevation and the checkerspot 
butterfly does not occur below this elevation (Service et al. 2005, p. 
9).
    The U.S. Forest Service (USFS) estimates that there are about 1,096 
hectares (ha) (2,712 acres (ac)) of suitable butterfly habitat on USFS 
and private lands. Of this, 484 ha (1,196 ac) are occupied by the 
butterfly on USFS lands and 314 ha (777 ac) are occupied on private 
lands (USFS 2004a). About 298 ha (736 ac) of the 1,096 ha (2,712 ac) of 
suitable habitat are unoccupied, with 79 ha (194 ac) on USFS lands and 
219 ha (542 ac) on private lands (USFS 2004a). This estimate is the 
best and most recent information we have regarding the range and 
distribution of the butterfly and the same information we used in our 
2004 withdrawal of the proposed rule (69 FR 76428).
    For more information on the butterfly, refer to the September 6, 
2001, proposed rule (66 FR 46575); the November 1, 2005, Conservation 
Plan (Service et al. 2005); and the December 21, 2004, withdrawal of 
the proposed rule (69 FR 76428). Some of this information is discussed 
in our analysis below. The Conservation Plan (Service et al. 2005) with 
the Village of Cloudcroft, Otero County, USFS, and the Service was 
developed to identify and commit to implementing actions to conserve 
the butterfly so it would not warrant future listing under the Act.

Threats Analysis

    Section 4 of the Act and implementing regulations at 50 CFR 424 set 
forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of 
the Act, we may list a species on the basis of any of five factors, as 
follows: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    In making this 90-day finding, we evaluated whether information on 
threats to the Sacramento Mountains checkerspot butterfly, as presented 
in the petition and other information available in our files at the 
time of the petition review, is substantial, thereby indicating that 
the petitioned action may be warranted. Our evaluation of this 
information is presented below.

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

    The petition asserts that the following conditions under Factor A 
threaten the butterfly: recreational impacts; roads, corridors, and 
powerlines; livestock grazing; catastrophic wildfire and fire 
suppression; noxious weeds; and private property development and the 
potential expiration of the Otero County Subdivision Ordinance on July 
1, 2011. The petitioners assert that, although development 
(residential, commercial, and recreational associated with residential) 
within the Village of Cloudcroft decreased following the 2001 
publication of the proposed rule to list the butterfly (66 FR 46575), 
development has nonetheless continued and, combined with other threats 
to the butterfly, remains significant. The petitioners correctly note 
that, as passed, the amended Otero County Subdivision Ordinance of 2005 
will expire on July 1, 2011 (Otero County 2005, p. 2). The ordinance 
requires that, for any new subdivision to be developed within potential 
butterfly habitat, a survey be conducted for the butterfly, its 
habitat, and its host plant Penstemon neomexicanus. If the survey is 
positive, the developer is required to submit plans to address wildfire 
control, avoidance of destruction of the butterfly and its habitat, 
and, if avoidance is not possible, relocation of butterflies and 
restoration of destroyed habitat. The ordinance also contains a section 
on enforcement, penalties, and remedies. The amendment to the 
subdivision ordinance was not in place when we made our withdrawal of 
the proposed listing rule in 2004, so we did not rely on it when we 
concluded that development was not a significant threat to the 
butterfly. The Village of Cloudcroft has received no permit 
applications for new subdivisions since the Ordinance became effective 
in 2005. This may be because it has experienced water shortages in 
recent years (Friederici 2007). The petition presents information on 
these issues that was

[[Page 74126]]

previously submitted in comments on the 2004 draft Conservation Plan 
(69 FR 60178), draft environmental assessment, and draft economic 
analysis (69 FR 64710) for the butterfly. The draft environmental 
assessment and draft economic analysis did not contemplate effects of 
the future ordinance.
    In our 2004 draft economic analysis, we found that approximately 8 
to 10 new homes had been constructed annually since 2000 within the 
boundary of the proposed critical habitat designation of approximately 
140 square kilometers (54 square miles) in the vicinity of the Village 
of Cloudcroft (Service 2004). Based upon this trend of 8 to 10 new 
homes annually, over the next 20 years, approximately 160 to 200 new 
residential projects may occur within the boundary of the then-proposed 
critical habitat for the butterfly. Of these, the economic analysis 
assumed that 55 to 69 of the landowners may conduct butterfly surveys 
because they would be located within areas that were proposed as 
critical habitat and that provide butterfly habitat. Our draft economic 
analysis estimated that butterflies could be found in 8 to 24 of those 
55 areas surveyed. Our draft economic analysis also estimated that the 
median lot size of these developments was 0.14 ha (0.34 ac), indicating 
that up to 3.4 ha (8.2 ac) of suitable butterfly habitat may be 
impacted from commercial and private development activities. For a 
detailed discussion see Service 2004. In the 2001 proposed rule, we 
described an additional 4 ha (10 ac) of impacts from a private 
development on the east side of the Village of Cloudcroft. Thus, we 
continue to estimate that about 2 percent of the suitable butterfly 
habitat on private lands (7.4 of 314 ha (18 of 777 ac), using the USFS 
(2004a, p.2) estimate of occupied acres on private lands) may be 
subject to commercial and private development. Based on this 
information, we continue to believe that this level of impact is not a 
significant threat to the butterfly. We find no substantial information 
provided by the petitioners or in our files supporting the claim that 
commercial and private development threaten the butterfly.
    The petitioners acknowledge that USFS has taken measures to reduce 
recreational impacts to the butterfly at two campgrounds and has 
proposed measures to reduce impacts at five additional campgrounds 
where the butterfly is present. However, the petitioners assert that 
increasing recreation demands, including off-road vehicle use, camping, 
and mountain biking, can result in harm to individual butterflies and 
to their food plants.
    In our 2004 withdrawal of the proposed rule, we discussed increased 
efforts by the USFS to reduce off-road vehicle use in Bailey Canyon and 
campgrounds where the butterfly occurs, and we evaluated information on 
the extent and nature of off-road impacts to the butterfly and its food 
plants. We concluded that the actions the USFS had taken to reduce off-
road vehicle impacts appeared to be effective, that only a small 
proportion of occupied habitat would be impacted annually by continuing 
off-road vehicle use, that the magnitude of the impact is low, and that 
off-road vehicle use does not significantly threaten the butterfly (69 
FR 76428, December 21, 2004). The petitioners do not present 
information, and we have no information in our files, that off-road 
vehicle use has increased since 2004.
    In our 2004 withdrawal of the proposed rule, we discussed increased 
efforts by the USFS to reduce impacts to the butterfly from dispersed 
camping and camping at established campgrounds. Although the 
petitioners acknowledge that USFS has taken measures to reduce 
recreational impacts to the butterfly at established campgrounds, they 
claim that increased camping can result in harm to the butterfly. We 
agree that increased camping can result in increased impacts to the 
butterfly. However, the petitioners did not present information that 
camping has increased in habitats occupied by the butterfly, and we 
have no information in our files that camping has increased.
    In our 2004 withdrawal of the proposed rule, we acknowledged that 
butterfly larvae were known to occur on and adjacent to mountain bike 
trails, and we reviewed efforts routinely made by the USFS to address 
potential impacts to the butterfly, including larvae, during large 
events, such as mountain bike races (69 FR 76428). We concluded that, 
while mountain biking does impact the butterfly and its host plants to 
some extent, it did not appear that the impacts were likely significant 
to the butterfly. The petitioners do not present information that 
impacts from mountain biking have increased in habitats occupied by the 
butterfly, and we have no information in our files that such impacts 
have increased.
    The petitioners discuss the impacts of roads, corridors, and 
powerlines by comparing our discussion of those impacts in our 2004 
withdrawal of the proposed rule (69 FR 76428) to our discussion of 
those impacts in our 2001 proposed rule (66 FR 46575). Based on the 
discussion in the petition, we assume they are addressing only service 
roads and corridors related to powerline construction and maintenance. 
In our withdrawal, we acknowledged that, although some restrictions 
were likely to be placed on a powerline company when constructing a new 
powerline, because of the linear nature of these impacts and the 
recognition that adjacent habitat will remain intact, we concluded that 
the activity represented only a limited threat to the species (69 FR 
73428). We also noted that no new projects are currently planned by 
that company, indicating no other powerline-related threats were 
foreseeable. We have no new information in our files, and the 
petitioners presented no new information on increased impacts to the 
butterfly and its habitat from powerlines and associated roads and 
corridors, since our withdrawal was published in 2004.
    The petitioners claim that livestock grazing continues to threaten 
butterfly habitat. In our 2004 withdrawal of the proposed rule, we 
found that, because the USFS is managing these allotments for medium-
intensity grazing, the effects on the butterfly and its habitat will be 
minimal and will not result in the butterfly population being 
compromised (69 FR 76428). We concluded that the current and future 
occurrence of grazing does not represent a principal factor in the 
viability of the butterfly and its habitat. The petitioners present no 
new information about livestock grazing since our 2004 withdrawal of 
the proposed rule, and we have no new information in our files to 
indicate that the threat from livestock grazing has increased.
    In addressing the threat of fire suppression and wildfire, the 
petitioners compare the analysis used in our 2001 proposed rule (66 FR 
46575) to our analysis in the 2004 withdrawal of the proposed rule (69 
FR 76428). In our withdrawal, we used information from the USFS, 
assessed new and continued efforts to reduce the risk of catastrophic 
wildfire in the Sacramento Mountains, and concluded that the threat to 
the butterfly from catastrophic wildfire had been reduced and was no 
longer significant. We found that fire and activities conducted to 
reduce the risk of fire may be beneficial by increasing connectivity 
between areas of suitable butterfly habitat. We have no new information 
in our files that the threat of wildfires has increased since our 2004 
withdrawal of the proposed rule.
    The petitioners assert that the manual weed-pulling program to 
control

[[Page 74127]]

noxious weeds does not fully address the threat of noxious weeds to the 
butterfly. The USFS began the weed-pulling program in 2001, and the 
program is described in the Conservation Plan (Service et al. 2005, p. 
34). In our 2004 withdrawal of the proposed listing (69 FR 76428), we 
found that nonnative vegetation and the application of herbicides are 
currently being managed, and we concluded that the nonnative vegetation 
is a not significant threat to the butterfly. The petitioners present 
no new information since our 2004 withdrawal that the threat of 
nonnative or noxious weeds has increased.
    To support their claims of any threats to the species under Factor 
A, the petitioners provided no information or references beyond those 
available to us when we withdrew our proposal to list the butterfly in 
2004. We find that the petition does not present substantial 
information, and we have no information in our files, indicating that 
the petitioned action may be warranted due to the present or threatened 
destruction, modification, or curtailment of the habitat or range of 
the butterfly due to development (including the explanation of the 
Otero County subdivision Ordinance in 2011), recreation, powerlines and 
associated roads and corridors, livestock grazing, fire suppression and 
wildfire, and noxious weeds.

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

    The petition asserts that collection threatens the butterfly, 
reiterating our preliminary finding from the 2001 proposed rule that 
the butterfly's life history characteristics, attractiveness to 
collectors due to rarity, and newspaper publications promote collection 
(66 FR 46575). In our 2004 withdrawal, we concluded that the closure of 
USFS lands to butterfly collecting in 2000 had reduced the threat of 
collection and that overcollection was no longer a threat. The petition 
presents no new information or explanation as to why the butterfly is 
threatened by collection. We have no new information in our files since 
the 2004 withdrawal indicating that overutilization for commercial, 
recreational, scientific, or educational purposes is a threat to the 
butterfly. Therefore, we find that the petition does not present 
substantial information indication that the petitioned action may be 
warranted due to overutilization for commercial, recreational, 
scientific, or educational purposes.

C. Disease or Predation

    The petitioners provide no information addressing this factor, and 
we have no information in our files indicating that the petitioned 
action may be warranted due to disease or predation. We agree that this 
issue is not applicable to the subspecies at this time.

D. Inadequacy of Existing Regulatory Mechanisms

    The petition asserts that the subspecies' status as a Forest 
Sensitive Species does not provide the binding protections of listing 
under the Act. The butterfly has been designated by the Regional 
Forester as a Forest Sensitive Species. As a Forest Sensitive Species, 
the USFS is required to analyze the butterfly in all applicable 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.) 
documents. In addition, the petitioners claim that new USFS regulations 
were recently passed that remove any species viability standard 
protections that were previously provided in 36 CFR 219.20, a 
regulation requiring the USFS to address ecological conditions 
necessary to maintain species viability. The petition also asserts that 
conservation measures resulting from section 7 (of the Act) 
conferencing no longer apply because the species is no longer proposed 
for listing. Additionally, the petitioners assert that the butterfly 
has no State protection, as New Mexico does not recognize insects as 
``wildlife.''
    On April 21, 2008, a new USFS planning rule (73 FR 21468) was made 
final. In that rule, species viability standard protections are removed 
and there is no requirement similar to section 7 consultation under the 
Act. However, as part of their multiple-use mandate, the National 
Forest Management Act (NFMA) requires the USFS to ``provide for 
diversity of plant and animal communities based on the suitability and 
capability of the specific land area in order to meet overall multiple-
use objectives'' (16 U.S.C. 1604(g)(3)(B)). The NFMA does not mandate a 
specific degree of diversity nor does it mandate viability. In 
practice, the USFS has taken actions to conserve and avoid impacts to 
the butterfly and its habitat (see USFS 2004a, 2004b, 2007a, 2007b, 
2007c, 2007f). As a Forest Sensitive Species, the butterfly has been 
analyzed in all applicable NEPA documents (USFS 2004b). We do not know 
whether the butterfly would be designated a species of interest by the 
USFS under the new planning rule, which would be applied when the 
Lincoln National Forest Plan is revised in the coming years. Species of 
interest are those for which the responsible official determines that 
management actions may be necessary or desirable to achieve ecological 
or other multiple-use objectives (USFS planning rule; 73 FR 21468; 
April 21, 2008). The USFS's new planning rule indicated that once a 
USFS land and resource management plan has been revised, the sensitive 
species designation will no longer be needed because species of concern 
(listed, proposed, or candidate species under the Act) or species of 
interest will replace them. Although we have no information indicating 
when the plan might be revised, the USFS' new planning rule states that 
the responsible official would determine if the ecological conditions 
to support species of interest would be provided by the plan components 
for ecosystem diversity. If not, then additional species-specific plan 
components would be included (73 FR 21468; April 21, 2008). The 
Service's 2004 withdrawal of the proposed listing rule for the 
butterfly relied partly on the butterfly's inclusion in the Forest 
Sensitive Species designation for maintenance of certain protections 
for the butterfly through NEPA (69 FR 76428). Since these particular 
protections have been eliminated, and it is unclear whether the 
butterfly will be designated a species of interest under the new rule, 
it is unclear whether this change will be adequate to protect the 
butterfly.
    The petitioners state that the butterfly has no State protection, 
because New Mexico does not recognize insects as ``wildlife.'' This 
information is correct. We presented this information in the October 7, 
2004, draft Conservation Plan for which we invited public comment (69 
FR 60178), and we considered this information when we withdrew the 
proposal to list the species. State statute does not address habitat 
protection, threats to the larval food plant, or other threats that are 
not directly related to taking (killing or otherwise harming) 
individual butterflies. The petition does not indicate how a lack of 
State regulations threatens the butterfly with extinction. New Mexico 
State status as an endangered species would only convey protection from 
collection or intentional harm. As noted above, we believe the USFS' 
butterfly closure order adequately protects the species from 
collection. Moreover, the petition and information in our files do not 
contain substantial information that the butterfly is faced with 
current and future threats that could be addressed by current State 
statute.
    In summary, the petitioners provide substantial information on 
changes in

[[Page 74128]]

USFS regulations that remove the butterfly from the Forest Sensitive 
Species status, but the petitioners provide no new information since 
our 2004 withdrawal of the listing rule on the inadequacy of other 
existing regulatory mechanisms. In light of all of this information, we 
find that the petition presents substantial information that the 
petitioned action may be warranted due to the inadequacy of existing 
mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition asserts that insect control, climate change, and 
extreme weather threaten the butterfly under Factor E. The petitioners 
state that insect control on private lands was conducted within the 
Village of Cloudcroft. Newspaper articles provided by the petitioners 
substantiate that spraying of Confirm 2F was used on an area of private 
land in June of 2007. In the proposed rule (66 FR 46575; September 6, 
2001), we estimated that there were about 4 ha (10 ac) of potentially 
suitable butterfly habitat within a private development on the east 
side of the Village of Cloudcroft. From information in our files, we 
believe this private development is the same area sprayed with Confirm 
2F. It is unknown how much of the potentially suitable butterfly 
habitat was sprayed, because no further information is available in our 
files or the petition. That all of the 4 ha (10 ac) of potentially 
suitable butterfly habitat was sprayed is unlikely, because insect 
control was targeting a fir looper (Nepytia janetae) within mixed 
conifer forests, whereas the butterfly is found within open meadow 
habitat. If we assume a worst case scenario (that drift from the spray 
affected all of the 4 ha (10 ac) of potentially suitable butterfly 
habitat within this area), a small fraction (4 of 1,096 ha (10 of 2,709 
ac)) of the suitable butterfly habitat throughout the subspecies' range 
was affected, and that is not significant. As described below, the fir 
looper population has declined (USFS 2008), and we do not have any 
information to indicate that spraying for fir looper control will 
continue.
    The petitioners requested emergency listing due to the perceived 
immediate threats to the species' continued existence from a proposed 
aerial spraying in the autumn of 2007 of the biological insecticide 
Bacillus thuringiensis var. kurstaki (Btk) to control the fir looper. 
Btk is activated by the alkaline condition of the mid-gut of larvae 
that ingest it. Consequently, larvae must ingest Btk for it to be 
toxic. During summer and autumn 2007, Otero County and the USFS 
requested, and we provided, technical assistance on appropriate 
measures to minimize or avoid impacts to the butterfly (USFS 2007a; 
Otero County 2007a, 2007b). We advised them that indirect effects to 
the butterfly from Btk could be significant if the insecticide were 
applied when larvae of the butterfly were actively feeding (Service 
2007a, 2007b, 2007c, 2007d, 2007e, 2007f). The USFS conducted an 
environmental assessment under NEPA that analyzed the effects to 
private and Federal lands of Btk spraying on Federal lands (USFS 2007b, 
2007c, 2007d). Following that environmental assessment, the USFS, 
Village of Cloudcroft, and Otero County waited until they and the 
Service determined from surveys that the larvae of the butterfly were 
in diapause (inactive and not feeding) to spray Btk to control the fir 
looper (USFS 2007e, 2007f; Service 2007g, 2007h). Surveys confirmed 
that larvae of the butterfly were in diapause prior to spraying Btk on 
November 5, 2007 (USFS 2007f, 2007g, Service 2007g). Btk is sensitive 
to sunlight, usually becoming inactive within 3 to 7 days after 
application (USFS 2007c). Therefore, Btk would have been inactive when 
larvae of the butterfly emerged from diapause in the spring of 2008, 
indicating that the spraying of Btk during November 2007 did not 
measurably impact the butterfly. Post-spraying monitoring in the autumn 
of 2007 determined that the fir looper population had declined to 
nearly undetectable levels on the Lincoln National Forest and adjacent 
lands (Anderson 2008). Therefore, the USFS concluded that no spraying 
was needed during March 2008 (Anderson 2008).
    Similar to the spraying that occurred in November 2007, any future 
proposed insect control by the USFS would be analyzed under NEPA. 
However, because new USFS regulations remove the butterfly's Forest 
Sensitive Species status when the land management resource plan for the 
Lincoln National Forest is revised (see discussion under Factor D), we 
do not know whether the butterfly will be included in future NEPA 
analyses. A NEPA analysis is not required for non-Federal agency 
spraying on private lands, which comprise 49 percent of the butterfly's 
suitable habitat. We note that the Conservation Plan provided the 
framework under which the USFS and Otero County requested and received 
technical assistance on the avoidance of impacts to the butterfly. 
Through this framework and subsequent dialogue, we found that this 
process was successful in avoiding impacts to the butterfly in the 
autumn of 2007. One conservation action agreed to in the Conservation 
Plan was for the Service to provide technical assistance on management 
of the butterfly when requested by a party to the plan. We acknowledge 
that if Btk or chemical insecticides, such as Carbaryl or Confirm 2F, 
are applied when larvae of the butterfly are actively feeding, insect 
control would pose a threat to the butterfly. That such spraying 
actually occurred in 2007 during the butterfly's active feeding period, 
although admittedly on only 4 ha (10 ac), indicates that private 
landowner spraying on private lands may be a threat. The petition does 
not present references or substantial information regarding insect 
spraying beyond the autumn of 2007 and spring of 2008. However, insect 
control may be a threat in the future, based on the fact that spraying 
occurred in 2007; that the delay of additional spraying to a time when 
the butterfly was inactive took considerable time and effort by the 
Village of Cloudcroft, Otero County, USFS, and the Service; and there 
is uncertainty over how the USFS will address insect control and the 
butterfly under the new USFS regulations.
    The petition asserts that climate change is likely a greater threat 
to the butterfly than was previously considered by the Service. The 
petitioners assert that scientific information not considered in, or 
published subsequent to, the 2004 withdrawal indicates that the impact 
of climate change will be especially severe in New Mexico and the 
southwestern United States. They cite a State of New Mexico website, 
which states that the impacts of climate change and climate variability 
on the environment include the potential for prolonged drought, severe 
forest fires, warmer temperatures, increased snowmelt, and reduced snow 
pack (http://www.nmclimatechange.us/background-impacts.cfm). The 
petitioners also note that harm from climate change to butterflies has 
been particularly well documented for other species of checkerspot 
butterflies.
    The petitioners cite Parmesan (1996) to support their claim that 
the Sacramento Mountains checkerspot butterfly will be imperiled by 
climate change. Parmesan (1996, p. 765) documented a range shift due to 
population extinctions in the non-migratory Edith's checkerspot 
butterfly (Euphydryas editha) in western North America and presented 
arguments on why the shift was attributable to climate change. The 
petition correctly indicates that Penstemon neomexicanus, the only 
plant on which the butterfly is known

[[Page 74129]]

to lay eggs, is known within portions of the Capitan Mountains, which 
are adjacent to and north of the current range of the butterfly in the 
Sacramento Mountains. The petition asserts that a slight shift in 
either the butterfly's or P. neomexicanus' distribution, productivity, 
phenology, or other factors resulting from climate change could imperil 
the butterfly. The apparent northward range ``shift'' in the Edith's 
checkerspot butterfly was due to greater population extinctions at 
southern latitudes, not to a northward expansion of its range (Parmesan 
1996, p. 765). Parmesan (1996, pp. 765-766) discussed why these 
extinctions were most likely attributable to climate change rather than 
habitat destruction. If the Sacramento Mountains checkerspot butterfly 
were to respond similarly, it may decline at the southern portion of 
its range, but not expand northward to the Capitan Mountains.
    As noted under Species Information, the elevational range for the 
Sacramento Mountains checkerspot butterfly is 2,380 to 2,750 m (7,800 
to 9,000 ft), and that of Penstemon neomexicanus, on which the 
butterfly lays its eggs, is 1,830 to 2,750 m (6,000 to 9,000 ft) (New 
Mexico Rare Plant Technical Council 2008, webpage). Thus, the butterfly 
is at the upper elevational range of the plant on which it depends, so 
it would be dependent on an upward elevational shift of P. neomexicanus 
for the butterfly to shift to higher elevations.
    The petition asserts that extreme weather threatens the butterfly. 
However, other than reiterating our preliminary finding from the 2001 
proposed listing rule (66 FR 46575; September 6, 2001) that this may be 
a threat to the species, the petition presents no information or 
explanation regarding why the butterfly is threatened as a result of 
extreme weather. In our 2004 proposed listing withdrawal, we found that 
the butterfly can survive and persist despite natural events such as 
drought (69 FR 76428; December 21, 2004). Since our finding in that 
2004 withdrawal, we have no new information in our files indicating 
that there is any such threat from extreme weather currently or in the 
foreseeable future.
    In summary, the petition and information readily available to us do 
not provide substantial information that extreme weather threatens the 
butterfly. The petition and information readily available to us provide 
substantial information that indicate that the petitioned action may be 
warranted because pesticide spraying and climate change are other 
natural or manmade factors that may threaten the butterfly.

Finding

    We have reviewed the petition and the literature cited in the 
petition, and evaluated the information to determine whether the 
sources cited support the claims made in the petition. We also reviewed 
reliable information that was readily available in our files to clarify 
and verify information in the petition. Based on our evaluation of the 
information provided in the petition, and in accordance with recent 
applicable court decisions pertaining to 90-day findings, we find that 
the petition presents substantial scientific information indicating 
that listing the Sacramento Mountains checkerspot butterfly may be 
warranted. Our process for making this 90-day finding under section 
4(b)(3)(A) of the Act is limited to a determination of whether the 
information in the petition presents ``substantial scientific and 
commercial information,'' which is interpreted in our regulations as 
``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted'' 
(50 CFR 424.14(b)).
    The petitioners present substantial information indicating that the 
butterfly may be threatened by Factor D (inadequacy of existing USFS 
regulatory mechanisms) and Factor E (pesticide spraying and climate 
change) throughout the entire range of the butterfly. The petitioners 
do not present substantial information that Factors A, B, and C are 
currently, or in the future, considered a threat to the butterfly. 
Based on this review and evaluation, we find that the petition has 
presented substantial scientific or commercial information that listing 
the butterfly throughout all or a portion of its range may be warranted 
due to current and future threats under Factors D and E. As such, we 
are initiating a status review to determine whether listing the 
butterfly under the Act is warranted. We will issue a 12-month finding 
as to whether any of the petitioned actions are warranted. To ensure 
that the status review is comprehensive, we are soliciting scientific 
and commercial information regarding the butterfly.
    It is important to note that the ``substantial information'' 
standard for a 90-day finding is in contrast to the Act's ``best 
scientific and commercial data'' standard that applies to a 12-month 
finding as to whether a petitioned action is warranted. A 90-day 
finding is not a status assessment of the species and does not 
constitute a status review under the Act. Our final determination as to 
whether a petitioned action is warranted is not made until we have 
completed a thorough status review of the species, which is conducted 
following a positive 90-day finding. Because the Act's standards for 
90-day and 12-month findings are different, as described above, a 
positive 90-day finding does not mean that the 12-month finding also 
will be positive.
    We encourage interested parties to continue gathering data that 
will assist with the conservation and monitoring of the butterfly. The 
petitioners requested that critical habitat be designated for this 
species. If we determine in our 12-month finding that listing the 
butterfly is warranted, we will address the designation of critical 
habitat at the time of the proposed rulemaking.

References Cited

    A complete list of all references cited in this finding is 
available upon request from the New Mexico Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this rule are the New Mexico Ecological 
Services Office staff members (see FOR FURTHER INFORMATION CONTACT).

Authority

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

    Dated: November 12, 2008.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service
[FR Doc. E8-28119 Filed 12-4-08; 8:45 am]
BILLING CODE 4310-55-S