[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Proposed Rules]
[Pages 45396-45411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21195]


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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; 12-Month Finding 
on a Petition To List the Sacramento Mountains Checkerspot Butterfly as 
Endangered with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
12-month finding on a petition to list the Sacramento Mountains 
checkerspot butterfly (Euphydryas anicia cloudcrofti) as an endangered 
species and to designate critical habitat under the Endangered Species 
Act of 1973, as amended (Act). After a thorough review of all available 
scientific and commercial information, we find that listing the 
subspecies is not warranted at this time. We ask the public to continue 
to submit to us any new information that becomes available concerning 
the status of or threats to the subspecies. This information will help 
us to monitor and encourage the conservation of the subspecies.

DATES: This finding was made on September 2, 2009.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2008-0110. Supporting 
documentation we used to prepare this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Office, 2105 
Osuna NE, Albuquerque, NM 87113; telephone (505) 346-2525; facsimile 
(505) 346-2542. Please submit any new information, materials, comments, 
or questions concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Office (see ADDRESSES). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Endangered Species Act (Act) (16 U.S.C. 
1531 et seq.) requires that, for any petition to revise the List of 
Endangered and Threatened Wildlife that contains substantial scientific 
and commercial information that listing may be warranted, we make a 
finding within 12 months of the date of receipt of the petition on 
whether the petitioned action is: (a) Not warranted, (b) warranted, or 
(c) warranted, but the immediate proposal of a regulation implementing 
the petitioned action is precluded by other pending proposals to 
determine whether species are threatened or endangered, and expeditious 
progress is being made to add or remove qualified species from the List 
of Endangered and Threatened Wildlife. Section 4(b)(3)(C) of the Act 
requires that a petition for which the requested action is found to be 
warranted but precluded be treated as though resubmitted on the date of 
such finding, that is, requiring a subsequent finding to be made within 
12 months.

[[Page 45397]]

We must publish these findings in the Federal Register.

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 
our draft Conservation Plan for the Sacramento Mountains checkerspot 
butterfly (Euphydryas anicia cloudcrofti) (Conservation Plan) (69 FR 
60178), which we 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 withdrew 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.
    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. In a July 26, 2007, letter to the petitioners, we acknowledged 
the petition and responded that we intended to make a finding on 
whether the petition presented substantial information that the 
requested action may be warranted, to the maximum extent practicable 
within 90 days of receipt of the petition, according to the provisions 
of section 4(b)(3) of the Act. 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. In a December 10, 2007, letter, 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 required 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.
    On December 5, 2008, we published a 90-day petition finding for the 
butterfly in the Federal Register (73 FR 74123). We found that the 
petition presented substantial information indicating that listing the 
subspecies may be warranted, and we initiated a review of the 
subspecies' status within its range. This notice constitutes our 12-
month finding for the petition to list the butterfly as endangered with 
critical habitat.

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. 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 known to lay their eggs only 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 fourth or 
fifth instar (the period between molts in the larval stage of the 
butterfly), enter an obligatory and extended diapause (maintaining a 
state of prolonged 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 from the 
chrysalis 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 taxon prior to the time it 
was formally acknowledged as a new subspecies (Ferris and Holland 
1980). The current 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 (U.S. Forest Service (USFS) 2009a, pp. 1 and appendices; 
Service et al. 2005, p. 12). The potential range of the butterfly to 
the east and west is likely restricted because the nonforested areas 
are below 2,377 m (7,800 ft) in elevation, and the butterfly does not 
occur below this elevation (Service et al. 2005, p. 9).
    The USFS estimates that there are about 1,093 hectares (ha) (2,700 
acres (ac)) of suitable butterfly habitat on USFS (560 ha (1,385 ac)) 
and private lands (532 ha (1,315 ac)) (USFS 2004a, 2008a, p. 18). Of 
this, about 60 to 70 percent, or roughly 647 to 769 ha (1,600 to 1,900 
ac), might be occupied in a given year (USFS 2004a, p. 2; 2009b, p. 2). 
These estimates are the best and most recent information we have 
regarding the range and distribution of the butterfly.

Overview of Survey Data

    Larval and adult abundance surveys have been conducted for the 
butterfly since 1998 (USFS 2009a; Pittenger and Yori 2003). Many 
surveys have been ad hoc and not based upon rigorous methodology. 
Often, individuals were tallied along transects or during chance 
encounter surveys. The USFS has also established and monitored larval 
plots

[[Page 45398]]

since 1999 (USFS 2009a). Analysis of these coarse surveys for larvae 
provide only relative comparisons of mean abundance between years. 
These ad hoc estimates of abundance are based upon total larval counts. 
This type of abundance estimate, frequently known as an index to 
abundance, is known to be biased low (that is, the estimate is always 
lower than the true population number) (White et al. 1982, p. 32; 
Pollock et al. 1990, pp. 30-32). Thus, these data document presence or 
absence on specific plots through time, but are of little use in 
determining population trends of the butterfly. This is, in part, 
because from 1999 to 2003, larval tents that were found on one sampling 
day were not marked, so they may have been recounted on a subsequent 
sampling day (USFS 2004b, pp. 10-11).
    In addition, confounding factors (such as weather, observer bias, 
varying effort), limited replication (one sample per meadow per year), 
and sampling errors limit the applicability of those factors in 
evaluating the butterfly's status (see USFS 2009a). Moreover, in some 
years, the USFS also conducted ad hoc surveys of adult butterflies 
(USFS 2009a). Adult and larval surveys were not conducted at randomly 
selected locations and may not correspond to the butterfly population 
rangewide. The larval plots (areas that are permanently marked and 
annually surveyed) are located within 10 meadows but are only about 223 
square (sq) m (2,400 sq ft). Our review of the data from the larval 
plots found that the small scale of survey plots does not relate 
meaningfully to the demographics of the butterfly. For example, the 
USFS did not detect larvae within 6 of 10 plots in 2008, but adults 
were observed within the four meadows where larvae were not found on 
the plots, confirming the continued occupancy by the subspecies (USFS 
2009a). Had we relied upon the larval plot data, we would have 
inaccurately concluded that the butterfly was absent from the meadows. 
Moreover, the disparity among survey methods, effort, and the data 
collected make it difficult to assess the butterfly population not only 
in occupied meadows, but also rangewide. Thus, the low numbers of 
butterflies observed during dry years, low survey effort, and spatial 
variability of food plants make it difficult to evaluate any historical 
trends or to make predictions about future population trends.
    The rangewide population size of the butterfly remains unknown 
because comprehensive surveys are logistically difficult and, 
therefore, have not been conducted. As noted above, limited surveys 
have been conducted only in small parts of its range. An assessment of 
population trends using these data would not be accurate, unless we 
could demonstrate that these limited data are representative of the 
overall population. We expect detecting overall trends will be 
difficult for this species, given data limitations, the cost of 
comprehensive surveys; and the likelihood of natural, annual, and 
spatial variations.
    The USFS has been conducting presence-or-absence surveys since 1998 
to estimate the range of the butterfly (USFS 2009a). The known range of 
the butterfly has not been expanded since 2004 (USFS 2009a). Although 
we do not have standardized monitoring data to evaluate whether the 
butterfly's population is increasing, stable, or declining on a gross 
scale, our observations indicate that neither the range of the 
butterfly, nor its persistence within general localities has decreased. 
Based on the best available information, we find that the butterfly 
continues to persist within the same general localities (USFS 2009a; 
Service 2009; Pittenger and Yori 2003; McIntyre 2005, 2008; Ryan 2007, 
pp. 11-12). The USFS and Service will continue to survey and monitor 
the butterfly population, although we intend to refine the techniques 
used to improve the quality and applicability of the data collected 
(USFS 2009a, p. 1).
    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.

Summary of Factors Affecting the Species

    Section 4 of the Act (U.S.C. 1533 et seq.) and implementing 
regulations (50 CFR part 424) set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. In making this finding, we summarize below the information 
regarding the status and threats to the butterfly in relation to the 
five factors provided in section 4(a)(1) of the Act. Under section 
4(a)(1) of the Act, we may list a species on the basis of any of five 
factors: (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 12-month finding, we have 
considered all scientific and commercial information received or 
acquired up to the publication of the 2004 withdrawal of the proposed 
rule (69 FR 76428; December 21, 2004) and any information received 
after that finding, including information in response to the most 
recent 90-day finding (73 FR 74123; December 5, 2008). The petitioners 
provided additional comments and information on the butterfly during 
the comment period for the 90-day finding. We reviewed and incorporated 
this information where appropriate. Our evaluation of this information 
is presented below.

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

    Under Factor A, we considered whether the Sacramento Mountain 
checkerspot butterfly is threatened by the following: Private property 
development, recreational impacts; habitat-altering projects in 
relation to roads, powerlines, and other small-scale impacts; livestock 
grazing; catastrophic wildfire and fire suppression; noxious weeds.
Development
    The petitioners assert that, although development within the 
Village of Cloudcroft decreased following the September 6, 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 larval host plant Penstemon neomexicanus. If the 
survey is positive for the presence of the butterfly or its habitat, 
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

[[Page 45399]]

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, although one survey was conducted within potential 
habitat and found no butterflies present (J. McIntyre, pers. comm., 
2009). The lack of development may be because the area has experienced 
water shortages in recent years (Friederici 2007, p. 1). In fact, water 
was so scarce that the Village of Cloudcroft was forced to haul water 
in recent years and subsequently installed the nation's first reuse 
system, where treated wastewater is combined with incoming water to 
produce water for household use (Kurland 2007). The petition presents 
information on these issues that was previously submitted in comments 
on the draft Conservation Plan (69 FR 60178; October 7, 2004), draft 
environmental assessment (69 FR 64710; November 8, 2004), and draft 
economic analysis (69 FR 64710; November 8, 2004) for the butterfly. 
The draft environmental assessment and draft economic analysis did not 
contemplate effects of the then-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 sq kilometers (km) (54 square miles (mi)) 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 be built within the boundary of the then-
proposed critical habitat for the butterfly. However, not all of these 
new residential projects would be located within areas that contain 
butterfly habitat. The economic analysis assumed that 55 to 69 of the 
landowners would 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 would be found in 8 to 24 of those 55 residential project 
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 occupied butterfly habitat may be 
affected by residential and commercial 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 
(residential) development on the east side of the Village of 
Cloudcroft. Thus, we continue to estimate that about 2 percent of the 
suitable occupied 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 development. It is likely that a small 
but unknown number of butterflies may be taken through development 
actions. Nevertheless, we do not believe that this level of impact is a 
significant threat to the butterfly. The discussion of residential and 
commercial development in the withdrawal for the butterfly (69 FR 
76428; December 21, 2004) is still the best available information that 
we have. As such, we have no reason to believe that residential and 
commercial development will threaten the butterfly in the future.
Off-Highway Vehicles
    In our 2004 withdrawal of the proposed rule, we evaluated increased 
efforts by the USFS to reduce off-highway vehicle (OHV) use in Bailey 
Canyon and campgrounds where the butterfly occurs, and we analyzed 
information on the extent and nature of off-road impacts to the 
butterfly and its food plants. We concluded that the specific actions 
(fencing, signs, and barriers) the USFS had taken to reduce OHV impacts 
appeared to be effective, that only a small proportion of occupied 
habitat would be impacted annually by continuing OHV use, that the 
magnitude of the impact is low, and that OHV use does not significantly 
threaten the butterfly (69 FR 76428; December 21, 2004). As detailed 
below, we find this continues to reflect the best available 
information.
    The 90-day finding noted that we had no additional information on 
the increase in OHV use since our withdrawal of the proposed rule to 
list the butterfly in 2004 (73 FR 74123). The petitioners presented 
some additional information during the open comment period. They claim 
that the butterfly will not be considered in the forthcoming travel 
management regulations (described below) until it is listed, a 
candidate, or proposed for listing, and section 7 consultations are 
required for activities that may affect the species (WildEarth 
Guardians 2009, p. 7). Additionally, they believe that OHV use is a 
growing activity on the Lincoln National Forest (Forest) since 2004, 
based on a 2007 monitoring report from the Forest (WildEarth Guardians 
2009, p. 7; USFS 2008b, pp. 9-10).
    We previously recognized that OHV use was increasing on the Forest, 
and that impacts were occurring on about half of the occupied butterfly 
habitat (225 ha (555 ac)) (69 FR 76428; December 21, 2004; USFS 2004a). 
In 2004, we found that fencing, signs, and monitoring by law 
enforcement personnel had stopped OHVs from entering butterfly habitat 
on USFS lands, and very little habitat disturbance can be attributed to 
OHVs in a given year (69 FR 76440). We also noted that the USFS is 
revising its travel management regulations to designate a system of 
existing roads and trails and to regulate or prohibit certain motor 
vehicle uses (69 FR 42381; July 15, 2004, and 69 FR 76428; December 21, 
2004). In November 2005, the USFS issued the Travel Management Rule for 
designation of routes and areas for motorized vehicle use (36 CFR 
212.56). The rule requires that the USFS designate a system of roads, 
trails, and areas for motor vehicle use by vehicle class and, if 
appropriate, by time of year (70 FR 68264; November 5, 2005). The 
directives establishing agency policy and standard processes to follow 
were recently finalized (December 9, 2008; 73 FR 74689). As part of 
this effort, the Forest inventoried and mapped dispersed recreation 
sites (USFS 2008b, p. 2). The current policy on the Forest permits 
driving vehicles up to 91 m (300 ft) from either side of an open, 
authorized road or trail to camp or picnic (USFS 2009c, p. 1). In some 
areas, the Forest found that user-created roads had expanded beyond the 
91-m (300-ft) distance currently allowed under the Forest Plan (USFS 
2008b, p. 2). Through the travel management process, the Forest intends 
to restrict the current distance to 30 m (100 ft) (USFS 2009d, p. 1) 
and will produce new maps to reflect that. Once the designation of 
existing roads and trails that are open for motor vehicle use is 
complete, the Forest will prohibit motor vehicle use off the designated 
system. Still, this Rule will not increase the agency's budget or the 
number of law enforcement officers. However, the designation of a 
system of roads and trails will enhance enforcement by substituting a 
regulatory prohibition for closure orders and providing for a 
standardized motor vehicle use map supplemented by signage (70 FR 
68270; November 9, 2005). This process should be complete during fiscal 
year 2009 (USFS 2009e, p. 5). We agree that some individual butterflies 
or their food plants may be killed or injured by

[[Page 45400]]

OHVs. However, we believe the revised travel management regulations 
will further reduce the impact of motorized vehicles on the butterfly 
and its habitat by providing a consistent policy that can be applied to 
all classes of motor vehicles, including OHVs. We have considered the 
information presented by WildEarth Guardians, including the travel 
analysis report on the Lincoln National Forest (USFS 2008a, entire 
document), and conclude that OHVs are not a significant threat to the 
butterfly now or in the future.
    The USFS reported the quantity of land currently in use as Forest 
roads and within the habitats of species that are potentially affected 
by the presence of roads (USFS 2008a, p. 18). One category of data 
reported is ``acres of habitat lost to road.'' The Forest estimated 
that 51 ha (126 ac) of Forest-wide roads occurred in meadows within the 
range of the butterfly's habitat. The petitioners claim that this 
amount of occupied butterfly habitat has been lost to road construction 
and believe that this loss may be even more significant to the survival 
of the butterfly than the amount of private lands impacted by 
development. This category is a simple calculation based upon the total 
miles of roads that traverse meadow habitat of the butterfly multiplied 
by the average road width. That is, 119 km (74 mi) of roads multiplied 
by an average road width of 4.2 m (14 feet), equaling 51 ha (126 ac), 
traverse butterfly habitat (USFS 2008a, p. 18). While the estimate is 
new information, we previously recognized that roads have been 
historically constructed within meadows likely occupied by the 
butterfly. Therefore, we do not consider these existing roads a new 
threat because none was constructed since our 2004 withdrawal (69 FR 
76428; December 21, 2004). After reviewing this information, we affirm 
that the OHV use and road construction do not present a current or 
foreseeable future threat to the butterfly.
Camping
    As noted above, the existing policy on the Forest for the past 20 
years has been to allow motorized travel anywhere within 91 m (300 ft) 
of either side of an open road or trail on USFS lands to reach a 
dispersed camp site (USFS 2008a, p. 27). On current motorized trails, 
use is limited to vehicles that are less than 127 centimeters (50 
inches) wide (USFS 2008a, p. 22). The Forest gathered data in July 2007 
to locate as many dispersed camping sites as possible (USFS 2008a, pp. 
27-28). They recorded 477 dispersed camping sites on the entire 
Sacramento Ranger District, but did not report how many were within 
meadows occupied by the butterfly or other habitat types (USFS 2008a, 
p. 27). Nevertheless, to address this situation, the Forest intends to 
limit driving to those dispersed camping sites within 30 m (100 ft) of 
an open, authorized road or trail through the Travel Management Rule 
process that will be finalized in Fiscal Year 2009 (USFS 2009c; p. 1; 
2009d, p. 1). This action would prohibit the use of a motorized vehicle 
to access 305 of the 477 of the dispersed camping sites on the 
Sacramento Ranger District that are currently beyond the 30-m (100-ft) 
distance (USFS 2008a, p. 27). This change will lessen the chances of 
individual butterflies and their food plants being harmed from these 
activities. We believe this process will further protect butterflies 
and food plants from deleterious effects of motorized vehicles and 
camping.
    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 the 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 
have no information to indicate that camping has increased since 2004 
in habitats occupied by the butterfly. The USFS reduced capacity within 
Deerhead Campground by 20 percent and intends to reduce the capacity of 
Sleepygrass Campground by 12 percent (removal of 21 campsites, 27 
picnic locations, and 8 toilets) within occupied butterfly habitat by 
2012 (USFS 2005a, p. 5; 2008c, pp. 13-14). Since 2004, they have also 
reduced the amount of disturbance within occupied butterfly habitat in 
Black Bear, Slide, Aspen, and Deerhead campgrounds (USFS 2005a, pp. 2-
4; 2009a; 2009b, p. 1). These actions have included restricting access 
to occupied butterfly habitat, and surveying and moving larvae in three 
campgrounds prior to capital improvements that redesigned camping 
facilities to reduce the number of campers and remove picnic tables 
(Service 2005; 2005b, p. 11; USFS 2003, 2009a). Similar improvements to 
butterfly habitat within Sleepygrass Campground have not yet been 
initiated but will likely be initiated this year and be completed by 
2012 (USFS 2008c, p. 14; 2009d, p. 1). When the project within 
Sleepygrass Campground is complete, all eight of the campgrounds that 
contain occupied butterfly habitat will have improved, thereby 
resulting in significantly fewer impacts to the species than in 2001. 
We are not aware of any information that supports the contention that 
camping-related impacts to the butterfly or its habitat have increased 
or are likely to do so in the foreseeable future. We do not believe 
that camping-related activities will result in significant population-
level impacts to the butterfly. Therefore, we do not consider 
disturbance related to camping or campgrounds to be a threat to the 
butterfly now or in the foreseeable future.
Mountain Biking
    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 surveys and either 
avoiding or moving larvae during large events, such as mountain bike 
races (69 FR 76428; December 21, 2004). We concluded that, while 
mountain biking does affect the butterfly and its food 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 that such impacts have increased 
since 2004. Consequently, based on the best available information, we 
find that mountain biking is not a threat to the butterfly currently or 
in the foreseeable future.
Powerlines and Other Small-Scale Impacts
    The petitioners discuss the impacts of powerlines and other small-
scale impacts by comparing our discussion of those impacts in our 2004 
withdrawal of the proposed rule (69 FR 76428; December 21, 2004) to our 
discussion of those impacts in our 2001 proposed rule (66 FR 46575; 
September 6, 2001). The USFS has committed to continuing the use of 
seasonal restrictions, surveying and moving larvae, or placing 
avoidance buffer areas around larvae to avoid or minimize impacts to 
the butterfly when the USFS is planning and implementing projects (USFS 
2008e, p. 36; 2009a). As noted below, some temporary impacts to food 
plants and habitat have occurred, but we believe these restrictions 
have significantly reduced impacts on the butterfly. In a letter from 
the Forest Supervisor, the USFS expressed a commitment to measures 
aimed at minimizing potential impacts to the butterfly from activities 
within the purview of their authority as a land

[[Page 45401]]

management agency (USFS 2009a, p. 1). Because the USFS continues to 
carefully monitor and coordinate with the Service, we believe these 
stipulations (the use of seasonal restrictions, surveying and moving 
larvae, and placing avoidance buffer areas around larvae) will continue 
to be adequate to minimize potential impacts to the butterfly.
    Since the Service's withdrawal of the proposed rule, we are aware 
of the following project-related impacts on USFS lands: Village of 
Cloudcroft waterline (2.8 ha (6.8 ac) of temporary impacts); Pines 
Campground water repair (0.04 ha (0.1 ac) of temporary impacts); Cox 
Canyon Powerline (3.1 ha (7.6 ac) of temporary impacts); mowing along 
Highway 82 (1.2 ha (2.9 ac) of temporary impacts), and Silver Springs 
Powerline (1.1 ha (2.8 ac) of temporary impacts) (USFS 2007a, p.1). 
These projects were all completed within the growing season and 
revegetated the following year with host plants (Service 2004b). We are 
also aware that up to about 2.8 ha (7 ac) of habitat may be temporarily 
impacted by a recent proposal to salvage logs (USFS 2008e, p.42). 
Previous monitoring found that small temporary disturbances to 
butterfly habitat, such as from dragging a salvaged log through a 
meadow occupied by the butterfly, naturally revegetated with native 
plants in one growing season (USFS 2002a, p. 1; Service 2004b). We have 
found that small-scale temporary impacts to the butterfly and its 
habitat do not appear to affect the viability of the species because it 
continues to be found in the area, although we do not know whether the 
butterfly population in the area is increasing or decreasing. We do not 
consider this level of limited take of individuals or temporary 
disturbance of habitat to be a significant threat to the butterfly. In 
our withdrawal, we acknowledged that, although some restrictions were 
likely to be placed on ground-disturbing projects (such as when 
constructing a new powerline), the nature of these impacts and the 
recognition that adjacent habitat will remain intact enabled us to 
conclude that the activity represented only a limited threat to the 
species (69 FR 73428). We believe this is still the best available 
information. The current level of impact is not a threat to the 
butterfly. We have no information or reason to believe that this level 
of impact will increase in the foreseeable future.
Cattle Grazing
    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 allotments for medium-
intensity grazing, the effects on the butterfly and its habitat would 
be minimal and would 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 presented 
some new information about cattle grazing in their comments on the 2008 
90-day finding. We review this and other new information below.
    The USFS monitors and manages allotments to maintain a minimum of 
10 cm (4 in) end-of-season stubble height, which generally equates to 
35 percent forage utilization (Holechek and Galt 2000, p. 13; USFS 
2004c, 2009f). The USFS manages cattle allotments consistent with 
existing range management standards and guidelines under its Forest 
Plan, and when management adjustments are necessary to meet the forage 
levels, adjustments are made through the permit administration process 
(USFS 2004d). Moreover, the USFS manages and protects long-term range 
conditions consistent with their range management regulations (for 
example, see 36 CFR 222) (USFS 2004c).
    In our December 21, 2004, withdrawal (69 FR 76428), we found that 
cattle grazing is compatible with conservation of the butterfly because 
the USFS is currently and will continue to manage its allotments that 
are occupied by butterflies for moderate-intensity grazing (10-cm end-
of-season stubble height or 35-percent forage utilization or both). 
Although we also acknowledged that grazing can incidentally kill 
butterflies through trampling or accidental ingestion of larvae or eggs 
(for example, see Pittenger and Yori 2003; White 1986), and anticipated 
such effects are occurring within allotments that overlap with occupied 
butterfly habitat, we found that these effects were minimal and did not 
result in the butterfly population being compromised. Although the 
relationship between cattle grazing and the butterfly is not completely 
clear, as analyzed below, we continue to affirm that butterflies 
persist within allotments under a moderate-intensity grazing regime.
    The petitioners presented information on five allotments: CC 
Walker, Sacramento, Russia Canyon, James Canyon, and Pumphouse. They 
claim that forage overutilization in CC Walker, Sacramento, and Russia 
Canyon Allotments indicates severe rangeland deterioration within 
butterfly habitat. However, the butterfly has never been detected 
within the CC Walker Allotment (USFS 2004a, map; USFS 2009a). 
Additionally, as we detailed in the withdrawal of the proposed rule in 
2004, no livestock grazing occurs in the portion of the Sacramento 
Allotment occupied by the butterfly, because the meadows are bounded by 
steep canyons that are inaccessible to cattle (Service 2004a, pp. 1-2). 
For these reasons, we conclude that no impacts are occurring to the 
butterfly within the CC Walker and Sacramento Allotments.
    The butterfly occurs only within about 7.2 ha (17 ac) of the Russia 
Canyon Allotment (USFS 2004e). That allotment has two permittees. One 
is permitted for 6 head of cattle from May 16 to October 31 (USFS 
2007c, p. 61); the other is permitted for 32 head from May 16 through 
October 31 (USFS 2007c, p. 61). We reviewed information collected 
between 2001 and 2008 from the Russia Canyon Allotment and find that 
the authorized minimum 10-cm (4-in) end-of-season stubble heights 
(i.e., grazing standards) have generally not been exceeded (WildEarth 
Guardians 2009, Attachment 2; USFS 2009f, p. 1). Therefore, severe 
rangeland deterioration is not occurring within butterfly habitat on 
the Russia Canyon Allotment (WildEarth Guardians 2009, Attachment 2; 
USFS 2009f, p. 1). Moreover, the butterfly continues to persist within 
the grazed area of this allotment (Service 2009). Additionally, after 
reviewing monitoring data that demonstrate the consistent application 
of the authorized moderate-intensity grazing standards on the Russia 
Canyon Allotment, we continue to find that some minor impacts are 
likely occurring from trampling of larvae by cattle and ingestion of 
food plants, but we do not consider these to be a significant threat to 
the butterfly or its habitat currently or in the foreseeable future, 
because the USFS has been monitoring and managing this allotment to 
attain the moderate-intensity standards, while butterflies continue to 
persist in this area. In 2004, we concluded that this management 
strategy will ensure larval and adult food plants are maintained. The 
new information we reviewed is consistent with our previous conclusion. 
We continue to find that cattle grazing is not a significant threat to 
the butterfly now or in the future.
    The petitioners cite a statement in the Conservation Plan that the 
James Canyon Allotment will be reopened to grazing in 2007 (WildEarth 
Guardians 2009, p. 5; Service et al. 2005, p. 29). The Conservation 
Plan foreshadowed the opening of parts of the James Allotment by 2007 
but also indicated

[[Page 45402]]

the Forest may leave one pasture ungrazed for the conservation of the 
butterfly (Service et al. 2005, p. 29). In 2005, the Forest analyzed an 
alternative to permanently close 2,751 ha (6,878 ac) to livestock 
grazing within the center of the allotment but did not finalize the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.) 
decision. The remaining 2,655 ha (6,561 ac) occur within the Beard (837 
ha (2,068 ac)), Zinker (984 ha (2,432 ac)), and Bailey (834 ha (2,061 
ac)) pastures. This alternative would have used a deferred rotation 
grazing system, whereby livestock are moved through three pastures 
during the grazing season to maintain forage utilization between 30 and 
40 percent and stubble heights of at least 11.4 cm (4.5 in) (USFS 
2004f, p. 1). Of these pastures, the Beard pasture is outside of the 
known range of the butterfly (USFS 2004a, map 1; 2004f, map 1), whereas 
Zinker and Bailey pastures contain occupied butterfly habitat. Under 
this alternative, 67 percent (8,946 of 13,439 acres) of the allotment 
(5,376 ha) would be either outside the known range or closed to 
livestock grazing (USFS 2004f; Service et al. 2005, p. 29).
    The USFS anticipates updating its NEPA analysis for the James 
Allotment in 2010 (USFS 2009f, p. 1). It intends to carry the same 
alternative forward that was analyzed in 2005 but not finalized, along 
with any other alternatives that may develop through the scoping 
process (USFS 2009f, p. 1). As part of this process, we intend to 
provide information to the USFS and encourage the selection of the same 
alternative that was developed in 2005 or an even more conservative 
alternative for the butterfly. The goal would be to minimize impacts to 
the butterfly by managing this allotment to attain a moderate or lower 
level of grazing and eliminate impacts to the butterfly by closing some 
areas to grazing.
    There is currently no authorized grazing within James allotment, 
which has been the case since 1995 (USFS 2009f, p. 2). Similar to other 
USFS allotments, it is likely that a new term permit for the James 
Allotment will propose an end-of-the-season stubble height of 10 cm (4 
in) or a forage utilization level of 35 percent (2004h). As noted 
above, in 2004, we concluded that this level of moderate-intensity 
grazing was compatible with conservation of the butterfly and limited 
potential adverse effects (69 FR 76437, December 21, 2004). This is 
because the butterfly continues to persist in areas that have been 
historically and are currently grazed by cattle. We still believe this 
is the best available information.
    We recognize the USFS could analyze and choose an alternative that 
does not close any of the areas within the allotment that contain 
occupied butterfly habitat. Under such a scenario, we would envision 
that impacts to the butterfly would be increased from trampling or 
ingestion of larvae or eggs. However, based on our current 
understanding of cattle grazing, we would anticipate butterflies would 
continue to persist within areas that are grazed at moderate intensity. 
Nevertheless, during the NEPA process, we intend to encourage the USFS 
to permanently close occupied butterfly habitat to cattle grazing in 
order to provide the greatest conservation benefit. We believe this 
would exemplify the USFS' commitment under the Conservation Plan to 
conserve and manage the species (Service et al. 2005).
    The Pumphouse Allotment also contains suitable and occupied 
butterfly habitat that is open to livestock grazing and is managed to 
maintain moderate-intensity forage utilization between 30 and 40 
percent (USFS 2005b, p. 1; 2009f, p. 1). We found that this level of 
livestock grazing would have insignificant and discountable effects to 
the plants that compose a part of Mexican spotted owl (Strix 
occidentalis lucida) critical habitat within meadows because the USFS 
would ensure forage standards were not violated (Service 2006, p. 1). 
These areas of critical habitat also contain butterfly food plants and 
habitat. Although livestock grazing within occupied butterfly habitat 
creates the potential for impacts to the species through trampling and 
loss of larval food plants, the USFS conducted regular monitoring and 
demonstrated that authorized grazing standards were annually attained 
(USFS 2004f, pp. 18-19; 2005b, p. 1; 2009f, p. 1). The USFS manages 
this and other allotments consistent with existing range management 
standards and guidelines under its Forest Plan, and when management 
adjustments are necessary to meet the forage levels, adjustments can be 
made through the permit administration process (USFS 2004g, p. 3, 
2004d, p. 2, Service et al. 2005, p. 49; 69 FR 76437, December 21, 
2004). Similar to the Russia Allotment discussed above, we reviewed 
data from 2001 to 2008 and find the minimum end-of-season stubble 
heights of greater than 10 cm (4 in) were maintained within the 
Pumphouse Allotment, and butterflies continue to persist in this area 
(WildEarth Guardians 2009, Attachment 2; USFS 2009f, p. 1; 2009a). We 
continue to believe that this level of forage utilization is compatible 
with the butterfly now and in the foreseeable future.
    Based on our review of this information, we find that, at current 
and predicted future livestock grazing levels within habitat occupied 
by the butterfly, there is not sufficient evidence to conclude that the 
subspecies is threatened. We have no evidence from any allotments that 
indicates ongoing livestock grazing affects the butterfly to such an 
extent that it would be likely to become endangered within the 
foreseeable future. USFS management of livestock allotments that are 
currently occupied by the butterfly is based on systematic vegetation 
monitoring in key areas to ensure the moderate intensity standards are 
attained. Forage utilization or stubble heights or both are measured by 
key area on key forage species within various pastures encompassing a 
grazing allotment. Key areas are locations readily accessible to water 
and forage and are located on level to intermediate slopes. Key species 
are herbaceous and woody vegetation that livestock prefer at any given 
time of the year, some of which are likely butterfly food plants. By 
monitoring key areas, the USFS ensures that an allotment or pastures 
within an allotment are not overgrazed. However, if forage utilization 
levels or stubble heights in a key area are reached, livestock can be 
moved out of that portion of a pasture, out of a pasture altogether, or 
off the entire allotment. This type of flexibility in range management 
operations is directed by USFS policy in using adaptive management (FSH 
2209.13, Chapter 90) and is enforced through monitoring of allotments. 
This process generally limits exceeding utilization standards or 
stubble heights or both, and we believe it has and will continue to 
ensure the continued existence of the butterfly and its habitat.
    Based on our review of these data, we conclude that the current and 
future occurrence of grazing does not represent a principal factor in 
the viability of the butterfly and its habitat, although the larval 
food plant Penstemon neomexicanus is likely routinely grazed upon by 
cattle. It was previously recognized that livestock grazing has the 
potential to impact the butterfly directly through trampling or 
ingestion of individuals and indirectly through the reduction in ground 
cover (Service et al. 2005, pp. 29-30). We continue to believe this is 
accurate, but have determined that USFS management and monitoring of 
livestock grazing standards on all allotments within the range of the 
butterfly are compatible with the

[[Page 45403]]

continued existence of the species. Although the potential for impacts 
to the butterfly exists, our review found no information indicating 
that livestock grazing significantly affects the status of the 
butterfly now or will do so in the foreseeable future. Therefore, we 
conclude that livestock grazing is not a significant threat to the 
butterfly.
Trespass Horses
    In the withdrawal of the butterfly proposed rule, we noted trespass 
(feral) horses occurred within butterfly habitat in the northern 
portion of the Sacramento Ranger District (69 FR 76428; December 21, 
2004). We found that these horses have the potential to affect the 
butterfly and its food plants, but horses were considered a low threat 
because they occur in a limited number of meadows in the James 
Allotment (Service et al. 2005, p. 49; USFS 2004f, pp. 18-19; USFS 
2004g. p. 1). We also noted that the USFS committed in the Conservation 
Plan to removing the feral horses from the James Allotment. The USFS 
recently followed through on its commitment and removed feral horses 
from this area (Service et al. 2005, p. 49; USFS 2004c, p. 1; 2008f, p. 
1). Although we continue to view feral horses as a low threat, the 
removal will benefit the butterfly and its habitat.
Fire
    In addressing the threat of fire suppression and wildfire, the 
petitioners compare the analysis used in our September 6, 2001, 
proposed rule (66 FR 46575) to our analysis in the withdrawal of the 
proposed rule (69 FR 76428; December 21, 2004). The discussion and 
analysis related to wildfire and the butterfly in the withdrawal of the 
proposed rule are still the best available information that we have. 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 (see also Service et al. 2005, pp. 21-25). For example, the 
areas where the larval host plant grows tend to lack continuous fine 
fuels that would effectively carry a fire (Service et al. 2005, p. 21). 
Moreover, 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. Since 2004, the USFS has continued 
efforts to reduce the risk of wildfire (USFS 2007c, pp. 21-24). 
Increases in fuels management actions have been funded and implemented, 
and these activities will continue for the foreseeable future (USFS 
2009i). Within the last 5 years the USFS has accomplished a substantial 
fuels reduction work within 1 mile of the Village of Cloudcroft (e.g., 
see USFS 2007c, p. 33). Approximately 1,216 ha (3,005 ac) have received 
at least one, if not several, treatments, which include pre-commercial 
thinning, commercial timber harvest, mastication (shredding of felled 
trees), prescribed burns, and logging (USFS 2002b, 2004h, 2004i, 2004j, 
2007b, 2007c, 2009g). As a result, the reduction of tree density, 
disposal of the resulting woody debris and appropriate use of 
prescribed fire will not only improve forest health, but also greatly 
reduce the probability of bark beetle outbreaks and decrease the risk 
of wildfire (USFS 2004k, p. 2).
    Climate change may have an impact on wildfire. In a recent study, 
Westerling et al. (2006, p. 943) found that increased wildfire activity 
is at least partially the result of a changing climate and a resulting 
longer wildfire season, although the southwestern forests were less 
affected by changes in the timing of spring than forests of the 
northern Rocky Mountains. Other authors have described similar patterns 
of increased fires or risk of fires (Schoennagel et al. 2004; Running 
2006). Nevertheless, any attempt to describe the relationship between 
climate change and the probability of butterfly habitat 
catastrophically burning is problematic, given that the scale of these 
studies is too large for us to draw any firm conclusions at the local 
scale within the range of the butterfly. On this basis, we conclude 
that the threat of wildfires has not increased within the range of the 
butterfly since our 2004 withdrawal of the proposed rule. For these 
reasons, we do not consider wildfire a significant threat to the 
species now or in the foreseeable future.
Noxious Weeds
    The petitioners assert that the manual weed-pulling program to 
control 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 a significant threat to the butterfly. 
There is no information available to suggest that nonnative or noxious 
weeds are or will become a threat to the Sacramento Mountains 
butterfly.
    In summary, we have no information to indicate that any of the 
following are significant threats to the subspecies: Development; 
recreation; projects such as roads, powerlines, and other small-scale 
impacts; cattle or feral horse grazing; wildfire; and noxious weeds. On 
the basis of the information presented above, we find the present or 
threatened destruction, modification, or curtailment of the habitat or 
range of the butterfly is not a threat now and we do not foresee that 
it will be in the future.

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

    The petitioners believe 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 
overcollection and that this threat was no longer significant. We did 
not receive any new information or any explanation as to why the 
butterfly is threatened by collection now or in the future. Likewise, 
we have no new information on the potential threat of overcollection 
since the 2004 withdrawal. We do not have any recent evidence of risks 
to the butterfly from overutilization for commercial, recreational, 
scientific, or educational purposes, and we have no reason to believe 
this factor will become a threat to the species in the future. 
Therefore, we find overutilization for commercial, recreational, 
scientific, or educational purposes does not threaten the butterfly now 
or in the foreseeable future.

C. Disease or Predation

    We are not aware of any information indicating that disease or 
predation threaten the butterfly. Therefore, we find that disease and 
predation are not threats to the butterfly now or in the foreseeable 
future.

D. Inadequacy of Existing Regulatory Mechanisms

    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

[[Page 45404]]

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.''
USFS Protections
    The butterfly has been designated by the Regional Forester as a 
Forest sensitive species. Under this designation, the USFS currently 
analyzes all planned, funded, executed, or permitted programs and 
activities for possible effects to the species (USFS 2008e and 2009a; 
2009h, p. 3). Sensitive species receive special management emphasis to 
ensure their viability and to preclude trends toward endangerment that 
would result in the need for Federal listing (USFS 2009h, p. 3). As a 
current Forest sensitive species, the butterfly is included in impact 
analyses by the USFS in all applicable NEPA documents to ensure its 
continued viability and preclude the need for Federal listing.
    On April 21, 2008, a new USFS planning rule (73 FR 21468) was made 
final. However, on June 30, 2009, the United States District Court for 
the Northern District of California issued a decision in Citizens for 
Better Forestry v. United States Department of Agriculture, No. C 08-
1927 CW (N.D. Cal. June 30, 2009). The court enjoined the USFS from 
implementing and using the 2008 planning rule and remanded the matter 
to them for further proceedings. The Government has not yet determined 
whether to appeal the District Court's June 30, 2009, decision to the 
Ninth Circuit Court of Appeals. Nevertheless, on July 15, 2009, the 
USFS issued legal guidance that the planning rule from November 9, 2000 
(65 FR 67514) is now in effect (USFS 2009l). As a result, the 
information on the management and protection of the butterfly on public 
lands presented in the withdrawal for the butterfly (69 FR 76428; 
December 21, 2004) is still the best available information that we 
have. The intent of the Regional Forester's sensitive species 
designation is to provide a proactive approach to conserving species to 
prevent a trend toward listing under the Act, and to ensure the 
continued existence of viable, well-distributed populations.
    The USFS policy (FSM 2670.3) states that Biological Evaluations 
(BEs) must be completed for sensitive species and signed by a journey-
level biologist or botanist. The Lincoln National Forest will continue 
developing BEs and conducting NEPA analyses for each project that will 
affect the butterfly or its habitat. This analysis will ensure that 
projects do not singularly or cumulatively impact the butterfly to such 
an extent that the species would require Federal listing. Through this 
process, the USFS will analyze specific project proposals to ensure 
that the actions being contemplated are consistent with any specific 
guidelines and standards for the butterfly under the current or a 
future revised LRMP. In practice, the USFS has taken actions to 
conserve and avoid impacts to sensitive species, including the 
butterfly and its habitat (see USFS 2004a, 2004c, 2007c, 2007d, 2007e, 
2009a). This NEPA analysis process has been adequate to protect the 
butterfly. Under the current legal guidance, this oversight and 
protection will continue under the LRMP and when it is revised (UFSF 
2009l).
    In summary, because the USFS had some authority and regulations in 
place as we reviewed in our 2004 withdrawal and will continue such 
efforts into the future, we find these efforts contribute significantly 
to the adequacy of existing regulatory mechanisms.
    On the basis of this information, we believe the butterfly will 
receive protection and consideration in the future on Forest-wide and 
project-specific levels by continuing to be analyzed in all applicable 
NEPA documents. 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. Since the butterfly will 
continue to be considered a sensitive species and specific protections 
will be provided under the current or future revised LRMP, we find this 
process adequate to protect the butterfly currently and in the 
foreseeable future.
New Mexico Statute
    The petitioners state that the butterfly has no State protection, 
because New Mexico does not recognize insects as ``wildlife.'' This is 
correct. We presented information about this 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.
Conservation Plan
    We signed a Memorandum of Understanding with the Village of 
Cloudcroft, Otero County, and the USFS, and cooperatively developed a 
Conservation Plan (Service et al. 2005). The Memorandum of 
Understanding demonstrates the parties' good-faith efforts to identify 
and undertake protective measures for the butterfly and its habitat, 
and it refers to the implementation schedule for specific actions, 
including time and cost estimates and responsible partners, named in 
the Conservation Plan to be undertaken to achieve its goals. The goal 
of the Conservation Plan is to provide conservation and management on 
public and private lands within the range of the butterfly (69 FR 
60178; October 7, 2004).
    Otero County has completed one of the conservation measures, 
amending its subdivision ordinance, which requires that, for any new 
subdivision to be developed within potential butterfly habitat, a 
survey be conducted for the butterfly, its habitat, and its larval host 
plant.
    The USFS is committed to continue the implementation of the 
Conservation Plan (USFS 2009a, p.1), which it has been implementing for 
the past 4 years. The Conservation Plan called for a variety of 
measures that the USFS would implement to reduce impacts to the 
butterfly, including: (1) Managing domestic livestock and controlling 
of trespass livestock; (2) managing public recreation; (3) protecting 
the butterfly from the threat of collection; (4) using best management 
practices during projects; and (5) protecting and managing butterfly 
habitat. We relied in this finding on these measures because the USFS 
has demonstrated that these conservation efforts are being implemented 
and that they are effective. Therefore, we were not required to analyze 
them under the Service's Policy for Evaluation of Conservation Efforts 
When Making Listing Determinations (68 FR 15100; March 28, 2003) 
(PECE).
    We did not rely on other conservation efforts identified in the 
Conservation Plan if they have not yet been fully or reliably 
implemented because it would require us to speculate on the certainty 
of their implementation and effectiveness. These efforts are 
concentrated on conducting research to fill in information gaps. These 
include determining the duration of larval diapause, investigating the 
influence of fire on butterfly habitat, and determining whether 
planting host plants influences butterfly occupancy (Service et al. 
2005, pp. 56-59). Therefore, we did not analyze those particular 
conservation efforts as they relate to PECE. Other conservation 
measures, investigating the influence of grazing on butterfly habitat 
and analyzing the genetics of the butterfly, are ongoing, while 
another--evaluating the effectiveness of transplanting

[[Page 45405]]

butterflies to augment or expand the range of the species--will be 
conducted in the near future (for example, McIntyre 2005, Ryan 2007, 
2009).
    We continue to support the implementation of the Conservation Plan 
and believe it has assisted in further improving the status of the 
butterfly and its habitat. For example, we have held two meetings with 
the implementation team for the Conservation Plan and provided 
technical assistance on actions proposed by team members (for example, 
avoidance of impacts from proposed insecticide spraying). The USFS has 
continued to allocate resources towards conservation efforts and 
coordinated with all parties involved with the conservation of the 
butterfly (USFS 2009a). Otero County passed the subdivision ordinance 
and, similarly, requested technical assistance on minimizing impacts 
with spraying of a forest insect outbreak (see E. Other Natural or 
Manmade Factors Affecting the Species' Continued Existence).
Private Lands
    Beyond the Otero County subdivision ordinance, we are not aware of 
any specific prohibition on private lands to limit or avoid the 
destruction of the butterfly and its habitat. Half of the butterfly 
habitat is in private ownership. However, there are no data available 
that would allow us to make a conclusion concerning the quality of 
butterfly habitat on these private lands. The status of the butterfly 
on private lands is essentially unknown because access is controlled. 
The only available data concerning private lands are the approximations 
of the amount of habitat potentially available (USFS 2004a). Although 
there is a potential for the current and future management of these 
lands to affect the butterfly or its food plants, we lack specific 
information on how a lack of protection on private lands threatens the 
butterfly. As noted under Factor A (Present or Threatened Destruction, 
Modification, or Curtailment of the Species' Habitat or Range), we do 
not believe that private property development is a significant threat 
to the butterfly currently or in the foreseeable future. We have no 
information on threats to populations of the butterfly on private 
lands, but land uses likely include private property development; some 
recreational use; small-scale habitat impacts in relation to roads, 
powerlines. and waterlines; livestock grazing; fire suppression; and 
perhaps noxious weed eradication. Moreover, it is likely that some 
level of habitat loss has already occurred on private lands and will 
occur in the foreseeable future. Nevertheless, this amount of loss is 
not thought to be a significant threat to the butterfly or its habitat 
on private lands, given that the butterfly continues to persist on the 
adjacent public lands managed by the USFS, where these potential 
impacts do not significantly affect the species.
    There are few regulatory mechanisms in place on private lands 
address the conservation of the butterfly or its habitat, although, as 
described below, a lack of protection should not affect the ability of 
the species to persist on private lands currently or in the future. As 
noted under Factor E (Other Natural or Manmade Factors Affecting the 
Species' Continued Existence), a minimal amount of insecticide spraying 
from the ground recently occurred on adjoining forested lands, and a 
small number of butterflies may have been affected if the spray drifted 
from the targeted forest into nearby meadows and directly contacted the 
butterflies. However, we concluded under Factor E that such spraying 
will only affect such a small amount of occupied butterfly habitat that 
it does not threaten the butterfly with future endangerment. If ground 
or aerial application of insecticides results in large contiguous 
blocks of occupied habitat being affected during the active period of 
the butterfly, these applications would be considered a significant 
threat. However, as discussed under Factor E, given the recent 
resolution of a threat from spraying through requests from Otero County 
and USFS for technical assistance from the Service, we believe that the 
timing of spraying and areas sprayed in the forests will be adequately 
controlled so the butterfly will not be threatened with endangerment. 
This is because the high cost of effective aerial spraying will drive 
private landowners and developers to combine such efforts on private 
lands with USFS efforts on USFS lands. Under such a scenario, the 
butterfly would be considered and analyzed within NEPA conducted by the 
USFS, which is what happened during the recent spraying of forest 
insects with Bacillus thuringiensis var. kurstaki (Btk) in 2007 (USFS 
2007).
    Although we would be concerned about the loss or alteration of 
large contiguous blocks of butterfly habitat on private lands, we have 
no information to indicate that such loss has occurred or will occur in 
the foreseeable future, nor whether any the loss of butterflies from 
activities on private lands has affected or will negatively affect the 
overall ability of the species to persist currently or in the future. 
Therefore, we find the butterfly is not threatened by a lack of 
regulatory mechanisms on private lands at present or in the foreseeable 
future.
    In summary, the butterfly currently receives adequate regulatory 
protection through the USFS sensitive species designation and the 
commitments provided in the Conservation Plan. We did not find that 
lack of State regulatory authority threatens the butterfly, because the 
USFS, the land management agency with authority over half of the 
butterfly's range, has instituted proactive protective measures by 
analyzing potential impacts through the NEPA process and by fulfilling 
the commitments in the conservation plan. On the basis of our review, 
we find similar protections will be implemented in the future under a 
revised LRMP. Their practices have included measures to either avoid 
impacts or to survey and move the species prior to habitat disturbance. 
We believe take at a level consistent with prior levels will not cause 
a decline in the species or affect its future viability such that 
impacts resulting from actions within occupied habitat constitute a 
significant threat to the species on USFS or private lands. There are 
few regulatory mechanisms in place on private lands that specifically 
target the conservation of the butterfly or its habitat, yet we believe 
this has not and will not affect the overall ability of the species to 
persist on private lands currently or in the future. In light of this 
information, we conclude that adequate regulatory mechanisms exist now 
and will continue into the foreseeable future.

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

Insecticide Spraying
    The petition asserts that control of pest insects, climate change, 
and extreme weather threaten the butterfly under Factor E. The 
petitioners requested that we emergency-list the butterfly due to the 
perceived immediate threat to the butterfly's continued existence from 
a proposed aerial spraying in the autumn of 2007 of the naturally 
occurring bacterium Bacillus thuringiensis var. kurstaki (Btk) to 
control a fir looper moth (Nepytia janetae). However, as explained 
below, we determined that the potential spraying did not warrant 
emergency listing.
    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 2007c; Otero County 
2007a, 2007b). We advised them that mortality from the

[[Page 45406]]

application of Btk could be significant if it was 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 2007d, 2007f, 2007d). Following 
that environmental assessment, the USFS, the Village of Cloudcroft, and 
Otero County waited to spray Btk on 1,788 ha (4,419 ac) of forest to 
control the fir looper until they and the Service determined from 
surveys that the larvae of the butterfly were in diapause (inactive and 
not feeding) (USFS 2007e, 2007g; Service 2007g, 2007h). Surveys 
confirmed that larvae of the butterfly were in diapause prior to 
spraying of Btk on November 5, 2007 (USFS 2007e, 2007h, Service 2007g).
    Btk is sensitive to sunlight, usually becoming inactive within 7 to 
10 days after application (USFS 2007f, p. 30). Therefore, Btk would 
have been inactive when larvae of the butterfly emerged from diapause 
in the spring of 2008. Btk is activated by the alkaline condition of 
the mid-gut of larvae that ingest it. Consequently, larvae must ingest 
Btk for the bacteria to be toxic. Post-treatment surveys conducted at 
six localities during July 2008, found no difference in abundance of 
adult butterflies when compared with pre-treatment surveys in July 2007 
(McIntyre 2008, p. 1). This indicates that butterflies survived the 
spraying of Btk during November 2007, and the spraying of forest 
insects did not measurably affect the butterfly. Post-spraying 
monitoring in the autumn of 2007 determined that the fir looper 
population had declined to nearly undetectable levels on the Forest and 
adjacent lands (Anderson 2008). Therefore, the USFS concluded that no 
spraying was needed during March 2008 (Anderson 2008).
    As described under Factor D (Inadequacy of Existing Regulatory 
Mechanisms), the butterfly is considered a sensitive species of under 
the 2000 USFS planning rule (USFS 2009l). Therefore, any future 
proposed insect treatment by the USFS would undergo an analysis of the 
potential impacts under NEPA and would follow the applicable LRMP. This 
analysis would ensure that any insect spraying being contemplated would 
be consistent with the specific guidelines and standards for the 
butterfly under the current or a future revised LRMP. 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 dialog, 
the USFS carefully chose the timing of Btk application to specifically 
avoid larvae of the butterfly (USFS 2008h, p. 34). We found that this 
process successfully avoided impacts to the butterfly. Based 
principally on information related to the spraying of insecticides that 
occurred during November 2007 on USFS and private lands and the LRMP 
standards and guidelines, we believe the framework of the Conservation 
Plan and applicable NEPA analysis will ensure that, if any future 
insect control efforts are proposed, effects to the butterfly will be 
minimized.
    The petitioners state that insect control from the ground 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 we have, 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. It is unlikely that all of the 4 
ha (10 ac) of potentially suitable butterfly habitat were sprayed, 
because insect control was targeting the fir looper within the 
adjoining mixed conifer forest, 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), impacts would be less than 0.4 
percent of the suitable butterfly habitat (4 of 1,096 ha (10 of 2,709 
ac)). In relation to the species' range, this would not be considered a 
significant impact affecting the future viability of the species and, 
therefore, does not rise to the level of being a threat.
    If future small, ground applications of insecticide spraying (such 
as Btk) occur on private forested lands, impacts could similarly occur 
to the butterfly from drift. Spraying meadows would be ineffective for 
the control of forest insects and a waste of landowner or developer 
money. It is unlikely that such ground applications would be 
implemented on a large enough scale to be effective in controlling a 
severe outbreak of a forest insect pest, suggesting that ground 
applications are not likely to affect a significant proportion of 
occupied butterfly habitat. Nevertheless, if ground or aerial 
application of Btk or other insecticide results in large contiguous 
blocks of occupied habitat being affected during the active period of 
the butterfly, insecticide spraying would be considered a significant 
threat that would cause the species to become endangered in the 
foreseeable future. However, given the recent resolution of a threat 
from insecticide spraying through requests for technical assistance 
from Otero County and USFS, we believe that concerns over the viability 
of the butterfly would weigh strongly in any decision to control forest 
insects. Moreover, we believe it is unlikely that large contiguous 
blocks of butterfly habitat would be sprayed for forest insects on 
private lands without combining such efforts with the USFS. Insect 
control of such a magnitude could only be achieved through aerial 
spraying; the cost of such efforts averages from 15 to 50 dollars per 
acre (0.4 ha) (Wisconsin Department of Natural Resources 2009, p. 6; 
Park Ridge, Illinois 2008), which, over several hundred acres, may be 
prohibitive for private landowners, unless they work with USFS. Under 
this scenario, the butterfly would be considered and analyzed within 
NEPA conducted by the USFS. In fact, this is what transpired during the 
recent spraying of Btk in 2007 (USFS 2007).
    Although we do not anticipate future forest insecticide spraying on 
private lands to be at a scale that would cause the butterfly to become 
endangered, we recognize there are currently no mandatory requirements 
to minimize impacts to the butterfly if spraying was to occur on 
private lands. Hence, we encourage the Village of Cloudcroft and Otero 
County to intervene with any private landowner that might contemplate 
spraying an outbreak of forest insects on their land and request 
assistance from us under the auspices of the Conservation Plan. A 
request for technical assistance may be even more likely, given that 
the previous spraying of forest insects generated a variety of press 
releases from the USFS and newspaper articles by local press (Anderson 
2008; Associated Press 2007; USFS 2007d, 2008). As discussed under 
Factor D (Inadequacy of Existing Regulatory Mechanisms), the Village of 
Cloudcroft and Otero County have a history of requesting assistance 
from the Service to avoid impacts to the butterfly when they consider 
spraying for the fir looper on private lands, and we have provided that 
assistance. Although past requests for assistance do not guarantee

[[Page 45407]]

future requests, they demonstrate a willingness by the Village of 
Cloudcroft and Otero County to do so. As described below, the fir 
looper population has declined (USFS 2008g, pp. 1-2), and we do not 
have any information to indicate that spraying to control future insect 
outbreaks will occur or that the process followed in 2007 to minimize 
impacts from spraying would not be followed. We are not aware of any 
information that demonstrates the butterfly is threatened now or in the 
foreseeable future from the spraying of Btk or other insecticide.
    Alternatively, a NEPA analysis is not required for non-Federal 
agency spraying on private lands, which comprise about half of the 
butterfly's suitable habitat; we do not know how much of that suitable 
habitat on private lands is actually occupied by the butterfly. As 
described above, landowner spraying on private lands has the potential 
to affect the butterfly. We acknowledge that if Btk or chemical 
insecticides, such as Carbaryl or Confirm 2F, are applied over large 
areas when larvae of the butterfly are actively feeding, insect control 
would pose a serious threat by potentially killing large numbers of the 
butterfly if the spray occurred within significant amounts of occupied 
habitat. As discussed above, if large-scale spraying occurs in the 
future, it is unlikely it would occur without requiring the USFS to 
consider and analyze the effects to the butterfly under NEPA. It is 
unknown how much of the potentially suitable or occupied butterfly 
habitat could be inadvertently sprayed because no information is 
available on the probability of future forest insect outbreaks. 
However, the Conservation Plan provided the framework under which Otero 
County requested and received technical assistance on the avoidance of 
impacts to the butterfly. One conservation action agreed to in the 
Conservation Plan was for the Service to provide technical assistance 
on management of the butterfly when requested. Beyond the impacts from 
spraying on private lands detailed above, this process avoided impacts 
on the vast majority of butterfly habitat on private lands.
    As described in the withdrawal of the proposed rule (69 FR 76428) 
and in the discussion above, the USFS has continued efforts to reduce 
the risk of wildfire. As a result, the probability of bark beetle 
outbreaks will be greatly reduced (USFS 2004k, p. 2). Although it is 
likely that periodic insect outbreaks will occur within the range of 
the butterfly (e.g., see: Logan et al. 2003; Logan and Powell 2005; 
USFS 2008h), we have no information to evaluate the potential for 
impacts due to spraying of forest insects with Btk or other insecticide 
on USFS or private lands because the duration and extent of insect 
outbreaks cannot be easily predicted (e.g., see Logan et al. 2003, p. 
133; USFS 2009j, p. 3; Fellin and Dewey 1992, p. 1). For example, the 
recent outbreak of fir looper was the first outbreak in New Mexico 
attributed to this species (USFS 2007c, p. 25). Insect outbreaks occur 
when conditions favor an insect population expanding beyond the control 
of its natural enemies. These enemies may include parasitic flies and 
wasps, disease, and predators. Natural enemies are generally the 
primary cause of the collapse of a defoliating insect outbreak; 
however, Btk or other insecticides are sometimes used to expedite the 
collapse (USFS 2007f). As an example, parasites were responsible for 
the collapse of the short-lived Douglas-fir tussock moth outbreak on 
the Sacramento District in 2001 and likely partially responsible for 
the collapse of the fir looper by 2008 (USFS 2007f, p. 25; 2008). 
Moreover, at least five other forest insect pests have been documented 
in recent years on the Lincoln National Forest (USFS 2007f, p. 26; 
2008h, p. 27), but it is unknown whether any of these will cause an 
outbreak of such magnitude that insect control would be considered. In 
our review of the recent insect-pest outbreak and spraying to control 
forest insects, we found no other reports of documented spraying. While 
we acknowledge spraying of insecticides has the potential to impact the 
butterfly if it is conducted within occupied habitat, we have no 
knowledge or information to assess the potential for insect outbreaks 
and the possibility of spraying now or in the future.
Climate Change
    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 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), a related 
species, 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 
Sacramento Mountains checkerspot butterfly has been found 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 butterfly were to respond similarly, it may 
decline at the southern portion of its range, but not expand northward 
to the Capitan Mountains. However, as described below, we have little 
information to accurately predict or assess how the butterfly or its 
food plants will respond to a changing climate.
    According to the Intergovernmental Panel on Climate Change (IPCC) 
(2007), ``Warming of the climate system is unequivocal, as is now 
evident from observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice, and rising global 
average sea level.'' For the next two decades a global warming of about 
0.2 [deg]C (0.4 [deg]F) per decade is projected (IPCC 2007). 
Afterwards, temperature projections increasingly depend on specific 
emission scenarios (IPCC 2007). Various emissions scenarios suggest 
that by the end of the 21st century, average global temperatures are 
expected to increase 0.6 [deg]C to 4.0 [deg]C (1.1 [deg]F to 7.2 
[deg]F), with the greatest warming expected over land (IPCC 2007). 
Localized projections suggest the Southwest may experience the greatest 
temperature increase of any area in the lower 48 States (IPCC 2007). 
The IPCC states it is very likely that

[[Page 45408]]

extreme high temperatures, heat waves, and heavy precipitation will 
increase in frequency (IPCC 2007). Because the butterfly occupies a 
relatively small area of specialized habitat, it may be vulnerable to 
climatic changes that could decrease suitable habitat or alter food 
plant seasonal growth patterns (phenology). However, while it appears 
reasonable to assume that the butterfly may be affected, as detailed 
below, we lack sufficient certainty to know specifically how climate 
change will affect the subspecies.
    Parmesan (2009, p. 2) noted that the relationship between climate 
and survival is driven more by the indirect effects of seasonal growth 
patterns of host plants and the life cycle of Edith's checkerspot than 
by the direct effects of temperature and precipitation. However, 
predicting seasonal growth patterns of butterfly host plants is 
complicated, because these patterns are likely more sensitive to 
moisture than temperature, which is predicted to be highly variable and 
uncertain, especially for the southwestern United States (Bale et al. 
2002, p. 11; Archer and Predick 2008, p. 2; Enquist and Gori 2008, pp. 
16, 30; New Mexico Agency Climate Change Technical Work Group 2005, p. 
7). Uncertainty about climate change does not mean that impacts may or 
may not occur; it means that the risks of a given outcome are difficult 
to quantify or accurately predict (New Mexico Agency Climate Change 
Technical Work Group 2005). The interplay between host plant 
distribution, larval and adult butterfly dispersal, and female choice 
of where to lay eggs will ultimately determine the population response 
to climate change (Parmesan 2009, p. 3). However, determining the long-
term responses to climate change from even well-studied butterflies in 
the genus Euphydryas is unclear, given their ability to switch to 
alternative larval food plants in some instances (Parmesan 2009, p. 3; 
Hellman 2002, p. 933; Singer et al. 2007, pp. 312-319; Singer and 
Thomas 1996, pp. S33-34). Attempts to analyze the interplay between 
climate and host plant growth patterns using predictive models or 
general State-wide assessments and to relate these to the butterfly are 
equally complicated. Despite the potential for future climate change in 
the Southwest, as discussed above, we have not identified nor are we 
aware of any data on an appropriate scale to evaluate habitat or 
populations trends for the butterfly or the Sacramento Mountains or to 
make predictions on future trends and whether the species will be 
significantly impacted.
    During the active season of prediapause larvae (late summer to 
early fall), the species Euphydryas anicia feeds primarily on plants of 
the family Scrophulariaceae, including species of Castilleja and 
Penstemon (Robinson et al. 2009, pp. 1-9). Although the USFS and others 
have conducted surveys and monitored the butterfly, the subspecies 
remains poorly studied relative to other butterflies in the genus 
Euphydryas (for example, see Ehrlich and Hanski 2004). We believe that 
the larvae of this subspecies currently use the food plants P. 
neomexicanus and V. edulis (Service et al. 2005, pp. 9-11). We have no 
information that indicates the degree to which, if any, the butterfly 
uses other plants in the Scrophulariacea or Plantaginaceae family. In 
fact, there have been no published studies on food plant preference or 
use for the butterfly. However, alternative food plant use is not only 
possible, but probable given that many checkerspot populations in 
western North America use two or more larval host plants (Ehrlich and 
Hanski 2004, p. 270; Singer and Wee 2005, p. 350), and this species has 
already been found to eat other food plants in captivity. For example, 
Pratt (2008, p. 1) reared larvae on P. gloxinoides, whereas Ryan (2009, 
pers. comm.) reared them on a commercially available Penstemon sp. 
Hutchins (1974, pp. 424-437) reported that almost 40 species of plants 
in the Scrophulariacea family occur in the region. Additionally, shifts 
to new or alternative food plants have been documented in related 
species, allowing them to colonize new habitat and increase survival of 
larvae (Singer and Thomas 1996; Hanski and Singer 2001). Available 
information suggests that if climate change disrupts seasonal growth 
patterns of food plants, it is conceivable that the butterfly may use 
alternative food plants that occur within its range (Service et al. 
2005, p. 38). Nevertheless, we have no information indicating the 
likelihood that any of these changes will occur in the foreseeable 
future.
    We also have no data on the overlap of seasonal growth patterns 
between P. neomexicanus and the butterfly. No one has monitored the 
timing of the lifecycle of the butterfly relative to their host plants, 
P. neomexicanus or V. edulis, nor how each responds to extreme weather 
events (drought, late frosts, or storms). Parmesan (2007, p. 1869) has 
reported that a lifecycle mismatch can cause a shortening of the time 
window available for larval feeding, causing the death of those 
individuals unable to complete their larval development into the 
shortened period. Still, a high proportion of the butterflies Parmesan 
(2007 p. 1869) studied fed on annual host plants whose emergence and 
desiccation are likely more closely linked to annual precipitation 
patterns than P. neomexicanus, which is a perennial, generally living 
for 2 years or longer (NMRPTC 2005, p. 1). We are not yet capable of 
making meaningful predictions on whether climate variability (such as 
higher temperatures or drier conditions) will influence P. 
neomexicanus's life cycle such that it is out of sequence with the 
butterfly's larval development (for example, see Parmesan 2007, p. 
1869; Service et al. 2005, pp. 36-38). Without these data, it remains 
unclear how climate change will affect the long-term viability of the 
butterfly.
    Predicting future population dynamics and distributions is even 
more complex for such animals as butterflies that have two very 
different physiological stages (larva and adult) (for example, see Bale 
et al. 2002, p. 5). Moreover, forecasting the responses of butterflies 
and other insects to elevated temperatures or decreased precipitation 
is largely based on field and laboratory studies (Hellmann 2002, pp. 
927-929). However, the relationship between these changing 
environmental conditions and the butterfly has not been studied. 
Likewise, we have no survey data from the presumed northern end of the 
butterfly's range. For example, we currently do not know whether the 
immediately adjacent lands of the Mescalero Apache Tribe are occupied 
by the butterfly. The host plant for the butterfly occurs south of the 
current range of the species and to the north in parts of the 
Sacramento Mountains and into the Capitan Mountains, about 40 to 80 
kilometers (25 to 50 miles) north of the current range of the butterfly 
(Hutchins 1974, pp. 434-435; USFS 2000 pp. 11-12, 19-21). This suggests 
that the host plants also may be found in some areas of the intervening 
Tribal lands. Given the similarity in habitat and elevation and the 
close proximity between Tribal and USFS lands, some of the area may be 
occupied by the butterfly.
    We have identified no reports of apparent habitat, food plant, or 
population changes of the butterfly related to climate change in New 
Mexico. Moreover, there is a lack of any real-time data on the 
relationship between temperature or precipitation trends and the 
butterfly or its food plants (Service et al. 2005, p. 38). We have no 
specific information on how the butterfly will react to a changing 
climate, either an increase in temperature or the increasing 
variability of precipitation. For this reason, the

[[Page 45409]]

effect of higher temperatures and the unpredictability of extreme 
weather and precipitation on the distribution and abundance of the 
butterfly remains unknown.
    Because larvae of the butterfly are closely tied to their food, the 
distribution of these plants defines the potential distribution of the 
species. The ability of larvae to move, in conjunction with host plant 
availability, can lessen the potential effects of climate change (for 
example, see Hellmann 2002). For example, some species of butterflies 
may expand their geographical ranges northward or upward elevationally 
(e.g., see Parmesan 1996; Parmesan et al. 1999). If the butterfly moves 
northward from its current range or higher in elevation, similar to 
some documented range shifts by other species in the genus Euphydryas, 
suitable habitat may be present. For example, adjacent contiguous areas 
are available northward on lands owned by the Mescalero Apache Tribe. 
Alternatively, only 3.2 km (2 mi) south of the butterfly's current 
range, potential higher elevation (over 2,750 m (9,000 ft)) habitat 
that contains the foodplants of the butterfly are available (Service 
2009). However, we do not have information to predict how the climate 
will change in the range of the butterfly, and we do not know how any 
change may alter the range of the species.
    As described above, it is likely that insect pest outbreaks will 
occur within the range of the butterfly, although we do not know 
whether any insect control would be considered. Nevertheless, climate 
change may contribute to the proliferation of some forest pest insects, 
which can lead to defoliation and forest die-back in some areas 
(Easterling et al. 2007, p. 290; Enquist et al. 2008, p. 2; USFS 2008g, 
p. 1). Insect outbreaks in response to the recent drought in the 
southwest (e.g., Enquist et al. 2008, pp. 2, 13) may exemplify this 
type of climate-related event. Elevated moisture stress from drought in 
southwestern forests and woodlands has been shown to amplify the 
effects of insect outbreaks and fire, in addition to increasing the 
risk of large-scale forest die-back events (Breshears et al. 2005, 
Westerling et al. 2006). These disturbances are expected to increase. 
One of the recent insect outbreaks in the Sacramento Mountains may lead 
to a short-term increase in the amount of potential butterfly habitat. 
For example, portions of the mixed conifer forest in the Sacramento 
Mountains of New Mexico have experienced defoliating insect outbreaks 
since 2002 (USFS 2008e, p. 1). An infestation of the forest insect 
species tussock moth (Orgyia pseudotsugata), western spruce budworm 
(Choristoneura occidentalis), New Mexico fir looper (Galenara 
consimilis), and a looper species, Nepytia janetae (no common name) 
resulted in approximately 5,868 ha (14,500 ac) of forest defoliation 
(USFS 2008e, p. 1). Within this area, tree mortality will average about 
50 percent (USFS 2008e, p. 2). The insects primarily defoliated 
Pseudotsuga menziesii (Douglas-fir) and Abies concolor (white fir), but 
Pinus strobiformis (southwestern white pine), Picea engelmannii 
(Englemann spruce), and Pinus ponderosa (ponderosa pine) were also 
affected (USFS 2008e, p. 2). About 227 ha (570 ac) of occupied 
butterfly habitat is interspersed or adjacent to the defoliated areas 
of the mixed conifer forest (USFS 2008e, p. 41). Penstemon neomexicanus 
and other forbs or grasses will likely respond in the coming years to 
the increased available sunlight within areas containing a high 
percentage of dead trees. As a result, P. neomexicanus and Helenium 
hoopesii may spread into these adjacent areas, thereby increasing the 
connectivity between patches of occupied butterfly habitat or 
increasing the overall amount of potential butterfly habitat. We intend 
to the monitor these areas to determine how the butterfly responds to 
these changes.
    In summary, we have identified and reviewed relevant information on 
the butterfly and climate change. We acknowledge the potential for 
climate to change in the Southwest and, thus, within the range of the 
butterfly. However, as discussed above, there is a great amount of 
uncertainty with respect to the potential impact on the butterfly or 
its food plants. No specific data on the seasonal growth patterns and 
overlap between the food plants or butterfly larvae are available. The 
ability of other butterfly species in the same genus to switch food 
plants has been documented. The response of this species to suitable 
habitat that may be created in the future by climate change is unknown. 
Weather and climate, particularly precipitation, are highly 
unpredictable within the range of the species. Multiple hypothetical 
outcomes associated with climate change could potentially affect 
butterfly habitat. However, unlike documented declines in other species 
in the genus Euphydryas (e.g., Parmesan 1996, 2006), we lack predictive 
models on how climate change will affect butterfly habitat. Given that 
reliable, predictive models have not been developed for use at the 
local scale in New Mexico's Sacramento Mountains, currently there is 
little certainty regarding the timing, magnitude, and net effect of 
impact. It is possible that the butterfly may be vulnerable to climate 
change; however, we cannot reliably predict effects of climate-induced 
changes given the large number of unknowns and the current limitations 
in available data and climate models. Based on the best available 
information and our current knowledge and understanding, we find that 
the effects related to climate change will not result in significant 
impacts to the butterfly now or in the foreseeable future. Although, we 
conclude that climate change is not a threat to the butterfly, we 
intend to continue surveying and monitoring the butterfly population.
    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 indicating that there is 
any such threat from extreme weather currently or in the foreseeable 
future.

Foreseeable Future

    The Act does not define the term ``foreseeable future.'' However, 
in a January 16, 2009, memorandum addressed to the Acting Director of 
the U.S. Fish and Wildlife Service, the Office of the Solicitor, 
Department of the Interior, concluded, ``* * * [As] used in the [Act], 
Congress intended the term `foreseeable future' to describe the extent 
to which the Secretary can reasonably rely on predictions about the 
future in making determinations about the future conservation status of 
the species.'' In discussing the concept of foreseeable future for the 
butterfly, we considered: (1) The biological and demographic 
characteristics of the species (such as generation times, persistence 
of current populations); (2) our ability to predict or extrapolate the 
effects of threats facing the butterfly into the future; and (3) the 
relative permanency or irreversibility of these threats.
    Although we did not find any information to allow us to reliably 
predict that threats would increase significantly in the future, 
predicting and managing for the effects of potential future threats 
will be facilitated by the

[[Page 45410]]

Conservation Plan and Memorandum of Understanding among the Service, 
USFS, Otero County and Village of Cloudcroft that are in place and 
cover the butterfly rangewide (see Conservation Plan section under 
Factor D). Monitoring of butterfly population numbers and habitat 
conditions by the USFS is included in the Conservation Plan and any 
significant decreases in butterfly numbers or habitat conditions should 
be identified and effectively mitigated by the Service providing 
technical assistance to the USFS, Otero County, and the Village of 
Cloudcroft. The Memorandum of Understanding and Conservation Plan will 
be in place and operating until the tasks identified in the 
Conservation Plan are successfully completed, after which the 
Memorandum of Understanding can be renewed, modified, or terminated. 
The Memorandum of Understanding can be terminated by mutual concurrence 
of all parties, but because the Conservation Plan has been successfully 
implemented for 4 years through agreement in the Memorandum of 
Understanding, we have no reason to believe it will be terminated. Most 
of the tasks identified in the Conservation Plan are expected to be 
completed within 15 to 20 years and some will be ongoing. We find this 
to be a reasonable timeframe for considering the foreseeable future.

Significant Portion of the Range

    The Act defines an endangered species as one ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
a threatened species as one ``likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.'' The term ``significant portion of its range'' is not 
defined by the statute. For the purposes of this finding, a significant 
portion of a species' range is an area that is important to the 
conservation of the species because it contributes meaningfully to the 
representation, resiliency, or redundancy of the species. The 
contribution must be at a level such that its loss would result in a 
decrease in the ability to conserve the species.
    If an analysis of whether a species is threatened or endangered in 
a significant portion of its range is appropriate, we engage in a 
systematic process that begins with identifying any portions of the 
range of the species that warrant further consideration. The range of a 
species can theoretically be divided into portions in an infinite 
number of ways. However, there is no purpose in analyzing portions of 
the range that are not reasonably likely to be significant and 
threatened or endangered. To identify only those portions that warrant 
further consideration, we determine whether there is substantial 
information indicating that (i) The portions may be significant and 
(ii) the species may be in danger of extinction there or likely to 
become so within the foreseeable future. In practice, a key part of 
this analysis is whether the threats are geographically concentrated in 
some way. If the threats to the species are essentially uniform 
throughout its range, no portion is likely to warrant further 
consideration. Moreover, if any concentration of threats applies only 
to portions of the range that are unimportant to the conservation of 
the species, such portions will not warrant further consideration.
    We next address whether any portions of the butterfly's range 
warrant further consideration. On the basis of our review, we found no 
geographic concentration of threats either on USFS or private lands 
such that the subspecies may be in danger of extinction in that 
portion. Although the potential future opening of the James Allotment 
to cattle grazing may impact the butterfly and its larval food plants 
to some extent, we have found that allotments that are grazed by cattle 
and occupied by the species have not resulted in a significant threat 
to the butterfly. Similarly, we found that there is no area, either on 
USFS or private lands, within the range of the butterfly where the 
potential threat of insecticide spraying may be significantly 
concentrated or may be substantially greater than in other portions of 
the range. Therefore, we find that these possible actions will also not 
result in the endangerment of the butterfly in the foreseeable future 
within this portion or all of its range. The factors affecting the 
species are essentially uniform throughout its range, indicating that 
no portion of the butterfly's range warrants further consideration of 
possible threatened or endangered status.

Finding

    In our review of the status of the butterfly, we carefully examined 
the best scientific and commercial information available. We identified 
a number of potential threats to this subspecies, including: 
Residential and commercial property development; OHV and other 
recreational impacts; habitat altering projects in relation to roads, 
powerlines, and other small-scale impacts; cattle and feral horse 
grazing; wildfire; noxious weeds; butterfly collection; lack of 
regulatory mechanisms; insect control; climate change; and extreme 
weather events. To determine whether these factors individually or 
collectively put the species in danger of extinction throughout its 
range, or are likely to do so within the foreseeable future, we first 
considered whether the risk factors significantly affected the 
butterfly, or were likely to do so in the future.
    Information on population size and trends for the butterfly is 
limited. The overall population size is unknown because comprehensive 
surveys are logistically expensive and difficult to conduct and have 
not been conducted. Some data are available from periodic adult surveys 
and annual larval surveys, but confounding factors, lack of 
replication, and sampling errors limit their applicability in 
evaluating the butterfly's status. Few surveys have been conducted and 
only in small parts of its range, and, for this and the other reasons 
listed above, an assessment of population trends using these data would 
not be accurate. We can draw no conclusions on trend information for 
the butterfly. Notwithstanding these issues, based on the best 
available information, we find that the butterfly continues to persist 
within the same general localities (USFS 2009a; McIntyre2005, 2008, 
Ryan 2007, pp. 11-12).
    As required by the Act, we considered the five potential factors to 
assess whether the butterfly is threatened or endangered throughout all 
or a significant portion of its range. We evaluated existing and 
potential threats on the butterfly to determine what effects on the 
species were currently occurring, and whether these impacts currently 
threaten the butterfly or were likely to increase or decrease in the 
future. We did not find any current significant threats to the 
butterfly. We also considered and found that none of these factors were 
likely to increase within the foreseeable future.
    We do not that believe that recreational impacts are likely to 
increase in the foreseeable future, because the USFS has nearly 
completed reconfiguring their campgrounds to reduce their capacity, 
thereby limiting potential conflicts with the butterfly. We determined 
that projects such as roads, powerlines, and other small-scale 
disturbances have affected and will likely continue to affect the 
butterfly and its habitat, but do not pose a significant threat to the 
subspecies. Cattle grazing is being managed by the USFS to attain 
moderate-intensity grazing that appears to be compatible with the 
butterfly and its host plants. The potential for significant impacts 
from wildfire continue to be reduced through the USFS's thinning and 
prescribed burning program. Moreover, the potential for private 
property

[[Page 45411]]

development still appears to be low, given the scarcity of municipal 
water within the range of the butterfly. The potential impact of 
butterfly overcollection continues to be minimal due to a butterfly 
closure order imposed by the USFS. We determined that the regulatory 
mechanisms are adequate to provide for the protection of the butterfly 
on USFS and private lands. We find no reason to conclude that forest 
insect outbreaks similar to the 2007 event and treatment are likely to 
disappear. Still, although some spraying occurred on a small area of 
private lands, we believe that the commitments through the 2005 
Conservation Plan and the process for providing technical assistance 
avoided further impacts to the butterfly. We have no reason to conclude 
that this process currently in place would change if insecticide 
spraying is proposed in the future. As detailed above, we find the 
butterfly is not threatened by a lack of regulatory mechanisms on 
private lands at present or in the foreseeable future. Emergency 
listing of the butterfly will always remain an option if the magnitude 
of a proposed action is likely to make the species become threatened or 
endangered within the foreseeable future.
    Climate change is also likely to continue for the foreseeable 
future, but there is substantial uncertainty as to how climate change, 
described in Factor E, will affect the butterfly or its habitat. The 
uncertainty associated with the information we reviewed does not permit 
us to make an accurate prediction whether climate change will affect 
the future viability of the subspecies. We also have no new information 
indicating that there is any such threat from extreme weather currently 
or in the foreseeable future.
    We reviewed the petition and associated documents, information 
available in our files, and other published and unpublished information 
submitted to us during the public comment period following our 90-day 
petition finding. We have carefully assessed the best scientific and 
commercial information regarding the biology of this species and its 
threats. We conclude that the butterfly is not likely to become 
endangered within the foreseeable future throughout all or a 
significant portion of its range. We further conclude that the 
butterfly is not in danger of extinction throughout all or a 
significant portion of its range. In our judgment, the butterfly will 
continue to persist into the foreseeable future. Therefore, we find 
that listing the Sacramento Mountains checkerspot butterfly as a 
threatened or endangered species is not warranted.
    We will continue to monitor the status of the subspecies and to 
accept additional information and comments from all concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this finding.

References Cited

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

Author

    The primary authors of this rule are the staff members of the New 
Mexico Ecological Services Office (see ADDRESSES).

Authority

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

    Dated: August 24, 2009.
Daniel M. Ashe,
Acting Director, Fish and Wildlife Service.
[FR Doc. E9-21195 Filed 9-1-09; 8:45 am]
BILLING CODE 4310-55-S