[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Proposed Rules]
[Pages 76990-76994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30110]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0122; MO 9221050083-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Change the Listing Status of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to revise the listing of the Canada lynx 
(Lynx canadensis) as threatened under the Endangered Species Act of 
1973, as amended (Act), to include New Mexico. We find that the 
petition presents substantial scientific or commercial information 
indicating that changing the listing status of the contiguous United 
States Distinct Population Segment of Canada lynx to include New Mexico 
may be warranted. Therefore, with the publication of this notice, we 
are initiating a further review in response to the petition, and we 
will issue a 12-month finding to determine if the petitioned action is 
warranted. To ensure that our review is comprehensive, we are 
soliciting feedback from the public regarding this species.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before February 17, 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-R6-ES-2008-0088; 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 
provided to us at 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).

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Supporting documentation we used in preparing this 
finding is available for public inspection, by appointment, during 
normal business hours at the Montana Ecological Services Field Office, 
585 Shepard Way, Helena, MT 59601. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 
address.


FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana 
Ecological Services Field Office (see ADDRESSES section), telephone 
406-449-5225. If you use a telecommunications device for the deaf 
(TDD), 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 to indicate that listing a species may be warranted, or in 
this case, to revise the listing of a species, we are required to 
promptly commence further review. To ensure that the review is complete 
and based on the best available scientific and commercial information, 
we are soliciting information from the public, other concerned 
governmental agencies, Native American Tribes, the scientific 
community, industry, or any other interested parties concerning the 
status of the lynx. We are seeking information regarding the species' 
historical and current status and distribution, its

[[Page 76991]]

biology and ecology, and threats to the species and its habitat.
    Please note that submissions 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 shall be made ``solely on the basis of the best 
scientific and commercial data available.'' At the conclusion of the 
review, we will issue the 12-month finding on the petition, as provided 
in section 4(b)(3)(B) of the Act (16 U.S.C. 1533(b)(3)(B)).
    You may submit your information concerning this 90-day finding by 
one of the methods listed in the ADDRESSES section. We will not accept 
comments sent by e-mail or fax or to an address not listed in the 
ADDRESSES section. Finally, we may not consider comments that we do not 
receive by the date specified in the DATES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. 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 90-day 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, Montana Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Endangered Species 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 must base 
this finding on information contained in the petition and supporting 
information readily available in our files at the time of the petition 
review. 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'' in the Code of Federal 
Regulations (CFR) regarding 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 the petition presented substantial information, we are 
required to promptly commence a review of the status of the species.
    We received a petition from Forest Guardians and six other 
organizations, dated August 1, 2007, requesting that we revise the 
listing status of the contiguous United States Distinct Population 
Segment of Canada lynx (lynx) (Lynx canadensis) to include the 
mountains of north-central New Mexico. We acknowledged receipt of the 
petition in a letter dated August 24, 2007. In that letter we advised 
the petitioners that we could not address their petition at that time 
because existing court orders and settlement agreements for other 
listing actions required nearly all of our listing funding. We also 
concluded that emergency listing of the lynx in New Mexico was not 
warranted.
    We received a 60-day notice of intent to sue from Forest Guardians 
on January 24, 2008, and on April 17, 2008, (the newly-named) WildEarth 
Guardians et al. filed a complaint against the Service in the U.S. 
District Court in the District of Columbia for failing to make a 90-day 
finding on their August 1, 2007, petition. We anticipate that 
completion of this finding will moot the litigation filed in the U.S. 
District Court.
    In making this finding, we relied on information provided by the 
petitioners, as well as information readily available in our files. We 
evaluated the information in accordance with 50 CFR 424.14(b). Our 
process for making this 90-day finding under section 4(b)(3)(A) of the 
Act and section 424.14(b) of our regulations is limited to a 
determination of whether the information in the petition meets the 
``substantial scientific and commercial information'' threshold.

Regulatory History

    For more information on previous Federal actions concerning the 
lynx, refer to the final listing rule published in the Federal Register 
on March 24, 2000 (65 FR 16052), and the clarifications of findings 
published in the Federal Register on July 3, 2003 (68 FR 40075), and 
January 10, 2007 (72 FR 1186). The final listing rule designated lynx 
as threatened in the contiguous United States as a Distinct Population 
Segment (DPS), including the States of Colorado, Idaho, Maine, 
Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah, 
Vermont, Washington, Wisconsin, and Wyoming. The 2003 clarification 
addressed listing status, issues related to the DPS determinations, 
threats, and definitions of resident populations and dispersers. The 
2007 clarification addressed whether any significant portion of the 
range of the lynx exists in the contiguous United States.
    The final rule designating critical habitat for lynx published in 
the Federal Register on November 9, 2006 (71 FR 66008). On July 20, 
2007, the Service announced that we would review the November 9, 2006, 
final rule after questions were raised about the integrity of 
scientific information used and whether the decision made was 
consistent with the appropriate legal standards. Based on our review of 
the final critical habitat designation, we determined that it was 
necessary to revise critical habitat. On January 15, 2007, the U.S. 
District Court for the District of Columbia issued an order stating the 
Service's deadline for a proposed rule for revised critical habitat was 
February 15, 2008, and for a final rule for revised critical habitat 
was February 15, 2009. We published a proposed rule to revise critical 
habitat for the lynx in the Federal Register on February 28, 2008 (73 
FR 10860).
    The special rule developed under section 4(d) of the Act (65 FR 
16084, March 24, 2000) defines section 9 prohibitions to lynx, as 
provided for under 50 CFR 17.31. The special rule applies general take 
prohibitions for threatened wildlife to the wild population of lynx in 
the contiguous United States, and addresses captive lynx, and 
Convention on International Trade in Endangered Species (CITES) export 
requirements.

Species Information

    Canada lynx are medium-sized cats, generally measuring 30 to 35 
inches (75 to 90 centimeters) long and weighing 18 to 23 pounds (8 to 
10.5 kilograms) (Quinn and Parker 1987, Table 1). They have large, 
well-furred feet and long legs for traversing snow; tufts on the ears; 
and short, black-tipped tails.
    Lynx are highly specialized predators of snowshoe hare (Lepus 
americanus) (McCord and Cardoza 1982, p. 744; Quinn and Parker 1987, 
pp. 684-685; Aubry et al. 2000, pp. 375-378). Lynx and snowshoe hares 
are strongly associated with what is broadly described as boreal forest 
(Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743; 
Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry et al. 2000, pp. 
378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey et 
al. 2000b, pp. 211-232). The predominant vegetation of boreal forest is 
conifer trees, primarily species

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of spruce (Picea spp.) and fir (Abies spp.) (Elliot-Fisk 1988, pp. 34-
35, 37-42). In the contiguous United States, the boreal forest types 
transition to deciduous temperate forest in the Northeast and Great 
Lakes and to subalpine forest in the west (Agee 2000, pp. 40-41). Lynx 
habitat can generally be described as moist boreal forests that have 
cold, snowy winters and a snowshoe hare prey base (Quinn and Parker 
1987, p. 684-685; Agee 2000, pp. 39-47; Aubry et al. 2000, pp. 373-375; 
Buskirk et al. 2000b, pp. 397-405; Ruggiero et al. 2000, pp. 445-447). 
In mountainous areas, the boreal forests that lynx use are 
characterized by scattered moist forest types with high hare densities 
in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest) 
with low hare densities. In these areas, lynx incorporate the matrix 
habitat (non-boreal forest habitat elements) into their home ranges and 
use it for traveling between patches of boreal forest that support high 
hare densities where most foraging occurs.
    Snow conditions also determine the distribution of lynx (Ruggiero 
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically 
adapted for hunting snowshoe hares and surviving in areas that have 
cold winters with deep, fluffy snow for extended periods. These 
adaptations provide lynx a competitive advantage over potential 
competitors, such as bobcats (Lynx rufus) or coyotes (Canis latrans) 
(McCord and Cardoza 1982, p. 748; Buskirk et al. 2000a, pp. 86-95; 
Ruediger et al. 2000, p. 1-11; Ruggiero et al. 2000, pp. 445, 450). 
Bobcats and coyotes have a higher foot load (more weight per surface 
area of foot), which causes them to sink into the snow more than lynx. 
Therefore, bobcats and coyotes cannot efficiently hunt in fluffy or 
deep snow and are at a competitive disadvantage to lynx. Long-term snow 
conditions presumably limit the winter distribution of potential lynx 
competitors such as bobcats (McCord and Cardoza 1982, p. 748) or 
coyotes.

Lynx Habitat Requirements

    Because of the patchiness and temporal nature of high-quality 
snowshoe hare habitat, lynx populations require large boreal forest 
landscapes to ensure that sufficient high quality snowshoe hare habitat 
is available and to ensure that lynx may move freely among patches of 
suitable habitat and among subpopulations of lynx. Populations that are 
composed of a number of discrete subpopulations, connected by 
dispersal, are called metapopulations (McKelvey et al. 2000c, p. 25). 
Individual lynx maintain large home ranges (reported as generally 
ranging between 12 to 83 miles \2\ (31 to 216 kilometers \2\)) (Koehler 
1990, p. 847; Aubry et al. 2000, pp. 382-386; Squires and Laurion 2000, 
pp. 342-347; Squires et al. 2004b, pp. 13-16, Table 6; Vashon et al. 
2005a, pp. 7-11). The size of lynx home ranges varies depending on 
abundance of prey, the animal's gender and age, the season, and the 
density of lynx populations (Koehler 1990, p. 849; Poole 1994, pp. 612-
616; Slough and Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-
386; Mowat et al. 2000, pp. 276-280; Vashon et al. 2005a, pp. 9-10). 
When densities of snowshoe hares decline, for example, lynx enlarge 
their home ranges to obtain sufficient amounts of food to survive and 
reproduce.
    In the contiguous United States, the boreal forest landscape is 
naturally patchy and transitional because it is the southern edge of 
the distributional range of the boreal forest. This generally limits 
snowshoe hare populations in the contiguous United States from 
achieving densities similar to those of the expansive northern boreal 
forest in Canada (Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 
24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84). 
Additionally, the presence of more snowshoe hare predators and 
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx 
generally occur at relatively low densities in the contiguous United 
States compared to the high lynx densities that occur in the northern 
boreal forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or the 
densities of species such as the bobcat, which is a habitat and prey 
generalist.
    Lynx are highly mobile and generally move long distances (greater 
than 60 miles (100 kilometers)) (Aubry et al. 2000, pp. 386-387; Mowat 
et al. 2000, pp. 290-294). Lynx disperse primarily when snowshoe hare 
populations decline (Ward and Krebs 1985, pp. 2821-2823; O'Donoghue et 
al. 1997, pp. 156, 159; Poole 1997, pp. 499-503). Subadult lynx 
disperse even when prey is abundant (Poole 1997, pp. 502-503), 
presumably to establish new home ranges. Lynx also make exploratory 
movements outside their home ranges (Aubry et al. 2000, p. 386; Squires 
et al. 2001, pp. 18-26).
    The boreal forest landscape is naturally dynamic. Forest stands 
within the landscape change as they undergo succession after natural or 
human-caused disturbances such as fire, insect epidemics, wind, ice, 
disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000, 
pp. 47-69). As a result, lynx habitat within the boreal forest 
landscape is typically patchy because the boreal forest contains stands 
of differing ages and conditions, some of which are suitable as lynx 
foraging or denning habitat (or will become suitable in the future due 
to forest succession) and some of which serve as travel routes for lynx 
moving between foraging and denning habitat (McKelvey et al. 2000a, pp. 
427-434; Hoving et al. 2004, pp. 290-292).
    Snowshoe hares comprise a majority of the lynx diet (Nellis et al. 
1972, pp. 323-325; Brand et al. 1976, pp. 422-425; Koehler 1990, p. 
848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat 
et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires et al. 
2004b, p. 15, Table 8). When snowshoe hare populations are low, female 
lynx produce few or no kittens that survive to independence (Nellis et 
al. 1972, pp. 326-328; Brand et al. 1976, pp. 420, 427; Brand and Keith 
1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996, 
pp. 953-958; O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000, 
pp. 388-389; Mowat et al. 2000, pp. 285-287). Lynx prey 
opportunistically on other small mammals and birds, particularly during 
lows in snowshoe hare populations, but alternate prey species may not 
sufficiently compensate for low availability of snowshoe hares, 
resulting in reduced lynx populations (Brand et al. 1976, pp. 422-425; 
Brand and Keith 1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat et 
al. 2000, pp. 267-268).
    In northern Canada, lynx populations fluctuate in response to the 
cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat 
et al. 2000, pp. 270-272). Although snowshoe hare populations in the 
northern portion of their range show strong, regular population cycles, 
these fluctuations are generally much less pronounced in the southern 
portion of their range in the contiguous United States (Hodges 2000b, 
pp. 165-173). In the contiguous United States, the degree to which 
regional local lynx population fluctuations are influenced by local 
snowshoe hare population dynamics is unclear. However, it is 
anticipated that because of natural fluctuations in snowshoe hare 
populations, there will be periods when lynx densities are extremely 
low.
    Because lynx population dynamics, survival, and reproduction are 
closely tied to snowshoe hare availability, snowshoe hare habitat is a 
component of lynx habitat. Lynx generally concentrate their foraging 
and hunting activities in areas where snowshoe hare

[[Page 76993]]

populations are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985, 
pp. 2821-2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp. 
155, 159-160 and 1998, pp. 178-181). Snowshoe hares are most abundant 
in forests with dense understories that provide forage, cover to escape 
from predators, and protection during extreme weather (Wolfe et al. 
1982, pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges 2000a, 
pp. 136-140 and 2000b, pp. 183-195). Generally, hare densities are 
higher in regenerating, earlier successional forest stages because they 
have greater understory structure than mature forests (Buehler and 
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp. 
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, p. 63, 141; Griffin 
2004, pp. 84-88). However, snowshoe hares can be abundant in mature 
forests with dense understories (Griffin 2004, pp. 53-54).
    Within the boreal forest, lynx den sites are located where coarse 
woody debris, such as downed logs and windfalls, provides security and 
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744; 
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion 
2000, pp. 346-347; Organ 2001). The amount of structure (e.g., downed, 
large, woody debris) appears to be more important than the age of the 
forest stand for lynx denning habitat (Mowat et al. 2000, pp. 10-11).

The 14-State Canada Lynx DPS

    Lynx were listed in 2000 within what was determined to be the 
contiguous United States DPS, which included the known current and 
historical range of the lynx (68 FR 40080). This range included the 
States of Colorado, Idaho, Maine, Minnesota, Montana, New Hampshire, 
New York, and Washington, and also areas that could support 
dispersers--portions of Michigan, Oregon, Utah, Vermont, Wisconsin, and 
Wyoming (68 FR 40099). Other areas outside of boreal forest, where 
dispersing lynx had only been sporadically documented, were not 
considered to be within the range of the lynx, because they were deemed 
incapable of supporting lynx; these areas included Connecticut, 
Indiana, Iowa, Massachusetts, Nebraska, Nevada, North Dakota, Ohio, 
Pennsylvania, South Dakota, and Virginia (68 FR 40099). New Mexico was 
not included in this list of States because no lynx occurred there, and 
no lynx had ever been documented there, even sporadically, and it 
therefore was not considered in the then current or historical range of 
the species (68 FR 40083). In addition, no review of potential habitat 
in New Mexico was conducted; we did not consider lynx recently released 
into Colorado that strayed into New Mexico as sufficient reason to 
include New Mexico within the range of lynx because there was no 
evidence that habitat in New Mexico historically supported lynx (68 FR 
40083, July 3, 2003).
    In 1998, when the Service proposed to list the lynx in the United 
States, no wild (or reintroduced) lynx were known to exist in Colorado, 
which represented the extreme southern edge of the species' range (65 
FR 16059, March 24, 2000). Boreal forest habitat in Colorado and 
southeastern Wyoming, the Southern Rocky Mountain Region, is isolated 
from boreal forest in Utah and northwestern Wyoming, and is naturally 
highly fragmented (65 FR 16059, March 24, 2000). It was uncertain 
whether Colorado had ever supported a small self-sustaining lynx 
population, or whether historical records were of dispersers that 
arrived during high population cycles of lynx. Some of these dispersers 
may have remained for a period of years if hare populations were high 
enough to support residents and reproduction, but eventually succumbed 
to a lack of consistent, high quality habitat and food sources.
    In 1999, the Colorado Department of Wildlife reintroduced 22 wild 
lynx from Canada and Alaska into southwestern Colorado (Shenk 2007, p. 
20). By 2003, when we clarified the listing rule (68 FR 40076, July 3, 
2003), no data indicated that the lynx released could be supported by 
the habitat available in Colorado. In her 2007 Wildlife Research 
Report, Shenk continued to conclude that ``what is yet to be determined 
is whether current conditions in Colorado can support the recruitment 
necessary to offset annual mortality in order to sustain the 
population'' (Shenk 2007, p. 18). Colorado was included in the 14-state 
DPS in 2000, because records indicated that lynx habitat occurred there 
historically; however, it was not known to sustain lynx populations. No 
information existed in 2000 when the final rule was published to 
indicate that lynx existed in New Mexico, that it was ever occupied 
historically, or that it could sustain lynx, therefore it was not 
included in the listing rule or special rule concerning lynx in the 
contiguous 14-State DPS. We now have documentation that lynx 
reintroduced in Colorado have dispersed in many directions, primarily 
into New Mexico, Utah, and Wyoming, but also into eight other States 
(Shenk 2007, pp. 6, 9). No reproduction has been documented in New 
Mexico or Utah, but one den was found in Wyoming (Shenk 2007, p. 15).
    We included an analysis in the final lynx listing rule (68 FR 
40081) on whether lynx were both discrete and significant in each of 
the four regions of the contiguous United States where it exists (the 
Northeast, Great Lakes, Southern Rocky Mountains, and Northern Rocky 
Mountains/Cascades). We determined that none of the regions 
individually constitute significantly unique or unusual ecological 
setting and, therefore, did not individually meet the DPS criteria. 
Therefore, the lynx was listed as a single contiguous United States DPS 
defined by 14 States.

The Petition

    The August 1, 2007, petition requests that we ``update and amend 
the lynx's listing status to include the mountains of north-central New 
Mexico.'' Their petition presents information with respect to three 
topic areas: (A) Compliance with the ESA, our 1996 ``Policy Regarding 
the Recognition of Distinct Vertebrate Population Segments under the 
Endangered Species Act'' (DPS Policy, 61 FR 4722), and the special 
listing rule and preamble to the final listing rule; (B) use of best 
scientific and commercial data available; and (C) the necessity for 
lynx in New Mexico to be listed to ensure the survival and recovery of 
lynx in the southern Rockies.
    The petition seeks modification of the currently listed 14-state 
DPS in light of the following factors:
    1. The petitioners indicate that the Service:
    (a) Listed a single contiguous United States DPS;
    (b) Determined that, as a Federal agency, it is responsible for 
coordinating recovery for a species that crosses State boundaries;
    (c) Discussed 14 individual States only in the context of 
describing lynx historical range, and not as a limitation on the 
species' listing status; and
    (d) Developed language in the special listing rule for lynx (50 CFR 
17.40(k)) applying prohibitions to all lynx found in the contiguous 
United States.
    2. The petitioners indicate that:
    (a) The DPS Policy prohibits the Service from using political 
boundaries below the international level when listing DPSs;
    (b) The Service cannot use the boundary between States to subdivide 
a single biological population; and
    (c) Use of a species' known historical range to define its listing 
status is inconsistent with the policy because it deems portions of the 
current range to be markedly separate without actual discreteness 
analysis.

[[Page 76994]]

    3. The petitioners present information that the Act authorizes the 
listing of a species, subspecies, or DPS; the Service listed a United 
States DPS based on the international boundary with Canada, and no 
further distinctions (e.g., limiting to specific States) can be made.
    4. The petitioners discuss and provide information to support their 
assessment that the lynx should be listed in New Mexico (Ruediger et 
al. 2000; Frey 2006; Frey 2003; Malaney 2003; Malaney and Frey 2005; 
BISON 2003; Checklist 2003; and Shenk 2001, 2005a, 2005b, 2006, 2007). 
The petitioners indicate that the Southern Rockies include high 
elevation, mountainous habitat that extends into north-central New 
Mexico. They indicate that, although no known historical occurrence 
records of lynx in New Mexico exist (Frey 2006, p. 20), we should 
carefully review the forest zones in New Mexico to ascertain whether 
suitable habitat exists.
    5. The petitioners discuss why the lynx final listing rule is not 
logical and is contrary to the purpose and goals of the Act that 
include conserving ecosystems upon which species depend. The 
petitioners indicate that lynx traveling into New Mexico could be 
legally shot and hunted, and that this is contrary to the purpose of 
the Act, which is to provide a means whereby the ecosystems upon which 
threatened and endangered species depend may be conserved.

Finding

    We reviewed the petition, supporting information provided by the 
petitioners, and information in our files.
    We find that the petition presents substantial scientific or 
commercial information indicating that changing the listing status of 
Canada lynx to include New Mexico in the threatened contiguous United 
States Distinct Population Segment may be warranted. Therefore, we will 
initiate a review of the specific points raised by the petitioners and 
the best available information, and present our analysis and 
determination in our 12-month finding.
    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 review of issues raised in the petition that are 
substantial, which is conducted following a substantial 90-day finding. 
Because the Act's standards for 90-day and 12-month findings are 
different, as described above, a substantial 90-day finding does not 
mean that the 12-month finding will result in a warranted finding.

References Cited

    A complete list of all references cited herein is available upon 
request from the Montana Ecological Services Field Office (see the FOR 
FURTHER INFORMATION CONTACT section).

Author

    The primary authors of this document are staff from the Montana 
Ecological Services Field Office (see the FOR FURTHER INFORMATION 
CONTACT section).

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 12, 2008.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-30110 Filed 12-17-08; 8:45 am]
BILLING CODE 4310-55-P