[Federal Register Volume 74, Number 241 (Thursday, December 17, 2009)]
[Proposed Rules]
[Pages 66937-66950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29960]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0122]
[92210-1111-0000-B2]


Endangered and Threatened Wildlife and Plants; 12-month Finding 
on a Petition To Change the Final Listing of the Distinct Population 
Segment of the Canada Lynx To Include New Mexico

AGENCY: Fish and Wildlife Service, Interior.

[[Page 66938]]


ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to expand the listing of the Canada lynx 
(Lynx canadensis) to include the State of New Mexico, under the 
Endangered Species Act of 1973, as amended (Act). After a review of the 
best available scientific and commercial information, we find that the 
petition to change the boundary of the listing of Canada lynx is 
warranted but precluded by higher priority actions to amend the Lists 
of Endangered and Threatened Wildlife and Plants. We have determined 
that Canada lynx are regularly and frequently crossing the State 
boundary between Colorado and New Mexico. When lynx cross the boundary, 
their status under the Act changes, leaving lynx in New Mexico without 
Federal protection. Upon publication of this 12-month petition finding, 
we will add lynx in New Mexico to our candidate species list with a 
listing priority number of 12. We will develop a proposed rule to amend 
the listing of lynx in the lower 48 States as our priorities allow (see 
section of Preclusion and Expeditious Progress).

DATES: This finding was made on December 17, 2009.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R6-ES-2008-0122]. 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, Montana Field Office, 585 Shepard Way, 
Helena, MT 59601; telephone (406) 449-5225. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above street address.

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, U.S. 
Fish and Wildlife Service, Montana Field 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 Act (16 U.S.C. 1531 et seq.) requires 
that, for any petition containing substantial scientific or commercial 
information indicating that listing the species may be warranted, we 
make a finding within 12 months of the date of receipt of the petition. 
In this finding, we determine whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted, but that 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 Federal Lists of Endangered and Threatened 
Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we 
treat a petition for which the requested action is found to be 
warranted but precluded as though resubmitted on the date of such 
finding, that is, requiring a subsequent finding to be made within 12 
months. We must publish these 12-month findings in the Federal 
Register.

Previous Federal Action

    In the final listing rule for the Canada lynx, dated March 24, 
2000, the Service defined a contiguous DPS of the Canada lynx based on 
the international boundary with Canada and State boundaries (65 FR 
16052). The final rule included all States in the historic and current 
range of lynx, along with areas that lynx dispersed to frequently but 
had no history of reproduction or population maintenance. New Mexico 
was not included in the listed area due to a lack of any historic 
record of lynx in the State and lack of sufficient lynx habitat and 
prey. The 2000 listing of lynx contained a discussion of lynx dispersal 
behavior and our prediction that lynx would continue to disperse 
outside of currently occupied habitat and the current listed area. We 
determined that these attempted dispersal events would not constitute 
an expansion of lynx range or recolonization of previously occupied 
habitat. Subsequent to publication of the final rule in 2000, lynx 
dispersed out of the Southern Rockies reintroduction area with 
relatively high frequency (Shenk 2007, p. 16) to other States including 
New Mexico.
    In 2003, we published a clarification of the 2000 listing rule in 
which we determined that lynx were not endangered throughout a 
significant portion of their range (68 FR 40076). We also determined 
that lynx in the contiguous United States exist either as resident 
populations or as dispersers, and that due to their proclivity for 
moving long distances, lynx are often found repeatedly in habitats that 
cannot sustain breeding populations. This repeated dispersal into 
habitats that ultimately cannot support the species (``sink'' habitats) 
often leads to confusion among scientists and the public about where 
lynx populations may be viable. At the time of the clarification, we 
considered sink habitats (those with lynx habitat characteristics but 
without the requisite habitat scale or prey densities to support 
reproducing populations of lynx) to be within the range of lynx, as a 
conservative approach to conservation. We believed that in sink 
habitats, there existed the possibility that lynx could establish small 
local or ephemeral populations, and contribute to the persistence of 
the DPS, although there was admittedly no evidence that this was the 
case.
    In 2007, we published a Clarification of Findings for the 2000 
listing rule in which we determined that the significant portion of the 
range of lynx in the contiguous States is the northern Rocky Mountains 
and the North Cascades (72 FR 1186); however, the listed entity (the 
14-State DPS) did not change. This clarification also determined that 
much of the range of lynx consists of marginal habitat that cannot and 
never could support resident lynx populations, and so is not 
biologically significant to the conservation of the DPS.
    On August 8, 2007, we received a petition from Forest Guardians, 
Sinapu, Center for Native Ecosystems, Animal Protection Institute, 
Animal Protection of New Mexico, Carson Forest Watch, and Sierra Club, 
Rio Grande Chapter, requesting that we amend the final listing rule for 
the lynx DPS to include New Mexico as part of the range of the listed 
entity. Included in the petition was supporting information regarding 
our interpretation of the Act, our DPS policy, and inconsistency with 
the preamble to the March 2000 listing rule, as well as scientific 
information the petitioners deemed important to the petitioned action. 
We acknowledged the receipt of the petition in a letter to Matthew K. 
Bishop, Western Environmental Law Center, dated August 24, 2007. In 
that letter we also stated that due to staff and budget limitations we 
anticipated beginning work on the finding in Fiscal Year (FY) 2009 and 
that we would process a finding on the petition as soon as funds became 
available. An evaluation of emergency listing was conducted. Based on 
the population status and alleged threats described in the petition, we 
found no evidence to support emergency listing in New Mexico at that 
time.
    On April 17, 2008, we received a complaint for failure to complete 
a 90-day petition finding. A settlement agreement was finalized, in 
which we agreed to submit a 90-day finding by December 15, 2008. On 
December 18, 2008, we published a 90-day finding in which we determined 
that the

[[Page 66939]]

petitioners presented substantial information indicating that changing 
the listing rule to include New Mexico may be warranted (73 FR 76990). 
This notice constitutes the 12-month finding on the August 8, 2007, 
petition to amend the final listing rule for the lynx DPS to include 
New Mexico.
    We published a final rule designating critical habitat for lynx in 
the Federal Register on November 9, 2006 (71 FR 66007). On July 20, 
2007, we announced that we would review the November 9, 2006, final 
critical habitat rule after questions were raised about the integrity 
of scientific information used and whether the decision made was 
consistent with the appropriate legal standards. Based on our review of 
the previous final critical habitat designation, we determined that the 
critical habitat designation may not comport with the best available 
scientific and commercial information. On January 15, 2008, the U.S. 
District Court for the District of Columbia issued an order stating the 
Service's deadlines for a proposed rule for revised critical habitat by 
February 15, 2008, and a final rule for revised critical habitat by 
February 15, 2009. Consequently, our proposed rule was signed on 
February 13, 2008, and submitted to the Federal Register. The proposed 
rule was subsequently published in the Federal Register on February 28, 
2008 (73 FR 10860), and a final rule was published in the Federal 
Register on February 25, 2009 (74 FR 8616).

Species Information

Biology

    The biology of the species is comprehensively covered in the 
Previous Federal Actions, including the final rule listing the species 
(65 FR 16052), the two clarifications of that final rule (68 FR 40076; 
72 FR 1186) and the 2009 final critical habitat rule (74 FR 8616).
    Here, we provide a short summary of the relevant species biology. 
Canada lynx are medium-sized cats, generally measuring 30 to 35 inches 
(75 to 90 centimeters) long and weighing 18 to 23 pounds (8 to 10.5 
kilograms) (Quinn and Parker 1987, Table 1). They have large, well-
furred feet and long legs for traversing snow; tufts on the ears; and 
short, black-tipped tails. Lynx are specialized predators of snowshoe 
hare (Lepus americanus) (McCord and Cardoza 1982, p. 744; Quinn and 
Parker 1987, pp. 684-685; Aubry et al. 2000, pp. 375-378). Lynx are 
dependent on snowshoe hare populations for survival, so lynx habitat 
suitability is strongly correlated with snowshoe hare habitat quality. 
We consider adequate snowshoe hare densities to be the most important 
habitat component for lynx.
    Lynx and snowshoe hares are strongly associated with what is 
broadly described as boreal forest (Bittner and Rongstad 1982, p. 154; 
McCord and Cardoza 1982, p. 743; Quinn and Parker 1987, p. 684; Agee 
2000, p. 39; Aubry et al. 2000, pp. 378-382; Hodges 2000a, pp. 136-140 
and 2000b, pp. 183-191; McKelvey et al. 2000a, pp. 211-232). The 
predominant vegetation of boreal forest is conifer trees, primarily 
species of spruce (Picea spp.) and fir (Abies spp.) (Elliot-Fisk 1988, 
pp. 34-35, 37-42). In the contiguous United States, the boreal forest 
types transition to deciduous temperate forest in the Northeast and 
Great Lakes and to subalpine forest in the west (Agee 2000, pp. 40-41). 
Lynx habitat can generally be described as moist boreal forests that 
have cold, snowy winters and a high-density snowshoe hare prey base 
(Quinn and Parker 1987, pp. 684-685; Agee 2000, pp. 39-47; Aubry et al. 
2000, pp. 373-375; Buskirk et al. 2000a, pp. 397-405; Ruggiero et al. 
2000, pp. 445-447).
    In mountainous areas, the boreal forests that lynx use are 
characterized by scattered moist forest types with high hare densities 
in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest) 
with low hare densities. In these areas, lynx incorporate the matrix 
habitat (non-boreal forest habitat elements) into their home ranges and 
use it for traveling between patches of boreal forest that support high 
hare densities where most foraging occurs. In areas like the northern 
and southern Rockies where high-density hare habitat is fragmented by 
other habitat types, hare density must remain high at the landscape 
scale (i.e., averaged over all habitat types) for lynx to maintain 
residency and reproduction.
    Snow conditions also determine the distribution of lynx (Ruggiero 
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically 
adapted for hunting in deep snow and surviving in areas that have cold 
winters with deep, fluffy snow for extended periods. These adaptations 
provide lynx a competitive advantage over potential competitors, such 
as bobcats (Lynx rufus) or coyotes (Canis latrans) (McCord and Cardoza 
1982, p. 748; Buskirk et al. 2000b, pp. 86-95; Ruediger et al. 2000, 
pp. 1-11; Ruggiero et al. 2000, pp. 445, 450). Bobcats and coyotes have 
a higher foot load (more weight per surface area of foot), which causes 
them to sink into the snow more than lynx. Therefore, bobcats and 
coyotes cannot efficiently hunt in fluffy or deep snow and are at a 
competitive disadvantage to lynx. Long-term snow conditions presumably 
limit the winter distribution of potential lynx competitors such as 
bobcats (McCord and Cardoza 1982, p. 748) or coyotes.

Lynx Habitat Requirements

    Because of the patchy and temporal nature of high-quality snowshoe 
hare habitat, lynx populations require large boreal forest landscapes 
to ensure that sufficient high- quality snowshoe hare habitat is 
available and to ensure that lynx may move freely among patches of 
suitable habitat and among subpopulations of lynx. Populations that are 
composed of a number of discrete subpopulations, connected by 
dispersal, are called metapopulations (McKelvey et al. 2000b, p. 25). 
Individual lynx maintain large home ranges (reported as generally 
ranging between 12 to 83 square miles (mi\2\) (31 to 216 square 
kilometers (km\2\)) (Koehler 1990, p. 847; Aubry et al. 2000, pp. 382-
386; Squires and Laurion 2000, pp. 342-347; Squires et al. 2004, pp. 
13-16, Table 6; Vashon et al. 2005, pp. 7-11; Shenk 2009a, pp. 6-7). 
The size of lynx home ranges varies depending on abundance of prey, the 
animal's gender and age, the season, and the density of lynx 
populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and 
Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-386; Mowat et al. 
2000, pp. 276-280; Vashon et al. 2005, pp. 9-10). When densities of 
snowshoe hares decline, for example, lynx enlarge their home ranges to 
obtain sufficient amounts of food to survive and reproduce, or seek new 
habitats in which to establish a home range through dispersal.
    In the contiguous United States, the boreal forest landscape is 
naturally patchy and transitional because it is the southern edge of 
the distributional range of boreal forest. This patchiness generally 
limits snowshoe hare populations in the contiguous United States from 
achieving densities similar to those of the expansive northern boreal 
forest in Canada (Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 
24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84). 
Additionally, the presence of more snowshoe hare predators and 
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx 
generally occur at relatively low densities in the contiguous United 
States compared to the high lynx densities that occur in the northern 
boreal forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or to the 
densities of species such as the bobcat, which is a habitat and prey 
generalist.

[[Page 66940]]

    Lynx are highly mobile and often move long distances (greater than 
60 miles (mi) (100 kilometers (km))) during dispersal attempts (Aubry 
et al. 2000, pp. 386-387; Mowat et al. 2000, pp. 290-294). Lynx 
disperse primarily when snowshoe hare populations decline (Ward and 
Krebs 1985, pp. 2821-2823; O'Donoghue et al. 1997, pp. 156, 159; Poole 
1997, pp. 499-503). Sub-adult lynx disperse even when prey is abundant 
(Poole 1997, pp. 502-503) because local home ranges with abundant hares 
are generally occupied by established adult lynx and sub-adults must 
look elsewhere to establish new home ranges. Lynx also make exploratory 
movements outside their home ranges (Aubry et al. 2000, p. 386; Squires 
et al. 2001, pp. 18-26).
    The boreal forest landscape is naturally dynamic. Forest stands 
within the landscape change as they undergo succession after natural or 
human-caused disturbances such as fire, insect epidemics, wind, ice, 
disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000, 
pp. 47-69). As a result, lynx habitat within the boreal forest 
landscape is typically patchy because the boreal forest contains stands 
of differing ages and conditions, some of which are suitable as lynx 
foraging or denning habitat (or will become suitable in the future due 
to forest succession) and some of which serve as travel routes for lynx 
moving between foraging and denning habitat (McKelvey et al. 2000c, pp. 
427-434; Hoving et al. 2004, pp. 290-292).
    Snowshoe hares comprise a majority of the lynx diet (Nellis et al. 
1972, pp. 323-325; Brand et al. 1976, pp. 422-425; Koehler 1990, p. 
848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat 
et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires et al. 
2004, p. 15, Table 8). When snowshoe hare populations are low, female 
lynx produce few or no kittens that survive to independence (Nellis et 
al. 1972, pp. 326-328; Brand et al. 1976, pp. 420, 427; Brand and Keith 
1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996, 
pp. 953-958; O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000, 
pp. 388-389; Mowat et al. 2000, pp. 285-287). Lynx prey 
opportunistically on other small mammals and birds, particularly during 
lows in snowshoe hare populations, but alternate prey species may not 
sufficiently compensate for low availability of snowshoe hares, 
resulting in reduced reproductive success and reduced lynx populations 
(Brand et al. 1976, pp. 422-425; Brand and Keith 1979, pp. 833-834; 
Koehler 1990, pp. 848-849; Mowat et al. 2000, pp. 267-268).
    In northern Canada, lynx populations fluctuate in response to the 
cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat 
et al. 2000, pp. 270-272). Although snowshoe hare populations in the 
northern portion of their range show strong, regular population cycles, 
these fluctuations are generally much less pronounced in the southern 
portion of their range in the contiguous United States (Hodges 2000b, 
pp. 165-173). In the contiguous United States, the degree to which 
regional local lynx population fluctuations are influenced by local 
snowshoe hare population dynamics is unclear. However, researchers 
anticipated that, because of natural fluctuations in snowshoe hare 
populations, there will be periods when lynx densities are extremely 
low.
    Because lynx population dynamics, survival, and reproduction are 
closely tied to snowshoe hare availability, lynx habitat suitability is 
directly tied to hare habitat quality. Lynx generally concentrate their 
foraging and hunting activities in habitat patches where snowshoe hare 
populations are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985, 
pp. 2821-2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp. 
155, 159-160 and 1998, pp. 178-181). Snowshoe hares are most abundant 
in forest stands with dense understories that provide forage, cover to 
escape from predators, and protection during extreme weather (Wolfe et 
al. 1982, pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges 
2000a, pp. 136-140 and 2000b, pp. 183-195). Generally, hare densities 
are higher in regenerating, earlier successional forest stages because 
they have greater understory structure than mature forests (Buehler and 
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp. 
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, pp. 63, 141; Griffin 
2004, pp. 84-88). However, snowshoe hares can be abundant in mature 
forests with dense understories (multi-storied stands) especially in 
the Rocky Mountains (Griffin 2004, pp. 53-54, Squires et al. 2006, p. 
15).
    Within the boreal forest, lynx den sites are located where coarse 
woody debris, such as downed logs and windfalls, provides security and 
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744; 
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion 
2000, pp. 346-347; Squires et al. 2008, p. 1503; Organ 2001). The 
amount of structure (e.g., downed, large, woody debris) appears to be 
more important than the age of the forest stand for lynx denning 
habitat (Mowat et al. 2000, pp. 10-11); however, proximity to forest 
stands with high horizontal cover (and presumably high snowshoe hare 
density) does contribute to overall suitability of denning sites 
(Squires et al. 2008, p. 1503).

The 14-State Canada Lynx DPS

    The Service listed lynx in 2000 within what we determined to be the 
contiguous United States DPS, which included the known current and 
historical range of the lynx (68 FR 40080). In specifying where lynx 
was listed, we used State boundaries to circumscribe the outer limits 
in which the DPS was found at the time, using the best science 
available. This range included portions of the States of Colorado, 
Idaho, Maine, Minnesota, Montana, Washington, and Wyoming, and also 
areas that could support dispersers - portions of the above States 
along with portions of Michigan, New Hampshire, New York, Oregon, Utah, 
Vermont, and Wisconsin (68 FR 40099). We did not consider other areas 
outside of boreal forest, where dispersing lynx had only been 
sporadically documented in the past, to be within the range of the 
lynx, because we deemed these areas to be currently incapable of 
supporting dispersing lynx. These areas included Connecticut, Indiana, 
Iowa, Massachusetts, Nebraska, Nevada, North Dakota, Ohio, 
Pennsylvania, South Dakota, and Virginia (68 FR 40099).
    We did not include New Mexico in this list of States because no 
lynx occurred there, and we had no information to indicate that lynx 
had ever been documented there, even sporadically. Therefore, we 
determined that the boundaries delineating the range of lynx did not 
include New Mexico because it was not within the current or historical 
range of the species (68 FR 40083). In addition, no review of potential 
habitat in New Mexico was conducted. We did not consider lynx recently 
released into Colorado that strayed into New Mexico as sufficient 
reason to include New Mexico within the range of lynx because there was 
no evidence that habitat in New Mexico historically supported lynx, or 
that lynx moving into New Mexico would support maintenance of the lynx 
DPS (68 FR 40083).
    In 1998, when the Service proposed to list the lynx in the United 
States, no wild (or reintroduced) lynx were known to exist in Colorado, 
which represented the extreme southern edge of the species' range (65 
FR 16059). Boreal forest habitat in Colorado and southeastern Wyoming, 
the Southern Rocky Mountain Region, is isolated

[[Page 66941]]

from boreal forest in Utah and northwestern Wyoming by intervening 
grassland and shrubland habitats, and is naturally highly fragmented 
(65 FR 16059).
    It was uncertain whether lynx records from Colorado represented a 
small self-sustaining lynx population, or whether historical records 
represented dispersers that arrived during high population cycles of 
lynx and subsequently died out. Under the scenario whereby lynx in 
Colorado were not a self-sustaining population, some of the dispersers 
may have remained for a period of years if hare populations were high 
enough to support residents and reproduction, but eventually succumbed 
to a lack of consistent, high-quality habitat and food sources. We 
believe that this is the most likely historical scenario in the 
southern Rockies based on the small number of historic lynx records 
(McKelvey et al. 2000a, pp. 229-231), low snowshoe hare densities 
(Andersen et al. 1980, Table 5; Dolbeer and Clark 1975, p. 539; Hodges 
2000b, Table 7.5; Malaney 2003, pp. 65, 87, 90; Zahratka and Shenk 
2008, Table 4), and overall low reproductive output of the reintroduced 
population (Shenk 2007, pp. 11-13).
    In 1999, the Colorado Division of Wildlife (CDOW) reintroduced 22 
wild lynx from Canada and Alaska into southwestern Colorado (Shenk 
2007, p. 20). By 2003, when we clarified the listing rule (68 FR 40076, 
July 3, 2003), no data indicated that the lynx released could be 
supported by the habitat available in Colorado. In their 2007 Wildlife 
Research Report, CDOW continued to conclude that ``what is yet to be 
determined is whether current conditions in Colorado can support the 
recruitment necessary to offset annual mortality in order to sustain 
the population'' (Shenk 2007, p. 18). Colorado was included in the 14-
State DPS in 2000, because records indicated that lynx were documented 
there historically; however, it was not known whether the habitat 
occurred in the requisite quantity and quality to sustain lynx 
populations. Therefore, the 2000 listing represented a conservative 
approach, which included areas in the range of the species when 
evidence of long-term persistence was lacking, but enough evidence 
existed that it could not be discounted.
    In 2000, when the final listing rule was published, we were not 
aware of any information to indicate that lynx existed in New Mexico, 
that it was ever occupied historically, or that it could sustain lynx. 
As a consequence, we did not include New Mexico in the listing rule or 
special rule concerning lynx in the contiguous 14-State DPS. We now 
have documentation that lynx reintroduced in Colorado have attempted to 
disperse in many directions, primarily into New Mexico, Utah, and 
Wyoming, but also into eight other States (Shenk 2007, pp. 6, 9). No 
reproduction has been documented in New Mexico or Utah, but one den was 
found in Wyoming (Shenk 2007, p. 15), and one den was found within 5.6 
mi (9 km) of the Colorado-New Mexico State boundary (Shenk 2009b, 
entire).
    We also point out that lynx dispersal away from the reintroduction 
area in southern Colorado is what would be predicted if lynx were 
reintroduced into an area that consisted mostly of unsuitable habitat, 
and dispersing animals were searching for habitats with the requisite 
prey densities that could support resident animals. Our review of the 
evidence indicates that this habitat is most likely found north of the 
southern Rockies.
    We included an analysis in the final lynx listing rule (68 FR 
40081) on whether lynx were both discrete and significant in each of 
the four regions of the contiguous United States where it exists (the 
Northeast, Great Lakes, Southern Rocky Mountains, and Northern Rocky 
Mountains/Cascades). We determined that none of the regions 
individually constitute significantly unique or unusual ecological 
settings and, therefore, did not individually meet the DPS criteria. 
Therefore, the lynx was listed as a single contiguous United States DPS 
defined by 14 States.

Lynx in the Southern Rockies

    Lynx reintroduction into the southern Rocky Mountains in southern 
Colorado occurred between 1999 and 2006 with a total of 218 animals 
released (Shenk 2008, p. 1). Reintroduced lynx were captured from the 
wild in Alaska and Canada. Also in 1999, the CDOW began a post-release 
monitoring program that tracked reintroduced animals (and, 
opportunistically, their wild-born progeny). The purpose of the 
monitoring program was to determine whether the reintroduced population 
was reproducing and to collect habitat use and other ecological data. 
Prior to beginning reintroductions, CDOW reviewed the historic evidence 
of lynx occupation and concluded that the Southern Rockies in Colorado 
represent the extreme southern edge of the range of lynx. At that time, 
lynx were either extirpated or at such low densities that the extant 
population was no longer viable (Seidel et al. 1998, p. 4). Throughout 
the post-release monitoring program, CDOW has maintained that the 
reintroduction is experimental in nature and that it remains to be 
determined whether the southern Rockies can support enough lynx 
reproduction to offset mortality (Shenk 2007, p. 18)
    At the time of the lynx listing in 2000, the CDOW reintroduction 
program was in its beginning stages and without post-release data or 
analysis to evaluate its effectiveness. Consequently, when lynx were 
listed, lynx released into Colorado, prior to and after the listing, 
received the full protection of the Act as a threatened species. At 
that time, it was our determination that habitat in Colorado 
represented the southernmost extension of lynx range (65 FR 16052, p. 
16059), based on the lack of historic lynx records in New Mexico. 
Therefore, when the line demarcating the range of lynx (and 
consequently the regulatory reach of the final listing rule) was placed 
at the border of Colorado and New Mexico, it was thought that this 
boundary placement conservatively encompassed all of the lynx range in 
the southern Rocky Mountains, and that while lynx may occasionally 
wander south of that line, such occurrences would be rare (68 FR 40076, 
p. 40077).
    Habitat in New Mexico that may support all or a portion of lynx 
life-history needs is limited to the San Juan and Sangre de Cristo 
mountains in the northern part of the State. Both of these ranges are 
contiguous with mountains in Colorado where reintroduced lynx are 
residing and have reproduced. Both of these mountain ranges have 
snowshoe hares (Malaney and Frey 2006, p. 879); however, densities at 
the landscape scale (i.e., the scale of a lynx home range) are low 
(0.13 hares/ha (0.32 hares/ac) before seasonal recruitment) and are 
likely not high enough to support resident lynx (Malaney 2003, pp. 65, 
87, 90).
    Most of the habitat in question is managed by the Carson and Santa 
Fe National Forests of the U.S. Forest Service (USFS). Approximately 
596,000 ac (241,193 ha) of spruce-fir forest types lie within this 
area, 440,000 ac of which are on National Forest system lands (USFS 
2009, pp. 5-6). On the Carson and Santa Fe National Forests, 
approximately 536,400 ac (217,073 ha) have characteristics of potential 
lynx habitat (spruce fir and other cold, wet conifer forest types), 
about 45 percent of which occurs in designated wilderness (USFS 2009, 
p. 7). As a reference, in the reintroduced Colorado lynx population the 
average lynx home range size is 108,109 ac (43,750 ha) (calculated from 
data in Shenk 2007, p. 11). Other small patches of isolated spruce-fir 
and mixed conifer habitats occur in northern New Mexico, but due to 
their small size, they are not considered to have any value as lynx 
habitats (USFS 2009, p. 7). In their

[[Page 66942]]

information submitted for this finding, the USFS concluded that due to 
the lack of historic record, lack of reproduction in reintroduced lynx, 
low prey densities, high densities of competitor species and relatively 
low snow levels for this area, New Mexico is likely to function as a 
``sink'' habitat for the reintroduced lynx population in the southern 
Rockies meaning that mortality would exceed recruitment in this area 
(USFS 2009, p. 17).
    As explained in our 2007 clarification of the 2000 listing rule (72 
FR 1186, p. 1189), the presence of snowshoe hares at high population 
densities is a pre-requisite for lynx residency in any area. However, 
neither the presence of snowshoe hare populations nor contiguity with a 
lynx population are sufficient to assure that lynx will reside in an 
area that lacks a high density of snowshoe hares at a scale large 
enough to support a lynx home range (landscape scale). Snowshoe hare 
habitat is of varying quality, and in the lower-48 States only the 
highest quality habitat (i.e., that with the highest snowshoe hare 
densities) is capable of supporting lynx populations and contributing 
to the maintenance of the DPS. Since long-term studies of snowshoe hare 
densities across the range of the DPS have not occurred, we believe 
that historic and recent data about where lynx have or do reside and 
reproduce, provide the best available scientific data concerning which 
areas have the requisite high hare densities and amount of habitat 
required to support lynx.
    The best source of lynx presence data for the historic period is 
McKelvey et al. (2000b entire). McKelvey et al. (2000b, entire) focus 
on the use of ``verifiable records'' as the most appropriate locality 
records for lynx. Verifiable records are those for which there is 
verifiable evidence that the animal in question was a lynx, such as a 
museum specimen, a diagnostic photograph, or an expert that had the 
animal ``in hand'' at the time of identification. We believe that the 
need for accurate identification of lynx necessitates that only 
verifiable records be used, and we refer readers to McKelvey et al. 
(2008, entire) for a discussion of evidentiary standards. Others have 
attempted to determine the historic range of lynx through the use of 
other types of evidence. Frey (2006, entire) used a combination of 
habitat associations, biogeography, and habitat contiguity with known 
populations to infer lynx historic range to areas without historic 
records.
    While this method may point to areas that were potentially in the 
range of the species, it presumes that we understand the species' life-
history needs and the habitat condition well enough to know if the 
habitat in question would support the species. In the case of lynx, we 
know that lynx are dependent on high-density snowshoe hare populations, 
in the sense that we know of no lynx population that occurs in an area 
without a high density of hares. Conversely, we do know of habitats 
with low-density hare populations that have no lynx populations, such 
as the Olympic Peninsula in Washington, southwestern Montana/central 
Idaho, and much of Appalachia (Hall 1981, p. 317). We do not know what 
the threshold landscape-scale hare density is that will allow lynx to 
persist, or precisely what habitat characteristics allow persistence of 
reproducing populations.
    Many depictions of lynx geographic range simply draw lines around 
peripheral occurrence records without reference to habitat (e.g., Hall 
1981). These depictions are likely to over-estimate the extent of lynx 
range due to the animal's tendency to move long distances across 
unsuitable habitats while attempting to disperse. Attempted dispersal 
forays also bring lynx into human-dominated landscapes where they are 
disproportionately likely to experience mortality in a way that leads 
to discovery by humans and thus these animals are disproportionately 
likely to become locality records. We believe that the best available 
scientific information to inform determinations about historic range is 
verifiable occurrence records due to their high level of reliability. 
Verifiable species records, put in the context of suitable habitat 
distribution, are crucial to determining what the historic distribution 
of a species was, especially when there is some doubt about the habitat 
characteristics that are sufficient to support the species. By using 
verifiable occurrence records, we essentially give lynx a vote in the 
process, where scientific uncertainty does not permit us to determine 
precisely where suitable habitat exists. For these reasons, we believe 
that lynx geographic range is best depicted through a combination of 
reliable occurrence records and suitable habitat. Because lynx have a 
tendency to move long distances during unsuccessful dispersal attempts, 
the actual range of the species is much smaller than what is depicted 
on range maps that simply draw lines around peripheral occurrence 
records and do not consider habitat type and quality. For examples of 
analyses that use both occurrence records and suitable habitat to 
determine where a species may have occurred in the past, see McKelvey 
et al. (2000b, entire) and Aubry et al. (2007, entire).
    In our 2007 clarification of the 2000 listing rule, we further 
determined that the northern Rockies and North Cascades formed a 
significant portion of the DPS' range because this geographic area and 
its constituents (e.g., habitat) was the primary region necessary to 
support the long-term existence of the contiguous U.S. DPS (72 FR 1186, 
p. 1189). This finding was based on the remaining portions of the DPS 
range being composed of marginal habitat where lynx presence was tied 
more directly to immigration of lynx from Canada. In that document we 
emphasized that, just because habitat is marginal, it does not mean 
that lynx can no longer live there. Instead, marginal habitat means 
that such areas cannot and may never have supported resident lynx 
populations (72 FR 1186, p. 1188).
    Data collected by CDOW during their post-release monitoring also 
are valuable in determining where lynx may find snowshoe hare densities 
that may (at least occasionally) support reproduction. Between 
September 1999 and March 2007, 60 individual lynx (37 females, 23 
males) crossed into New Mexico (Shenk 2007, p. 10). Many of these lynx 
passed back into Colorado after short forays into New Mexico, 14 
mortalities occurred, and some lynx may have resided in New Mexico 
year-round, although that has not been documented (Shenk 2007, pp. 10-
26). From September 1999 through March 2007, CDOW found no evidence 
that any of the 37 female lynx that have moved into New Mexico 
reproduced or attempted to reproduce (Shenk 2007, p. 15). However, CDOW 
does not monitor lynx that leave the State of Colorado as intensively 
as it does in Colorado. Based on the large number of female lynx that 
have moved into New Mexico over the period of the reintroduction 
program without evidence of any reproduction, we cannot conclude that 
New Mexico lynx habitat is of high enough quality to support a resident 
population. Indeed, we share CDOW's concern that the southern Rockies 
in their entirety may not be able to sustain a lynx population.
    Lynx suffer proportionally higher mortality in New Mexico than in 
other States (Shenk 2001, p. 14). However, statistical tests to 
determine whether this difference was significantly different than what 
might be expected by chance were not reported. In addition, lynx 
mortality due to deliberate killing (shooting) was higher as a 
proportion of all mortalities in Colorado (53.8 percent) (where all 
lynx are protected by the Act) than they were outside Colorado (46.2 
percent) (where

[[Page 66943]]

lynx have Act protections in some States but not New Mexico and others) 
(Shenk 2007, Table 9). Therefore, the evidence presented by Shenk does 
not indicate that lack of the Act's protections in New Mexico is a 
significant contributor to lynx mortality. Rather, lynx mortality is 
high for lynx that disperse outside of high-quality lynx habitat 
whether they remain under the protection of the Act or not. This result 
is to be expected, because dispersal outside of quality habitat is 
usually only done under stress, such as inability to find food or 
displacement by another lynx. Dispersal outside of lynx habitat is 
likely to place lynx in human-dominated landscapes such as agricultural 
areas, settlements, and transportation corridors, where lynx 
mortalities are more likely to occur.
    It is our determination, based on the historic lack of evidence of 
lynx occurrence in New Mexico (McKelvey et al. 2000a, Table 8.1) and 
the recent evidence of lynx dispersal attempts into northern New Mexico 
(Shenk 2007, pp. 29-31), that lynx in New Mexico represent attempted 
dispersers, rather than lynx establishing residency in suitable habitat 
as defined in our clarification of findings (68 FR 40076, p. 40077). We 
also believe that the habitat in New Mexico is a population ``sink'', 
in that it is unlikely to support lynx reproduction to the extent that 
recruitment will ever be able to offset population mortality, even 
absent any human-caused mortality. However, as we stated in 2003, at 
the time of listing we considered lynx found in population sinks such 
as New Mexico to be dispersers but we included these areas within the 
range of lynx (68 FR 40076, p. 40080).

Finding

    We have carefully assessed the information in the petition along 
with the best scientific and commercial data available. This 12-month 
finding reflects and incorporates information that we received during 
the public comment period or that we obtained through consultation, 
literature research, and field visits.
    On the basis of this review, we have determined that revising the 
boundaries of the DPS as identified in the 2000 final listing rule for 
Canada lynx to include New Mexico is warranted. This finding is based 
on the fact that the information that we used to describe the southern 
boundary of the DPS at the time of listing is out of date. Lynx that 
attempt to disperse outside of areas that support populations should be 
protected from direct or indirect mortality that may occur due to the 
lack of protections under the Act.
    We are assigning a listing priority number (LPN) of 12 to amending 
the listing of lynx to include New Mexico in the listed DPS. We assign 
an LPN of 1 to 12 (higher number being of lower priority), depending on 
the magnitude of threats (high vs. moderate to low), immediacy of 
threats (imminent or nonimminent), and taxonomic status of the species 
(in order of priority: monotypic genus (a species that is the sole 
member of a genus); species; or part of a species (subspecies, DPS, or 
significant portion of the range)). We are assigning an LPN of 12 based 
on nonimminent threats of a low magnitude to the lynx DPS occurring 
from human-caused mortality to lynx dispersing to New Mexico and the 
lack of protection under the Act for these lynx. Human-caused mortality 
is a factor affecting lynx in New Mexico; however, this impact does not 
occur at a level such that it creates a significant threat to lynx in 
the contiguous United States and to the DPS as a whole. The magnitude 
of threats to the lynx DPS, inclusive of those lynx in New Mexico, is 
low. The threats occur infrequently and are nonimminent. Furthermore, 
as described above, the amount of suitable habitat for lynx in New 
Mexico is considered negligible relative to the amount of habitat 
within the listed range. Potential impacts to the habitat have not been 
documented to threaten lynx, either in New Mexico or outside of it. The 
majority of lynx and its habitats within the DPS are already protected 
by the Act. Because lynx in the lower 48 States are listed as a DPS, 
the appropriate LPN for this level of magnitude and immediacy of 
threats is a 12.

Emergency Listing

    We may list a species effective immediately under Section 4 of the 
Act if there is any emergency posing a significant risk to the well-
being of the species. Because threats identified to lynx in New Mexico 
are determined to be nonimminent and of low magnitude for the species 
in the lower 48 States (DPS) as a whole, the Secretary has determined 
not to exercise his discretion to invoke the provisions to immediately 
put the protections of the Act in place for the Canada lynx in New 
Mexico.

Importance of Habitat in New Mexico for the Lynx DPS

    The information gathered in the process of preparing this finding 
does not indicate that New Mexico can support reproducing lynx. We 
still find no evidence that New Mexico can support a lynx population or 
that habitat in New Mexico may play a supporting role in conservation 
of the DPS. We believe that the only role that habitat in New Mexico 
may play in lynx conservation is to allow individuals to survive long 
enough to move north back into more suitable habitat. Managing to 
increase habitat suitability for lynx in New Mexico would be counter-
productive to this end, because it is unlikely that habitat in New 
Mexico can be made to support lynx, and the important goal is that lynx 
return to the population further north. Therefore, we do not recommend 
that habitat in New Mexico be managed to support residency and 
reproduction, as are habitats further north in Colorado and the 
northern Rockies. For example, we do not think it would be appropriate 
for the USFS to implement management based on the Lynx Conservation 
Assessment and Strategy such as that found in the Southern Rocky 
Mountain Lynx Amendment (USFS 2008).

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is threatened or endangered in a significant 
portion of its range. Because this 12-month finding to amend the 
listing of the Canada lynx DPS is warranted but precluded, we do not 
need to perform a ``significant portion of the range'' analysis for the 
species at this time.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and competing demands for 
those resources. Thus, in any given FY, multiple factors dictate 
whether it will be possible to undertake work on a proposed listing 
regulation or whether promulgation of such a proposal is warranted but 
precluded by higher-priority listing actions.
    The resources available for listing actions are determined through 
the annual Congressional appropriations process. The appropriation for 
the Listing Program is available to support work involving the 
following listing actions: Proposed and final listing rules; 90-day and 
12-month findings on petitions to add species to the Lists of 
Endangered and Threatened Wildlife and Plants (Lists) or to change the 
status of a species from threatened to endangered; annual 
determinations on prior ``warranted but precluded'' petition findings 
as required under section 4(b)(3)(C)(i) of the Act; critical habitat 
petition findings; proposed and

[[Page 66944]]

final rules designating critical habitat; and litigation-related, 
administrative, and program-management functions (including preparing 
and allocating budgets, responding to Congressional and public 
inquiries, and conducting public outreach regarding listing and 
critical habitat). The work involved in preparing various listing 
documents can be extensive and may include, but is not limited to: 
gathering and assessing the best scientific and commercial data 
available and conducting analyses used as the basis for our decisions; 
writing and publishing documents; and obtaining, reviewing, and 
evaluating public and peer review comments on proposed rules and 
incorporating relevant information into final rules. The number of 
listing actions that we can undertake in a given year also is 
influenced by the complexity of those listing actions; that is, more 
complex actions generally are more costly. For example, during the past 
several years, the cost (excluding publication costs) for preparing a 
12-month finding, without a proposed rule, has ranged from 
approximately $11,000 for one species with a restricted range and 
involving a relatively uncomplicated analysis, to $305,000 for another 
species that is wide-ranging and involved a complex analysis.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. Sec.  
1341(a)(1)(A)). In addition, in FY 1998 and for each FY since then, 
Congress has placed a statutory cap on funds that may be expended for 
the Listing Program, equal to the amount expressly appropriated for 
that purpose in that FY. This cap was designed to prevent funds 
appropriated for other functions under the Act (for example, recovery 
funds for removing species from the Lists), or for other Service 
programs, from being used for Listing Program actions (see House Report 
105-163, 105th Congress, 1st Session, July 1, 1997).
    Recognizing that designation of critical habitat for species 
already listed would consume most of the overall Listing Program 
appropriation, Congress also put a critical habitat subcap in place in 
FY 2002, and has retained it each subsequent year to ensure that some 
funds are available for other work in the Listing Program: ``The 
critical habitat designation subcap will ensure that some funding is 
available to address other listing activities'' (House Report No. 107-
103, 107th Congress, 1st Session, June 19, 2001). In FY 2002 and each 
year until FY 2006, the Service has had to use virtually the entire 
critical habitat subcap to address court-mandated designations of 
critical habitat. Consequently, none of the critical habitat subcap 
funds have been available for other listing activities. In FY 2007, we 
were able to use some of the critical habitat subcap funds to fund 
proposed listing determinations for high-priority candidate species. In 
FY 2008 and 2009, while we were unable to use any of the critical 
habitat subcap funds to fund proposed listing determinations, we did 
use some of this money to fund the critical habitat portion of some 
proposed listing determinations, so that the proposed listing 
determination and proposed critical habitat designation could be 
combined into one rule, thereby being more efficient in our work. In FY 
2010, we anticipate being able to do the same.
    Thus, through the listing cap, the critical habitat subcap, and the 
amount of funds needed to address court-mandated critical habitat 
designations, Congress and the courts have in effect determined the 
amount of money available for other listing activities. Therefore, the 
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already-listed species, set the limits on 
our determinations of preclusion and expeditious progress.
    Congress also recognized that the availability of resources was the 
key element in deciding, when making a 12-month petition finding, 
whether we would prepare and issue a listing proposal or instead make a 
``warranted but precluded'' finding for a given species. The Conference 
Report accompanying Public Law 97-304, which established the current 
statutory deadlines for listing and the warranted-but-precluded finding 
requirements that are currently contained in the Act, states (in a 
discussion on 90-day petition findings that by its own terms also 
covers 12-month findings) that the deadlines were ``not intended to 
allow the Secretary to delay commencing the rulemaking process for any 
reason other than that the existence of pending or imminent proposals 
to list species subject to a greater degree of threat would make 
allocation of resources to such a petition [i.e., for a lower-ranking 
species] unwise.''
    In FY 2010, expeditious progress is that amount of work that can be 
achieved with $10,471,000, which is the amount of money that Congress 
appropriated for the Listing Program (that is, the portion of the 
Listing Program funding not related to critical habitat designations 
for species that are already listed). Our process is to make our 
determinations of preclusion on a nationwide basis to ensure that the 
species most in need of listing will be addressed first and also 
because we allocate our listing budget on a nationwide basis. The 
$10,471,000 will be used to fund work in the following categories: 
compliance with court orders and court-approved settlement agreements 
requiring that petition findings or listing determinations be completed 
by a specific date; section 4 (of the Act) listing actions with 
absolute statutory deadlines; essential litigation-related, 
administrative, and listing program-management functions; and high-
priority listing actions for some of our candidate species. The 
allocations for each specific listing action are identified in the 
Service's FY 2009 Allocation Table (part of our administrative record). 
For FY 2010, Congress recently passed an appropriations bill. We are 
working on finalizing our allocation of money for specific listing 
actions.
    In FY 2007, we had more than 120 species with an LPN of 2, based on 
our September 21, 1983, guidance for assigning an LPN for each 
candidate species (48 FR 43098). Using this guidance, we assign each 
candidate an LPN of 1 to 12, depending on the magnitude of threats 
(high vs. moderate to low), immediacy of threats (imminent or 
nonimminent), and taxonomic status of the species (in order of 
priority: monotypic genus (a species that is the sole member of a 
genus); species; or part of a species (subspecies, DPS, or significant 
portion of the range)). The lower the listing priority number, the 
higher the listing priority (that is, a species with an LPN of 1 would 
have the highest listing priority). Because of the large number of 
high-priority species, we further ranked the candidate species with an 
LPN of 2 by using the following extinction-risk type criteria: 
International Union for the Conservation of Nature and Natural 
Resources (IUCN) Red list status/rank, Heritage rank (provided by 
NatureServe), Heritage threat rank (provided by NatureServe), and 
species currently with fewer than 50 individuals, or 4 or fewer 
populations. Those species with the highest IUCN rank (critically 
endangered), the highest Heritage rank (G1), the highest Heritage 
threat rank (substantial, imminent threats), and currently with fewer 
than 50 individuals, or fewer than 4 populations, comprised a group of 
approximately 40 candidate species (``Top 40''). These 40 candidate 
species have had the highest priority to receive funding to work on a 
proposed listing determination. As we work on proposed and final 
listing rules for these 40

[[Page 66945]]

candidates, we are applying the ranking criteria to the next group of 
candidates with LPNs of 2 and 3 to determine the next set of highest 
priority candidate species. In FY 2008-2009, we funded work on proposed 
listing determinations for 61 candidate species, most of which have an 
LPN of 2, although these have not been published to date. There are 
currently 56 candidate species with an LPN of 2 that nave not received 
funding for preparation of proposed listing rules.
    To be more efficient in our listing process, as we work on proposed 
rules for these species in the next several years, we are preparing 
multi-species proposals when appropriate, and these may include species 
with lower priority if they overlap geographically or have the same 
threats as a species with an LPN of 2. In addition, available staff 
resources also are a factor in determining high-priority species 
provided with funding. Finally, proposed rules for reclassification of 
threatened species to endangered are lower priority, since as listed 
species, they are already afforded the protection of the Act and 
implementing regulations.
    Our decision that a proposed rule to revise the boundaries of the 
Canada lynx DPS under the Act is warranted but precluded is based on 
the low magnitude and non-imminence of threats to the Canada lynx in 
the lower 48-contiguous States (i.e., the DPS). As we have already 
determined that the potential threats are of low magnitude and are not 
imminent, we conclude that this action should receive the lowest 
listing priority. We consider the priority for amending the Canada lynx 
DPS to be lower than for other candidate species in need of protection 
under the Act. As described in the ``Finding'' section above, we have 
assigned an LPN of 12 to this amendment. In accordance with guidance we 
published on September 21, 1983, we assign an LPN to each candidate 
species (48 FR 43098). Such a priority ranking guidance system is 
required under section 4(h)(3) of the Act (16 U.S.C. 1533(h)(3)). Using 
this guidance, we assign each candidate an LPN of 1 to 12, depending on 
the magnitude of threats, imminence of threats, and taxonomic status; 
the lower the listing priority number, the higher the listing priority, 
i.e., a species with an LPN of 1 would have the highest listing 
priority. We currently have 56 species with an LPN of 2 that have not 
received funding yet (see Table 1 of the November 9, 2009, Notice of 
Review; 74 FR 57866). For the next 2 years, we have funded proposed 
listings for several species with an LPN of 2. We consider amending the 
Canada lynx DPS to be precluded by these high-priority candidate 
species.
    As explained above, a determination that listing is warranted but 
precluded also must demonstrate that expeditious progress is being made 
to add or remove qualified species to and from the Lists of Endangered 
and Threatened Wildlife and Plants. (Although we do not discuss it in 
detail here, we also are making expeditious progress in removing 
species from the list under the Recovery Program, which is funded by a 
separate line item in the budget of the Endangered Species Program. As 
explained above in our description of the statutory cap on Listing 
Program funds, the Recovery Program funds and actions supported by them 
cannot be considered in determining expeditious progress made in the 
Listing Program.) As with our ``precluded'' finding, expeditious 
progress in adding qualified species to the Lists is a function of the 
resources available and the competing demands for those funds. Given 
that limitation, we find that we made progress in FY 2009 in the 
Listing Program and will continue to make progress in FY 2010. This 
progress included preparing and publishing the following 
determinations:

                         FISCAL YEAR 2009 AND FISCAL YEAR 2010 COMPLETED LISTING ACTIONS
----------------------------------------------------------------------------------------------------------------
           Publication Date                     Title                   Actions                  FR Pages
----------------------------------------------------------------------------------------------------------------
10/15/2008                             90-Day Finding on a      Notice of 90-day         73 FR 61007 61015
                                        Petition To List the     Petition Finding,
                                        Least Chub               Substantial
----------------------------------------------------------------------------------------------------------------
10/21/2008                             Listing 48 Species on    Proposed Listing,        73 FR 62591 62742
                                        Kauai as Endangered &    Endangered; Proposed
                                        Designating Critical     Critical Habitat
                                        Habitat
----------------------------------------------------------------------------------------------------------------
10/24/2008                             90-Day Finding on a      Notice of 90-day         73 FR 63421 63424
                                        Petition to List the     Petition Finding, Not
                                        Sacramento Valley        substantial
                                        Tiger Beetle as
                                        Endangered
----------------------------------------------------------------------------------------------------------------
10/28/2008                             90-Day Finding on a      Notice of 90-day         73 FR 63919 63926
                                        Petition To List the     Petition Finding,
                                        Dusky Tree Vole          Substantial
                                        (Arborimus longicaudus
                                        silvicola) as
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
11/25/2008                             12-Month Finding on a    Notice of 12-month       73 FR 71787 71826
                                        Petition To List the     petition finding,
                                        Northern Mexican         Warranted but
                                        Gartersnake              precluded
                                        (Thamnophis eques
                                        megalops) as
                                        Threatened or
                                        Endangered With
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
12/02/2008                             90-Day Finding on a      Notice of 90-day         73 FR 73211 73219
                                        Petition To List the     Petition Finding,
                                        Black-tailed Prairie     Substantial
                                        Dog as Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
12/05/2008                             90-Day Finding on a      Notice of 90-day         73 FR 74123 74129
                                        Petition To List the     Petition Finding,
                                        Sacramento Mountains     Substantial
                                        Checkerspot Butterfly
                                        (Euphydryas anicia
                                        cloudcrofti) as
                                        Endangered with
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------

[[Page 66946]]

 
12/18/2008                             90-Day Finding on a      Notice of 90-day         73 FR 76990 76994
                                        Petition to Change the   Petition Finding,
                                        Listing Status of the    Substantial
                                        Canada Lynx
----------------------------------------------------------------------------------------------------------------
01/06/2009                             Partial 90-Day Finding   Notice of 90-day         74 FR 419 427
                                        on a Petition To List    Petition Finding, Not
                                        475 Species in the       substantial
                                        Southwestern United
                                        States as Threatened
                                        or Endangered With
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
02/05/2009                             Partial 90-Day Finding   Notice of 90-day         74 FR 6122 6128
                                        on a Petition To List    Petition Finding, Not
                                        206 Species in the       substantial
                                        Midwest & Western
                                        United States as
                                        Threatened or
                                        Endangered With
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
02/10/2009                             90-Day Finding on a      Notice of 90-day         74 FR 6558 6563
                                        Petition To List the     Petition Finding,
                                        Wyoming Pocket Gopher    Substantial
                                        as Threatened or
                                        Endangered With
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
03/17/2009                             Listing                  Final Listing            74 FR 11319 11327
                                        Phyllostegiahispida      Endangered
                                        (No Common Name) as
                                        Endangered Throughout
                                        Its Range
----------------------------------------------------------------------------------------------------------------
03/25/2009                             12-Month Finding on a    Notice of 12-month       74 FR 12931 12968
                                        Petition to List the     petition finding,
                                        Yellow-Billed Loon as    Warranted but
                                        Threatened or            precluded
                                        Endangered
----------------------------------------------------------------------------------------------------------------
04/09/2009                             12-Month Finding on a    Notice of 12-month       74 FR 16169 16175
                                        Petition to List the     petition finding, Not
                                        San Francisco Bay-       warranted
                                        Delta Population of
                                        the Longfin Smelt
                                        (Spirinchus
                                        thaleichthys) as
                                        Endangered
----------------------------------------------------------------------------------------------------------------
04/22/2009                             90-Day Finding on a      Notice of 90-day         74 FR 18336 18341
                                        Petition To List the     Petition Finding,
                                        Tehachapi Slender        Substantial
                                        Salamander
                                        (Batrachosepsstebbinsi
                                        ) as Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
05/07/2009                             90-Day Finding on a      Notice of 90-day         74 FR 21301 21310
                                        Petition To List the     Petition Finding,
                                        American Pika as         Substantial
                                        Threatened or
                                        Endangered with
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
05/19/2009                             12-Month Finding on a    Notice of 12-month       74 FR 23376 23388
                                        Petition to List the     petition finding, Not
                                        Coaster Brook Trout as   warranted
                                        Endangered
----------------------------------------------------------------------------------------------------------------
06/09/2009                             90-Day Finding on a      Notice of 90-day         74 FR 27266 27271
                                        Petition To List         Petition Finding, Not
                                        Oenothera acutissima     substantial
                                        (Narrowleaf Evening-
                                        primrose) as
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
06/29/2009                             Proposed Endangered      Proposed Listing,        74 FR 31113 31151
                                        Status for the Georgia   Endangered; Proposed
                                        Pigtoe Mussel,           Critical Habitat
                                        Interrupted Rocksnail,
                                        & Rough Hornsnail with
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
07/01/2009                             90-Day Finding on a      Notice of 90-day         74 FR 31389 31401
                                        Petition to List the     Petition Finding,
                                        Northern Leopard Frog    Substantial
                                        (Lithobates [=Rana]
                                        pipiens) in the
                                        Western United States
                                        as Threatened
----------------------------------------------------------------------------------------------------------------
07/07/2009                             12-Month Finding on a    Notice of 12-month       74 FR 32351 32387
                                        Petition To List a       petition finding,
                                        Distinct Population      Warranted but
                                        Segment of the           precluded
                                        Roundtail Chub (Gila
                                        robusta) in the Lower
                                        Colorado River Basin
----------------------------------------------------------------------------------------------------------------
07/08/2009                             90-Day Finding on a      Notice of 90-day         74 FR 32510 32513
                                        Petition to List the     Petition Finding,
                                        Coqui Llanero            Substantial
                                        (Eleutherodactylus
                                        juanariveroi) as
                                        Endangered
----------------------------------------------------------------------------------------------------------------

[[Page 66947]]

 
07/08/2009                             90-Day Finding on a      Notice of 90-day         74 FR 32514 32521
                                        Petition to List the     Petition Finding,
                                        Susan's purse-making     Substantial
                                        caddisfly
                                        (Ochrotrichia susanae)
                                        as Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
07/08/2009                             Proposed Endangered      Proposed Listing,        74 FR 32490 32510
                                        Status for Flying        Endangered
                                        Earwig Hawaiian
                                        Damselfly (Megalagrion
                                        nesiotes) & Pacific
                                        Hawaiian Damselfly (M.
                                        pacificum) Throughout
                                        Their Ranges
----------------------------------------------------------------------------------------------------------------
07/09/2009                             Listing Casey's June     Proposed Listing,        74 FR 32857 32875
                                        Beetle (Dinacoma         Endangered; Proposed
                                        caseyi) as Endangered    Critical Habitat
                                        & Designation of
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
07/22/2009                             90-Day Finding on a      Notice of 90-day         74 FR 36152 36158
                                        Petition To List the     Petition Finding,
                                        White-Sided Jackrabbit   Substantial
                                        (Lepus callotis) as
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
08/06/2009                             Initiation of Status     Notice of Status Review  74 FR 39268 39269
                                        Review for Mountain
                                        Whitefish (Prosopium
                                        williamsoni) in the
                                        Big Lost River, Idaho
----------------------------------------------------------------------------------------------------------------
08/11/2009                             90-Day Finding on a      Notice of 90-day         74 FR 40132 40138
                                        Petition To List the     Petition Finding,
                                        Jemez Mountains          Substantial
                                        Salamander (Plethodon
                                        neomexicanus) as
                                        Threatened or
                                        Endangered With
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
08/18/2009                             Partial 90-Day Finding   Notice of 90-day         74 FR 41649 41662
                                        on a Petition To List    Petition Finding, Not
                                        206 Species in the       substantial (9
                                        Midwest & Western        species); Notice of 90-
                                        United States as         day Petition Finding,
                                        Threatened or            Substantial (29
                                        Endangered with          species)
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
08/19/2009                             12-Month Finding on a    Notice of 12-month       74 FR 41832 41860
                                        Petition To List the     petition finding, Not
                                        Ashy Storm-Petrel as     warranted
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
08/28/2009                             90-Day Finding on a      Notice of 90-day         74 FR 44335 44344
                                        Petition To List the     Petition Finding,
                                        Sonoran Population of    Substantial
                                        Desert Tortoise
                                        (Gopherus agasizzii)
                                        as a Distinct
                                        Population Segment
                                        With Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/02/2009                             12-Month Finding on a    Notice of 12-month       74 FR 45396 45411
                                        Petition To List the     petition finding, Not
                                        Sacramento Mountains     warranted
                                        Checkerspot Butterfly
                                        as Endangered with
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/09/2009                             90-Day Finding on a      Notice of 90-day         74 FR 46401 46406
                                        Petition to List the     Petition Finding,
                                        Eastern Population of    Substantial
                                        the Gopher Tortoise
                                        (Gopherus polyphemus)
                                        as Threatened
----------------------------------------------------------------------------------------------------------------
09/10/2009                             12-Month Finding on a    Notice of 12 month       74 FR 46521 46542
                                        Petition to List         petition finding,
                                        Astragalus anserinus     Warranted but
                                        (Goose Creek             precluded
                                        milkvetch) as
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
09/10/2009                             90-Day Finding on a      Notice of 90-day         74 FR 46542 46547
                                        Petition to List         Petition Finding,
                                        Cirsium wrightii         Substantial
                                        (Wright's marsh
                                        thistle) as Threatened
                                        or Endangered with
                                        Critical Habitat
----------------------------------------------------------------------------------------------------------------
09/10/2009                             Endangered & Threatened  Notice of 90-day         74 FR 46551 46557
                                        Wildlife & Plants; 90-   Petition Finding,
                                        Day Finding on a         Substantial
                                        Petition to List the
                                        Amargosa Toad (Bufo
                                        nelsoni) as Threatened
                                        or Endangered
----------------------------------------------------------------------------------------------------------------

[[Page 66948]]

 
09/10/2009                             90-Day Finding on a      Notice of 90-day         74 FR 46548 46551
                                        Petition to List the     Petition Finding,
                                        Pacific Walrus as        Substantial
                                        Threatened or
                                        Endangered
----------------------------------------------------------------------------------------------------------------
10/08/2009                             Listing Lepidium         Final Listing-           74 FR 52013 52064
                                        papilliferum             Threatened
                                        (Slickspot
                                        Peppergrass) as a
                                        Threatened Species
                                        Throughout Its Range
----------------------------------------------------------------------------------------------------------------
10/27/2009                             90-day Finding on a      Notice of 90-day         74 FR 55177 55180
                                        Petition To List the     Petition Finding, Not
                                        American Dipper in the   substantial
                                        Black Hills of South
                                        Dakota as Threatened
                                        or Endangered
----------------------------------------------------------------------------------------------------------------
10-28-2009                             Status Review of Arctic  Notice of Intent to      74 FR 55524 55525
                                        Grayling (Thymallus      Conduct Status Review
                                        arcticus) in the Upper
                                        Missouri River System
----------------------------------------------------------------------------------------------------------------

    Our expeditious progress also included work on listing actions that 
we funded in FY 2009 but have not yet completed to date. These actions 
are listed below. Actions in the top section of the table are being 
conducted under a deadline set by a court. Actions in the middle 
section of the table are being conducted to meet statutory timelines, 
that is, timelines required under the Act. Actions in the bottom 
section of the table are high-priority listing actions. These actions 
include work primarily on species with an LPN of 2, and selection of 
these species is partially based on available staff resources, and when 
appropriate, include species with a lower priority if they overlap 
geographically or have the same threats as the species with the high 
priority. Including these species together in the same proposed rule 
results in considerable savings in time and funding, as compared to 
preparing separate proposed rules for each of them in the future.

        ACTIONS FUNDED IN FISCAL YEAR 2009 BUT NOT YET COMPLETED
------------------------------------------------------------------------
                  SPECIES                              ACTION
------------------------------------------------------------------------
           Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
Coastal cutthroat trout                     Final listing determination
------------------------------------------------------------------------
Mono basin sage-grouse                      12-month petition finding
------------------------------------------------------------------------
Greater sage grouse                         12-month petition finding
------------------------------------------------------------------------
Southwest bald eagle population             12-month petition finding
------------------------------------------------------------------------
White-tailed prairie dog                    12-month petition finding
------------------------------------------------------------------------
American pika                               12-month petition finding
------------------------------------------------------------------------
Hermes copper butterfly                     90-day petition finding
------------------------------------------------------------------------
Thorne's hairstreak butterfly               90-day petition finding
------------------------------------------------------------------------
                    Actions with Statutory Deadlines
------------------------------------------------------------------------
48 Kauai species                            Final listing determination
------------------------------------------------------------------------
Black-footed albatross                      12-month petition finding
------------------------------------------------------------------------
Mount Charleston blue butterfly             12-month petition finding
------------------------------------------------------------------------
Mojave fringe-toed lizard\1\                12-month petition finding
------------------------------------------------------------------------
Pygmy rabbit (rangewide)\1\                 12-month petition finding
------------------------------------------------------------------------
Kokanee - Lake Sammamish population\1\      12-month petition finding
------------------------------------------------------------------------
Delta smelt (uplisting)                     12-month petition finding
------------------------------------------------------------------------
Cactus ferruginous pygmy-owl\1\             12-month petition finding
------------------------------------------------------------------------
Tucson shovel-nosed snake\1\                12-month petition finding
------------------------------------------------------------------------

[[Page 66949]]

 
Northern leopard frog                       12-month petition finding
------------------------------------------------------------------------
Tehachapi slender salamander                12-month petition finding
------------------------------------------------------------------------
Coqui Llanero                               12-month petition finding
------------------------------------------------------------------------
Susan's purse-making caddisfly              12-month petition finding
------------------------------------------------------------------------
White-sided jackrabbit                      12-month petition finding
------------------------------------------------------------------------
Jemez Mountains salamander                  12-month petition finding
------------------------------------------------------------------------
29 of 206 species                           12-month petition finding
------------------------------------------------------------------------
Desert tortoise - Sonoran population        12-month petition finding
------------------------------------------------------------------------
Gopher tortoise - eastern population        12-month petition finding
------------------------------------------------------------------------
Wrights marsh thistle                       12-month petition finding
------------------------------------------------------------------------
Southeastern population of snowy plover &   90-day petition finding
 wintering population of piping plover
------------------------------------------------------------------------
Berry Cave salamander\1\                    90-day petition finding
------------------------------------------------------------------------
Ozark chinquapin\1\                         90-day petition finding
------------------------------------------------------------------------
Smooth-billed ani                           90-day petition finding
------------------------------------------------------------------------
Bay Springs salamander\1\                   90-day petition finding
------------------------------------------------------------------------
Mojave ground squirrel\1\                   90-day petition finding
------------------------------------------------------------------------
32 species of snails and slugs              90-day petition finding
------------------------------------------------------------------------
Calopogon oklahomensis                      90-day petition finding
------------------------------------------------------------------------
Striped newt                                90-day petition finding
------------------------------------------------------------------------
Sprague's pipit                             90-day petition finding
------------------------------------------------------------------------
Southern hickorynut                         90-day petition finding
------------------------------------------------------------------------
5 Southwest mussel species                  90-day petition finding
------------------------------------------------------------------------
Chihuahua scarfpea                          90-day petition finding
------------------------------------------------------------------------
White-bark pine                             90-day petition finding
------------------------------------------------------------------------
Puerto Rico harlequin                       90-day petition finding
------------------------------------------------------------------------
Fisher - Northern Rocky Mtns. population    90-day petition finding
------------------------------------------------------------------------
42 snail species (Nevada & Utah)            90-day petition finding
------------------------------------------------------------------------
Hawaii yellow-faced bees                    90-day petition finding
------------------------------------------------------------------------
475 Southwestern species (partially         90-day petition finding
 completed)
------------------------------------------------------------------------
                    High Priority Listing Actions\3\
------------------------------------------------------------------------
19 Oahu candidate species (16 plants, 3     Proposed listing
 damselflies) (15 with LPN = 2, 3 with LPN
 = 3, 1 with LPN =9)
------------------------------------------------------------------------
17 Maui-Nui candidate species (14 plants,   Proposed listing
 3 tree snails) (12 with LPN = 2, 2 with
 LPN = 3, 3 with LPN = 8)
------------------------------------------------------------------------
Sand dune lizard (LPN = 2)                  Proposed listing
------------------------------------------------------------------------
2 Arizona springsnails (Pyrgulopsis         Proposed listing
 bernadina (LPN = 2), Pyrgulopsis
 trivialis (LPN = 2))
------------------------------------------------------------------------
2 New Mexico springsnails (Pyrgulopsis      Proposed listing
 chupaderae (LPN = 2), Pyrgulopsis
 thermalis (LPN = 11))
------------------------------------------------------------------------

[[Page 66950]]

 
2 mussels (rayed bean (LPN = 2), snuffbox   Proposed listing
 No LPN)
------------------------------------------------------------------------
2 mussels (sheepnose (LPN = 2),             Proposed listing
 spectaclecase (LPN = 4),
------------------------------------------------------------------------
Ozark hellbender\2\ (LPN = 3)               Proposed listing
------------------------------------------------------------------------
Altamaha spinymussel (LPN = 2)              Proposed listing
------------------------------------------------------------------------
5 southeast fish (rush darter (LPN = 2),    Proposed listing
 chucky madtom (LPN = 2), yellowcheek
 darter (LPN = 2), Cumberland darter (LPN
 = 5), laurel dace (LPN = 5))
------------------------------------------------------------------------
8 southeast mussels (southern kidneyshell   Proposed listing
 (LPN = 2), round ebonyshell (LPN = 2),
 Alabama pearlshell (LPN = 2), southern
 sandshell (LPN = 5), fuzzy pigtoe (LPN =
 5), Choctaw bean (LPN = 5), narrow pigtoe
 (LPN = 5), and tapered pigtoe (LPN = 11))
------------------------------------------------------------------------
3 Colorado plants (Pagosa skyrocket         Proposed listing
 (Ipomopsis polyantha) (LPN = 2), Parchute
 beardtongue (Penstemon debilis) (LPN =
 2), Debeque phacelia (Phacelia submutica)
 (LPN = 8))
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
  previous FYs.
\2\ We funded a proposed rule for this subspecies with an LPN of 3 ahead
  of other species with LPN of 2, because the threats to the species
  were so imminent and of a high magnitude that we considered emergency
  listing if we were unable to fund work on a proposed listing rule in
  FY 2008.
\3\ Funds for these high-priority listing actions were provided in FY
  2008 and FY 2009.

    We have endeavored to make our listing actions as efficient and 
timely as possible, given the requirements of the relevant laws and 
regulations, and constraints relating to workload and personnel. We are 
continually considering ways to streamline processes or achieve 
economies of scale, such as by batching related actions together. Given 
our limited budget for implementing section 4 of the Act, the actions 
described above collectively constitute expeditious progress.
    We will revise the boundaries of the Canada lynx DPS in the 
contiguous United States when funding is available for discretionary 
listing actions. At such time that funding becomes available to develop 
a proposed rule, we will develop revised boundaries for the listed DPS 
based on the biology of the species. We will continue to monitor the 
status of this DPS as new information becomes available. This review 
will determine if a change in status is warranted, including the need 
to make prompt use of emergency listing procedures.
    We intend any amendment to this listing to be as accurate as 
possible. Therefore, we will continue to accept additional information 
and comments on the status of and threats to this DPS 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 is available on the 
Internet at http://www.regulations.gov and upon request from the 
Supervisor, at the U.S. Fish and Wildlife Service, Montana Field Office 
(see ADDRESSES).

Author

    The primary author of this document is staff of the Mountain-
Prairie Region of the U.S. Fish and Wildlife Service, 134 Union Blvd., 
Suite 645, Lakewood, Colorado 80228 (also see ADDRESSES).

Authority

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

    Dated: November 25, 2009
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. E9-29960 Filed 12-16-09; 8:45 am]
BILLING CODE 4310-55-S