[Federal Register Volume 76, Number 144 (Wednesday, July 27, 2011)]
[Rules and Regulations]
[Pages 45130-45162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18856]



[[Page 45129]]

Vol. 76

Wednesday,

No. 144

July 27, 2011

Part V





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; 12-Month Finding on a 
Petition To List the Gopher Tortoise as Threatened in the Eastern 
Portion of Its Range; Final Rule

  Federal Register / Vol. 76 , No. 144 / Wednesday, July 27, 2011 / 
Rules and Regulations  

[[Page 45130]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0029; MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the Gopher Tortoise as Threatened in the Eastern 
Portion of Its Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the gopher tortoise (Gopherus 
polyphemus) in the eastern portion of its range (east of the Mobile and 
Tombigbee Rivers) as threatened and to designate critical habitat under 
the Endangered Species Act of 1973, as amended. In this finding, we 
also evaluate whether the status of the gopher tortoise in the western 
portion of its range (west of the Mobile and Tombigbee Rivers) is 
accurate. After review of all available scientific and commercial 
information, we find that the current listing of the gopher tortoise as 
a threatened species in the western portion of its range is accurate 
and that listing the gopher tortoise in the eastern portion of its 
range is warranted. Currently, however, listing the gopher tortoise in 
the eastern portion of its range is precluded by higher priority 
actions to amend the Lists of Endangered and Threatened Wildlife and 
Plants. We will add the gopher tortoise in the eastern portion of its 
range to our candidate species list, and we will develop a proposed 
rule to list the gopher tortoise in the eastern portion of its range as 
our priorities allow. We will make any determination on critical 
habitat during development of the proposed listing rule. In any interim 
period we will address the status of the candidate taxon through our 
annual Candidate Notice of Review and will work through partnerships to 
conserve the species by improving the habitat and removing the threats 
with the objective to make listing unnecessary. The Service's candidate 
conservation efforts place great emphasis on coordination with the 
states and other partners, voluntary conservation efforts, and may 
include tools such as Candidate Conservation Agreements with 
Assurances. Even though we are currently unable to take action to list 
the gopher tortoise in the eastern portion of its range, this does not 
affect the status of the gopher tortoise in the western portion of its 
range, where it remains listed as threatened.

DATES: The finding announced in this document was made on July 27, 
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R4-ES-2009-0029]. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, North Florida Field Office, 7915 Baymeadows 
Way, Suite 200, Jacksonville, FL 32256. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above address.

FOR FURTHER INFORMATION CONTACT: David L. Hankla, Field Supervisor, 
North Florida Field Office (see ADDRESSES); by telephone at 904-731-
3308; or by facsimile at 904-731-3048 mailto:. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.) requires that, for any petition 
to revise the Federal Lists of Threatened and Endangered Wildlife and 
Plants that contains substantial scientific or commercial information 
that listing a species may be warranted, we make a finding within 12 
months of the date of receipt of the petition. In this finding, we 
determine that the petitioned action is: (a) Not warranted, (b) 
warranted, or (c) warranted, but the immediate proposal of a regulation 
implementing the petitioned action is precluded by other pending 
proposals to determine whether species are threatened or endangered and 
expeditious progress is being made to add or remove qualified species 
from the 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

    On July 7, 1987, we listed the population of the gopher tortoise as 
a threatened species in the western portion of its range (west of the 
Mobile and Tombigbee Rivers in Alabama, Louisiana, and Mississippi) (52 
FR 25376). On January 18, 2006, we received a petition dated January 
13, 2006, from Save Our Big Scrub, Inc. and Wild South requesting that 
the population of the gopher tortoise in the eastern portion of its 
range (east of the Mobile and Tombigbee Rivers in Alabama, Florida, 
Georgia, and South Carolina) be listed as a threatened species under 
the Act and critical habitat be designated. The petition included 
supporting information regarding the species' taxonomy, biology, 
historical and current distribution, present status, and a summary of 
actual and potential threats. We acknowledged receipt of the petition 
in a letter to Wild-Law, legal counsel for Save Our Big Scrub, Inc. and 
Wild South, dated February 24, 2006. In that letter we also stated 
that, due to a substantial number of listing-related actions in fiscal 
year 2006, there were insufficient funds to begin processing the 
petition at that time. We indicated that we would reevaluate our 
ability to respond to outstanding petitions as additional funding 
became available.
    Funding became available to begin processing the petition in early 
February, 2007. On September 9, 2009, we published a 90-day finding (74 
FR 46401) that the petition presented substantial scientific and 
commercial information indicating that listing may be warranted and 
that we would initiate a status review. We indicated we would accept 
information to assist us in the review until November 9, 2009. Several 
commenters requested additional time to provide their comments, and on 
January 12, 2010, we published clarification that we would accept 
information through http://www.regulations.gov until March 15, 2010 (75 
FR 1567). Thereafter, we indicated that information could be submitted 
to the Service's North Florida Field Office (see ADDRESSES) throughout 
the time period of our review. This notice constitutes the 12-month 
finding on the January 13, 2006, petition to list the population of the 
gopher tortoise in the eastern portion of its range as a threatened 
species.

Species Information

    Our 90-day finding summarized much of the current literature 
regarding the gopher tortoise's distribution, habitat requirements, and 
life history and

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should be reviewed for detailed information (74 FR 46401; September 9, 
2009). Below, we summarize previously presented information and provide 
new information that we believe is relevant to understanding our 
analysis of the factors that may threaten the gopher tortoise.

Taxonomy and Genetics

    The gopher tortoise is one of four living North American tortoise 
species and the only one indigenous to the southeastern United States 
(Ernst and Lovich 2009, p. 581). The other three species are found in 
the western United States. First described by F.M. Daudin in 1802, G. 
polyphemus is classified as belonging to class Reptilia, Order 
Testudines, and Family Testudinidae. Bramble (1982, p. 864) proposed 
that G. polyphemus along with its cladistic relative G. flavomarginatus 
should be the only members of genus Gopherus, placing the other members 
of this genus G. berlandieri and G. agassizii into a new genus 
Scaptochelys. However, more recent morphological and genetic studies 
have reinforced the traditional assignment of all four species into 
genus Gopherus (Crumly 1994, pp. 12-16). Allozyme differentiation has 
indicated that G. polyphemus is most closely related to G. 
flavomarginatus and is thus placed in a clade (genetically related 
group) distinct from the clade containing G. berlandieri and G. 
agassizii (Morafka et al. 1994, p. 1669). Mitochondrial DNA (mtDNA) 
sequences for the cytochrome b gene show a seven percent sequence 
divergence between the two clades (Lamb and Lydeard 1994, p. 283).
    The taxonomic status of the gopher tortoise throughout its range is 
considered valid (Interagency Taxonomic Information System 2010, p. 1). 
There is no taxonomic distinction between the gopher tortoise in the 
western and eastern portions of its range or at any level of geographic 
subdivision. We are aware of no efforts to describe subspecies. There 
have been several phylogeographic studies of the gopher tortoise 
including mtDNA (Osentoski and Lamb, 1995 entire; Clostio 2010) and 
microsatellites (Schwartz and Karl 2005, entire; Ennen 2009, pp. 66-85; 
Clostio 2010). Several showed genetically distinct population 
assemblages across the geographic range (Osentoski and Lamb 1995, p. 
713; Ennen 2009, p. 78; Clostio 2010) although the three studies were 
not entirely congruent in their delineations of western and eastern 
genetic assemblages. Osentoski and Lamb (1995, pp. 713-714) described 
three major genetic groups; an eastern group, containing 21 haplotypes 
(combination of DNA sequences) and ranging from South Carolina to 
southern Florida; a mid-Florida group, made up of seven haplotypes and 
located in a small region in central peninsular Florida; and a western 
group, containing seven haplotypes in a range from the Florida 
panhandle north to west-central Georgia and west to Louisiana.
    Ennen (2009, p. 73) reported a phylogenetic (difference in 
genetics) break between the western and eastern portions of the 
tortoise's range based on a 712 base pair portion of a mitochondrial 
gene. However, the phylogenetic break did not entirely correspond to 
one particular geographic barrier because shared haplotypes from the 
eastern and western portions of the tortoise's range were found in the 
panhandle of Florida and in Georgia populations (Ennen 2009, p. 73). 
Recent research using another mitochondrial gene similarly found no 
shared haplotypes across the Mobile and Tombigbee Rivers (Clostio 
2010). However, analysis of microsatellite markers indicates 
phylogenetic division of G. polyphemus into eastern and western 
lineages apparently corresponding to the ranges east and west of the 
Apalachicola River (Clostio 2010).
    There are a number of other smaller-scale genetic analyses that 
have been conducted to better understand local and regional genetic 
variation. From comparisons of nine microsatellite loci sampled 
throughout Florida and southern Georgia (Schwartz et al. 2003, p. 285), 
it was subsequently determined that the populations could be further 
subdivided into at least eight genetic assemblages, five of which were 
showing effects of population bottlenecks and four of which showed 
signs of genetic admixture from separate populations (Schwartz and Karl 
2005, pp. 921-925). In the Florida panhandle, mitochondrial DNA 
analysis found minimal genetic diversity among six populations and 
suggested that gene flow has occurred among these populations (Berish 
2010), which would be in conflict with the findings of Clostio (2010) 
and consistent with Ennen (2009, p. 78). Subsequent analysis compared 
the above-referenced Florida panhandle genetics with those collected by 
Schwartz and Karl (2005, entire) and found a genetic break between 
peninsular Florida and the Florida panhandle as did Osentoski and Lamb 
1995 (as cited in Winters 2010, pp. 3-4), but these data indicated 
genetic exchange across the panhandle of Florida from Wakulla County to 
Escambia County, with no significant break at the Apalachicola River as 
suggested by Clostio (2010).
    Microsatellite DNA markers and mitochondrial DNA were used to 
determine whether gopher tortoise populations on Camp Shelby, 
Mississippi, were spatially structured, if spatial structure was 
affected by military activity and habitat quality, and whether there 
was a correlation between geographic distance and genetic relatedness 
(Theodorakis 2008, p. 6). Results indicated that there was genetic 
structure within these populations, and that genetic diversity and gene 
flow were affected by habitat and land use. Genetic distance did not 
seem to correlate with geographic distance (Theodorakis 2008, p. 21).
    Based on the diversity of six microsatellite loci from 96 
individual tortoises from Kennedy Space Center in east-central Florida, 
it was determined that the population was one nearly continuous 
population; there were no genetically distinct assemblages (Sinclair et 
al. 2010, p. 192). These findings resulted in a recommendation to 
manage the Space Center's tortoises as one single population.
    Drawing conclusions about genetic subdivisions and unique genetic 
assemblages based on available genetic data are difficult because 
methodologies varied between studies, sample sizes were small in some 
areas, distances between samples were large in some cases, and areas 
covered by each study varied. Conclusions from rangewide 
phylogeographic studies of the gopher tortoise are somewhat 
contradictory. However, other important information about gopher 
tortoises can be synthesized from these studies. For example, analyses 
of mitochondrial DNA and nuclear DNA microsatellite markers indicate a 
long-term population decline since the Pleistocene era of G. polyphemus 
in the western portion of its range (i.e., the listed portion of its 
range) and past population bottlenecks (Clostio 2010). These findings 
are supported by a recent evaluation of genetic diversity indices which 
indicated that four gopher tortoise populations in Mississippi have 
lower genetic diversity than some populations in the eastern portion of 
the tortoise's range (Ennen et al. 2010, p. 31, 36). This lower genetic 
variation and heterozygocity (different genes) suggests either a prior 
population bottleneck, or that historically the western populations 
persisted naturally with low genetic diversity (Ennen et al. 2010, p. 
35).

Distribution

    The gopher tortoise occurs in the southeastern Coastal Plain from

[[Page 45132]]

southeastern South Carolina to extreme southeastern Louisiana 
(Auffenberg and Franz 1982, p. 95). Throughout much of the western 
range of the gopher tortoise, only small populations remain in isolated 
habitat patches (Landry and Gregory 2008, pp. 2-3). The largest 
populations and greatest density of populations in the western portion 
of its range occur in the De Soto National Forest, Mississippi (Hammond 
2009, p. 12). The eastern portion of the gopher tortoise's range 
includes Alabama (east of the Tombigbee and Mobile Rivers), Florida, 
Georgia, and South Carolina. The core of the current distribution of 
the gopher tortoise in the eastern portion of its range includes 
central and north Florida and southern Georgia.
    There has been no rangewide survey of gopher tortoises, and there 
are only a limited number of comprehensive surveys over relatively 
small geographic areas. As a result, the distribution of gopher 
tortoises would be incomplete if we used only existing survey data, so 
we relied on the location of potential habitat to identify where 
tortoises may be present. It is important to note, however, this 
Geographic Information System (GIS) effort does not reflect the current 
distribution of gopher tortoise populations nor the size or 
connectivity of gopher tortoise populations. In all likelihood, the 
actual distribution of gopher tortoises is less, perhaps much less, 
than modeled because much of the modeled potential habitat may be 
unsuitable. However, the information generated from the Hoctor and 
Beyeler (2010, entire) GIS model and subsequent model revisions for 
Florida (FWC 2011a) is the best information currently available and 
roughly estimates the amount and distribution of potential gopher 
tortoise habitat throughout the eastern portion of the tortoise's 
range.
    In their assessment, Hoctor and Beyeler (2010, pp. 6-7) defined 
potential primary habitat as having appropriate vegetative communities 
(e.g., longleaf pine forests, scrub, coastal dunes), soils, and canopy 
cover of less than 65 percent within the known historic range of the 
tortoise. Potential secondary habitat was defined as having appropriate 
forest cover types and soils, but not suitable canopy cover. Potential 
foraging habitat was defined as areas with appropriate habitat types 
within 300 meters (m) (984 feet) of either potential primary or 
potential secondary habitat. Hoctor and Beyeler (2010, p. 16) conducted 
a goodness-of-fit analysis comparing known gopher tortoise data points 
from Florida with habitat categories established in the GIS analysis. 
The analysis indicated that the location of gopher tortoise point data 
in Florida was not randomly distributed in relation to any grouping. 
This suggests the GIS analysis distinguished between potential habitat 
and non-habitat fairly well: primary habitat ([chi]\2\ = 3091.58, df = 
1, P < 0.001); primary and secondary habitat combined ([chi]\2\ = 
2157.66, df = 1, P < 0.001); primary, secondary, and foraging habitat 
combined ([chi]\2\ = 1319.44, df = 1, P < 0.001); appropriate soils 
([chi]\2\ = 826.07, df = 1, P < 0.001). These statistics indicate that 
the model accurately identified gopher tortoise potential habitat in 
Florida.
    The FWC slightly modified the Hoctor and Beyeler model to account 
for variations in potential gopher tortoise habitat that were thought 
to be unique to Florida (FWC 2011a). The inclusion of beach and dune 
habitat, inclusion of depth to water table of 0.5 to 2.3 meters (1.5 to 
6.5 feet), and the exclusion of the 300 meter buffer surrounding 
primary habitat. These model modifications resulted in a decrease in 
the acreage of potential gopher tortoise habitat identified in Florida 
(3.0 million to 2.2 million) but likely more closely estimates the 
distribution of habitat in Florida. For consistency and comparative 
purposes, we use acreages reported by Hoctor and Beyeler (2010). 
Refined analyses such as those conducted by FWC are not available for 
the remainder of the range and reductions in acreages such as those 
indicated in Florida's model revisions bolsters our prior assumption 
that the Hoctor and Beyeler model overestimates the actual distribution 
of potential habitat. Future conservation actions for the species would 
no doubt benefit from more site-specific data included in modeling 
efforts such as that carried out by FWC.
    A total of about 9.5 million hectares (ha) [23.5 million acres 
(ac)] of potential primary, secondary, and foraging habitat is 
estimated to currently occur within the eastern portion of the 
tortoise's range (Hoctor and Beyeler 2010, p. 12). Nearly 88 percent of 
the habitat is estimated to be in private ownership, and the remainder 
is controlled by local, State, Federal, or private conservation 
entities (Table 1). The largest patches of contiguous potential habitat 
(those greater than 100 ha or 250 ac) accounted for about 5.6 million 
ha (13.9 million ac), and 85 percent of this area was privately owned 
(Hoctor and Beyeler 2010, pp. 13-14). Using a similar GIS analysis 
based on the Hoctor and Beyeler (2010, entire) model for the eastern 
range, the distribution of potential gopher tortoise habitat was 
estimated throughout the western range (Ginger 2010). A total of 1.8 
million ha (4.5 million ac.) of potential primary, secondary, and 
foraging habitat was estimated using the model, with the largest 
habitat patches (those greater than 100 ha or 250 ac) accounting for 
about 0.5 million ha (1.4 million ac). For two counties, Greene 
(Mississippi) and Washington (Alabama), base soils information was not 
available, so those counties were not included in the analysis. The 
base layers represent coarse and sometimes outdated data, and the model 
was not field tested and no goodness-of-fit analysis was conducted for 
data originating from the western portion of the tortoise's range. 
However, the results are likely inflated values that may represent the 
amount of habitat closer to the historic range rather than the current 
potential distribution.
    Table 1. Distribution of all (primary, secondary and foraging) 
potential gopher tortoise habitat on private and public lands currently 
in the eastern portion of its range (summarized from Hoctor and Beyeler 
2010, p. 14).

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Alabama...............................  Private..................  1,798,369 ha (4,444,371 ac)
Alabama...............................  Public...................  57,493 ha (142,065 ac)
Florida...............................  Private..................  2,378,338 ha (5,876,794 ac)
Florida...............................  Public...................  753,272 ha (1,861,312 ac)
Georgia...............................  Private..................  3,569,093 ha (8,819,109 ac)
Georgia...............................  Public...................  135,599 ha (335,599 ac)
South Carolina........................  Private..................  640,987 ha (1,583,858 ac)
South Carolina........................  Public...................  73,941 ha (182,707 ac)
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[[Page 45133]]

 Habitat

    Gopher tortoises require well-drained, sandy soils for burrowing 
and nest construction, an abundance of herbaceous ground cover for 
food, and a generally open canopy that allows sunlight to reach the 
forest floor (Landers 1980, p. 6; Auffenberg and Franz 1982, p. 98). 
Longleaf pine and oak uplands, xeric hammock, sand pine and oak ridges 
(beach scrub), and ruderal (disturbed) habitat most often provide the 
conditions necessary to support gopher tortoises (Auffenberg and Franz 
1982, p. 99). In the western range, soils contain more silt, and xeric 
(dry) conditions are less common west of the Florida panhandle (Crual 
et al. 2005, p. 73). Ground cover in this Coastal Plains area can be 
separated into two general regions with the division in the central 
part of southern Alabama and northwest Florida. To the west, bluestem 
(Andropogon spp.) and panicum (Panicum spp.) grasses predominate; to 
the east, wiregrass (Aristida stricta) is most common (Boyer 1990, p. 
3). However, gopher tortoises do not necessarily respond to specific 
plants but rather the physical characteristics of habitat (Diemer 1986, 
p. 126). Longleaf pine and oak uplands (e.g., sandhills) are the 
preferred habitat for gopher tortoises (Landers and Speake 1980, p. 
515; McRae et al. 1981, p. 177; Auffenberg and Franz 1982, p. 100; 
Diemer 1986, p. 126). Ruderal (i.e., disturbed or atypical) habitats 
include roadsides and utility rights-of-way, grove/forest edges, 
fencerows, and clearing edges. Historic gopher tortoise habitats were 
open pine forests, savannahs, and xeric grasslands that covered the 
coastal plain from Mexico and Texas to Florida. Historic habitats might 
have had wetter soils at times and been somewhat cooler but were 
generally xeric, open, and diverse (Ashton and Ashton 2008, p. 73).
    Sandy soils are most appropriate for burrow construction (Jones and 
Dorr 2004, p. 461), and most burrows are found on loam and sandy loam 
type soils (Tuma 1996, p. 43). Much of the remaining undisturbed gopher 
tortoise habitat in the eastern portion of the range consists primarily 
of coastal dunes or xeric uplands dominated by wiregrass and longleaf 
pine-turkey oak or scrub communities (Landers et al. 1980, pp. 353-354; 
Diemer 1986, p. 126). Conversely, most tortoise habitat in the western 
portion of the range (western Alabama, Louisiana, and Mississippi) 
consists of soils with a low sand content and a more substantial clay 
component. Jones and Dorr (2004, p. 461) suggest that higher clay 
content in soils may contribute to lower abundance and density of 
tortoises in Mississippi versus the remainder of the range.
    Sand texture is most important in the formation of the burrow 
apron, which impedes rain from entering the burrow (Landers 1980, p. 
6). Sand depth is also important because soil layers underlying it, 
such as clay, can impede digging and influence burrow depth (Baskaran 
et al. 2006, p. 347). Burrows are shorter in clay soils, and clay soils 
may adversely affect nest success because these soils reduce exchange 
of oxygen and carbon dioxide (Wright 1982, p. 21; Ultsch and Anderson 
1986, p. 790; Smith et al. 1997, p. 599). Larger diameter burrow 
openings tend to result in longer burrows (Hansen 1963, p. 355). 
Burrows are usually distributed on higher ridge tops rather than 
wetlands, and their depths are sometimes limited by the water table 
(Baskaran et al. 2006, p. 346).
    Gopher tortoises use their burrows as a respite from extreme 
surface temperatures, desiccation, and predators (Hansen 1963, p. 359; 
Landers 1980, p. 7; Wright 1982, p. 50; Diemer 1986, p. 127; Boglioli 
2000, p. 699). Digging burrows benefits the surrounding habitat by 
returning leached nutrients to the surface (Auffenberg and Weaver 1969, 
p. 191; Landers 1980, p. 7), as well as increasing the heterogeneity 
(diversity) of the habitat in the vicinity of the burrow (Kaczor and 
Hartnett 1990, p. 107). Burrows can also serve to shelter seeds from 
fires (Kaczor and Harnett 1990, p. 108). Many organisms adapted to hot 
summers and cool winters use gopher tortoise burrows for refuge 
(Landers and Speake 1980, p. 515). Jackson and Milstrey (1989, p. 87) 
compiled a list of 60 vertebrates and 302 invertebrates that share 
tortoise burrows. Gopher tortoise burrows not only provide other 
species shelter from extreme environmental conditions and predation, 
but may also be used as feeding or reproduction sites, as well as 
permanent microhabitats for one or all life stages (Jackson and 
Milstrey 1989, p. 86).
    Gopher tortoises have a well-defined activity range where all 
feeding and reproduction take place and that is limited by the amount 
of herbaceous ground cover (Auffenberg and Iverson 1979, p. 549). 
Tortoises are obligate herbivores eating mainly grasses, plants, fallen 
flowers, fruits, and leaves. Gopher tortoises prefer grassy, open-
canopy microhabitats (Boglioli et al. 2000, p. 703), and their 
population density directly relates to the density of herbaceous 
biomass (Auffenberg and Iverson 1979, p. 558; Landers and Speake 1980, 
p. 522; Wright 1982, p. 22; Stewart et al. 1993, p. 79) and a lack of 
canopy (Breininger 1994, p. 63; Boglioli et al. 2000, p. 703). Grasses 
and grass-like plants are important in gopher tortoise diets 
(Auffenberg and Iverson 1979, p. 558; Landers 1980, p. 9; Garner and 
Landers 1981, p. 123; Wright 1982, p. 25; McDonald and Mushinsky 1988, 
p. 351; Mushinsky et al. 2003, p. 480; Birkhead et al. 2005, p. 146). A 
lack of vegetative diversity may negatively impact the long-term 
sustainability of gopher tortoise populations (Ashton and Ashton 2008, 
p. 78).
    Gopher tortoises may enhance nitrogen cycling by augmenting legume 
germination and abundance around burrows. Boglioli et al. (2000, p. 
704) found that legumes were three times more abundant around burrows 
than at control points. Since legumes have thick seed coats, they may 
benefit from scarification after passing through the digestive tract 
(Boglioli et al. 2000, p. 704). Low food availability negatively 
affects tortoise population densities and can be caused by plant growth 
suppression due to accumulated leaves, litter, and low light associated 
with canopy closure (Landers and Speake 1980, p. 522).
    Gopher tortoises require a sparse canopy and litter-free ground not 
only for feeding, but also for nesting (Landers and Speake 1980, p. 
522). In Florida, McCoy and Mushinsky (1988, p. 35) found that the 
number of active burrows per tortoise was lower where canopy cover was 
high. Females require almost full sunlight for nesting (Landers and 
Buckner 1981, p. 5) because eggs are often laid in the burrow apron or 
other sunny spot and require the warmth of the sun for appropriate 
incubation (Landers and Speake 1980, p. 522).
    At one site in southwest Georgia, Boglioli (et al. 2000, p. 703) 
found most tortoises in areas with 30 percent or less canopy cover. 
Diemer (1992, p. 162) found that ecotones created by clearing were also 
favored by tortoises in north Florida. When canopies become too dense, 
usually due to fire suppression, tortoises tend to move into ruderal 
habitats such as roadsides with more herbaceous ground cover, lower 
tree cover, and significant sun exposure (Garner and Landers 1981, p. 
122; McCoy et al. 1993, p. 38; Baskaran et al. 2006, p. 346). In 
Georgia, Hermann et al. (2002, p. 294) found that open pine areas 
(e.g., pine forests with canopies that allow light to penetrate to the 
forest floor) were more likely to have burrows, support higher burrow 
densities, and have more burrows used by large, adult tortoises than 
closed-canopy forests. Historically, open-canopied pine forests

[[Page 45134]]

were maintained by frequent, lightning-generated fires. Subsequently, 
grazing and mowing have contributed to the maintenance of some gopher 
tortoise habitat (Ashton and Ashton 2008, p. 78).

Status

    Effectively assessing the status (i.e., whether it is increasing, 
decreasing, or stable) of the gopher tortoise throughout its range 
requires evaluation of the distribution of tortoises, number of 
tortoises and populations, number of individuals in populations, and 
trends in population growth. As we indicated above, we do not have 
specific distribution data for most of the tortoise's range, but we 
estimated where potential habitat existed and where tortoises may still 
be present. Below, we provide summaries of survey data about the sizes 
and, in some cases, trends of gopher tortoise populations. There is a 
noticeable disparity between the apparently large area (expressed in 
hectares or acres, or ha/ac) of potential gopher tortoise habitat 
reported above and actual numbers of individual tortoises known from 
populations that have been surveyed, as summarized below. Upon cursory 
examination, there seem to be few tortoises where there are millions of 
hectares of potential habitat. Many Federal and State agencies, non-
governmental organizations (NGO), and timber owners have only recently 
begun to assess where and how many gopher tortoises are present on 
lands they own or manage. Nonetheless, we have evaluated the status of 
the gopher tortoise based on the best available scientific information, 
which is summarized in the next section.
    Our review of the literature indicates that the status of an 
individual gopher tortoise population is dependent on the size of the 
population and its demographic performance. For comparative purposes, 
and as described in greater detail below, we considered tortoise 
populations to be large enough to persist in the future (i.e., viable) 
if they contained 250 or more reproductively active individuals. 
Ideally, recruitment should exceed mortality, but few long-term studies 
provide this demographic information. In the absence of these data, 
burrow surveys that report hatchling- and juvenile-sized burrows 
indicate that recent recruitment occurred, but we still often lack 
information about whether the observed level of recruitment is 
sufficient to offset mortality. The amount of habitat necessary to 
support a population of at least 250 breeding individuals likely varies 
depending on habitat quality. Populations in poor-quality habitat, such 
as those in atypical vegetative communities and in areas not 
aggressively managed, will likely require more area than populations in 
high-quality soils where there would be sparse canopy cover, multi-aged 
pine forests with abundant ground cover, and where prescribed fire is 
used periodically to maintain habitat conditions. Because of these 
variations, the density of gopher tortoises in a population that is 
large and demographically viable will vary.
    Using available information we can estimate that 250 individual 
tortoises are needed to represent a viable population. We also 
estimated how much habitat an ancestral (conditions prior to human 
disturbance) gopher tortoise population of 250 individuals may have 
required. The recovery criteria for the populations in western portion 
of the range on priority soils calls for gopher tortoise densities of 
five active burrows per ha (two active burrows per ac). With a reported 
0.61 burrow occupancy correction factor (i.e., proportion of burrows 
occupied by tortoises) this equates to about 3.0 tortoises per ha (1.2 
per ac) (Service 1990, p. 14). Based on historic survey data, tortoise 
densities as high as 4.9 per ha (2.0 per ac) are targeted for some 
high-quality recipient sites under Florida's gopher tortoise management 
plan (Plan) (Fish and Wildlife Conservation Commission (FWC) 2007, p. 
76). Burrow densities on two conservation parcels containing mature 
longleaf pine forests in Georgia that have been managed with short-
return (i.e., 1-3 years) fire intervals for 20 to 70 years had burrow 
densities 2.7-5.1 per ha (1.1-2.1 per ac) (Guyer 2010, Hermann et al. 
2002, p. 296). Based on the above data, we estimate that a viable 
ancestral (prior to human disturbance) tortoise population contained a 
minimum of 250 breeding individuals, with active burrow densities 
ranging between 1.5-5.1 per ha (0.6-2.1 per ac). Using an occupancy 
correction factor 0.37 from the best representative ancestral extant 
population (Hermann et al. 2002, p. 296), these burrow densities would 
equate to 0.6-1.9 tortoises per ha (0.2-0.8 per ac). At these 
densities, ancestral tortoise populations of 250 tortoises in southern 
Georgia would likely have occurred in habitat patches ranging from 132-
416 ha (326-1,028 ac). Using the 0.61 correction factor specified in 
the gopher tortoise recovery plan results in 0.9-3.1 tortoises per ha 
(0.4-1.3 per ac) and would have occupied 81-278 ha (192-687 ac). Few 
extant gopher tortoise populations currently meet these criteria.

Status in Western Portion of the Range

    Alabama: On commercial forests in Alabama and Mississippi, tortoise 
surveys were conducted from July 1999 through May 2001 on about 11,838 
ha (29,252 ac). Survey sites were selected opportunistically and not 
based on known tortoise populations or habitat suitability for 
tortoises. About 0.05 active burrows per ha (0.02 per ac) were found in 
these mostly closed-canopy slash and loblolly pine forests (National 
Council for Air and Stream Improvement, Inc. 2010, pp. 15-16). Burrow 
surveys conducted on corporate pine forests in southern Mississippi and 
southwestern Alabama on soils that were variably suitable for gopher 
tortoises did not detect active burrows on about 88 percent of surveyed 
sites (Jones and Dorr 2004, p. 461). Where burrows were detected, 
densities of active burrows ranged from 0.10-0.60 burrows per ha (0.04-
0.24 burrows per ac) (Jones and Dorr 2004, p. 460).
    Louisiana: Tortoises are not widespread or abundant in Louisiana, 
and all known populations are small and occur in fragmented habitat. 
Determining the status of tortoises in Louisiana is difficult because 
of limited survey data (Diaz-Figueroa 2005, p. 5). The most recent 
surveys during 2007 and 2008 in Washington, Tangipahoa, and St. Tammany 
parishes, where the largest known gopher tortoise populations remain, 
found 54 active and 45 inactive burrows on Ben's Creek Wildlife 
Management Area. Sandy Hollow Wildlife Management Area contained 25 
active, 12 inactive, and 4 abandoned burrows. A natural gas pipeline 
corridor supported 26 active, 31 inactive, and 4 abandoned gopher 
tortoise burrows (Landry and Gregory 2008, pp. 2-3). Burrow density 
estimates were not included in the survey results for locations in 
Louisiana.
    Mississippi: Data gathered in the De Soto National Forest evaluated 
gopher tortoise population trends over a 12-year period based on three 
burrow surveys conducted in 1995, 2002, and 2007. The surveys were 
limited to only the deep, sandy soil types, which comprise only 2.5 
percent of the De Soto National Forest. Nonetheless, gopher tortoise 
burrow densities declined by 35.7 percent from 1995 to 2007, and 18 
locations that contained tortoises in 1995 had no tortoises in 2007 
(Conservation Southeast, Inc. 2009, pp. 1, 12, 27). Eighty percent of 
locations containing adults contained no juvenile burrows. The mean 
adult active burrow density on priority soils ranged from 0.12-0.67 per 
ha (0.05-0.27 per ac) on three sections of the National Forest

[[Page 45135]]

(Conservation Southeast, Inc. 2009, p. 21). Qualls (2010) observed that 
the majority of tortoise populations on the De Soto National Forest 
appeared to be small and adult-dominated and recruitment was low or 
absent. Analysis of gopher tortoise population sizes from Wester (2005, 
pp. 18-19) on the Camp Shelby Training Site (within the De Soto 
National Forest) found that 159 of 162 colonies (98 percent) contained 
fewer than 50 individual tortoises and up to 25 percent of all 
tortoises found were not associated with a population (Ginger 2010). 
These findings support earlier observations of small, fragmented 
populations on many of the study sites in Mississippi evaluated by Mann 
(1995, pp. 1, 2, 24). Implementation of recent management efforts 
within the De Soto National Forest may be slowing the observed 
population decline (Conservation Southeast, Inc. 2009, p. 13).
    A subsample of gopher tortoise survey locations from 1995 on Camp 
Shelby were resurveyed in 1999 and 2000. The distribution of tortoise 
colonies did not change between surveys and most were still located in 
ruderal habitats, and the largest number of burrows was located in 
fire-suppressed pine forests (Epperson and Heise 2001, p. 26). 
Populations appear to be declining, and age classes are shifting 
towards more adults (Epperson and Heise 2001, p. 38). Burrow densities 
were not estimated from data gathered during this study, but evaluation 
of three prior surveys on the De Soto National Forest showed that 
burrow densities (including all active, inactive, and abandoned 
burrows) ranged from 0.11-1.38 burrows per ha (0.04-0.56 burrows per 
ac) (Epperson and Heise 2001, p. 25). A subsequent comparison of gopher 
tortoise survey data from 1995 with information obtained during 2003 
and 2004 surveys found the number of active burrows declined from 1,133 
to 856 (33 percent reduction) while the number of inactive or abandoned 
burrows increased by 923 (Wester 2005, p. 17). The 33 percent decline 
in active burrows was consistent with documented tortoise declines 
throughout the remainder of the De Soto National Forest (Conservation 
Southeast, Inc. 2009, pp. 1, 12).
    Surveys in known gopher tortoise habitat were conducted from 1993-
1995 (during the months between May and August) on 1,554 ha (3,840 ac) 
of planted pines in southern Mississippi. The planted pines had been 
recently thinned and frequently burned. About 0.20 active burrows per 
ha (0.08 per ac) and 0.7 active burrow per kilometer (1.1 per mile) in 
linear (e.g., roads, gas line right of ways, electrical transmission 
lines) habitats were found (National Council for Air and Stream 
Improvement, Inc. 2010, p. 15).
    Estes and Mann (1996, p. 1) conducted surveys on sites with 
suitable soils on Section 16 lands (i.e., in each township, Section 16 
is set aside for maintenance of public schools) in southern 
Mississippi. Surveys covered about 1,090 ha (2,693 ac) and found an 
average of 1.0 burrow (active and inactive) per ha (0.4 per ac). 
Burrows were most dense on suitable soils in longleaf pine habitats 
that were regularly burned. Based on burrow sizes encountered, the 
authors concluded that recruitment was low. Gopher tortoise populations 
were small and isolated, and few had evidence of recruitment. The 
researchers questioned the long-term viability of most Section 16 
tortoise populations (Estes and Mann 1996, pp. 23-24).
    We also reviewed data collected during a mail survey seeking 
information on the status of gopher tortoises on private lands within 
the historic range of the tortoise in Mississippi. Although data were 
not useful in evaluating numbers, densities, or status of tortoises in 
southern Mississippi, we found that few reporting landowners had 
tortoises (19 percent); of the remaining tortoises, most were 
persisting in longleaf pine habitats, and most tortoise populations had 
recently disappeared from other habitat types (Underwood et al. 2010, 
pp. 8, 11, 15).

Status in the Eastern Portion of the Range

    Alabama: The official Web site of the Alabama Department of 
Conservation and Natural Resources, http://www.outdooralabama.com 
(accessed September 9, 2010)), reports that gopher tortoises are found 
in Baldwin, Barbour, Bullock, Butler, Clarke, Coffee, Conecuh, 
Covington, Crenshaw, Dale, Escambia, Geneva, Henry, Houston, Monroe, 
Montgomery, Pike, and Wilcox Counties. Small introduced populations 
also occur in Autauga and Macon counties. Alabama is in the initial 
stages of planning surveys or censuses for the gopher tortoise in the 
eastern portion of the range. Therefore, no data currently exist to 
evaluate the status of tortoises on public lands in the eastern portion 
of the range in Alabama, beyond general counties of occurrence.
    In 2003, surveyors found 636 active gopher tortoise burrows at Fort 
Rucker, Alabama, which was reported to have about 19,830 ha (49,000 ac) 
of potential tortoise habitat (Southeast Regional Partnership for 
Planning and Sustainability 2010, pp. 11, 27).
    Florida: In north central Florida, a gopher tortoise population was 
intensively monitored for 6 years on a 66-ha (163-ac) 33-year-old slash 
pine plantation beginning in 1981. After the study site was clear cut 
in 1988, a follow-up assessment found that tortoises had moved to 
ecotones (ecological transition zone) between cut and mature forests, 
but roughly the same number of tortoises were captured pre- (n = 60) 
and post-clearcut (n = 58). In 2009, an additional follow-up in the now 
11-year-old plantation that had been burned and planted in longleaf 
pine in preparation for gopher tortoise introductions indicated about 
the same number of tortoises (n = 52), but a substantial decline in the 
number of juveniles was detected (Berish 2010). The investigator 
concluded that viable and robust populations can persist long term in 
habitat with ongoing intensive silviculture. However, in this case, we 
noted that efforts were under way to enhance gopher tortoise habitat on 
the study site in preparation for introduction of additional tortoises. 
The researcher's conclusion of a viable tortoise population persisting 
in an intensive silvicultural forest did not take into account the 
possible positive demographic response tortoises may have had to 
habitat enhancement activities in the later stages of this monitoring 
effort or the substantial decline in the number of juvenile tortoises.
    Tortoise populations on 10 public lands were evaluated twice over a 
12-year period and the number of active and inactive burrows decreased 
at 9 of the 10 sites. On eight of the sites, there was at least a 10 
percent decline over the 12-year period (McCoy et al. 2006, p. 123). No 
strong correlation was observed between burrow declines and habitat 
quality between surveys, but the response of a population to decline in 
habitat quality may depend on the initial habitat structure, the degree 
of change in habitat structure, the period of time over which change is 
measured, the amount of habitat involved, and the level of habitat 
management (McCoy et al. 2006, p. 1).
    At Cape Sable, in south Florida, burrow counts using line- or 
strip-transects were conducted in 1979, 1990, and 2001. The density of 
active burrows decreased 76 percent between 1979 and 2001. Between 1979 
and 1990 the population was probably stable or slightly increasing, but 
declined substantially between 1990 and 2001, despite evidence of 
recruitment. Reduced habitat quality and tropical storms may have been 
responsible for

[[Page 45136]]

the observed declines between 1990 and 2001 (Waddle et al. 2006, pp. 
280-283).
    Burrow counts were completed at six locations on Naval Air Station 
Pensacola and at eight sites at Naval Air Station Whiting Field in 1996 
and again in 2006 (Davis and Russo 2007a, entire; 2007b, entire; Naval 
Air Station Pensacola Natural Resources Division 2008, entire). On 
Naval Air Station Pensacola active burrows were not detected from two 
locations where they were observed in 1996, but increased at three 
others (Davis and Russo 2007a, pp. 2-3). Small burrow sizes indicated 
that juvenile tortoises were present in the remaining three areas 
demonstrating successful reproduction. On Naval Air Station Whiting 
Field the number of active burrows declined on three sites, was 
unchanged at one site, and increased at four others. Burrow numbers 
were small in all areas, and reproduction was evident at two locations. 
Most burrows were located in ruderal habitat, and native pine forests 
were in need of management (Davis and Russo 2007b, p. 2).
    Surveys for gopher tortoise burrows on Camp Blanding Joint Training 
Center, Clay County, Florida, in 2008 estimated a total of 6,433 active 
burrows by extrapolating from a survey of 10 percent of the 7,350 ha 
(18,170 ac) of potential habitat on the Center (Southeast Regional 
Partnership for Planning and Sustainability 2010, pp. 11, 27).
    A recent survey conducted on a 230-ha (570-ac) property in Alachua 
County, FL, in a high-density slash pine plantation with no burning 
history and substantial mid-story hardwood found 58 active burrows in 
the area (Plum Creek 2010, p. 3). The location of the burrows was not 
described.
    A 2009 survey on Egmont Key National Wildlife Refuge (NWR), 
Hillsborough County, Florida, found 148 active burrows on about 132 ha 
(328 ac) (Southeast Regional Partnership for Planning and 
Sustainability 2010, p. 31). On Ding Darling NWR, 12 active and one 
inactive burrow were detected, and from five populations on Sanibel-
Captiva Islands near Ding Darling NWR, a total of 170 active burrows 
and 39 inactive burrows were found during surveys in late 2009. Archie 
Carr NWR recorded 11 active burrows on two acres, and Pelican Island 
NWR found one active burrow during 2010 surveys.
    Surveys conducted on a 74 ha (183 ac) parcel of the Jennings Forest 
Wildlife Management Area in 1999, 2005, and 2010 indicated that the 
gopher tortoise population apparently responded positively to habitat 
restoration and management activities (FWC 2010a). The number of 
tortoise burrows increased from 378 active and inactive in 1999, to 442 
active and inactive burrows in 2005, and then to 657 active and 
inactive burrows in 2010. Using a burrow occupancy correction factor of 
0.614, FWC concluded that the tortoise population increased from 271 to 
403 individuals over the 11-year monitoring period. The reason(s) for 
the observed increase in population size was not described (e.g., 
increased immigration or increased recruitment).
    A survey was completed in 2010 on a 100 ha (246 ac) parcel 
representing about 27 percent of available potential gopher tortoise 
habitat on Fort White Wildlife and Environmental Area, Florida. Burrow 
estimates for all potential habitat equaled 1994  95 
burrows, or 1810 to 2185 burrows with a 95 percent confidence interval 
(Sullivan 2010).
    Georgia: In seven southwest Georgia counties, tortoise burrow 
surveys conducted at randomly selected forest units with suitable soils 
for gopher tortoises found that 64 percent of the parcels contained no 
gopher tortoise burrows (Hermann et al. 2002, p. 292). On parcels that 
were occupied, burrow densities ranged from 0.04 per ha (0.02 per ac) 
to 2.2 per ha (0.9 per ac) with a mean of 1.1 per ha (0.4 per ac) 
(Hermann et al. 2002, p. 293). Suitable soils that had non-timber 
agriculture, hardwoods, and planted pine plantations were about 6 times 
less likely to have burrows and contained 20 times fewer tortoise 
burrows than open pine sites (Hermann et al. 2002, p. 294-295).
    Recently, burrow surveys using line-transect distance sampling and 
burrow scoping were attempted on 20 wildlife management areas, State 
parks, and other public lands in southern Georgia. No tortoises were 
observed at one parcel, and seven others had burrow densities that were 
insufficient to accurately estimate population levels (Smith et al. 
2009, p. 361). Thirteen sites contained populations ranging in 48-321 
individuals with densities of 0.21-1.65 tortoises per ha (0.08-0.68 
tortoises per ac). In general, burrow size class distribution were 
skewed toward adult tortoises suggesting low recruitment of juveniles.
    One-time burrow surveys from Kings Bay Naval Submarine Base in 
southeastern Georgia indicated a total of 200 active burrows including 
juvenile and hatchling-sized burrows. The majority of burrows occurred 
in ruderal, edge, or transition habitat, sandhill, and young pine 
(Tuberville et al. 2009, p. 7). Area of gopher tortoise habitat for 
Kings Bay Naval Submarine Base was not provided. Native pine forests 
were degraded and in need of management (Tuberville et al. 2009, p. 8).
    Surveys on 12 study sites at Fort Benning, Georgia, during 1995 
found active and recently used burrow densities ranging from 0.05-1.2 
per ha (0.02-0.49 per ac) (Styrsky 2010, p. 405). About 2,700 active 
burrows were estimated on Fort Benning during 1998 surveys, and with 
nearly 25,375 ha (62,700 ac) of potential habitat, this equates to 
about 0.11 active burrows per ha (0.04 burrows per ac) (Southeast 
Regional Partnership for Planning and Sustainability 2009, p. 11, 27). 
Surveys on Fort Gordon, Georgia, located 147 active burrows, which 
contained about 4,570 ha (11,300 acres) of tortoise habitat or about 
0.03 active burrow per ha (0.01 per ac). During 2009 surveys on Fort 
Stewart, Georgia, 4,045 active burrows were located with a reported 
5,790 ha (14,300 ac) of tortoise habitat or about 0.70 burrows per ha 
(0.28 per ac) (Southeast Regional Partnership for Planning and 
Sustainability 2009, p. 11, 27).
    Okeefenokee NWR surveyed two tracts of 11 and 18 ha (26 and 45 ac) 
in 2010 and found. The 11 ha tract had 73 active, and 35 inactive, 
burrows and the 18 ha tract had 31 active and 16 inactive, 
respectively. Surveys on a 102 ha (250 ac) tract on the Eufaula NWR in 
both Georgia and Alabama found 30 active tortoise burrows.
    South Carolina: Little is known about the population status of the 
tortoise in Aiken County or in the Coosawhatchie region (Bennett and 
Buhlmann 2005, p. 2). The Aiken Gopher Tortoise Heritage Preserve 
contains a small population that is believed to be in decline (Bennett 
and Buhlmann 2005, p. 2). Augmentation into this population is ongoing, 
and the effects of these translocations are not known (Bennett 2010). 
Tortoises on the Tillman Sand Ridge Heritage Preserve have been 
surveyed in the past (Auffenberg and Franz 1982, entire; Wright 1982, 
entire; Tuberville and Dorcas 2001, entire), and population estimates 
from these studies indicate a historical decline in the adult 
population of gopher tortoises. Recent assessments suggest this 
population may be stabilizing or growing, but several more years of 
monitoring will be necessary to confirm this trend (Bennett 2010). No 
other natural tortoise populations are known in South Carolina.
    Multi-State Surveys: A one-time survey on 22 tracts of commercial 
forest containing 88 stands known to support gopher tortoises was 
conducted in late 2009 and early 2010 (National Council for Air and 
Stream Improvement, Inc.

[[Page 45137]]

2010, p. 15). Surveys covered 1,938 ha (4,789 ac) of longleaf pine (n = 
47 stands), loblolly pine (n = 16 stands), and slash pine (n = 14 
stands)), sandpine (n = 4 stands), and recently harvested stands (n = 
7) in Alabama, Florida, Georgia, and Mississippi. Potentially active 
and abandoned gopher tortoise burrow density averaged 2.8 per ha (1.1 
per ac) and 1.8 per ha (0.7 per ac), respectively, for each stand.
    Population Modeling: In the absence of field surveys and long-term 
monitoring, models may be used to project the status of populations in 
the future based on a specific set of assumptions and assignment of 
demographic parameters. There have been four substantive modeling 
efforts evaluating the long-term persistence of gopher tortoises 
(Tuberville et al. 2009, pp. 5-10). Two early modeling efforts focused 
on estimating the minimum number of tortoises needed for a population 
to persist for 200 years (Cox et al. 1987, p. 28). Although relatively 
small population sizes (40-50 adults) were modeled to persist over the 
model duration, all populations declined and were projected to go 
extinct at some point in the future depending on model parameters.
    Miller et al. (2001, p. 1) assessed the likelihood of tortoises 
being extirpated from Florida over a 100-year period when evaluating 
all known tortoise populations or only those on public lands 
considering a variety of assumptions regarding survivorship, carrying 
capacity constraints, disease, etc. (Miller et al. 2001, pp. 12-26). 
The model results suggest that gopher tortoises have greater than 80 
percent chance of persisting in Florida over the next 100 years whether 
looking at all known populations or only those on public lands (Miller 
et al. 2001, pp. 27-28). Furthermore, they concluded that populations 
as small as 50 individuals can have conservation value under favorable 
conditions, but under less favorable habitat conditions populations 
larger than 250 individuals would be necessary to protect against 
extinction due to stochastic factors that increase hatchling and adult 
mortality (Miller et al. 2001, p. 28).
    The most recent modeling effort recognized the need to evaluate the 
viability of individual populations, rank populations most appropriate 
for in-situ protection, and determine if nonviable populations are more 
likely to contribute to conservation through augmentation or 
translocation (Tuberville et al. 2009, p. 9). All model scenarios 
resulted in a population decline of one to three percent per year, 
which varied as a function of habitat quality and location within the 
range (Tuberville et al. 2009, p. 17). Only modeled populations with at 
least 250 tortoises were able to persist for 200 years, which is 
substantially different than earlier model results.
    We can draw two very general conclusions from the models described 
above. First, gopher tortoise populations are likely to decline in the 
future under a wide array of demographic and environmental conditions 
that exist today. Second, gopher tortoise populations, although 
declining, and in some cases functionally extinct, will persist for 100 
to 200 years. The effect of these may be that tortoises will be seen 
for long periods of time throughout their range, not because their 
populations are stable or increasing, but because they are long-lived.
    Other efforts have focused on identifying the minimum area needed 
to support viable gopher tortoise populations. As described above, Cox 
(1987, pp. 30-31) used viability modeling to estimate that 50 
individual tortoises would persist and calculated that 10-20 ha (25-50 
ac) would be required to support a population of this size. Breininger 
et al. 1994 (p. 64) concluded that based on burrow densities on Kennedy 
Space Center, Florida, it would require 30-35 ha (74-86 ac) to support 
a population of 50 tortoises. Eubanks et al. 2002 (pp. 469-470) 
estimated that 50 tortoises would require 19-41 ha (47-101 ac) based on 
burrow densities and 25-81 ha (62-200 ac) based on home range size 
estimates. More recently McCoy and Mushinsky (2007, p. 1404-1405) used 
a variant of the density-area method to evaluate minimum patch size for 
the gopher tortoise. Where tortoise populations were spatially 
constrained (e.g., not able to disperse) tortoise populations were 
estimated to require about 100 ha (247 ac), and unconstrained 
populations required 143-250 ha (353-618 ac). Furthermore, if 
metapopulation dynamics are important to the long-term persistence of 
gopher tortoises, then the minimum patch size for unconstrained 
populations must be multiplied by the number of populations necessary 
to constitute a viable metapopulaton (e.g., 429-750 ha or 1,060-1,853 
ac for three populations in a metapopulation, etc.) (McCoy and 
Mushinsky 2007, p. 1405).
    The density of tortoises affects their social interactions and 
recent research has shown that when tortoise densities fall below 0.4 
individuals per ha (0.2 per ac), social interactions decrease 
dramatically because it takes too much energy to search for mates 
(Guyer 2010). This decrease in socialization is predicted to limit mate 
selection opportunities because male tortoises will not travel great 
distances to find females and, therefore, females will not be able to 
select among several potential mates. Viability of low-density 
populations is expected to decline due to adverse genetic impacts. 
Comparison of density data from other studies to the threshold data 
from this study indicates that many extant gopher tortoise populations 
are below the density threshold identified above. Successful 
conservation of the gopher tortoise will require active habitat 
management to provide opportunities for tortoise populations to exceed 
the threshold density necessary to ensure long-term persistence in 
longleaf pine forests (Guyer 2010).
    Recently, segmented regression models were developed to evaluate 
the relationship between area of habitat occupied by gopher tortoises 
and abundance of gopher tortoises to define how many individuals 
constitute a population and how much area is required for such a 
population. Data synthesized from 21 study sites in Alabama, Georgia, 
and Mississippi with varying tortoise population numbers indicated that 
an average gopher tortoise population consists of 444 burrows, covers 
755 ha (1,865 ac), and contains 240 tortoises (Styrsky et al. 2010, p. 
407). This average population contained a density of 0.3 tortoises per 
ha (0.1 per ac), which is below the threshold identified by Guyer 
(2010) for maintaining a persistent population. The authors noted that 
this average tortoise population was calculated based on a variety of 
existing landscapes that differed in their current management and past 
land use history and, therefore, did not represent what a population of 
tortoises might be in areas that were all managed with frequent fire 
and contained the uneven-aged trees of old-growth longleaf pine 
forests. Thus, it is likely that tortoises could persist on smaller 
parcels, but only if habitat were aggressively managed (Styrsky et al. 
2010, p. 408). Lack of prescribed fire or ineffective use of prescribed 
fire is known to be a substantial impediment to the restoration and 
maintenance of gopher tortoise habitat throughout much of its range. 
The model results depict a typical tortoise population as one occupying 
a large area. This seems congruent with existing habitat conditions 
that are reported throughout much of the tortoise's range. Therefore, 
the model results show that most existing conservation lands contain 
too few tortoises and too little suitable habitat to support persistent 
tortoise populations.

[[Page 45138]]

    Expert Opinion: Expert opinion is often used in combination with 
available data or in the absence of data to gather information and draw 
conclusions on wildlife resource issues (Lawrence et al. 1997, p. 1; 
Johnson and Gillingham 2004, pp. 1037-1038). In 2003, a group of 21 
individuals from academia, State, and Federal agencies and 
nongovernmental organizations with knowledge of gopher tortoise biology 
and conservation gathered to discuss the ecology, status, and 
management of the gopher tortoise (Smith et al. 2006, p. 1). In 
addition, the group completed a questionnaire that indicated about 86 
percent of the participants felt that the gopher tortoise was declining 
and 76 percent indicated the decline would require additional legal 
protection in the next 50 years. About 43 percent felt that local or 
regional extinction was likely within a 50-year period. Slightly less 
than five percent thought populations were increasing. Major threats 
identified by the participants included: Fire suppression or lack of 
growing-season fire, management of high-density pine forests, 
predation, road mortality, disease, translocation, and habitat 
degradation due to invasive plants. Participants felt that many 
populations on protected areas were too small (<100 individuals) to be 
viable long term (Smith et al. 2006, p. 327).

Summary of the Status of the Gopher Tortoise

    A wide variety of information is available on the number and 
density of gopher tortoises and their burrows from many areas 
throughout their range. These data resulted from numerous surveys/
censuses using a variety of methodologies ranging from one-time 
censuses to repeated surveys over several decades. The diversity of 
data poses a challenge when trying to evaluate the status of a species 
from a landscape perspective. For example, in some areas we have more 
data (e.g., Florida and in portions of the listed range), and we have 
higher confidence in drawing conclusions about status of tortoises in 
these areas. In other areas, where there is little or no data, our 
confidence in assessing the status of tortoises is lower. Because of 
disparities in the type of data collected, methodologies in collecting 
data, and differences in the scope of studies, it is not possible to 
simply combine datasets to evaluate the status of the gopher tortoise 
throughout its range. Instead, we considered each individual dataset in 
the context of all other best available science to form general 
conclusions about the status of the gopher tortoise.
    In the western portion of their range, gopher tortoise populations 
are small and occur in fragmented habitat. The largest and most 
substantial gopher tortoise populations in the western portion of its 
range occur on the De Soto National Forest in southern Mississippi. 
Long-term monitoring here indicates a decline in population sizes, a 
tendency towards adult-dominated populations, and a lack of, or very 
low, recruitment. Results of smaller-scale surveys of forest lands in 
Mississippi and public and private lands in Louisiana are largely 
consistent with findings on the De Soto National Forest. There are no 
known populations large enough (e.g., > 250 individuals) to persist 
long-term based on projections resulting from recent modeling efforts.
    The gopher tortoise is more widespread and abundant in parts of the 
eastern portion of its range, particularly southern Georgia and central 
and northern Florida. Long-term monitoring data indicate that many 
populations have declined and most are relatively small and fragmented. 
Smaller-scale, short-term or one-time surveys throughout the unlisted 
portion of the range indicate that tortoise populations typically occur 
in fragmented and degraded habitat, are small, and densities of 
individuals are low within populations. Unlike the western portion of 
the range, there are several known populations of tortoises in the 
eastern portion of the range that appear to be sufficiently large to 
persist long-term (e.g., Camp Blanding Joint Training Center, FL; 
Chassahowitzka Wildlife Management Area, FL; Fort White Wildlife and 
Environmental Area, FL; Jennings Forest Wildlife Management Area, FL; 
Three Lakes Wildlife Management Area, FL; Fort Benning, GA; Fort 
Stewart, GA; River Creek Wildlife Management Area, GA; Townsend 
Wildlife Management Area, GA). There are about 80 other public parcels 
in Florida that contain a substantial amount of potential gopher 
tortoise habitat but surveys or censuses of these areas have not been 
conducted to estimate the number of tortoises present (FWC 2011b).

Evaluation of Listable Entity

    The Service makes listing decisions on entire species or subspecies 
that may be threatened or endangered throughout all or a significant 
portion of their range, and on distinct population segments (DPS) of 
vertebrate animals. In determining what listable entity we are 
evaluating, we often are guided by specificity of petition requests or 
have historic listing actions on the same or similar species. In 
general, however, we consider the largest listable entity addressed 
within a petition, but we have the flexibility to consider listing 
actions broader than those requested in petitions.
    The petition refers to gopher tortoises as a population and as 
various numbers of populations in certain geographic areas. Since the 
petition referenced both a single population and multiple populations, 
but consistently referred to the eastern portion of its range, we 
concluded that the petitioner's intent was to request listing the 
gopher tortoise east of the Mobile and Tombigbee Rivers in Alabama, 
Florida, Georgia, and South Carolina as threatened. As stated above, 
the species is already listed under the Act as a threatened species 
west of the Mobile and Tombigbee Rivers in Alabama, Louisiana, and 
Mississippi. To avoid confusion, our 90-day finding clarified that we 
would refer to the petitioner's description of the eastern population 
of the gopher tortoise as the gopher tortoise in the eastern portion of 
its range. We will continue to use that language in this 12-month 
finding. Furthermore, our 90-day finding indicated that, to 
comprehensively evaluate the status of the gopher tortoise, we would 
consider its status throughout all of its range, including where it is 
currently listed as threatened. Since this 12-month finding also 
evaluates the rangewide status of the gopher tortoise, we are 
considering the listable entity as the species throughout its range. 
Based on the information above, we have determined that the species, 
Gopherus polyphemus, is a listable entity.

Summary of Information Pertaining to Five Factors

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
(50 CFR 424), set forth procedures for adding species to the Federal 
Lists of Endangered and Threatened Wildlife and Plants. Under section 
4(a)(1) of the Act, a species may be determined to be endangered or 
threatened based on any of the following five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making this finding, information pertaining to the gopher 
tortoise, in relation to the five factors provided in

[[Page 45139]]

section 4(a)(1) of the Act, is discussed below.
    In considering what factors might constitute threats to a species, 
we must look beyond the exposure of the species to a particular factor 
to evaluate whether the species may respond to that factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor and the species responds negatively, the factor may be a threat 
and, during the status review, we attempt to determine how significant 
a threat it is. The threat is significant if it drives, or contributes 
to, the risk of extinction of the species such that the species 
warrants listing as endangered or threatened as those terms are defined 
in the Act. However, the identification of factors that could impact a 
species negatively may not be sufficient to compel a finding that the 
species warrants listing. The information must include evidence 
sufficient to suggest that these factors are operative threats that act 
on the species to the point that the species may meet the definition of 
endangered or threatened under the Act.
    Additionally, in the summary section of each of the five factors we 
determine the magnitude and immediacy of the threat pursuant to our 
List and Recovery Priority Guidance (48 CFR 43908). Magnitude of threat 
is categorized as low, moderate, or high. Species facing the greatest 
threats to their continued existence would receive the highest listing 
priority (e.g., highest magnitude of threat). There are two categories 
of immediacy of threat: Imminent and nonimminent. Imminent threats are 
those identifiable threats that are currently affecting a species. 
Nonimminent threats are those that are not currently affecting a 
species.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Gopher Tortoise's Habitat or Range

    Gopher tortoise habitat in both the eastern and western portions of 
its range has been destroyed or modified in the past due to: (1) 
Conversion of natural pine forests to intensely managed planted pine 
plantations or naturally regenerated stands (Hermann et al. 2002, p. 
296; Siry 2002, p. 335; Conner and Hartsell 2002, pp. 373-376); (2) 
loss of natural pine forests resulting from urban development, 
conversion of xeric vegetative communities to citrus, and phosphate 
mining (Kautz 1998, p. 184; FWC 2006, p. 4 and 8); and (3) degradation 
of natural pine forest due to lack, or insufficient use, of prescribed 
fire (Florida Fish and Wildlife Conservation Commission 2006, p. 10; 
Bailey and Smith 2007, p. 8; Yager et al. 2007, p. 1). Several of these 
same factors are cited in the gopher tortoise recovery plan as 
historical processes that resulted in habitat destruction and 
modification in the western portion of the tortoise's range, as well 
(Service 1990, pp. 8-10). Additional details of these historic threats 
can be found in our 90-day finding (74 FR 46401) and Florida Fish and 
Wildlife Conservation Commission (2006, pp. 4-6).
    The conversion of native southern pine forests to intensively 
managed pine forests (planted pine plantations or regenerated forests) 
is anticipated to continue in the future (Bailey and Smith 2007, p. 8), 
although the rates of projected conversion vary. The future rate of 
conversion to pine plantations may be lower than in the past because 
rates of conversion seem to have declined over the past decade compared 
to the rates of conversion documented in the 1980s and 1990s.
    In 2000, natural pine forests made up 11 percent of the forest 
industry's land holdings in the southern United States, but is 
projected to decline to two percent by 2020 (Siry 2002, p. 335). 
Similarly, in 2000, natural pine forests made up about 14 percent of 
nonindustrial forest holdings, but this was projected to decrease to 10 
percent by 2020 (Siry 2002, p. 335). Forestland management modeling 
indicates that in Arkansas, Louisiana, and Mississippi, future 
establishment of pine plantations are likely to occur at the expense of 
hardwood forests and natural pine forests (Sohngen and Brown 2006, p. 
706). Although only a portion of the study area in Arkansas, Louisiana, 
and Mississippi encompasses the current range of the gopher tortoise, 
projections from this three-state assessment suggested that up to 
135,000 ha (333,500 ac) per year of planted pine may be established 
each year over the next 25 years and that up to 35,000 ha (about 86,500 
ac) of natural pine forest would be destroyed each year over the same 
25-year period to accommodate a portion of the expected increase in 
pine plantations (Sohngen and Brown 2006, p. 706).
    The area covered by pine plantations in the south has been modeled 
and under certain scenarios is projected to increase by about 4 to 10 
million ha (10 to 25 million ac) by 2040 (Prestemon and Abt 2002, pp. 
18-20). We could not determine the area within the gopher tortoise's 
range that was projected to be converted to pine plantations. Overall, 
projected decreases in the area of private timberland in natural forest 
management types are expected to come from increases in pine 
plantations and the liquidation of forests to accommodate urban 
development (Prestemon and Abt 2002, p. 21).
    The destruction of gopher tortoise habitat in Florida due to urban 
development has temporarily eased due to the recent economic downturn 
(FWC 2010b, p. 1). We suspect similar trends exist throughout the 
remainder of the tortoise's range. However, with economic recovery, we 
anticipate a return of urban development in coastal urban centers and 
throughout much of peninsular Florida. Zwick and Carr (2006, pp. 2, 4-
6) modeled human population growth in Florida and concluded that of 2.8 
million ha (7.0 million ac), 1.1 million ha (2.7 million ac) of land 
will be converted to urban use by 2060. In Florida, future urban 
development may result in the loss of about 283,300 ha (700,000 ac) or 
20 percent of the remaining gopher tortoise habitat (not defined in 
publication) in Florida by 2060 (Florida Fish and Wildlife Conservation 
Commission 2008, p. 4).
    Others have predicted a loss of up to 50 percent of forest lands in 
central Florida and up to 25 percent in north Florida and southeast 
Alabama (Prestemon and Abt 2002, p. 18). In 10 coastal Georgia 
counties, the human population is expected to increase 51 percent by 
2030 (Center for Quality Growth and Regional Development 2006 p. 4), 
but no estimate of impact on native habitats was provided. Within the 
five counties of the Mississippi gulf region future development is 
expected to impact gopher tortoise habitat. Evidence of this potential 
growth can be found in the Mississippi Gulf Region and Wastewater Plan, 
as well, which outlines water, wastewater, and stormwater 
infrastructure improvements that are intended to support existing and 
future growth patterns, particularly new house construction and 
economic development (Mississippi Department of Environmental 
Protection 2010, pp. ES1-ES2).
    In addition to habitat loss, gopher tortoise habitat will continue 
to be degraded due to fragmentation, conversion to intensively managed 
pine forests, and lack, or ineffective use of prescribed fire. The 
spatial and temporal scale of fragmentation from silvicultural 
activities will vary depending on location, size, and timing of these 
activities, but frequent alterations of intensely managed pine forests 
are unlikely to support stable tortoise populations (Diemer 1992, p. 
288). Typically, gopher tortoises move from intensively managed pine 
forests when canopies begin to close to roadsides and then to adjacent 
clearcuts or other peripheral habitats, if they are

[[Page 45140]]

available (Auffenberg and Franz 1982, p. 102; Diemer 1992, p. 288). 
These peripheral areas are often road shoulders, which may give the 
impression that population numbers are high, even though the adjacent 
pine plantation is largely unoccupied (FWC 2001, p. 4). Gopher 
tortoises are known to abandon areas that had been recently converted 
to pine plantations FWC (2001, p. 4).
    Early-aged pine plantations may provide open, grassy habitat that 
can be colonized by gopher tortoises for several years, but these 
populations are typically short-lived because within 10 to 15 years 
pine canopies shade out ground vegetation and tortoises either die or 
disperse (Auffenberg and Franz 1982, p. 111). Large, closed-canopy pine 
plantations without forage resources may also serve as barriers to 
tortoise movement (Jones and Dorr 2004, p. 462). Generally, conversion 
to pine plantations and intensively managed regenerated pine forests 
results in poor habitat quality that support smaller populations of 
gopher tortoises (Hermann et al. 2002, p. 296).
    Gopher tortoise habitat is fire-dependent, and naturally ignited 
fires and prescribed burning maintains an open canopy and reduces 
forest floor litter that combine to allow penetration of sunlight 
necessary for ground cover growth and gopher tortoise nest 
thermoregulation. In natural and planted pine stands, frequent burning 
is the most important management tool in sustaining gopher tortoise 
habitat (Landers and Buckner 1981, p. 6; Breininger et al. 1994, p. 
63). In suitable habitats, periodic burning or shrub removal can 
increase gopher tortoise carrying capacity (Stewart et al. 1993, p. 
79). Landers (1980, p. 7) found that mixed stands of longleaf pine, 
turkey oak, and other scrub oaks that were burned every 2 to 4 years 
produced the densest tortoise colonies. In south-central Florida, 
tortoises moved into areas that were frequently burned and abandoned 
areas that were unburned or burned less frequently (Ashton et al. 2008, 
p. 527). However, recently burned potential (but unoccupied) habitat 
may not be colonized by tortoises if fire has been suppressed in 
surrounding habitat making it unsuitable for tortoises.
    Even though management efforts may restore habitat, previous fire- 
suppression can result in abandonment of adjacent habitat and create 
dispersal barriers (Ashton et al. 2008, p. 528). Breininger et al. 
(1994, p. 63) determined that burned habitats had more herbaceous 
ground cover and gopher tortoises than unburned oak-palmetto. Landers 
and Buckner (1981, p. 5) determined that burned plantations and 
longleaf pine scrub oak ridges had nest densities four times higher 
than in unburned plantations and ridges. Landers and Speake (1980, p. 
518) recorded that herbaceous ground cover was 2.3 times higher and 
gopher tortoise density was 3.1 times higher in a frequently burned 
slash pine plantation as in an adjacent unburned natural sandhill area.
    Loss and alteration of gopher tortoise habitat from fire exclusion 
or fire suppression has a significant effect on survival of the gopher 
tortoise (Boglioli et al. 2000, p. 704). Although burning has been 
accepted as a management tool, increased urbanization has limited its 
use in many locations (Ashton and Ashton 2008, p. 78). Many 
southeastern pine forests have dense canopies, more mid-canopy shrubs, 
and herbaceous ground cover decline due to fire suppression (Yager et 
al. 2007, p. 428). Tortoise population life expectancy was shorter than 
normal in fire-suppressed savanna communities (Auffenberg and Iverson 
1979, p. 562). Population reduction was directly correlated with the 
degree and rate of successional habitat modification (Auffenberg and 
Iverson 1979, p. 562). Auffenberg and Franz (1982, p. 108) recorded a 
decrease of 1.5 tortoises per hectare every 5 years on an unburned site 
for 16 years. Fire exclusion may reduce tortoise numbers by 60 to 80 
percent in 8 years (Diemer 1989, p. 3) or 100 percent in 16 years 
(Auffenberg and Franz 1982, p. 108). In south-central Florida, sandhill 
and scrubby flatwoods were abandoned by gopher tortoise after about 20 
years of fire exclusion (Ashton et al. 2008, p. 528).
    Fire suppression and the decline of prescribed fire in both natural 
pine forests and pine plantations have resulted in a substantial 
decline in gopher tortoise habitat (Service 1990, pp. 9-10, FWC 2006, 
p. 10). Auffenburg and Franz (1982, p. 106) reported that tortoise 
densities are highest in fire-adapted associations (sand pine-scrub oak 
and longleaf pine-oak) or early successional stages (beach scrub and 
old-field). In the absence of fire, each of these associations would 
eventually be replaced by predominantly evergreen hardwood communities, 
in which tortoises are generally less abundant (Auffenburg and Franz 
1982, pp. 106-107). In Florida, and likely many other areas, some 
public land managers do not have the resources to implement effective 
habitat management programs (Howell et al. 2003, p.10). In a 
questionnaire to land managers in Florida, the Service asked what 
challenges they faced in effectively using prescribed fire to manage 
scrub, a fire-maintained ecosystem. Many respondents indicated that 
funding, staff, and smoke management issues substantially reduced their 
ability to burn (Service 2006, Excel spreadsheet; Thomson 2010, p. 12). 
Recent communications with FWC indicate that they are having some 
success in reaching their burning goals, noting that 39,360 ha (97,260 
ac) acres were burned on FWC-lead areas during 2009. Since 2006, FWC 
has had at least 86 percent of their lands within the recommended fire 
return interval (Johnson 2011). However, there is little question that 
at the landscape level, maintaining adequate burning programs is a 
serious challenge and fire suppression is a significant issue if not in 
Florida, certainly throughout the majority of the species range.
    Thomson (2010, p. 39) indicated that the proposed restoration and 
long-term management of gopher tortoise habitat in Florida would cost 
an estimated $103 to $156 million and necessitate the contracting or 
hiring of 80 to 120 additional full-time staff. Existing economic 
conditions in Florida have resulted in substantive changes in recent 
land management budget allocations. For example, in fiscal year 2009-
2010, land management funding covering a wide variety of programs was 
reduced by $69.5 million. Recent funding reductions for land management 
and the uncertainty of when adequate land management funding will be 
available is likely to preclude the FWC from fully meeting habitat 
restoration targets. Other States within the range of the gopher 
tortoise have experienced reduced budgets in recent years that are 
expected to continue in the near future (McNichol et al. 2010, entire). 
Some of these funding limitations may result in fewer land management 
activities that would benefit the gopher tortoise (Georgia 
Environmental Action Network 2010, p.1)
Conservation Efforts To Reduce Habitat Destruction, Modification, or 
Curtailment
    When considering the listing of a species, section 4(b)(1)(A) of 
the Act requires us to consider efforts by any State, foreign nation, 
or political subdivision of a State or foreign nation to protect the 
species. Such efforts would include measures by Native American Tribes 
and organizations. Also, Federal, Tribal, State, and foreign recovery 
actions (16 U.S.C. 1533(f)), and Federal consultation requirements (16 
U.S.C. 1536) constitute conservation measures. In addition to 
identifying

[[Page 45141]]

these efforts, under the Act and our policy implementing this 
provision, known as Policy for Evaluation of Conservation Efforts 
(PECE) (68 FR 15100; March 28, 2003), we must evaluate the certainty of 
an effort's effectiveness on the basis of whether the effort or plan 
establishes specific conservation objectives; identifies the necessary 
steps to reduce threats or factors for decline; includes quantifiable 
performance measures for the monitoring of compliance and 
effectiveness; incorporates the principles of adaptive management; is 
likely to be implemented; and is likely to improve the species' 
viability at the time of the listing determination. In general, in 
order to meet these standards for the gopher tortoise, conservation 
efforts must, at minimum, report data on existing populations, describe 
activities taken toward conservation of the species, demonstrate either 
through data collection or best available science how these measures 
will alleviate threats, provide for a mechanism to integrate new 
information (adaptive management), and provide information regarding 
certainty of the implementation (e.g., funding and staffing 
mechanisms).
    The gopher tortoise is frequently associated with longleaf 
restoration, even being cited as an umbrella species for the ecosystem 
(Fenwood 2010). An estimated 1.4 million ha (3.4 million ac) of 
longleaf currently exist in the southeastern United States (Gaines 
2010). Fifty-five percent of this acreage is in private ownership, 34 
percent is in Federal ownership, and 11 percent is in State or local 
ownership (Gaines 2010). There are numerous ongoing initiatives and 
incentives to conserve gopher tortoise and restore longleaf pine 
forests within the gopher tortoise's range (National Council for Air 
and Stream Improvement, Inc. 2010, pp. 7-14; Tall Timbers, 2010, p. 1; 
McWilliams 2009, p. 2). Restoration efforts vary from large-scale and 
comprehensive (e.g., full-scale ecosystem restoration effort in Conecuh 
National Forest) to voluntary silvicultural management practices being 
undertaken by industrial and private timber landowners that are 
believed to improve tortoise habitat and can be compatible with timber 
and income production (e.g., use of prescribed fire, lower basal area 
after thinning, lower planting densities, increased planting of 
longleaf pine, mid-rotation woody brush control with herbicide, and 
planting plans that provide continuous supply of early-age planted 
pines in the vicinity of known tortoise populations (Jones and Dorr 
2004, p. 463; Plum Creek 2010, p. 5).
    Below, we consider the variety of conservation measures that were 
discussed in documents submitted during the public comment period or 
known to us that could minimize or eliminate threats under Factor A. We 
also evaluate the benefit that these efforts may provide for tortoises, 
measures that could improve benefits for tortoises, as well as the 
certainty of effectiveness and implementation, as required under the 
PECE policy.
America's Longleaf Restoration Initiative
    America's Longleaf Initiative (Initiative) is a collaborative and 
voluntary effort (involving more than 20 organizations and agencies) 
that seeks to ``define, catalyze, and support coordinated longleaf pine 
conservation efforts.'' The vision of the Initiative is to achieve 
``functional, viable longleaf pine ecosystems with the full spectrum of 
ecological, economic and social values inspired through a voluntary 
partnership of concerned, motivated organizations and individuals,'' 
(http://www.americaslongleaf.org, Accessed 9/30/2010). In March 2009, 
the Initiative released the Range-Wide Conservation Plan for Longleaf 
Pine (Longleaf Pine Plan). The Longleaf Pine Plan calls for an increase 
of between 1.4-3.2 million ha (3.4-8.0 million ac) of additional 
longleaf pine forests within 15 years. It includes guiding principles, 
strategies, and cross-cutting approaches that are intended to be 
implemented through collaborative, voluntary efforts. The Longleaf Pine 
Plan also calls for habitat improvement in existing longleaf forests by 
seeking an increase from 0.6- to 1.2 million ha (1.5-3.0 million ac) in 
the ``desired longleaf woodland/open understory condition,'' using 
prescribed burning, mechanical treatments, and commercial thinning. It 
is acknowledged by the Initiative that approximately 80 percent of the 
restoration will need to occur on private lands.
    As part of the Initiative, American Recovery and Reinvestment Act 
(ARRA) funding was provided in 2009, in the amount of $8.975 million, 
to the United States Department of Agriculture (USDA) Forest Service, 
Southern Region for longleaf restoration. State Foresters in North 
Carolina, South Carolina, Georgia, Alabama, and Florida each received 
$1.74 million to help address key items in the Longleaf Pine Plan 
(Gaines 2010). So far these grants have assisted States in establishing 
more than 3,237 ha (8,000 ac) of longleaf pine from North Carolina to 
Alabama and improved nearly 9,700 ha (24,000 ac) of longleaf pine 
stands using prescribed burning, mid-story treatment, invasive species 
control, and native understory plant establishment. They have also 
improved seedling capacity at State nurseries.
    The Service's Partners for Fish and Wildlife Program has also 
administered approximately $800,000 in ARRA funds to the States of 
Alabama, Florida, and Georgia, which together has improved 
approximately 1,200 ha (3,000 ac) of longleaf habitat through 
implementation of prescribed fire plans and restoration of native 
groundcover, including the planting of approximately 600 ha (1,500 ac) 
of longleaf seedlings. Local implementation teams made up of Federal, 
State, and NGO members are in the process of forming. Joint Ventures 
(i.e., public and private sector partners working together to conserve 
species and habitats) are also working on an effort to develop and 
define desired forest conditions to help provide technical guidance to 
land managers for this type of restoration. A regional inventory of 
longleaf acreages and activities, as well as associated mapping, is 
under way.
    An initial Federal partnership (Memorandum of Understanding) 
between the Service, Forest Service, and the Department of Defense has 
been formed to provide leadership to achieve the goals of the 
Initiative. So far, about $20 million dollars has been spent on 
national forests resulting in approximately 210,000 ha (520,000 ac) of 
restoration throughout the range of longleaf pine. Also, for the past 3 
years, military installations, which currently contain about 295,000 ha 
(730,000 ac) of longleaf (18 percent of remaining longleaf in the 
Southeast), have spent an average of $11 million per year on management 
of longleaf pine forests (Fenwood 2010).
    In 2009, the Farm Services Agency (FSA) received $22 million for 
longleaf pine restoration and management on about 138,000 ha (342,000 
ac) on private lands through the Conservation Reserve Program (CRP) 
(Gaines 2010). The FSA reported approximately 1,400 ha (3,452 ac) of 
pine seedlings were planted in 2009, bringing the cumulative total to 
about 32,000 ha (79,298 ac).
    The Natural Resources Conservation Service also received $5 million 
in 2009 to establish/improve 30,750 ha (76,000 ac) of longleaf on 
private lands through assistance programs (e.g., Environmental Quality 
Incentives Program, Wildlife Habitat Incentives Program, Forest Healthy 
Reserve Program, Conservation Technical Assistance) (Gaines 2010).

[[Page 45142]]

The Gopher Tortoise Candidate Conservation Agreement
    Stakeholders within the range of the unlisted gopher tortoise 
representing the four States' fish and wildlife agencies, branches of 
the Department of Defense, U.S. Forest Service, Fish and Wildlife 
Service, and various NGOs recently drafted and executed a Candidate 
Conservation Agreement (CCA). The goal of the CCA, which focuses on the 
eastern range of the tortoise, is to organize a cooperative rangewide 
approach to gopher tortoise conservation and management in that portion 
of the range. The CCA uses a common conservation approach and framework 
and allows the signing parties to leverage knowledge and funding within 
it. The CCA is flexible and voluntary, so that different conservation 
and management actions can be adopted and implemented at varying levels 
by the signing parties. The stakeholders produce an annual report, 
which includes information on: Hectares included by protection level; 
hectares managed and restored; invasive exotics treated; population 
trends/survey results; population manipulation; research; land 
conservation; education and outreach; and legal protection measures 
(Southeast Regional Partnership for Planning and Sustainability 2010, 
p.1-2). The signatories of the CCA carry out a variety of efforts for 
tortoise conservation.
Department of Defense
    The Army has four installations with gopher tortoise in the eastern 
portion of the range including: Fort Rucker, AL; Fort Benning, GA; Fort 
Gordon, GA; and Fort Stewart, GA. Conservation of gopher tortoise is 
included for each site within an Integrated Natural Resources 
Management Plan (INRMP). These 5-year plans provide for enhancement and 
protection of habitat and where necessary, relocation of tortoises to 
avoid harm from human impacts. The estimated area of habitat and 
potential habitat at all installations above is about 54,600 ha 
(135,000 ac). In 2009, management for gopher tortoise was conducted on 
31,000 ha (76,500 ac), which included almost 28,300 ha (70,000 ac) of 
prescribed burning. Survey data indicates that the Army has 14,000 
active burrows. Since 1997, 645 tortoises have been translocated at 
Army installations (Southeast Regional Partnership for Planning and 
Sustainability 2010, pp. 17, 27, 35).
    The U.S. Navy has four installations within the eastern range of 
the gopher tortoise that support populations (Kings Bay in southeastern 
Georgia, Naval Air Station (NAS) Jacksonville in northeastern Florida, 
and NAS Whiting Field and NAS Pensacola in the western Florida 
panhandle) and two that do not (i.e., Naval Support Activity Panama 
City, FL and Naval Station Mayport, FL). Each installation has an INRMP 
that is active and current. From October 1, 2008, to September 30, 
2009, the Navy managed over 4,850 ha (12,000 ac) of tortoise habitat, 
conducted prescribed burning on 602 ha (1,489 ac), reduced brush 
encroachment on 60 ha (147 ac), treated 28 ha (68 ac) for invasive 
species, and removed 95 feral hogs. Surveys indicated 685 active 
burrows and 304 inactive burrows across the installations, with an 
estimated population of 428 gopher tortoises. No issues with disease or 
predation were reported. No translocations were conducted. At NAS 
Whiting Field and NAS Pensacola, one research study was conducted 
involving DNA blood sampling. There were no reported losses or gains in 
habitat acreage. Brochures and informational signage were provided as 
community outreach. No new regulations, laws, or policies were 
implemented or changed, and there were no changes or additions to the 
CCA Agency Conservation Strategy (Southeast Regional Partnership for 
Planning and Sustainability 2010, p. 3).
    The U.S. Air Force reports six installations with gopher tortoises 
or habitat in the eastern portion of the range including five in 
Florida: Avon Park Bombing Range; Eglin Air Force Base (AFB); MacDill 
AFB; Patrick AFB; and Tyndall AFB; and Moody AFB in Georgia. The Air 
Force reports over 178,000 ha (440,000 ac) of potential tortoise 
habitat, the vast majority of which is on Eglin AFB (155,600 ha or 
384,500 ac). At Avon Park, a baseline survey is under way to obtain 
population size, density, and other basic demographic information. 
Also, 3,240 ha (8,000 ac) of tortoise habitat underwent a prescribed 
burn, and 216 ha (535 ac) were treated for invasive plants with 
herbicide. At the large scale, Eglin AFB has been conducting habitat 
management in order to maintain or improve gopher tortoise habitat 
conditions and at the smaller scale has conducted some surveys. In 
addition, they have relocated several tortoises to good habitat and 
away from project areas within Eglin.
    MacDill AFB supports approximately 100 tortoises in several 
populations throughout the airfield and pine forest areas. In terms of 
habitat improvement, the installation spent annual funding to improve 
habitat areas and also worked to avoid construction in gopher tortoise 
areas (e.g., found a suitable alternative site for the proposed 
Explosive Ordnance Disposal facility, which would have impacted 
tortoise habitat). Patrick AFB contains four major installations. Of 
these, Cape Canaveral Air Force Station has the largest population of 
gopher tortoises of the four sites. An accurate population estimate is 
not available at present because a population survey has not yet been 
completed for all sites. Management of gopher tortoise habitat includes 
mechanical cutting and controlled burning, as well as treatment and 
removal of invasive vegetation. Gopher tortoise relocations at Patrick 
AFB are conducted as laid out in the 45SW Gopher Tortoise Relocation 
Plan (Southeast Regional Partnership for Planning and Sustainability 
2010, p. 4).
    Gopher tortoises have been identified on three separate areas on 
Tyndall AFB (totaling 127 ha or 315 ac). These areas were surveyed in 
the past either for general biological information or in support of 
missions. Two activities that would benefit suitable tortoise habitat 
are used on the base: Longleaf pine restoration and frequent prescribed 
fire. At Moody AFB, gopher tortoise management is carried out through 
projects identified in the INRMP with concurrence by the Georgia 
Department of Natural Resources (GDNR) and the Service. Current 
projects include: Surveys and seasonal monitoring of known gopher 
tortoise populations; habitat improvement/restoration through burning, 
chemical release, and mechanical means; Upper Respiratory Tract Disease 
(URTD) disease surveillance; studies on movement of gopher tortoise in 
relation to military activities; and a gopher tortoise mark-recapture 
population demography study (Southeast Regional Partnership for 
Planning and Sustainability 2010, pp. 3-5).
    The Marine Corps conducts management activities for gopher tortoise 
at two installations in the eastern portion of the range that have/may 
have gopher tortoises and conduct some management. Marine Corps Support 
Facility Blount Island located in Jacksonville, FL, has 6 ha (15 ac) of 
tortoise habitat on which a burrow survey identified 30 active burrows 
and 15 inactive burrows in April of, 2009. The Marine Corps is 
currently evaluating the possibility of moving all gopher tortoises to 
a long-term protected site off the installation. The other site, Marine 
Corps Logistics Base Albany located in Albany, GA, has 566 ha (1,400 
ac) of potential gopher tortoise habitat, on which it uses prescribed 
fire for maintenance and enhancement.

[[Page 45143]]

While no burrow surveys have been conducted at this site, one tortoise 
was killed in November 2009 by an automobile (Southeast Regional 
Partnership for Planning and Sustainability 2010, p. 5).
U.S. Forest Service
    Gopher tortoises occur in both Covington and Escambia Counties, AL, 
on Conecuh National Forest. This site contains likely the largest 
aggregation of gopher tortoises in Alabama, though no estimates of 
numbers are available at this time. The gopher tortoise and its burrows 
are protected on the National Forest by timber sale specifications 
requiring protection of burrows and a Supervisor's Closure Order that 
bans the gassing of burrows. Management activities conducted for the 
restoration and maintenance of native fire ecosystems that support 
gopher tortoise include: prescribed fire, timber harvest to restore 
native overstory species (longleaf), timber thinning in mature longleaf 
stands, chemical treatment and eradication of cogongrass, propagation 
for future restoration needs, trapping and removal of feral hogs, 
native grass seed collection, and educational efforts through outreach 
and interpretation.
    Management activities for the maintenance and restoration of gopher 
tortoise habitat in the National Forests of Florida in fiscal year 2009 
(October 2008 through September 2009) included: Prescribed fire, timber 
thinning in mature longleaf stands, nonnative invasive species 
eradication, mechanical mowing of mid-story vegetation, road 
restoration activities, land enclosures via electric fence to prevent 
hog disturbance, hog hunts in gopher tortoise areas, seed collection 
and planting, and fire line restoration. Surveys for the gopher 
tortoise, as well as education efforts through signage in strategic 
locations in the forests were also completed (Southeast Regional 
Partnership for Planning and Sustainability 2010, p. 5).
U.S. Fish and Wildlife Service
    Restoration efforts are occurring at most National Wildlife 
Refuges, including prescribed burning. Comprehensive Conservation Plans 
(CCPs) have been developed for most of the refuges, which include 
management and monitoring actions based on the priorities of the 
refuge. Other management may include restoration of priority areas, 
pine thinning, and exotic vegetation removal. There is a need for more 
monitoring of gopher tortoises at most refuge properties (Southeast 
Regional Partnership for Planning and Sustainability 2010, p. 5).
Alabama
    Gopher tortoises occur in 16 counties within the lower coastal 
plain of Alabama. Total habitat within the State is currently unknown. 
On lands under ADCNR control or ownership, tortoises benefit from 
efforts primarily intended to restore historic longleaf pine habitats, 
if they currently occur at these sites. ADCNR owns or manages 
approximately 22,250 ha (55,000 ac) in the range of the gopher tortoise 
(i.e., the Division of Wildlife and Freshwater Fisheries owns or 
manages three tracts of approximately 10,900 ha (27,000 ac) in the 
unlisted range of the tortoise; the State Lands Division manages 9,300 
ha (23,000 ac) in six tracts within the unlisted range and 2,023 ha 
(5,000 ac) in Mobile County in the listed range). Through the State 
Wildlife Grant program, the ADCNR is providing funding for gopher 
tortoise research. Information on the life history of the species and 
State-funded research can be found on the department Web site, Outdoor 
Alabama (http://www.outdooralabama.com) (Southeast Regional Partnership 
for Planning and Sustainability 2010, p. 6).
Florida
    Early regulations required payment of mitigation fees to offset 
impacts of development projects on gopher tortoises. Mitigation fees 
were subsequently used to purchase gopher tortoise habitat. During this 
regulatory process, about $55 million in mitigation funding was 
generated that resulted in fourteen acquisitions of property totaling 
about 6,200 ha (15,300 ac) specifically for gopher tortoise 
conservation. A $20 million dollar endowment exists to fund long-term 
management of these mitigation parcels.
    More recently, the gopher tortoise was reclassified by the State to 
threatened with the approval of a Management Plan (Plan) in September 
2007. The primary goal of the Plan is to `` `restore and maintain 
secure, viable populations of gopher tortoises throughout the species' 
current range in Florida by addressing habitat loss '.'' Other specific 
objectives include conducting appropriate vegetation management to 
maintain gopher tortoise habitat (e.g., prescribed burning); increasing 
the amount of protected habitat; restocking tortoises to protected, 
managed, suitable habitats where densities are low; and decreasing 
tortoise mortality on lands proposed for development. Each of these 
objectives contains measurements and benchmarks through which 
assessment of progress toward the goal can be achieved. The extensive 
list of conservation actions in the plan for the first 5-year cycle 
fall under the over-arching categories of ``regulations, permitting, 
local government coordination, law enforcement, habitat preservation 
and management, population and disease management, landowner 
incentives, monitoring and research, and education and outreach,'' 
(Southeast Regional Partnership for Planning and Sustainability 2010, 
p. 7).
    An interagency working group was formed to address restocking 
tortoises onto State public lands where populations have been depleted. 
Staff also continue to coordinate with public and nonprofit 
organizations to encourage and provide incentives for gopher tortoise 
conservation on private lands. A more comprehensive summary of land 
management activities, surveys, and inventories will be forthcoming 
(Southeast Regional Partnership for Planning and Sustainability 2010, 
p. 7-8).
Georgia
    In Georgia, 12,500 ha (30,889 ac) of tortoise habitat are 
permanently protected on State Parks, Wildlife Management Areas, 
Natural Areas, Public Fishing Areas, and Historic Sites. Beneficial 
land management on these properties for the tortoise, during the period 
October 1, 2008, to September 30, 2009, included prescribed burning of 
7,350 ha (18,170 ac), thinning or clear-cutting of 1,350 ha (3,346 ac) 
of off-site planted pines, removal of invasive sand pine from 306 ha 
(758 ac), planting longleaf pine on 152 ha (375 ac), and planting 
native warm-season grasses on 101 ha (250 ac). The GDNR protected 1,527 
ha (3,772 ac) of tortoise habitat during the reporting period through 
acquisition and conservation easements and contracted gopher tortoise 
surveys and population estimates on 19 total sites, including 14 State-
owned sites. The State also conducted a project aimed at assessing the 
quality of sandhill habitat across the State, including time-
constrained searches for tortoise burrows at 91 sites. A Candidate 
Conservation Agreement with Assurances was also developed for the 
repatriation of gopher tortoises at Plant Vogtle, Burke County, which 
is currently under review with the Service (Southeast Regional 
Partnership for Planning and Sustainability 2010, p. 8).
    Research completed or funded by GDNR included a project on 
offspring survival and reproductive ecology of translocated gopher 
tortoises on St. Catherine's Island, comparison of methods used on 
sites in Georgia to the official population estimate methodology of 
Florida, researching the

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predatory behavior of armadillos during gopher tortoise nesting season, 
and behavioral studies at Reed Bingham State Park on head-started 
(i.e., eggs were collected from the wild and held in captivity and 
hatchlings were released to the wild) hatchlings (99 head-started 
hatchlings were released at the Park to combat the impact of nest 
predation on the site). Efforts to increase awareness for gopher 
tortoise conservation among the general public and professionals 
included publications, Web site materials, workshops, and events during 
2009 (Southeast Regional Partnership for Planning and Sustainability 
2010, p. 8).
South Carolina
    Management of gopher tortoise habitat owned by South Carolina 
Department of Natural Resources including burning and mechanical 
treatment, as well as data analysis for research on gopher tortoise 
life history and ecology, was completed during the period October 1, 
2008, to September 30, 2009. Staff within the agency is currently 
completing a conservation strategy for the gopher tortoise in South 
Carolina, intended to guide agency action for the conservation of the 
species (Southeast Regional Partnership for Planning and Sustainability 
2010, pp. 8, 25).
CCA Summary
    Throughout the eastern portion of the range, the signatories of the 
CCA collectively report more than 1.8 million ha (4.5 million ac) of 
potential habitat, which includes private land projections in Florida, 
and approximately 24,338 tortoises. They also report that they have 
conducted more than 158,000 ha (390,000 ac) of burning and 142,000 ha 
(350,000 ac) of restoration benefitting gopher tortoises during the 
period October 1, 2008, to September 30, 2009. Though estimates of the 
number of tortoises at sites covered by the CCA are under 25,000, it is 
expected that over time these estimates will be refined upwards, as 
many sites have not been fully surveyed or reported. We also anticipate 
that the area reported as ``potential habitat'' may be refined to a 
smaller number as ``suitable habitat'' is better defined and more 
detailed analysis is conducted.
    The full scope of the benefit to tortoise conservation from this 
effort is yet to be realized as many partners are still in the 
information gathering phase of implementation. Some signatories did not 
gather or report information during the first reporting cycle 
(Southeast Regional Partnership for Planning and Sustainability 2010, 
pp. 15, 25-26, 34, 38, 44, 54, 59, 62). We note that the agreement 
would be strengthened through formalization of commitments to fund 
activities (such as, tortoise population monitoring or longleaf 
restoration and management) into the future and legally binding 
commitments to complete restoration. In order to meet the criteria set 
forth under the PECE policy, certainty of effectiveness must be 
demonstrated through data on populations and habitat, while certainty 
of implementation could be demonstrated by formalized commitments and 
dedicated funding to carry out the habitat improvements.
Other Efforts Not Previously Addressed
Sustainable Forestry Initiative
    Voluntary participation and certification under the Sustainable 
Forestry Initiative and internal conservation measures of the forest 
industry are likely to contribute to enhancing working forest 
landscapes for wildlife. The standards for southeastern forests provide 
general criteria for protecting rare, threatened, and endangered 
species and their habitat and maintaining ecological function and 
values (The Forest Management Trust 2005, pp. 18-19) and have utility 
in describing the general goals and objectives of the initiative. 
However, these do not address specific habitat requirements of the 
gopher tortoise.
Florida Forever Act
    Florida statute 259.105 continues two decades of land acquisition 
and management for conservation and recreation purposes. Specifically, 
259.105(1)(2)(a)11 mandates that the State of Florida must play a major 
role in the recovery and management of its imperiled species (i.e., 
State and Federally listed species) through the acquisition, 
restoration, enhancement, and management of ecosystems that can support 
the major life functions of imperiled species. This statute also 
requires that any state lands acquired under the auspices of this law 
that contain imperiled species consider the habitat needs of these 
species during preparation of management plans for each parcel. Thus, 
over the 20 plus years of acquisition, restoration, and management of 
lands purchased under the Florida Forever Act and its predecessor 
statutes, there have been many additional acres of potential gopher 
tortoise habitat placed under public protection.
Georgia Forest Land Protection Act of 2008
    Georgia's commitment to encourage the protection of forested 
landscapes through tax incentives may assist in reducing habitat 
destruction due to land use changes. However, the Georgia Forest Land 
Protection Act (O.C.G.A. 48-5-7-7) is intended to provide incentives to 
encourage protection of trees, fiber, or other wood and wood fiber 
products. Wildlife preservation and management may be allowed as 
secondary uses.
The Nature Conservancy's Southern Forest Project
    The Nature Conservancy's Southern Forest Project is targeting the 
acquisition of about 24,000 ha (61,000 ac) of longleaf pine habitat in 
Florida, Georgia, and Alabama. Gopher tortoises are indicated as 
species likely to benefit from these acquisitions, but the amount of 
habitat that will be conserved and distribution of extant tortoise 
populations on these properties is not known.
Gulf Coast Plain Ecosystem Partnership
    The Gulf Coast Plain Ecosystem Partnership includes 10 entities 
that entered into a 1996 Memorandum of Understanding (MOU). The MOU 
encompasses about 425,900 ha (1,052,400 ac) in northwest Florida and 
south Alabama. This area is known for its historic longleaf pine 
forests. The goal of the partnership is to enhance conservation and 
management of longleaf pine forests. We expect this partnership to 
enhance longleaf pine restoration, as evidenced by ongoing gopher 
tortoise habitat restoration and management efforts in the Conecuh 
National Forest.
American Forest Foundation Habitat Credit Trading Program
    We believe that establishment of a voluntary habitat trading credit 
system has the potential for conservation and management of gopher 
tortoise habitat that might offset impacts to tortoise habitat 
elsewhere. This system would function similar to a conservation bank, 
but in a preregulatory capacity.
Summary
    Long-term tortoise persistence is predicated on the presence of 
multi-aged pine forests on suitable soils (Mushinski et al. 2006, p. 
364) with ground vegetation maintained by frequent fire. These 
conditions may be met without waiting for old growth pine forests to 
regenerate (Kirkman and Mitchell 2006, p. 1), but restoration of such 
forest communities may be difficult because of multiple-use mandates, 
limited funds, and the size and juxtaposition of properties to other 
developed lands (McCoy et al. 2006, p. 125). Furthermore, 
reestablishment of a

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multi-aged pine forest ecosystem is complex, and mechanisms for 
achieving this goal are not well understood (Joseph W. Jones Ecological 
Research Center at Ichauway, 2010a, p. 1; Van Lear et al. 2005, pp. 
159-162). Ongoing and planned restoration efforts will take time (i.e., 
years) to achieve the desired vegetative community structure. Any 
behavioral or demographic response by tortoises to habitat manipulation 
will also take time (Yager et al. 2007, p. 444). Therefore, we 
acknowledge the difficulty of restoring a functioning longleaf pine 
ecosystem and the substantial commitment already made to conservation 
of a variety of species within the longleaf-wiregrass ecosystem [(e.g., 
red-cockaded woodpecker (Picoides borealis))], as well as restoration 
of the ecosystem itself. Undoubtedly, many other species continue to 
benefit from a wide variety of longleaf restoration efforts currently 
occurring, even where tortoises may no longer occur.
    There is certainly a benefit associated with restoring these 
systems where the gopher tortoise occurs. However, longleaf restoration 
also currently occurs well beyond the historic range of the tortoise 
and on soils/areas within the range that will likely never support 
viable tortoise populations. Also, gopher tortoise conservation is 
usually neither the only goal of longleaf restoration nor the primary 
goal of management activities in longleaf stands. Therefore, estimates 
of longleaf restoration acreage and potential habitat estimates for 
tortoises likely result in an overestimate of actual benefits to 
tortoise populations. Longleaf restoration may provide other potential 
benefits to tortoises, either by providing expanded habitat for 
existing populations or by providing new sites within the range as 
potential reintroduction sites that may assist in conservation of the 
species.
    In total, we note that millions of hectares of longleaf restoration 
and management are targeted in the southeastern United States;, and 
that partners throughout the historic range of the tortoise and 
longleaf pine have made voluntary commitments to restore additional 
acreage and maintain existing forests. However, it is difficult to get 
an accurate picture of total numbers of tortoises currently residing in 
the southeastern United States and the overlap that exists with 
restoration efforts and existing tortoise populations. If numbers 
provided in the CCA are indicative of current conditions, it can be 
inferred that, though substantial potential habitat exists, there are 
hundreds of thousands of additional ha/ac in need of restoration and 
management. Additionally, the full value of these management efforts is 
not expected to occur for several decades. Tortoise population 
responses will likely be demonstrated through coordinated and continued 
monitoring for a number of years, though this will require dedicated 
staff and funding. We note that these efforts have likely alleviated 
some of the magnitude of the threat of habitat loss and degradation, 
though it is difficult to fully assess the degree to which this has 
occurred due to insufficient data.
    The Service recognizes the importance of forming and supporting 
partnerships to achieve mutually identified goals and objectives. We 
encourage our partners to work with us to incorporate specific goals 
and objectives for the protection of gopher tortoises and their 
habitat, commit to long-term monitoring, without which it is difficult 
to evaluate the effectiveness of conservation measures intended to 
benefit tortoises (McCoy et al. 2006, p. 125), and develop adaptive 
management strategies as part of planned and ongoing conservation 
actions that have the potential to benefit the gopher tortoise. By 
doing so, we hope to improve management by tracking advances in the 
science. While we see the potential for substantial benefit to the 
tortoise that could be realized in the near future with continuation of 
these varied efforts, we have some difficulty demonstrating the 
necessary elements of many of these programs to satisfy the PECE 
policy. Without specific, binding commitments to monitor populations, 
provide long-term funding and support, and conduct management, it is 
impossible to predict both the certainty of effectiveness and certainty 
of implementation necessary under the PECE policy. We encourage our 
many partners, where possible, to take these steps, which would 
facilitate conservation of tortoise populations.
Summary of Factor A
    We have identified a number of threats to gopher tortoise habitat 
which have resulted in the destruction and modification of habitat in 
the past, are continuing to threaten habitat now, and are expected to 
continue in the future because of inadequate regulations described in 
further detail in Factor D below. Rangewide, about 12 percent of 
potential gopher tortoise habitat is in either public ownership or some 
type of permanent or long-term conservation status. While habitat loss 
on private lands is not a certainty, the loss of habitat due to 
conversion of natural pine forests to more intense silvicultural 
management regimes is expected to be prominent in interior portions of 
the tortoise's range. We believe that tortoises in the vicinity of the 
coast in Georgia, Alabama, Louisiana, and Mississippi, as well as 
peninsular Florida are currently threatened with habitat loss and 
modification resulting from urban development. Habitat loss and 
fragmentation due to urban development is expected to continue in the 
future. Lack of, restrictions on, or inappropriate use of, prescribed 
fire is likely to continue in the future and adversely affect gopher 
tortoise habitat and extant populations, throughout the majority of the 
current range.
    On the basis of this analysis, we find that the destruction, 
modification, or curtailment of the gopher tortoise's habitat is 
currently a threat and is expected to persist and possibly escalate in 
the future. While there are a number of conservation measures in place, 
at this time it is not reasonably certain that they are adequate to 
ameliorate this threat. Because this threat is ongoing and expected to 
continue over the coming decades, we consider the threat to be 
imminent. Considering the threat of habitat loss is reduced on the 
relatively large amount of habitat that is in public ownership and 
private conservation lands, we believe the magnitude of this threat is 
moderate. Based upon our review of the best commercial and scientific 
data available, we conclude that the present or threatened destruction, 
modification, or curtailment of its habitat or range is an imminent 
threat of moderate magnitude to the gopher tortoise, both now and in 
the foreseeable future.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Despite adoption of protective laws (see Factor D below), tortoise 
exploitation persists. Organized rattlesnake round-ups still occur in 
two communities in Georgia and one community in Alabama (Means 2009, p. 
133). Furthermore, collection of rattlesnakes for skins, curios, and 
antivenom by individuals is unregulated in any of the States within the 
range of the gopher tortoise. Both individual and organized rattlesnake 
captures typically extract snakes from gopher tortoise burrows using 
noxious liquids or gases (The Humane Society 2009, p. 2), which 
undoubtedly harms or harasses gopher tortoises in active burrows. In 
January 2010, four men were arrested by Georgia Department of Natural 
Resources staff after they were found to have been gassing tortoise 
burrows to collect rattlesnakes in advance of the Whigham, GA, 
rattlesnake roundup. Although

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tortoises are protected in all States, it appears that enforcement of 
applicable laws may not be entirely effective since rattlesnakes are 
still successfully harvested.
Conservation Efforts To Reduce or Eliminate Overutilization
    Florida law specifically prohibits the use of gasoline or other 
chemical or gaseous substances to drive wildlife from their retreats 
(Florida Administrative Code 68 A.4-001(2). Georgia codes Sec.  27-1-
130 and 27-3-130 prohibit gassing of burrows, but excludes protection 
of venomous snakes. Alabama recently adopted regulation 220-2-.11 
prohibiting the use of gas, noxious chemicals or gaseous substances 
into wildlife burrows, dens, or retreats. We believe these regulatory 
measures will reduce incidental mortality of gopher tortoises during 
rattlesnake collections. However, effective enforcement of these 
regulations would likely be enhanced with development of a regulated 
harvest of rattlesnakes or a prohibition on rattlesnake harvest.
Summary of Factor B
    After reviewing available information we find that the unregulated 
harvest of rattlesnakes poses a current and future threat to the gopher 
tortoise. We anticipate this threat is imminent since rattlesnake 
roundups occur annually, and collections for these events and by 
individual collectors may occur throughout the year. We believe the 
impacts will be localized to areas near the three communities that 
still support rattlesnake roundups; consequently, the magnitude of 
threat is considered low. This threat has abated over the past several 
decades but still occurs in some rural areas. Conservation measures are 
insufficient to eliminate this risk. Overall, we consider the magnitude 
of threat to gopher tortoises due to rattlesnake collection to be low 
because there are few organized events, but the threat is imminent 
because harvests are ongoing. Based on this information, the 
overutilization for commercial, recreational, scientific, or 
educational purposes, in the form of unregulated harvest of 
rattlesnakes occupying tortoise burrows, is a threat to the gopher 
tortoise now and in the foreseeable future.

Factor C. Disease or Predation

    A number of diseases have been documented in the gopher tortoise, 
including fungal keratitis (Myers et al. 2009, p. 582), iridovirus, 
herpesvirus, herpes virus, bacterial diseases related to Salmonella, 
Mycoplasma, and Dermatophilus, and numerous internal and external 
parasites (Ashton and Ashton 2008, pp. 39-41). Upper Respiratory Tract 
Disease (URTD) resulting from Mycoplasma infection has received the 
most attention recently and has been implicated in mortality of gopher 
tortoises on State and Federal lands in Mississippi and Florida where 
URTD was documented (Berish et al. 2010, p. 696). It is considered an 
emerging infectious disease which may threaten populations of free-
ranging tortoises (Seigel et al. 2003, pp. 142-143). However, 
correlations between exposure to Mycoplasma spp. and population 
declines appear to be variable among geographic locations and often 
transient when viewed over a 10-year timeframe (McCoy et al. 2007, p. 
173). In the case of a chronic disease in a long-lived species, 
actually quantifying low-level impact of an infectious, chronic disease 
on an annual basis can be problematic. (Ozgul et al. 2009, p. 795). 
Detecting the effects of this disease on tortoise populations will 
require long-term monitoring (Berish et al. 2010, p. 704).
    Current hypotheses suggest that differences in virulence of 
Mycoplasma (Sandmeier et al. 2009, p. 1261) and increased 
susceptibility to infection due to environmental stressors (e.g., poor 
habitat quality) may increase risk of URTD outbreaks and associated 
mortality. However, tortoises have natural antibodies to Mycoplasma 
spp. (Hunter et al. 2008, p. 464) and these natural immune mechanisms 
may explain why die-offs are not more prevalent throughout the gopher 
tortoise's range (Gonynor and Yabsley 2009, pp. 1-2; Sandmeier et al. 
2009, pp. 1261-1262). In contrast, recent research suggests that 
susceptible tortoises in high-seroprevalence (number of individuals 
exposed to disease) populations have decreased apparent survival and 
when coupled with the increase in gopher tortoise shell remains at 
high-seroprevalence sites, there may be a low level of increased 
mortality in the initial stages of disease (Ozgul et al. 2009, p. 796). 
Also, Wendland et al. (2009, pp. 1257 and 1261) has suggested that 
juveniles may be less likely to be infected due to limited social 
interaction and, thereby, might provide a pool of tortoises to aid in 
later recruitment after a disease event, though these size classes are 
usually represented by a very small proportion of the overall 
population.
    Since most gopher tortoise populations are not regularly monitored, 
it is difficult to estimate the exposure of gopher tortoises to URTDs 
throughout their range. Consequently, the magnitude of threat URTD 
poses to gopher tortoise populations and tortoise demographics is 
uncertain at this time (Karlin 2008, p. 1). We suspect that as 
monitoring efforts expand in time and space we will detect more 
incidences of URTD-related mortality and the relationship of disease to 
demography and habitat quality will be better understood.
    Predators destroy more than 80 percent of gopher tortoise nests 
(Puckett and Franz 2001, p. 5). In one study in South Carolina, 17 of 
24 (74 percent) nests were destroyed by predators (Wright 1982, p. 59). 
In Georgia, females are estimated to produce one clutch (approximately 
seven eggs per clutch in southern Georgia) annually; however, predators 
destroyed 87 percent of these clutches (Landers and Garner 1981, p. 
46). In a study located on Camp Shelby in Mississippi, most (65 
percent) hatchlings were killed within 30 days of hatching (Epperson 
and Heise 2003, pp. 320 and 322), and none survived to adult size. In 
northern Florida, hatchling gopher tortoises had a mortality rate of 
94.2 percent during their first year of life (Alford 1980, p. 180). Due 
to predation, survivorship of tortoise hatchlings is low throughout 
their range, and in some cases no hatchlings survive past 1 year (Pike 
and Seigel, 2006, p. 128).
    Of all predators, raccoons (Procyon lotor) were the most frequent 
to take tortoise eggs and young (Landers et al. 1980, p.358; Butler and 
Sowell 1996, p. 456), but); other predators include gray foxes (Urocyon 
cinereoargenteus), skunks (Mephitis mephitis), opossums (Didelphis 
virginiana), coyotes (Canis latrans), snakes (Agkistrodon piscivorous, 
Crotalus adamanteus, Drymarchon corais, Masticophis flagellum), fire 
ants (Conomyrma sp., Solenopsis invicta), and red-tailed hawks (Buteo 
jamaicensis), which have all been known to take juveniles (Douglass and 
Winegarner 1977, p. 237; Fitzpatrick and Woolfenden 1978, p. 49; 
Landers et al. 1980, p. 358; Wilson 1991, p. 378; Butler and Sowell 
1996, pp. 456-7; Wetterer and Moore 2005, p. 353; Pike and Seigel 2006, 
p. 128). Ashton and Ashton (2008, p. 27) listed 25 animals--12 mammals, 
5 birds, 6 reptiles and 2 invertebrates--known to be predators of eggs, 
emerging neonates, hatchlings, and older tortoises. Adult gopher 
tortoises are less likely to experience predation except by canines 
(e.g., domestic dogs, coyotes, foxes) and humans (Causey and Cude 1978, 
pp. 94-95; Taylor 1982, p. 79; Hawkins and Burke 1989, p. 99). It has 
been suggested by numerous authors that human presence may aid in the 
spread of some

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predators through habitat fragmentation and the associated increase in 
edge effect (e.g., fire ants) (Wetterer et. al. 2005, pp. 352-253), 
habitat disturbance from roads and infrastructure (e.g., fire ants) 
(Stiles and Jones 1998, p. 343; Tschinkel 1986, p. 553), increased 
availability of supplemental food (e.g., raccoons), reduction or 
elimination of top carnivores (e.g., coyotes, foxes) (Joseph W. Jones 
Ecological Research Center at Ichauway, http://www.jonesctr.org/research/projects/mesopredators/mesopredators_main.html, accessed 
November 18, 2010), ecological perturbations allowing range expansion 
(e.g., coyotes), and simply because some are domestic and associated 
with humans (e.g., cats and dogs).
    Most studies are recent and short term (Pike and Seigel 2006, p. 1) 
and have only evaluated predation over a relatively short period of 
time considering the lifespan and reproductive capacity of adult 
tortoises. The tortoise is a long-lived species, which should naturally 
experience high levels of mortality in early life stages; however, at 
the current rates of predation, a small increase in predation (either 
on the limited number of surviving hatchlings or on an adult female) 
could have a substantial effect on present and long-term recruitment. 
Sufficient evidence exists indicating that predation of eggs and young 
tortoises may limit recruitment in many populations. Low recruitment 
may confound a tortoise population's ability to withstand environmental 
stressors (e.g., poor habitat quality, stochastic events) and chronic 
demographic effects due to small population size and reduced genetic 
diversity. In addition, there is substantial evidence that predation 
can work synergistically to further limit recruitment (Ashton and 
Ashton 2008, p. 28), which in many populations may already be limited 
by other factors (Ennen et al. 2010, pp. 35-36; Qualls 2010).

Conservation Efforts To Reduce or Eliminate Disease or Predation

    In the listed portion of the gopher tortoise's range individual 
animals are translocated either to avoid entombment during land 
development activities or because they are considered waif tortoises by 
the State agency and the Service. Waif individuals may be those brought 
in by the public, those that are reproductively isolated, or 
individuals determined to be in danger (e.g., crossing roads, burrows 
near road edges, etc.). At the time of capture, all waif tortoises and, 
for development projects, all tortoises at both the impact and 
relocation sites are evaluated to determine whether they have URTD 
symptoms through a physical examination and laboratory blood test. 
Tortoises that test positive for URTD antibodies are evaluated on a 
case-by-case basis, but generally are not relocated into a URTD-
negative tortoise population.
    Efforts to contain URTD in the listed portion of the range may 
prevent mixing of infected and noninfected tortoises during 
translocation, but these efforts may not reduce or eliminate the 
stressors that ultimately caused the infections. There have been few 
symptomatic tortoises found in the listed range, no recorded deaths 
from URTD, and very few URTD-positive tortoises, so the current testing 
program will likely prevent spread of URTD during translocations 
(Ginger 2010; Epperson and Heise 2001, pp. 52-53).
    In the western portion of the range where it is listed, gopher 
tortoise conservation banks and other related sites must include fire 
ant monitoring and control as part of their management plan in an 
effort to reduce the effects of predation on tortoise eggs and 
hatchlings. Currently, the State of Georgia is also conducting head-
starting experiments (i.e., hatching eggs in controlled environments 
and releasing the hatchlings into the wild) to determine if this method 
can improve recruitment.
Summary of Factor C
    Upper Respiratory Tract Disease (URTD) causes high morbidity 
(sickness) and apparently low mortality (death) in gopher tortoises, 
although localized mortality events may be substantial (Berish et al. 
2010, p. 696). Predicting where and when populations will be affected 
is not currently possible, but we expect that further loss and 
degradation of habitat and isolation of populations will result in 
increasing stress on individual tortoises and populations. We believe 
that URTD-related mortality will become more prevalent under these 
conditions, and, therefore, we expect this threat to gopher tortoises 
will increase in the future throughout all of its range. Given our 
current state of knowledge, we believe the threat of disease is 
imminent and that because mortality associated with the presence of 
disease is not currently widespread and the sublethal effects are not 
understood, we believe the magnitude of impact is low.
    Predation of eggs and young is common and substantial throughout 
the tortoise's range and may be a limiting factor in some parts of the 
western portion of the range. Predation is an imminent threat because 
it is ongoing, occurs annually, and occurs throughout much of the 
tortoise's range. Tortoise populations undoubtedly persisted 
historically in the face of this natural threat. However, tortoises are 
now faced with other anthropogenic (man-caused) threats and the 
combination of predation and other threats identified in this finding 
indicate that predation is a moderate threat. Based on this 
information, disease or predation is a threat to the gopher tortoise 
now and in the foreseeable future.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

Federal Statutes and Regulations
    In the listed portion of the tortoise's range, the Act prohibits 
take of tortoises without proper authorizations under sections 7 or 
10(a)(1)(A). Consequently, activities that impact gopher tortoises in 
the listed range should be in compliance with the protective measures 
afforded by the Act. Even though the Act provides umbrella regulatory 
coverage for the gopher tortoise in the listed portion of its range, we 
also evaluated whether existing State statutes or regulations would be 
adequate in the absence of the prohibitions provided by the Act. These 
are described in more detail below.
    The Department of the Interior, through the Service, administers 
the National Wildlife Refuge System. The National Wildlife Refuge 
System Administration Act (NWRAA) represents organic legislation that 
sets up the administration of a national network of lands and water for 
the conservation, management, and restoration of fish, wildlife, and 
plant resources and their habitats for the benefit of the American 
people (16 U.S.C. 668dd). Amendment of the NWRAA in 1997 required the 
refuge system to ensure that the biological integrity, diversity, and 
environmental health of refuges be maintained and requires development 
and implementation of a comprehensive conservation plan (CCP) for each 
refuge. The CCP must identify and describe the wildlife and related 
habitats in the refuge and actions needed to correct significant 
problems that may adversely affect wildlife populations and habitat (16 
U.S.C. 668dd(e)). Gopher tortoise habitat within national wildlife 
refuges is protected from loss due to urban development. However, 
gopher tortoises are not indicator species for refuges within the 
species' range, so specific management goals and objectives have not 
been established for the tortoise on refuge property (Hunter 2010). 
Tortoises

[[Page 45148]]

may indirectly benefit from fire management programs intended to 
maintain and restore habitat for species such as the Florida scrub-jay 
(Aphelocoma coerulescens) and red-cockaded woodpecker (Picoides 
borealis), but no systematic monitoring programs are in place to 
evaluate gopher tortoise responses to land management activities within 
the refuge system.
    The Department of Defense (DOD) must conserve and maintain native 
ecosystems, viable wildlife populations, Federal and State listed 
species, and habitats as vital elements of its natural resource 
management programs on military installations, to the extent these 
requirements are consistent with the military mission (DOD Instruction 
4715.3). Amendments to the Sikes Act (16 U.S.C. 670 et seq) require 
each military department to prepare and implement an integrated natural 
resource management plan (INRMP) for each installation under its 
jurisdiction. The INRMP must be prepared in cooperation with the 
Service and State fish and wildlife agencies and must reflect the 
mutual agreement of these parties concerning conservation, protection, 
and management of wildlife resources (16 U.S.C. 670a). Each INRMP must 
provide for wildlife, land and forest management, wildlife-oriented 
recreation, wildlife habitat enhancement, wetland protection, 
sustainable public use of natural resources that are not inconsistent 
with the needs of wildlife resources, and enforcement of natural 
resource laws (16 U.S.C 670a). DOD regulations mandate that resources 
and expertise needed to establish and implement an integrated natural 
resource management program are maintained (DOD Instruction 4715.3). 
These regulations further define the IRNMP requirements and mandate 
that plans be revised every 5 years and that they ensure the military 
lands suitable for management of wildlife are actually managed to 
conserve wildlife resources (DOD Instruction 4715.3).
    The effectiveness of individual INRMPs to protect gopher tortoises 
vary between and within military departments. The Army has identified 
the gopher tortoise as a priority species at risk, which has enabled 
greater resources to be allocated to conservation and study in the 
eastern portion of the tortoise's range (U.S. Department of the Army 
2009, p. 1). The Army estimates that its installations contain about 
62,950 ha (155,500 ac) of potential habitat of which 31,000 ha (76,500 
ac) were managed in 2009 (Southeast Regional Partnership for Planning 
and Sustainable Development 2009, pp. 11, 17). The Air Force provides 
for the protection and conservation of State-listed species when 
practicable and with similar conservation measures as provided by state 
law when such protection is not in direct conflict with the military 
mission (U.S. Air Force 2004, p. 23). Examples include Eglin AFB's 
Threatened and Endangered Species Component Plan, which provides no 
specific habitat management strategies for the gopher tortoise, but 
assumes this species benefits from a number of land management 
practices such as prescribed fire in sandhills, predator control, and 
public outreach (Eglin Air Force Base 2006, pp. 12-24 to 12-28). 
Comparatively, Tyndall AFB's INRMP acknowledges threats to the gopher 
tortoise and the importance of the tortoise as an indicator species for 
sandhills, but the INRMP indicates that no information is available on 
tortoise distribution or abundance on the base. Tyndall's INRMP 
provides only recommendations for management actions to benefit the 
gopher tortoise and establishes no goals or objectives.
    The Navy incorporates protective and management recommendations 
specific for the gopher tortoise into the INRMPs for Naval Submarine 
Base Kings Bay, Naval Air Station (NAS) Pensacola, NAS Jacksonville, 
and Naval Support Activity Panama City. However, the INRMP for NAS 
Whiting Field does not include specific management measures for the 
gopher tortoise (U.S. Navy 2010, entire). The Navy estimates that its 
installations contain 4,850 ha (12,000 ac) of potential tortoise 
habitat. Reports submitted by the Navy in response to our request for 
additional biological information on the tortoise indicate that in many 
instances natural pine forests within the installations were fire 
suppressed and largely unsuitable for gopher tortoises in 2007-2009 
(e.g., most tortoises were located in ruderal areas). The Navy reported 
that they managed slightly more than 648 ha (1,600 ac) in 2009 
(Southeast Regional Partnership for Planning and Sustainable 
Development 2009, p. 17). We are aware of no specific guidelines 
adopted by the Marines for management measures that are specifically 
implemented to benefit the gopher tortoise.
    The Forest and Rangeland Renewable Resources Planning Act (16 
U.S.C. 36), as amended by the National Forest Management Act of 1976 
(16 U.S.C. 1600-1614), requires that each national forest be managed 
under a forest plan which is revised every 10 years. Regulations 
governing preparation of forest plans are found in 36 CFR 219. The 
purpose of a forest plan is to provide an integrated framework for 
analyzing and approving future site-specific project and programs, 
including conservation of listed species. Identification and 
implementation of land management and conservation measures to benefit 
the gopher tortoise vary between forests. For example, on the national 
forests in Florida, the gopher tortoise is not designated as a species 
for which special management prescriptions are implemented, except that 
a nearly 8-meter (25-foot buffer around burrows are provided during 
silvicultural activities to comply with State requirements. Otherwise, 
there are no specific land management objectives for tortoises on the 
national forests in Florida. However, gopher tortoises are likely to 
benefit from the restoration of about 6,070 ha (15,000 ac) of offsite 
slash pine to longleaf pine, but this restoration objective contained 
no requirement for establishment of ground cover vegetation; 
consequently, the desired future condition may not maximize benefits to 
tortoises. Resource managers are implementing management prescriptions 
not called for in the forest plan to enhance longleaf-pine ground cover 
for gopher tortoises on the Ocala National Forest (Henchi 2010). The 
Apalachicola National Forest is currently assessing a proposed project 
to begin gopher tortoise habitat restoration efforts on up to 830 ha 
(2,000 ac) of currently unsuitable, but restorable, pine forests using 
herbicides to control hardwood midstory (U.S. Forest Service 2009a, pp. 
1-2).
    The Revised Land and Resource Management Plan for the National 
Forests in Alabama provides for the restoration of the coastal plain 
longleaf pine forest through various silvicultural prescriptions (U.S. 
Forest Service 2004, p. 3-38). The plan calls for the restoration and 
maintenance of mature longleaf forest on about 22,500 ha (55,000 ac) on 
the Conecuh National Forest over the next 30 years. Early efforts have 
resulted in the preliminary restoration of about 1,600 ha (4,000 ac), 
and an additional 2,700 ha (6,700 ac) of restoration work is currently 
being assessed (U.S. Forest Service 2009b, entire). Appropriate 
management of the coastal plain longleaf pine forest is expected to 
provide suitable to optimal habitat for wild turkey and suitable 
habitat for mid- to late-successional forest associates (U.S. Forest 
Service 2004, p. 3-39). The plan's objectives for red-cockaded 
woodpecker (Picoides borealis) management areas (longleaf pine stands) 
state that benefits to northern bobwhite quail (Colinus

[[Page 45149]]

virginianus), Bachman's sparrows (Aimophila aestivalis), prairie 
warblers (Dendroira discolor), brown-headed nuthatches (Sitta pusilla), 
southeastern American kestrel (Falco sparverius), wild turkey 
(Meleagris galloparvo) and white-tailed deer (Odocoileus virginaianus) 
are expected. Although not mentioned, we expect red-cockaded woodpecker 
habitat management will likely benefit the gopher tortoise (U.S. Forest 
Service 2004, p. 3-36). Surveys for the gopher tortoise on the Conecuh 
National Forest were initiated recently but are not complete. The 
extent to which ongoing longleaf pine restoration and red-cockaded 
woodpecker habitat management activities will benefit tortoises is 
uncertain and will not be known until longer term monitoring takes 
place.
    The national forests in Mississippi are operating under a 1985 Land 
and Resource Management Plan that does not mention the gopher tortoise 
because it was not listed at the time the plan was finalized. No formal 
amendments have been made to the plan to address gopher tortoise or 
gopher tortoise habitat needs, but draft habitat management guidelines 
were informally adopted for use by the De Soto and Chickasawhay Ranger 
Districts. However, these guidelines were never formally adopted 
through Forest Supervisor signature, and they are currently outdated 
(Kilpatrick 2010). The existing plan is based on a 10-year timber entry 
and prescription cycle, which is inadequate for gopher tortoise habitat 
restoration and management (McDearman 2010). Despite the lack of 
established goals and targets for gopher tortoise and silvicultural 
management activities that are not conducive to gopher tortoise 
conservation, the De Soto and Chickasawhay Ranger Districts of the De 
Soto National Forest have developed intensive habitat restoration plans 
for the gopher tortoise, but these projects do not represent official 
objectives of the national forests in Mississippi. Furthermore, the 
Chickasawhay Ranger District has developed a stewardship program to 
restore all habitat on priority soils over a 5-year period, has 
recently added another stewardship project to include habitat on 
suitable soils, and has emphasized landscape-level connectivity between 
priority soils and non-priority soils with high gopher tortoise 
populations (Kilpatrick 2010). To date, 1,093 ha (2,700 ac) of habitat 
on priority soil areas have been restored and more than 2,000 ha (5,000 
ac) have been improved as part of the landscape connectivity project.
    Federal ownership of potential gopher tortoise habitat represents a 
portion of the public lands acreage accounting for 12 percent of all 
potential gopher tortoise habitats on public lands (Hoctor and Beyeler 
2010, pp 14-15). While there are some regulatory and policy measures 
that protect gopher tortoises and their habitat on Federal lands, there 
are other properties that do not protect the tortoise or have 
conflicting land use mandates. We believe that Federal statutes 
(without protection afforded by the Act) and regulations are limited in 
their scope and effectiveness in protecting tortoises and their 
habitat.
State Statutes and Regulations
    Alabama regulation (220-2-.92) makes it unlawful to take, capture, 
kill, or attempt to take, capture, or kill, possess, sell, or trade any 
State-listed wildlife for anything of monetary value, or offer to sell 
or trade listed wildlife for anything of monetary value. In 2009, 
Alabama banned the gassing of wildlife burrows/and dens, including 
gopher tortoise burrows.
    Florida's rule (F.A.C. 68A-27.003) prohibits any person from 
taking, attempting to take, pursue, hunt, harass, capture, possess, 
sell, or transport any gopher tortoise or parts thereof or their eggs, 
or molest, damage, or destroy gopher tortoise burrows, except as 
authorized by a FWC permit or when complying with FWC guidelines for 
specific actions that may impact gopher tortoises or their burrows. 
Florida has also developed gopher tortoise permitting guidelines that 
direct regulatory actions (FWC 2009, entire), including mitigation, 
habitat management, and habitat acquisition objectives. As a result, 
Florida's regulations require that take of tortoises be authorized by 
State permit and that the impacts be considered and compensated. On 
Florida's wildlife management areas, regulations protect individual 
gopher tortoises because they are not listed as a game species, and, 
therefore, there are no legal seasons established for taking. Wildlife 
management area regulations prohibit destruction or modification of 
habitat, except for management and restoration activities.
    The State of Florida recently enacted regulations that allow the 
FWC to issue permits authorizing incidental take of State-designated 
threatened species. The State considers whether proposed activities for 
which permits are sought will contribute to a Federal recovery plan or 
whether it furthers the objectives of the State's Plan; whether 
incidental take could reasonably be avoided, minimized, or mitigated; 
and other factors relevant to the conservation and management of State 
listed species, including the gopher tortoise. The regulations also 
direct staff to pursue statutory changes within 3 years to develop 
wildlife best management practices for agriculture in order to maintain 
State permit exemptions for incidental take. Florida's regulations, 
with full funding independent of mitigation and with implementation of 
effective BMP's may be an important conservation tool for the gopher 
tortoise.
    In Georgia, Title 27, Chapter 3, Article 5 Endangered Wildlife Act 
of 1973 establishes statutory protection for protected species, 
including the gopher tortoise (Ga. Code Ann. Sec.  27-3-130-133). 
Georgia Board of Natural Resources Rule (Chapter 391-4-10) mirrors the 
statute but includes permitting for research under a scientific 
collecting permit (O.C.G.A. Sec.  27-2-12).
    Louisiana concurred with the Federal listing of the gopher tortoise 
and State statute (LSA-R.S. 56:1901-07) subsequently made it unlawful 
to take, possess, transport, or export gopher tortoises from the State, 
as well as to process, sell, or offer for sale or shipment of gopher 
tortoises within the State.
    Mississippi statute Sec.  49-5-101-119, The Nongame and Endangered 
Species Conservation Act, makes it unlawful for any person to take, 
possess, transport, export, process, sell or offer for sale, or ship, 
and for any common or contract carrier knowingly to transport or 
receive for shipment any Federally or State-listed species. Mississippi 
Public Notice 3357.001 listed the gopher tortoise as endangered and 
afforded it the protections provided by the Nongame and Endangered 
Species Conservation Act.
    South Carolina's Nongame and Endangered Species Conservation Act 
(Chapter 15, Sections 50-15-10 through 90) establishes the statutory 
framework to protect endangered and nongame species including making it 
unlawful to take, possess, transport, export, process, sell or offer 
for sale, or ship nongame wildlife deemed by the South Carolina 
Department of Natural Resources to be in need of management. State 
regulations (S.C. Code of Regulations 123-150) establish that the 
gopher tortoise is a State-listed endangered species (S.C. Code of 
Regulations 123-150), and the protective measures mirror those provided 
in the Nongame and Endangered Species Conservation Act.
    Generally, State statutes and regulations provide measures to 
protect individual gopher tortoises from take but do not provide for 
protection of their habitat. However, on more than 70

[[Page 45150]]

percent of the potential habitat, there are no State regulations 
providing permitting oversight or requiring conservation benefit to 
gopher tortoises or their habitat on either private or public lands. In 
Georgia, for example, State statute requires that any rule and 
regulation promulgated for protected species (including the gopher 
tortoise) shall not affect rights in private property or in public or 
private streams, nor shall such rules and regulations impede 
construction of any nature (GA ST Sec. Sec.  27-3-132(b)). Any 
implementing regulations promulgated in Georgia are constrained by 
these statutory requirements. Regulations cannot exceed the statutory 
requirement and, therefore, can only prohibit collection, killing, or 
selling of individual tortoises. Furthermore, regulations may be 
developed to protect gopher tortoise habitat on public lands. As a 
result, most conservation efforts in Georgia are focused on management 
and restoration of habitat on public lands (Georgia Department of 
Natural Resources, 2009, pp. 1-2). All other States within the range of 
the gopher tortoise have protective statutes, but, except for Florida, 
none have developed implementing regulations addressing impacts to 
gopher tortoise habitat.
Local Laws and Ordinances
    We are aware of no local rules or regulations protecting gopher 
tortoises or their habitat beyond those requirements established by 
State statute and regulation. Florida's State Comprehensive Plan and 
Growth Management Act of 1985 (F.A.C. 163 Part II) requires each county 
to develop local comprehensive planning documents. Comprehensive plans 
contain policy statements and natural resource protection objectives, 
including protection of state and Federally listed species, but they 
are only effective if counties develop, implement, and enforce 
ordinances. Some Florida county governments have developed protective 
ordinances for State and Federally listed species, we are aware of no 
county or local regulations or ordinances that protect the gopher 
tortoise beyond existing State law in this or other States within the 
tortoise's range.
Conservation Efforts To Increase Adequacy of Existing Regulations
    As we indicated above, the inadequacies of existing regulations in 
Factor D are inextricably linked to threats associated with the present 
or threatened destruction, modification, or curtailment of the gopher 
tortoise's habitat or range as explained under Factor A above. 
Similarly, the inadequacy of existing regulations has resulted in 
threats associated with overutilization as described in Factor B. 
Below, we summarize conservation efforts that are being implemented to 
address habitat-related threats.
    The Alabama Department of Conservation and Natural Resources has 
established management guidelines for the gopher tortoise (2009, 
entire) that borrow from the Recommended Conservation Activities 
outlined in Appendix B of the gopher tortoise CCA. The goals of 
Alabama's plan are to identify and conserve gopher tortoise 
populations, develop and implement habitat management strategies, 
maintain or enhance gopher tortoise habitat, and monitor the response 
of tortoises to conservation and management actions. Habitat 
management, translocation of tortoises from small populations or 
development areas, and monitoring are key components of Alabama's 
gopher tortoise management plan although no target dates for 
accomplishments were established. Furthermore, funding sources for 
implementation of Alabama's gopher tortoise management plan were not 
identified.
    Beginning in 2007, Florida implemented its Plan and associated 
regulatory framework. The Plan established a number of goals to 
conserve the gopher tortoise throughout Florida. Part of the Plan 
included adoption and implementation of a permitting system that was 
intended to eliminate tortoise mortality during development activities 
on public or private property. Florida's Plan established several 
objectives by 2022: (1) Through applied habitat management, improve 
tortoise carrying capacity of all protected, potential habitat on both 
public and private lands supporting gopher tortoises; (2) increase 
protected, potential habitat to about 791,000 ha (1,955,000 ac), which 
will require the protection of an additional 249,000 ha (615,000 ac) 
(an average of about 10,000 ha (25,000 ac) per year in public 
acquisition and an average of about 6,500 ha (16,000 ac) per year 
within the private sector); (3) restock 60,000 gopher tortoises to 
protected, managed, suitable habitats where they no longer occur or 
where densities are low; and (4) decrease mortality through a revised 
permitting program and relocate 180,000 tortoises (FWC 2007, p. iii).
    The Florida legislature provided $3.7 million to implement the Plan 
in its first year and subsequently appropriated $2.1 million annually 
in addition to an ongoing appropriation of $1.1 million for habitat 
management. With this funding, about 28,328 ha (70,000 ac) of public 
and private property have benefitted from prescribed fire, prescribed 
fire preparation, and habitat restoration activities to improve gopher 
tortoise habitat. About 2,833 ha (7,000 ac) of private land has been 
protected through conservation easements and is currently under 
management. Since implementation of the Plan, Florida has acquired 
1,752 ha (4,330 ac) of habitat as part of its tortoise mitigation park 
program, in addition to about 6,070 ha (15,000 ac) that was acquired as 
mitigation prior to adoption of the current Plan. As of July 2010, 
Florida officials have relocated 6,365 gopher tortoises pursuant to the 
Plan's new relocation and permit requirements (Burr 2010), but we have 
no data on whether the translocations are contributing to the 
establishment of viable gopher tortoise populations.
    While Florida's Plan is ambitious, it could be improved with 
increased funding to ensure the Plan meets its habitat protection and 
management targets, both annually and throughout the Plan's full 
performance period. Currently, several elements of the Plan are 
dependent on demand for gopher tortoise mitigation, which requires that 
impacts to gopher tortoises occur. Slow economic conditions have 
resulted in less development and a corresponding decrease in impacts to 
tortoises. Therefore, lower numbers of tortoises have been relocated 
and less private property has been protected by conservation easement 
than were projected in the objectives of the Plan. Concurrently, the 
economic downturn has also lessened deleterious impacts to gopher 
tortoises associated with development. Given current economic 
conditions, we believe that several of the objectives of the Plan may 
be delayed or not fully achieved, but this may be offset by a 
substantial reduction in development, which eliminates gopher tortoise 
habitat. Florida does have a limited management endowment of $20 
million, and the annual interest from this money generates about $1.1 
million that is appropriated for gopher tortoise habitat management, 
but it is insufficient to cover all habitat management costs. If other 
States adopt a similar conservation strategy, we also recommend they 
seek dedicated funding that is independent of impacts to the tortoise.
    In response to regulatory actions under the Act, several 
conservation measures have been undertaken that benefit tortoises in 
the listed portion of its range. The Pine Belt Regional Solid Waste 
Management Authority created the Plum Creek Gopher Tortoise

[[Page 45151]]

Conservation Area (PCGTCA) in Perry County, MS. The 42-ha (105-ac) 
conservation area is used to translocate tortoises from areas that are 
used to expand an existing landfill. Surveys of PCGTCA in 2008 found 
151 burrows with an estimated tortoise population of 50-60 individuals.
    The Mobile Area Water and Sewage System established a gopher 
tortoise conservation area so that small land owners could compensate 
for impacts to gopher tortoises during residential development in 
Mobile County, AL. The bank manages about 89 ha (220 ac) of sandhill 
habitat for the benefit of gopher tortoises.
    South Alabama Utilities Gopher Tortoise Conservation Area created a 
154-ha (380-ac) preserve for mitigating impacts to tortoises during 
installation of water lines in Mobile, Washington, and Choctaw 
Counties.
    A 243-ha (600-ac) parcel in Mobile County, AL was purchased to 
protect gopher tortoises and serve as a recipient site for tortoises 
displaced by Alabama Department of Transportation (ALDOT)-sponsored 
projects. When purchased, the property contained a small tortoise 
population. With implementation of appropriate management, this site 
has the capacity to support an estimated population of 346 tortoises 
(Federal Highways Administration 2010, p. 1).
    In Greene County, MS, the 498-ha (1,230-ac) Chickasawhay Gopher 
Tortoise Conservation Bank was established to accept tortoises 
displaced by development within the Bank's service area and to 
compensate impacts to tortoises. The Bank has a carrying capacity 
estimated at 270 gopher tortoises.
    The tortoise conservation areas and banks protect and manage gopher 
tortoise in the listed portion of the tortoise's range and likely 
benefit the local tortoise populations. We are confident that these 
conservation measures will continue in the future and are adequately 
funded. However, these conservation measures are small in scope 
relative to the rangewide distribution of gopher tortoises.
Summary of Factor D
    Current Federal, State, and local regulations establish adequate 
regulatory protection of individual tortoises from take, but 
implementation of these regulations varies. All do not adequately 
protect gopher tortoise habitat in private ownership and most do not 
address the management needs of the tortoise. This is problematic 
because of the total forested landscape in the southeastern United 
States, about 1.4 million ha (3.4 million ac) are longleaf pine 
forests, of which about 55 percent (0.8 million ha or 2.0 million ac) 
are privately owned (America's Longleaf 2009, p. 37). Within the gopher 
tortoise's range about 87 percent of the pine forests are privately 
owned (National Council for Air and Stream Improvement, Inc. 2010, p. 
3). In the western portion of the tortoise's range, the Act provides a 
Federal regulatory umbrella that fills regulatory gaps that are 
inherent in other Federal statutes; State regulations; and local law, 
ordinances, or policies.
    In the eastern portion of the tortoise's range, only Florida 
implements a regulatory program designed to mitigate the effects of 
habitat loss on private lands. The degree to which the Plan is 
effective in meeting the conservation needs of the species on private 
lands, particularly those under agricultural and silvicultural 
practices, will depend on the development and implementation of 
effective best management practices in the future, but these are not 
currently available. Even if all tortoise habitat acquisitions and 
protections identified in Florida's Plan were implemented, those 
conservation measures in combination with the current amount of habitat 
in public and private conservation ownership would result in about 22 
percent of potential gopher tortoise habitat in the eastern portion of 
its range encompassed in protected lands. The amount of habitat on 
protected lands might increase substantially if other States considered 
developing and implementing similar tortoise management plans, but we 
are aware of no such efforts by any State in the eastern portion of the 
tortoise's range. As a result, we find that the current implementation 
of Florida's plan, in combination with the conservation commitments of 
Federal agencies and the military, will not protect up to 78 percent of 
the total potential habitat throughout the range of the gopher 
tortoise.
    Threats due to inadequacy of existing regulatory mechanisms, 
particularly outside of Florida, are an imminent threat to the gopher 
tortoise throughout its range because the existing regulatory 
mechanisms that are currently in place are not sufficiently protecting 
tortoise habitat throughout its range. The magnitude of this threat is 
moderate because existing regulations protect individual tortoises 
throughout their range. These regulations have eliminated some forms of 
harassment and mortality (e.g., capture for food, pets, races, etc.), 
but gopher tortoise habitat in private ownership is largely unprotected 
and is vulnerable to degradation or destruction throughout most of its 
range. Based on this information, the gopher tortoise is threatened due 
to the inadequacy of existing regulatory mechanisms, in combination 
with the other threats identified in this finding, both now and in the 
foreseeable future.

Factor E. Other Natural or Manmade Factors Affecting the Gopher 
Tortoise's Continued Existence

    Early research associated movement of tortoises by humans 
(including translocation and relocation) with erosion of the existing 
baseline of habitat for the species (Diemer 1984, p. 132), disruption 
of social structure (Berry 1986, p. 122; Cox et al. 1987, p. 60), 
unnatural genetic mixing (Diemer 1984, p. 132, 133), and spread of 
disease (Diemer 1984, p. 133; Diemer 1989, p. 3; Cox et al. 1987, p. 
60), particularly at unnaturally high densities (Diemer 1984, p. 133; 
Burke 1989, p. 305). Historically, dispersal of relocated tortoises 
from relocation sites has been shown to be high, (Lohoefener and 
Lohmeier 1986, pp. 37-40; Burke 1989, p. 299; Diemer 1989, p. 2; 
Mushinsky et al. 2006, p. 366), particularly during the first year 
post-relocation, though Ashton and Burke (2007, entire) have suggested 
that there is likely stabilization in subsequent years. With this in 
mind, translocation and relocation could be considered by some to be a 
threat to populations because these activities could result in long-
term loss of tortoises through dispersal from populations, transmission 
of disease, loss of habitat, and unnatural genetic mixing. Furthering 
the concern about relocation was a general lack of follow-up studies, 
analysis, and dissemination of associated results for relocation 
projects (Burke 1989, p. 296). However, Mushinsky et al. (2006, p. 369) 
have suggested that, though ``gopher tortoise translocation is 
controversial, labor-intensive, and time consuming,'' ``* * * the 
future of the species may depend on perfecting translocation practices 
and procedures.''
    A number of researchers have provided recommendations for improving 
translocation/relocation procedures for tortoises and other reptiles. 
Among these, Lohoefener and Lohmeier (1986, p. 40) recommended that 
only free-ranging tortoises (not captive) be used, that relocation 
sites be areas that supported tortoises in the past, that the sex ratio 
of the relocated animals be 1:1, that penning occur for at least 1 
week, and that the animals be protected from human and animal 
predation. They also recommended that populations not be allowed to 
decline to

[[Page 45152]]

the point where relocation is necessary for the survival of the 
species.
    Through time, specific measures have been added that have improved 
the practice. Dodd and Seigel (1991, pp. 344-346) recommended that 
translocations be undertaken only when the cause of decline in the 
recipient population was known and ameliorated. They went further to 
suggest that a number of other considerations should be included such 
as: Biological constraints of the species, genetic factors, demographic 
and biophysical constraints, and disease transmission risk; and 
providing sufficient space for feeding, reproduction, cover and social 
interaction, which should all be followed by long-term monitoring. 
Lohoefener and Lohmeier's (1986, pp. 37-38) recommendations on penning 
and starter burrows to improve success and lower post-relocation 
dispersal have been modified to increase duration of penning 
(Tuberville et al. 2005, p. 356), which has shown improved success. 
Ashton and Burke (2007, p. 786) recommended that relocations be 
conducted when they: Are economically and logistically justified, have 
a high probability of success, include at least 100 individual 
tortoises, occur in areas of high-quality habitat in the native range, 
and take place where habitat management will occur after translocation. 
With regard to disease transmission, Mushinsky et al. (2006, p. 369) 
recommended not relocating tortoises showing clinical signs of disease 
and ensuring protection and management of recipient sites.
    Many of these improved practices for tortoise relocation have 
already made their way into many on-the-ground management projects, 
plans, and recommendations (see examples under Conservation Efforts 
Sections for Factors A and C), as well as regulatory agency guidance 
(Ginger 2010), in both the listed and unlisted portions of the range. 
Though long-term monitoring will be needed to evaluate the success of 
past and future relocation efforts, considerable effort has been 
invested to improve the practice. Several States are currently 
considering projects or have ongoing efforts to relocate tortoises. 
Their success or failure will be determined, in large part, by the 
degree of care taken in the effort and likely the employment of many of 
the above considerations. At this time, there is insufficient data to 
determine the degree to which unsuccessful relocations occurred in the 
past. We note, however, that improving practices (as described above) 
will likely result in long-term benefit to tortoises should they be 
incorporated into future efforts.
    There is little information on the short-term and residual effects 
of herbicide application in forest management prescriptions on 
tortoises or their food plants (Jones and Dorr 2004, p. 462). However, 
typical forestry herbicides have low toxicity and environmental 
persistence (McNabb 1997, pp. 1-2; Michael and Neary 1991, p. 641; 
Miller and Miller 2004, p. 1050). Anticipated impacts associated with 
continued use of herbicides include temporary loss or reduction in 
available forage for tortoises that persist in and around intensely 
managed pine forests. Additionally, the use of herbicides in 
silvicultural practices results in the accelerated release of planted 
pines, which results in a more rapid canopy closure and subsequent 
degradation of ground cover. Some current forest management guidelines 
recommend aggressive use of herbicides to control not only woody 
vegetation but also herbaceous species (Yeiser and Ezell 2004, p. 23; 
Moorhead et al. 2002, p. 2) that may be important gopher tortoise 
forage. In reviewing publications about land management efforts in 
Florida, Menges and Gordon (2010, pp. 156-161) indicated that herbicide 
application typically results in the temporary decline of ground cover 
and should never be used as a surrogate for fire in sandhill and other 
fire-maintained vegetative communities. Others have demonstrated that 
herbicide application in combination with mid-rotation burning can 
increase ground cover when used in certain combinations (Miller and 
Chamberlain 2008, pp. 776-777; Jones et al. 2009a, p, 1168; Jones et 
al. 2009b, pp. 556-558). However, when used as a silvicultural 
management tool, the intended results of herbicide and prescribed fire 
are to control native and invasive plants that might compete with 
planted or managed pines.
    Effective implementation of herbicide and fire management regimes 
can result in fast release of planted pines and shorter time to canopy 
closure. Therefore, the short-term gains of maintaining ground cover 
may be offset by more rapid canopy closure (Jones et al. 2009b, p. 559; 
Miller and Chamberlain 2008, p. 779). While these management efforts 
may have value to mobile species such as white-tailed deer and quail 
(Jones et al. 2009a, pp. 1169-1171), the value of these spatially and 
temporally limited habitat patches have not been demonstrated for the 
gopher tortoise. We believe that continued efforts to reduce herbaceous 
vegetation in newly planted pine plantations and mid-canopy at mid-
rotation, respectively, may have short- and long-term detrimental 
effects to tortoises.
    Habitat destruction and degradation of upland habitats (see Factor 
A analysis) has resulted in fragmentation of large tortoise populations 
and forced individuals into unsuitable habitats and onto highways 
(Diemer 1987, p. 75; Mushinsky et al. 2006, p. 358). Based on 
anticipated future habitat destruction resulting from urban development 
and resulting habitat degradation, we expect gopher tortoises will 
continue to disperse to find better quality habitat and will be at risk 
of being killed on highways. This threat is likely to increase as road 
densities increase and habitat patches become more isolated and more 
difficult to effectively manage (FWC 2006, p. 10). Highway mortality of 
gopher tortoises will be highest where there are improved roads and 
adjacent gopher tortoise populations. Tortoises in the vicinity of 
urban areas will be particularly vulnerable (Mushinsky et al. 2006, p. 
362). This threat is ongoing and will continue to occur in the future 
in peninsular Florida and urban centers in coastal portions of Georgia, 
Alabama, and Mississippi where human populations are likely to increase 
in the future. Quantification of road mortality will be difficult 
because there is no current rangewide monitoring effort for tortoise 
road mortality.
    Climate change will result in the loss and degradation of gopher 
tortoise habitat in the future, particularly in Florida. According to 
the Intergovernmental Panel on Climate Change Synthesis Report (IPCC 
2007, p. 2), evidence of warming of the earth's climate is 
``unequivocal,'' from observations of increases in average global air 
and ocean temperatures, widespread melting of snow and ice, and rising 
sea level. Temperatures are predicted to rise from 2.0 [deg]C to 5.0 
[deg]C (3.6 [deg]F to 9.0 [deg]F) for North America by the end of this 
century (IPCC 2007, p. 9). Other processes to be affected by this 
projected warming include rainfall (amount, seasonal timing, and 
distribution), storms (frequency and intensity), and sea level rise. 
The 2007 IPCC report (p. 8) found a 90 percent probability of 18 to 58 
centimeters (7 to 23 inches) of sea level rise by 2100. Rising sea 
levels will have direct and indirect impacts to gopher tortoises. In 
certain areas (e.g., coastal tortoise populations), sea level rise may 
inundate habitat or substantially raise water table levels making 
currently occupied habitat unsuitable. The largest gopher tortoise 
population at risk from habitat loss and degradation due to climate 
change is on Merritt Island, Florida.

[[Page 45153]]

    Indirect impacts to gopher tortoises and their habitat may occur 
due to the relocation of people from flood-prone urban areas to inland 
areas (Ruppert et al. 2008, p. 127), including the relocation of 
millions of people to currently undeveloped interior natural areas 
(Stanton and Ackerman 2007, p. 15). Others have proposed implementation 
of a large-scale systematic translocation of at-risk human populations 
to interior locations (Gilkey 2008, pp. 9-12). Alabama, Florida, 
Louisiana, and Mississippi's interior natural ecological communities 
will likely be impacted with the increasing need of urban 
infrastructure to support retreating coastal inhabitants. Increases in 
gopher tortoise habitat loss related to climate change would be in 
addition to the 20 percent loss projected to occur by 2060 due solely 
to people immigrating into Florida (FWC 2008, p. 2). Increasing threats 
of habitat loss due to coastal retreat is likely to also affect 
tortoise habitat inland from the Georgia, Alabama, and Mississippi 
coastal counties. The timing of these impacts will be dependent on the 
rate at which the sea level rises, and a gradual coastal retreat and 
concurrent impacts to gopher tortoises are likely during this time.
    Finally, in our 90-day finding we indicated that delayed maturity 
and low reproductive rates exacerbate many of the threats described 
above (74 FR 46406). While these factors may limit the ability of 
gopher tortoise populations to respond quickly to conservation 
measures, they are part of the life-history strategy of this species. 
The magnitude of various threats considers the life history of the 
species throughout this finding.
Conservation Efforts To Reduce or Eliminate Other Natural or Manmade 
Factors
    In addition to the protection of gopher tortoise habitat described 
in Factor D above, ALDOT also has installed fences along two of its 
road projects to minimize gopher tortoise road mortality. The two road 
projects (Highway 98 and State Road 158) cumulatively resulted in the 
installation of about 16 kilometers (10 miles) of gopher tortoise 
fencing.
    The Mississippi Department of Transportation also used fencing to 
protect gopher tortoises as a result of work on State Route 63 in Green 
County. About 24 kilometers (15 miles) of fencing were erected, and 
road mortality has decreased from 1-2 tortoises annually to none.
    These projects reduce or eliminate road mortality and contribute to 
sustainability of local tortoise populations. However, they are small 
in scope and do not substantively reduce the threat of gopher tortoise 
road mortality throughout its range, nor do they eliminate the habitat 
fragmentation caused by roads.
Summary of Factor E
    Although improvements in relocation could be made, we do not 
consider this practice to be a threat at this time. However, we 
consider the underlying habitat loss and habitat degradation that 
necessitates relocation to be a threat, as stated above. The combined 
threats from silvicultural herbicides and road mortality are occurring 
now and are expected to continue in the future. These threats will be 
focused in areas of silvicultural production and roadways in and around 
urban areas, respectively. These threats are ongoing so they are 
imminent and the magnitude of threat is moderate for use of 
silvicultural herbicides, based primarily on our existing knowledge of 
the distribution of tortoises and their vulnerability to incompatible 
silvicultural forest management practices.
    We know that road mortality occurs, but the extent to which it 
affects populations and the species as a whole is not well documented. 
As a result, the threat of road mortality is imminent because it is 
ongoing and will likely continue in the future. We have no information 
linking road mortality directly to population declines so the magnitude 
of this factor is not currently known. Climate change is not an 
imminent threat because we have not detected climate change-related 
impacts on gopher tortoise populations. We are uncertain about the 
magnitude of this threat because we do not currently understand all 
potential impacts of climate change on the gopher tortoise or human 
responses to mitigate its effects on human populations. Based on this 
information, the gopher tortoise is threatened due to other natural or 
manmade factors in the form of silvicultural herbicide use and road 
mortality, in combination with the other threats identified in this 
finding, both now and in the foreseeable future.
Summary of All Factors and Status
    The current exact number of gopher tortoise populations and amounts 
of suitable and occupied habitat are uncertain. Population studies and 
surveys are incomplete. Of those completed, the only evidence of 
population increases is on Department of Defense lands in the Florida 
panhandle, but there are also decreases on these same installations. 
The remainder of the studies, in Georgia, South Carolina, Mississippi 
and Florida, indicate declines.
    The amount of estimated potential habitat, about 11 million ha 
(over 27 million ac) spread across six states, might suggest that 
threats to habitat are not sufficient to warrant listing of the gopher 
tortoise as either endangered or threatened. However, as discussed 
above, this figure represents potential habitat. Much of this potential 
habitat is either not suitable, or of reduced suitability for reasons 
of soil type, vegetation structure and composition, or other factors, 
and almost half of this potential habitat is fragmented into parcels of 
less than about 101 ha (250 ac).
    Most of the potential gopher tortoise habitat, about 88 percent, is 
privately held, and much of this is in silviculture. Silvicultural 
practices can be, but are not necessarily, compatible with gopher 
tortoise conservation. While much of this land is unlikely to be 
developed in the near term, private lands are also sensitive to 
economic conditions. These conditions affect potential conversion to 
other land uses as well as the viability of management treatments that 
impact species composition, harvest rates, thinning, and burning.
    We also know that not all potential habitats on public lands are 
suitable gopher tortoise habitat. Few lands have been acquired 
expressly for gopher tortoise conservation. Thus, gopher tortoise 
habitat suitability is often a byproduct of other management 
treatments. Public lands, while less vulnerable to development, are 
still subject to economic pressures and constraints. Currently, public 
agency budgets are strained, and most are probably not adequate to 
provide for large-scale, intensive management specifically targeting 
gopher tortoise habitat. We know that periodic burning of gopher 
tortoise habitat is crucial to the conservation of the species. We also 
know that pressures to control wildfires for public safety and the 
adverse effects of smoke make burning more and more difficult.
    Based on available data, we believe that, at the landscape level, 
gopher tortoises are still found mostly in isolated and fragmented 
populations throughout the six-state range. We know they are more 
abundant east of the Tombigbee River and are most abundant in central 
and north Florida and southern Georgia. In a few isolated locations 
they are relatively common and there are nine locations referenced in 
this finding where they are likely to persist long term. Many more 
large populations likely exist, but comprehensive surveys or censuses

[[Page 45154]]

have not been undertaken throughout much of the tortoise's eastern 
range. They are also more protected in Florida than elsewhere in the 
eastern portion of the range, and there is more protected habitat in 
Florida than in the rest of the range combined. Florida also has the 
strongest of the State laws protecting gopher tortoises and is the only 
State with a management plan for the species. But Florida is also the 
State facing the most development pressure in the foreseeable future, 
and while the State's Plan may provide considerable conservation 
benefits to the gopher tortoise, it is too early to evaluate its 
overall success.
    Overall, our assessment is that gopher tortoise habitat is 
diminishing and that populations are declining. Disease and human-
related impacts are documented threats to the species and sea level 
rise will likely also eliminate some coastal habitats. There are likely 
some viable gopher tortoise populations on both public and private 
lands in the eastern portion of the species' range. However, the extent 
to which these populations are sufficient in both number and security 
to ensure the long-term persistence of gopher tortoises throughout 
their range is unknown. The positive effects of recent commitments of 
landowners through the Candidate Conservation Agreement and more 
protective regulations in Florida are just beginning to be realized. 
Regardless, there are no programs in place that would ensure the 
maintenance of contiguous, suitable, occupied habitats to secure the 
species against stochastic events and to provide for sufficient genetic 
diversity.
    Confounding the issue of threats is the biology of the species. 
Gopher tortoises are long-lived and slow to reproduce, and the planning 
horizon for gopher tortoise conservation far exceeds our ability to 
reliably project economic conditions and land uses. Individuals of the 
species could linger for decades in areas where reproduction is no 
longer successful, thus lending a false picture of security to the 
public and regulators. However, the risk of failing to act in a timely 
manner could have far-reaching and perhaps irreversible consequences 
for the species.
    Absent a cohesive effort to protect and maintain sufficient 
habitats to ensure long-term persistence of the species, gopher 
tortoises will likely succumb to continued loss of habitat and 
degradation of habitat due to difficulties in applying prescribed fire 
as frequently as necessary. For example, while there are more than 1.6 
million ha (4.0 million ac) of potential habitat in the western portion 
of the range, there are no known populations of more than 250 
individuals, a number that some suggest is necessary as a minimum 
viable population.
    Conservation of the species at this stage may be easy to accomplish 
relative to many listed species, particularly if sufficient habitats 
currently supporting large populations or having the capability to 
support large populations can be identified and secured, and protective 
and management measures implemented.

Finding

    As required by the Act, we conducted a review of the status of the 
species and considered the five factors in assessing whether the gopher 
tortoise is in danger of extinction or likely to become so within the 
foreseeable future throughout all or a significant portion of its 
range. We examined the best scientific and commercial information 
available regarding the past, present, and future threats faced by the 
gopher tortoise. We reviewed the petition, information available in our 
files; other available published and unpublished information; and 
information submitted during the public comment period from military 
installations, the U.S. Forest Service, State forest agencies, State 
wildlife and conservation agencies, mineral and chemical producers, 
corporate and other private timber owners and various companies 
representing timber owners, agricultural interests, and gopher tortoise 
experts.
    This status review identified threats to the gopher tortoise 
attributable to Factors A, B, C, D, and E. The primary threat to the 
gopher tortoise is from habitat destruction and modification (Factor A) 
in the form of conversion of native pine forests to intensively managed 
silvicultural pine forests, urban development, and habitat degradation 
due to lack of fire management. Under Factor B we conclude that 
overutilization for commercial, recreational, scientific, or 
educational purposes resulting from ongoing rattlesnake roundups are 
likely to continue to threaten the gopher tortoise now and into the 
future in the vicinity of roundup events. We consider predation under 
Factor C to be a serious ongoing threat. Disease is expected to become 
more problematic for gopher tortoises as additional habitat is lost and 
fragmentation increases. Stressors are likely to elevate risks of 
tortoises to upper respiratory tract disease, but these effects will 
likely be localized. Existing regulations (Factor D) do protect 
individual tortoises, but do not adequately protect habitat on private 
lands where the majority of the remaining potential tortoise habitat 
occurs. Under Factor E, we believe that incompatible use of 
silvicultural herbicides is an imminent threat. We consider disease, 
road mortality, and the effects of climate change identified under 
Factors C and E to be secondary threats.
    As we discussed above, many tortoise populations will undoubtedly 
persist for 100-200 years albeit declining in numbers due to the 
species' longevity. Functionally, however, many of these populations 
may already be, or may soon become, extinct because there are not 
enough breeding individuals or their densities are too low to ensure 
that recruitment of young exceeds mortality generation after 
generation. Existing survey data indicate that many populations are 
below the 0.4 tortoise per ha (0.2 tortoise per ac) necessary for 
successful reproduction. The best science currently available indicate 
that most tortoise populations are in decline, and current efforts to 
reverse these trends with habitat management may be too late or are not 
yet being quantified.
    There are almost 1.0 million ha (2.4 million ac) of potential 
gopher tortoise habitat in public ownership that are not susceptible to 
destruction. Provided these properties are managed appropriately in the 
future and site-specific management activities target restoration and 
maintenance of suitable habitat, gopher tortoises may persist in these 
areas for longer periods than they would without such protection and 
management efforts. However, based on model projections, many of the 
gopher tortoise populations on public lands may not be large enough to 
persist long term, regardless of how well their habitat is protected 
and managed.
    Consequently, the protection and management of public lands may 
serve to extend the time that gopher tortoises remain on public lands, 
but these efforts may not be sufficient to overcome the adverse effects 
of environmental stochasticity, which often results in poor demographic 
performance in small populations. Protection of public lands and 
associated management efforts will likely ensure that the tortoise is 
not currently in danger of extinction throughout all or a significant 
portion of its range. Finally, we find that the observed and 
anticipated cumulative impacts of habitat loss, degradation, disease, 
inadequacy of existing regulations and other factors are threats of 
sufficient imminence, intensity, or magnitude to indicate that the 
gopher tortoise is in danger of extinction (endangered), or likely to 
become endangered within the foreseeable

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future (threatened), throughout the eastern portion of its range.
    On the basis of the best scientific and commercial information 
available, we find that the petitioned action to list the gopher 
tortoise in the eastern portion of its range is warranted and that its 
current status as a threatened species in the western portion of its 
range is appropriate. We will make a determination on the specific 
status of the gopher tortoise in the eastern portion of its range when 
we complete a proposed rule to list the gopher tortoise. At that time 
we will also assess and propose regulations as deemed necessary and 
advisable to provide for the conservation of the species. However, as 
explained in more detail below, an immediate proposal of a regulation 
implementing this action is precluded by higher priority listing 
actions, and we are making expeditious progress to add or remove 
qualified species from the Lists of Endangered and Threatened Wildlife 
and Plants.
    We reviewed the available information to determine if the existing 
and foreseeable threats render the gopher tortoise in the eastern 
portion of its range at risk of extinction now such that issuing an 
emergency regulation temporarily listing the species throughout its 
range per section 4(b)(7) of the Act is warranted. We have determined 
that issuing an emergency regulation temporarily listing the gopher 
tortoise throughout its range is not warranted at this time because the 
immediacy of primary threats is such that the species is not in danger 
of extinction in the immediate future. However, if at any time we 
determine that issuing an emergency regulation temporarily listing the 
gopher tortoise throughout its range is warranted, we will initiate 
this action at that time.

Listing Priority Number

    The Service adopted guidelines on September 21, 1983 (48 FR 43098), 
to establish a rational system for utilizing available resources for 
the highest priority species when adding species to the Lists of 
Endangered or Threatened Wildlife and Plants or reclassifying species 
listed as threatened to endangered status. These guidelines, titled 
``Endangered and Threatened Species Listing and Recovery Priority 
Guidelines'' address the magnitude and immediacy of threats, and the 
level of taxonomic distinctiveness by assigning priority in descending 
order to monotypic genera (genus with one species), full species, and 
subspecies (or equivalently, distinct population segments of 
vertebrates). We assigned the gopher tortoise a Listing Priority Number 
(LPN) of 8 based on our finding that the species faces threats that are 
of moderate magnitude and are imminent. These threats include the 
present or threatened destruction, modification, or curtailment of its 
habitat; predation; the inadequacy of existing regulatory mechanisms; 
and use of incompatible silvicultural management activities. We 
consider overutilization, disease, and road mortality, and the effects 
of climate change to be minor threats. Our rationale for assigning the 
gopher tortoise an LPN of 8 is outlined below.
    Under the Service's LPN Guidance, the magnitude of threat is the 
first criterion we look at when establishing a listing priority. The 
guidance indicates that species with the highest magnitude of threat 
are those species facing the greatest threats to their continued 
existence. These species receive the highest listing priority.
    GIS analysis indicates that about 88 percent of remaining potential 
gopher tortoise habitat is in private ownership. Much of this habitat 
is susceptible to future conversion for silviculture, agriculture, and 
urban land uses because most existing regulatory mechanisms do not 
protect gopher tortoise habitat. The area covered by pine plantations 
in the south has been modeled and under certain scenarios is projected 
to increase between about 4-10 million ha (10-25 million ac) by 2040 
(Prestemon and Abt 2002, pp. 18-20). Future urban development may 
result in the loss of about 283,300 ha (700,000 ac) or 20 percent of 
the remaining gopher tortoise habitat in Florida by 2060 (Florida Fish 
and Wildlife Conservation Commission 2008, p. 4). Others have predicted 
a loss of up to 50 percent of forest lands in central Florida and up to 
25 percent in north Florida and southeast Alabama (Prestemon and Abt 
2002, p. 18). Some gopher tortoise habitat in public ownership and on 
most private lands is currently threatened with degradation due to fire 
suppression or use of inadequate prescribed fire regimes. Reduced 
survival and low recruitment observed in many gopher tortoise 
populations throughout the species' range are thought to result from 
poor habitat quality due to fire suppression. This threat will continue 
in the future.
    While the cumulative adverse effects of present or threatened 
destruction, modification, or curtailment of habitat span much of the 
gopher tortoises range, there are many ongoing longleaf pine 
restoration initiatives that have the potential to protect and enhance 
gopher tortoise habitat. As a result of these ongoing protection and 
management efforts, the magnitude of this threat is reduced. 
Nonetheless, due to the broad geographic area affected by this threat, 
the overall magnitude is moderate.
    Under Factor C above, we determined that predation of gopher 
tortoise eggs and hatchlings resulted in 70 to 100 percent mortality. 
These rates of mortality are not uncommon among long-lived animals, but 
high mortality of eggs and young is likely to prolong, if not preclude, 
gopher tortoise recovery in areas where active land management may 
provide suitable habitat. This threat is widespread throughout the 
tortoise's range. Even though predation has been, and still is, a 
naturally occurring limiting factor, we consider it to be of moderate 
magnitude because it is probably working synergistically with other 
threats identified herein to impact gopher tortoises.
    We considered the inadequacy of existing regulations to be a 
moderate threat throughout the eastern portion of the tortoise's range. 
Except for the State of Florida, no other State has adopted regulations 
that attempt to mitigate the effects of habitat loss and subsequent 
take of tortoises. In all States in the eastern portion of the range, 
silvicultural and agricultural lands are generally exempted from 
regulatory oversight; therefore, impacts to tortoises resulting from 
activities associated with silviculture or agriculture are not reviewed 
or mitigated. Nearly 88 percent of all remaining potential habitat is 
in private ownership, and much of this falls under silvicultural or 
agricultural uses. Consequently, potential future impacts to gopher 
tortoises resulting from inadequate regulations are expected to be 
substantial.
    We also considered the adverse effects of incompatible uses of 
herbicides in silviculture to be a moderate threat to gopher tortoises 
primarily in the interior portions of Alabama, Georgia, Louisiana, and 
Mississippi. Aerial or broad-scale application of herbicides is used to 
reduce vegetative competition with newly planted pine seedlings and to 
reduce hardwood encroachment during mid-rotation thinning. Herbicide 
applications at the time of seedling planting result in mortality of 
ground cover plants that tortoises use for forage. Reduced forage may 
result in tortoises abandoning a site (if adjacent habitat is 
available) or poor physical condition due to lack of food. Poor 
physical condition may result in mortality, increased susceptibility to 
disease, and reduced reproductive fitness. This threat limited to 
silvicultural lands that use herbicides and those silvicultural lands 
that will use herbicides in the future. The area potentially affected 
by

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this threat relatively large and is anticipated to increase in size in 
the future. As a result, we consider this threat to be of moderate 
magnitude.
    Under our LPN Guidance, the second criterion we consider in 
assigning a listing priority is the immediacy of threats. This 
criterion is intended to ensure that the species that face actual, 
identifiable threats are given priority over those for which threats 
are only potential or that are intrinsically vulnerable but are not 
known to be presently facing such threats. The major threats are 
imminent because we have factual information that the threats are 
identifiable and that the gopher tortoise is currently facing them 
throughout all portions of its range. These actual, identifiable 
threats are covered in detail under the discussion of Factors A, C, D, 
and E of this finding and currently include habitat loss, 
fragmentation, and degradation; predation; inadequacy of regulatory 
mechanisms; and incompatible use of herbicides in silvicultural 
activities.
    In addition to their current existence, we expect these threats to 
continue and likely intensify in the foreseeable future. Additional 
urban development in peninsular Florida and coastal portions of 
Alabama, the Florida panhandle, Georgia, and Mississippi is predicted 
in the future as is an increase in the acreage of planted pine in 
interior portions of these States. Use of prescribed fire in natural 
and planted pine stands is likely to decrease in the future due to 
legal liabilities. Resultantly, habitat loss, fragmentation, and 
degradation are imminent and likely to persist in the future. Predation 
will continue to be an imminent threat in the future because 
eradication or control of many nest and hatchling predators does not 
appear to be achievable over large areas. The inadequacy of existing 
regulations is a present threat throughout the eastern portion of the 
tortoise's range. While it is possible that additional regulatory 
protections may be adopted by local or State governments in the future, 
we are aware of no such efforts currently under way. Finally, the use 
of herbicides in silviculture has been used increasingly as a mechanism 
to reduce plant competition while minimizing environmental impacts 
(e.g., ground disturbances). When used broadly, herbicides are 
nonselective and kill ground cover used by tortoises for forage. 
Because herbicide treatments are typically less expensive and labor 
intensive, we expect use of this management technique will continue in 
the future and possibly increase in acreage.
    The third criterion in our LPN guidance is intended to devote 
resources to those species representing highly distinctive or isolated 
gene pools as reflected by taxonomy. The gopher tortoise is a valid 
taxon at the species level and, therefore, receives a higher priority 
than subspecies or DPSs, but a lower priority than species in a 
monotypic genus. The gopher tortoise faces medium-magnitude, imminent 
threats and is a valid taxon at the species level. Thus, in accordance 
with our LPN guidance, we have assigned the gopher tortoise an LPN of 
8.
    We will continue to monitor the threats to and the status of the 
gopher tortoise, and the species' status on an annual basis, and should 
the magnitude or the imminence of the threats change, we will revisit 
our assessment of the LPN.
    Work on a proposed listing determination for the gopher tortoise is 
precluded by work on higher priority listing actions with absolute 
statutory, court-ordered, or court-approved deadlines and final listing 
determinations for those species that were proposed for listing with 
funds from Fiscal Year 2011. This work includes all the actions listed 
in the tables below under Preclusion and Expeditious Progress. Between 
the publication date of this notice and the final listing determination 
for the gopher tortoise, we will work with our private, State, and 
Federal partners to identify and implement conservation, management, 
and regulatory opportunities to remove or alleviate threats so that the 
listing priority is reduced or so that listing of the gopher tortoise 
is no longer warranted. Such opportunities may include, but are not 
limited to, improving the scientific base of knowledge, development and 
implementation of best management practices or management plans, impact 
avoidance and minimization measures, and Candidate Conservation 
Agreements and Candidate Conservation Agreements with Assurances.
    With regard to specific actions that can be taken to reduce threats 
to the gopher tortoise under the five listing factors, we recommend the 
following. Threats under Factor A can largely be alleviated by 
restoring (i.e. mechanical vegetation reduction) and managing (i.e., 
burning at short-term fire return intervals) appropriate habitat and 
continuing to secure habitat to support viable populations throughout 
the range. While the CCA has documented progress towards gopher 
tortoise conservation, additional data collection on existing 
populations, habitat, and effective management are still needed to 
demonstrate success. Threats under Factor B could be alleviated by 
eliminating the loss of tortoises incidental to the capture of other 
species. This could be accomplished by eliminating the legal harvest of 
species that may be found in gopher tortoise burrows. Threats under 
Factor C may require various precautionary measures in different parts 
of the range, but information collected for individual populations may 
demonstrate that either disease or predation risks might require 
additional measures such as disease screening to prevent spread of URTD 
or measures to prevent predation of nests and hatchlings. Threats under 
Factor D, which in turn contribute to habitat loss, may require 
additional protective measures for both individual populations and 
associated habitat and could include management of populations and 
habitat to enhance long-term viability. Threats under Factor E vary in 
their possible remediation. In the case of silvicultural herbicides, it 
is possible that in some areas fire management might provide a suitable 
alternative, however, additional measures such as timing of 
applications and alternative strategies should be considered. Harvest 
rotations could be adjusted to ensure suitable habitat is always 
adjacent to existing tortoise populations. Road mortality, has been 
alleviated by fencing in some locations. In areas with high tortoise 
densities additional fencing could be employed to reduce road 
mortality, though its use should be considered carefully, as it may 
inhibit dispersal.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and the cost and relative 
priority of competing demands for those resources. Thus, in any given 
fiscal year (FY), multiple factors dictate whether it will be possible 
to undertake work on a listing proposal regulation or whether 
promulgation of such a proposal is 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 
``resubmitted''

[[Page 45157]]

petition findings 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 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 comments 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. The median cost for 
preparing and publishing a 90-day finding is $39,276; for a 12-month 
finding, $100,690; for a proposed rule with critical habitat, $345,000; 
and for a final listing rule with critical habitat, $305,000.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. 
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year 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 fiscal year. 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).
    Since FY 2002, the Service's budget has included a critical habitat 
subcap 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, and consequently none of the 
critical habitat subcap funds have been available for other listing 
activities. In some FYs since 2006, we have been able to use some of 
the critical habitat subcap funds to fund proposed listing 
determinations for high-priority candidate species. In other FYs, 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. At this time, for FY 2011, we plan to use some 
of the critical habitat subcap funds to fund proposed listing 
determinations.
    We 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. 
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 nationwide. 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 identified the availability of resources as the only basis 
for deferring the initiation of a rulemaking that is warranted. The 
Conference Report accompanying Public Law 97-304 (Endangered Species 
Act Amendments of 1982), which established the current statutory 
deadlines and the warranted-but-precluded finding, states that the 
amendments 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 [that is, for a lower-ranking species] unwise.'' Although that 
statement appeared to refer specifically to the ``to the maximum extent 
practicable'' limitation on the 90-day deadline for making a 
``substantial information'' finding, that finding is made at the point 
when the Service is deciding whether or not to commence a status review 
that will determine the degree of threats facing the species, and 
therefore the analysis underlying the statement is more relevant to the 
use of the warranted-but-precluded finding, which is made when the 
Service has already determined the degree of threats facing the species 
and is deciding whether or not to commence a rulemaking.
    In FY 2011, on April 15, 2011, Congress passed the Full-Year 
Continuing Appropriations Act (Pub. L. 112-10), which provides funding 
through September 30, 2011. The Service has $20,902,000 for the listing 
program. Of that, $9,472,000 is being used for determinations of 
critical habitat for already listed species. Also $500,000 is 
appropriated for foreign species listings under the Act. The Service 
thus has $10,930,000 available 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. In FY 2010, 
the Service received many new petitions and a single petition to list 
404 species. The receipt of petitions for a large number of species is 
consuming the Service's listing funding that is not dedicated to 
meeting court-ordered commitments. Absent some ability to balance 
effort among listing duties under existing funding levels, the Service 
is only able to initiate a few new listing determinations for candidate 
species in FY 2011.
    In 2009, the responsibility for listing foreign species under the 
Act was transferred from the Division of Scientific Authority, 
International Affairs Program, to the Endangered Species Program. 
Therefore, starting in FY 2010, we used a portion of our funding to 
work on the actions described above for listing actions related to 
foreign species. In FY 2011, we anticipate using $1,500,000 for work on 
listing actions for foreign species, which reduces funding available 
for domestic listing actions; however, currently only $500,000 has been 
allocated for this function. Although there are no foreign species 
issues included in our high-priority listing actions at this time, many 
actions have statutory or court-approved settlement deadlines, thus 
increasing their priority. The budget allocations for each specific 
listing action are identified in the Service's FY 2011 Allocation Table 
(part of our record).
    For the above reasons, funding a proposed listing determination for 
the gopher tortoise is precluded by court-ordered and court-approved 
settlement agreements, listing actions with absolute

[[Page 45158]]

statutory deadlines, and work on proposed listing determinations for 
those candidate species with a higher listing priority (i.e., candidate 
species with LPNs of 1-7).
    Based on our September 21, 1983, guidelines for assigning an LPN 
for each candidate species (48 FR 43098), we have a significant number 
of species with a LPN of 2. Using these guidelines, we assign each 
candidate an LPN of 1 to 12, depending on the magnitude of threats 
(high or 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, or distinct 
population segment)). 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 have 
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, 
originally 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 those 40 candidates, we 
apply the ranking criteria to the next group of candidates with an LPN 
of 2 and 3 to determine the next set of highest priority candidate 
species. Finally, proposed rules for reclassification of threatened 
species to endangered species are lower priority, because as listed 
species, they are already afforded the protection of the Act and 
implementing regulations. However, for efficiency reasons, we may 
choose to work on a proposed rule to reclassify a species to endangered 
if we can combine this with work that is subject to a court-determined 
deadline.
    With our workload so much bigger than the amount of funds we have 
to accomplish it, it is important that we be as efficient as possible 
in our listing process. Therefore, as we work on proposed rules for the 
highest priority 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, we take into 
consideration the availability of staff resources when we determine 
which high-priority species will receive funding to minimize the amount 
of time and resources required to complete each listing action.
    As explained above, a determination that listing is warranted but 
precluded must also demonstrate that expeditious progress is being made 
to add and remove qualified species to and from the Lists of Endangered 
and Threatened Wildlife and Plants. As with our ``precluded'' finding, 
the evaluation of whether progress in adding qualified species to the 
Lists has been expeditious is a function of the resources available for 
listing and the competing demands for those funds. (Although we do not 
discuss it in detail here, we are also making expeditious progress in 
removing species from the list under the Recovery program in light of 
the resource available for delisting, which is funded by a separate 
line item in the budget of the Endangered Species Program. So far 
during FY 2011, we have completed one delisting rule.) Given the 
limited resources available for listing, we find that we are making 
expeditious progress in FY 2011 in the Listing Program. This progress 
included preparing and publishing the following determinations:

                                        FY 2011 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
        Publication date                  Title                 Actions                     FR pages
----------------------------------------------------------------------------------------------------------------
10/6/2010.......................  Endangered Status for  Proposed Listing       75 FR 61664-61690.
                                   the Altamaha           Endangered.
                                   Spinymussel and
                                   Designation of
                                   Critical Habitat.
10/7/2010.......................  12-month Finding on a  Notice of 12-month     75 FR 62070-62095.
                                   Petition to list the   petition finding,
                                   Sacramento Splittail   Not warranted.
                                   as Endangered or
                                   Threatened.
10/28/2010......................  Endangered Status and  Proposed Listing       75 FR 66481-66552.
                                   Designation of         Endangered
                                   Critical Habitat for   (uplisting).
                                   Spikedace and Loach
                                   Minnow.
11/2/2010.......................  90[dash]Day Finding    Notice of 90-day       75 FR 67341-67343.
                                   on a Petition to       Petition Finding,
                                   List the Bay Springs   Not substantial.
                                   Salamander as
                                   Endangered.
11/2/2010.......................  Determination of       Final Listing          75 FR 67511-67550.
                                   Endangered Status      Endangered.
                                   for the Georgia
                                   Pigtoe Mussel,
                                   Interrupted
                                   Rocksnail, and Rough
                                   Hornsnail and
                                   Designation of
                                   Critical Habitat.
11/2/2010.......................  Listing the Rayed      Proposed Listing       75 FR 67551-67583.
                                   Bean and Snuffbox as   Endangered.
                                   Endangered.
11/4/2010.......................  12-Month Finding on a  Notice of 12-month     75 FR 67925-67944.
                                   Petition to List       petition finding,
                                   Cirsium wrightii       Warranted but
                                   (Wright's Marsh        precluded.
                                   Thistle) as
                                   Endangered or
                                   Threatened.
12/14/2010......................  Endangered Status for  Proposed Listing       75 FR 77801-77817.
                                   Dunes Sagebrush        Endangered.
                                   Lizard.
12/14/2010......................  12-month Finding on a  Notice of 12-month     75 FR 78029-78061.
                                   Petition to List the   petition finding,
                                   North American         Warranted but
                                   Wolverine as           precluded.
                                   Endangered or
                                   Threatened.
12/14/2010......................  12-Month Finding on a  Notice of 12-month     75 FR 78093-78146.
                                   Petition to List the   petition finding,
                                   Sonoran Population     Warranted but
                                   of the Desert          precluded.
                                   Tortoise as
                                   Endangered or
                                   Threatened.

[[Page 45159]]

 
12/15/2010......................  12-Month Finding on a  Notice of 12-month     75 FR 78513-78556.
                                   Petition to List       petition finding,
                                   Astragalus             Warranted but
                                   microcymbus and        precluded.
                                   Astragalus
                                   schmolliae as
                                   Endangered or
                                   Threatened.
12/28/2010......................  Listing Seven          Final Listing          75 FR 81793-81815.
                                   Brazilian Bird         Endangered.
                                   Species as
                                   Endangered
                                   Throughout Their
                                   Range.
1/4/2011........................  90[dash]Day Finding    Notice of 90-day       76 FR 304-311.
                                   on a Petition to       Petition Finding,
                                   List the Red Knot      Not substantial.
                                   subspecies Calidris
                                   canutus roselaari as
                                   Endangered.
1/19/2011.......................  Endangered Status for  Proposed Listing       76 FR 3392-3420.
                                   the Sheepnose and      Endangered.
                                   Spectaclecase
                                   Mussels.
2/10/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 7634-7679.
                                   Petition to List the   petition finding,
                                   Pacific Walrus as      Warranted but
                                   Endangered or          precluded.
                                   Threatened.
2/17/2011.......................  90[dash]Day Finding    Notice of 90-day       76 FR 9309-9318.
                                   on a Petition To       Petition Finding,
                                   List the Sand          Substantial.
                                   Verbena Moth as
                                   Endangered or
                                   Threatened.
2/22/2011.......................  Determination of       Final Listing          76 FR 9681-9692.
                                   Threatened Status      Threatened.
                                   for the New Zealand-
                                   Australia Distinct
                                   Population Segment
                                   of the Southern
                                   Rockhopper Penguin.
2/22/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 9722-9733.
                                   Petition to List       petition finding,
                                   Solanum conocarpum     Warranted but
                                   (marron bacora) as     precluded.
                                   Endangered.
2/23/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 9991-10003.
                                   Petition to List       petition finding,
                                   Thorne's Hairstreak    Not warranted.
                                   Butterfly as
                                   Endangered.
2/23/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 10166-10203.
                                   Petition to List       petition finding,
                                   Astragalus             Warranted but
                                   hamiltonii,            precluded & Not
                                   Penstemon flowersii,   Warranted.
                                   Eriogonum soredium,
                                   Lepidium ostleri,
                                   and Trifolium
                                   friscanum as
                                   Endangered or
                                   Threatened.
2/24/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 10299-10310.
                                   Petition to List the   Petition Finding,
                                   Wild Plains Bison or   Not substantial.
                                   Each of Four
                                   Distinct Population
                                   Segments as
                                   Threatened.
2/24/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 10310-10319.
                                   Petition to List the   Petition Finding,
                                   Unsilvered             Not substantial.
                                   Fritillary Butterfly
                                   as Threatened or
                                   Endangered.
3/8/2011........................  12-Month Finding on a  Notice of 12-month     76 FR 12667-12683.
                                   Petition to List the   petition finding,
                                   Mt. Charleston Blue    Warranted but
                                   Butterfly as           precluded.
                                   Endangered or
                                   Threatened.
3/8/2011........................  90-Day Finding on a    Notice of 90-day       76 FR 12683-12690.
                                   Petition to List the   Petition Finding,
                                   Texas Kangaroo Rat     Substantial.
                                   as Endangered or
                                   Threatened.
3/10/2011.......................  Initiation of Status   Notice of Status       76 FR 13121-31322.
                                   Review for Longfin     Review.
                                   Smelt.
3/15/2011.......................  Withdrawal of          Proposed rule          76 FR 14210-14268.
                                   Proposed Rule to       withdrawal.
                                   List the Flat-tailed
                                   Horned Lizard as
                                   Threatened.
3/15/2011.......................  Proposed Threatened    Proposed Listing       76 FR 14126-14207.
                                   Status for the         Threatened; Proposed
                                   Chiricahua Leopard     Designation of
                                   Frog and Proposed      Critical Habitat.
                                   Designation of
                                   Critical Habitat.
3/22/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 15919-15932.
                                   Petition to List the   petition finding,
                                   Berry Cave             Warranted but
                                   Salamander as          precluded.
                                   Endangered.
4/1/2011........................  90-Day Finding on a    Notice of 90-day       76 FR 18138-18143.
                                   Petition to List the   Petition Finding,
                                   Spring Pygmy Sunfish   Substantial.
                                   as Endangered.
4/5/2011........................  12-Month Finding on a  Notice of 12-month     76 FR 18684-18701.
                                   Petition to List the   petition finding,
                                   Bearmouth              Not Warranted and
                                   Mountainsnail, Byrne   Warranted but
                                   Resort                 precluded.
                                   Mountainsnail, and
                                   Meltwater Lednian
                                   Stonefly as
                                   Endangered or
                                   Threatened.
4/5/2011........................  90-Day Finding on a    Notice of 90-day       76 FR 18701-18706.
                                   Petition To List the   Petition Finding,
                                   Peary Caribou and      Substantial.
                                   Dolphin and Union
                                   population of the
                                   Barren-ground
                                   Caribou as
                                   Endangered or
                                   Threatened.
4/12/2011.......................  Proposed Endangered    Proposed Listing       76 FR 20464-20488.
                                   Status for the Three   Endangered; Proposed
                                   Forks Springsnail      Designation of
                                   and San Bernardino     Critical Habitat.
                                   Springsnail, and
                                   Proposed Designation
                                   of Critical Habitat.
4/13/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 20613-20622.
                                   Petition To List       Petition Finding,
                                   Spring Mountains       Substantial.
                                   Acastus Checkerspot
                                   Butterfly as
                                   Endangered.
4/14/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 20911-20918.
                                   Petition to List the   Petition Finding,
                                   Prairie Chub as        Substantial.
                                   Threatened or
                                   Endangered.
4/14/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 20918-20939.
                                   Petition to List       petition finding,
                                   Hermes Copper          Warranted but
                                   Butterfly as           precluded.
                                   Endangered or
                                   Threatened.

[[Page 45160]]

 
4/26/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 23256-23265.
                                   Petition to List the   Petition Finding,
                                   Arapahoe Snowfly as    Substantial.
                                   Endangered or
                                   Threatened.
4/26/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 23265-23271.
                                   Petition to List the   Petition Finding,
                                   Smooth-Billed Ani as   Not substantial.
                                   Threatened or
                                   Endangered.
5/12/2011.......................  Withdrawal of the      Proposed Rule,         76 FR 27756-27799.
                                   Proposed Rule to       Withdrawal.
                                   List the Mountain
                                   Plover as Threatened.
5/25/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 30082-30087.
                                   Petition To List the   Petition Finding,
                                   Spot-tailed Earless    Substantial.
                                   Lizard as Endangered
                                   or Threatened.
5/26/2011.......................  Listing the Salmon-    Final Listing          76 FR 30758-30780.
                                   Crested Cockatoo as    Threatened.
                                   Threatened
                                   Throughout its Range
                                   with Special Rule.
5/31/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 31282-31294.
                                   Petition to List       petition finding,
                                   Puerto Rican           Warranted but
                                   Harlequin Butterfly    precluded.
                                   as Endangered.
6/2/2011........................  90-Day Finding on a    Notice of 90-day       76 FR 31903-31906.
                                   Petition to            Petition Finding,
                                   Reclassify the         Substantial.
                                   Straight-Horned
                                   Markhor (Capra
                                   falconeri jerdoni)
                                   of Torghar Hills as
                                   Threatened.
6/2/2011........................  90-Day Finding on a    Notice of 90-day       76 FR 31920-31926.
                                   Petition to List the   Petition Finding,
                                   Golden-winged          Substantial.
                                   Warbler as
                                   Endangered or
                                   Threatened.
6/7/2011........................  12-Month Finding on a  Notice of 12-month     76 FR 32911-32929.
                                   Petition to List the   petition finding,
                                   Striped Newt as        Warranted but
                                   Threatened.            precluded.
6/9/2011........................  12-Month Finding on a  Notice of 12-month     76 FR 33924-33965.
                                   Petition to List       petition finding,
                                   Abronia ammophila,     Not Warranted and
                                   Agrostis rossiae,      Warranted but
                                   Astragalus             precluded.
                                   proimanthus,
                                   Boechera (Arabis)
                                   pusilla, and
                                   Penstemon gibbensii
                                   as Threatened or
                                   Endangered.
6/21/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 36049-36053.
                                   Petition to List the   Petition Finding,
                                   Utah Population of     Not substantial.
                                   the Gila Monster as
                                   an Endangered or a
                                   Threatened Distinct
                                   Population Segment.
6/21/2011.......................  Revised 90-Day         Notice of 90-day       76 FR 36053-36068.
                                   Finding on a           Petition Finding,
                                   Petition To            Not substantial.
                                   Reclassify the Utah
                                   Prairie Dog From
                                   Threatened to
                                   Endangered.
6/28/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 37706-37716.
                                   Petition to List       petition finding,
                                   Castanea pumila var.   Not warranted.
                                   ozarkensis as
                                   Threatened or
                                   Endangered.
6/29/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 38095-38106.
                                   Petition to List the   Petition Finding,
                                   Eastern Small-Footed   Substantial.
                                   Bat and the Northern
                                   Long-Eared Bat as
                                   Threatened or
                                   Endangered.
6/30/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 38504-38532.
                                   Petition to List a     petition finding,
                                   Distinct Population    Not warranted.
                                   Segment of the
                                   Fisher in Its United
                                   States Northern
                                   Rocky Mountain Range
                                   as Endangered or
                                   Threatened with
                                   Critical Habitat.
7/12/2011.......................  90-Day Finding on a    Notice of 90-day       76 FR 40868-40871.
                                   Petition to List the   Petition Finding,
                                   Bay Skipper as         Substantial.
                                   Threatened or
                                   Endangered.
7/19/2011.......................  12-Month Finding on a  Notice of 12-month     76 FR 42631-42654.
                                   Petition to List       petition finding,
                                   Pinus albicaulis as    Warranted but
                                   Endangered or          precluded.
                                   Threatened with
                                   Critical Habitat.
7/19/2011.......................  Petition To List       Notice of 12-month     76 FR 42654-42658.
                                   Grand Canyon Cave      petition finding,
                                   Pseudoscorpion.        Not warranted.
----------------------------------------------------------------------------------------------------------------

    Our expeditious progress also includes work on listing actions that 
we funded in FY 2010 and FY 2011 but have not yet been 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, as 
discussed above, 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, when compared to preparing separate proposed rules for each of 
them in the future.

[[Page 45161]]



       Actions Funded in FY 2010 and FY 2011 But Not Yet Completed
------------------------------------------------------------------------
                  Species                               Action
------------------------------------------------------------------------
           Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
4 parrot species (military macaw, yellow-    12-month petition finding.
 billed parrot, red-crowned parrot, scarlet
 macaw) \5\.
4 parrot species (blue-headed macaw, great   12-month petition finding.
 green macaw, grey-cheeked parakeet,
 hyacinth macaw).\5\
4 parrots species (crimson shining parrot,   12-month petition finding.
 white cockatoo, Philippine cockatoo,
 yellow-crested cockatoo).\5\
Longfin smelt..............................  12-month petition finding.
------------------------------------------------------------------------
                    Actions With Statutory Deadlines
------------------------------------------------------------------------
Casey's june beetle........................  Final listing
                                              determination.
6 Birds from Eurasia.......................  Final listing
                                              determination.
5 Bird species from Colombia and Ecuador...  Final listing
                                              determination.
Queen Charlotte goshawk....................  Final listing
                                              determination.
5 species southeast fish (Cumberland         Final listing
 darter, rush darter, yellowcheek darter,     determination.
 chucky madtom, and laurel dace).\4\
Ozark hellbender \4\.......................  Final listing
                                              determination.
Altamaha spinymussel \3\...................  Final listing
                                              determination.
6 Birds from Peru & Bolivia................  Final listing
                                              determination.
Loggerhead sea turtle (assist National       Final listing
 Marine Fisheries Service) \5\.               determination.
2 mussels (rayed bean (LPN = 2), snuffbox    Final listing
 No LPN) \5\.                                 determination.
CA golden trout \4\........................  12-month petition finding.
Black-footed albatross.....................  12-month petition finding.
Mojave fringe-toed lizard \1\..............  12-month petition finding.
Kokanee--Lake Sammamish population \1\.....  12-month petition finding.
Cactus ferruginous pygmy-owl \1\...........  12-month petition finding.
Northern leopard frog......................  12-month petition finding.
Tehachapi slender salamander...............  12-month petition finding.
Coqui Llanero..............................  12-month petition finding/
                                              Proposed listing.
Dusky tree vole............................  12-month petition finding.
Leatherside chub (from 206 species           12-month petition finding.
 petition).
Frigid ambersnail (from 206 species          12-month petition finding.
 petition) \3\.
Platte River caddisfly (from 206 species     12-month petition finding.
 petition) \5\.
Anacroneuria wipukupa (a stonefly from 475   12-month petition finding.
 species petition) \4\.
3 Texas moths (Ursia furtiva, Sphingicampa   12-month petition finding.
 blanchardi, Agapema galbina) (from 475
 species petition).
2 Texas shiners (Cyprinella sp., Cyprinella  12-month petition finding.
 lepida) (from 475 species petition).
3 South Arizona plants (Erigeron             12-month petitio finding.
 piscaticus, Astragalus hypoxylus,
 Amoreuxia gonzalezii) (from 475 species
 petition).
5 Central Texas mussel species (3 from 475   12-month petition finding.
 species petition).
14 parrots (foreign species)...............  12-month petition finding.
Fisher--Northern Rocky Mountain Range \1\..  12-month petition finding.
Mohave Ground Squirrel \1\.................  12-month petition finding.
Western gull-billed tern...................  12-month petition finding.
HI yellow-faced bees.......................  12-month petition finding.
Giant Palouse earthworm....................  12-month petition finding.
OK grass pink (Calopogon oklahomensis) \1\.  12-month petition finding.
Ashy storm-petrel \5\......................  12-month petition finding.
Honduran emerald...........................  12-month petition finding.
Southeastern pop snowy plover & wintering    90-day petition finding.
 pop. of piping plover \1\.
Eagle Lake trout \1\.......................  90-day petition finding.
32 Pacific Northwest mollusks species        90-day petition finding.
 (snails and slugs) \1\.
42 snail species (Nevada & Utah)...........  90-day petition finding.
Spring Mountains checkerspot butterfly.....  90-day petition finding.
Eastern small-footed bat...................  90-day petition finding.
Northern long-eared bat....................  90-day petition finding.
10 species of Great Basin butterfly........  90-day petition finding.
6 sand dune (scarab) beetles...............  90-day petition finding.
404 Southeast species......................  90-day petition finding.
Franklin's bumble bee \4\..................  90-day petition finding.
2 Idaho snowflies (straight snowfly & Idaho  90-day petition finding.
 snowfly) \4\.
American eel \4\...........................  90-day petition finding.
Leona's little blue \4\....................  90-day petition finding.
Aztec gilia \5\............................  90-day petition finding.
White-tailed ptarmigan \5\.................  90-day petition finding.
San Bernardino flying squirrel \5\.........  90-day petition finding.
Bicknell's thrush \5\......................  90-day petition finding.
Chimpanzee.................................  90-day petition finding.
Sonoran talussnail \5\.....................  90-day petition finding.
2 AZ Sky Island plants (Graptopetalum        90-day petition finding.
 bartrami & Pectis imberbis) \5\.
I'iwi \5\..................................  90-day petition finding.

[[Page 45162]]

 
Humboldt marten............................  90-day petition finding.
Desert massasauga..........................  90-day petition finding.
Western glacier stonefly (Zapada glacier)..  90-day petition finding.
Thermophilic ostracod (Potamocypris          90-day petition finding.
 hunteri).
Sierra Nevada red fox \5\..................  90-day petition finding.
Boreal toad (eastern or southern Rocky Mtn   90-day petition finding.
 population) \5\.
------------------------------------------------------------------------
                      High-Priority Listing Actions
------------------------------------------------------------------------
20 Maui-Nui candidate species \2\ (17        Proposed listing.
 plants, 3 tree snails) (14 with LPN = 2, 2
 with LPN = 3, 3 with LPN = 8).
Chupadera springsnail \2\ (Pyrgulopsis       Proposed listing.
 chupaderae (LPN = 2).
8 Gulf Coast 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)).\4\
Umtanum buckwheat (LPN = 2) and white        Proposed listing.
 bluffs bladderpod (LPN = 9) \4\.
Grotto sculpin (LPN = 2) \4\...............  Proposed listing.
2 Arkansas mussels (Neosho mucket (LPN = 2)  Proposed listing.
 & Rabbitsfoot (LPN = 9)) \4\.
Diamond darter (LPN = 2) \4\...............  Proposed listing.
Gunnison sage-grouse (LPN = 2) \4\.........  Proposed listing.
Coral Pink Sand Dunes Tiger Beetle (LPN =    Proposed listing.
 2) \5\.
Miami blue (LPN = 3) \3\...................  Proposed listing.
Lesser prairie chicken (LPN = 2)...........  Proposed listing.
4 Texas salamanders (Austin blind            Proposed listing.
 salamander (LPN = 2), Salado salamander
 (LPN = 2), Georgetown salamander (LPN =
 8), Jollyville Plateau (LPN = 8)).\3\
5 SW aquatics (Gonzales Spring Snail (LPN =  Proposed listing.
 2), Diamond Y springsnail (LPN = 2),
 Phantom springsnail (LPN = 2), Phantom
 Cave snail (LPN = 2), Diminutive amphipod
 (LPN = 2)).\3\
2 Texas plants (Texas golden gladecress      Proposed listing.
 (Leavenworthia texana) (LPN = 2), Neches
 River rose-mallow (Hibiscus dasycalyx)
 (LPN = 2)).\3\
4 AZ plants (Acuna cactus (Echinomastus      Proposed listing.
 erectocentrus var. acunensis) (LPN = 3),
 Fickeisen plains cactus (Pediocactus
 peeblesianus fickeiseniae) (LPN = 3),
 Lemmon fleabane (Erigeron lemmonii) (LPN =
 8), Gierisch mallow (Sphaeralcea
 gierischii) (LPN =2)).\5\
FL bonneted bat (LPN = 2) \3\..............  Proposed listing.
3 Southern FL plants (Florida semaphore      Proposed listing.
 cactus (Consolea corallicola) (LPN = 2),
 shellmound applecactus (Harrisia (=Cereus)
 aboriginum (=gracilis)) (LPN = 2), Cape
 Sable thoroughwort (Chromolaena frustrata)
 (LPN = 2)).\5\
21 Big Island (HI) species \5\ (includes 8   Proposed listing.
 candidate species--6 plants & 2 animals; 4
 with LPN = 2, 1 with LPN = 3, 1 with LPN =
 4, 2 with LPN = 8).
12 Puget Sound prairie species (9            Proposed listing.
 subspecies of pocket gopher (Thomomys
 mazama ssp.) (LPN = 3), streaked horned
 lark (LPN = 3), Taylor's checkerspot (LPN
 = 3), Mardon skipper (LPN = 8)).\3\
2 TN River mussels (fluted kidneyshell (LPN  Proposed listing.
 = 2), slabside pearlymussel (LPN = 2) \5\.
Jemez Mountain salamander (LPN = 2) \5\....  Proposed listing.
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
  previous FYs.
\2\ Although funds for these high-priority listing actions were provided
  in FY 2008 or 2009, due to the complexity of these actions and
  competing priorities, these actions are still being developed.
\3\ Partially funded with FY 2010 funds and FY 2011 funds.
\4\ Funded with FY 2010 funds.
\5\ Funded with FY 2011 funds.

    We have endeavored to make our listing actions as efficient and 
timely as possible, given the requirements of the relevant law 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, these actions 
described above collectively constitute expeditious progress.
    The gopher tortoise in the eastern portion of its range will be 
added to the list of candidate species upon publication of this 12-
month finding. We will continue to monitor the status of this species 
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 that any proposed listing action for the gopher tortoise 
will be as accurate as possible. Therefore, we will continue to accept 
additional information and comments from all concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the North Florida 
Field Office (see ADDRESSES section).

Author(s)

    The primary authors of this notice are the staff members of the 
North Florida Ecological Services Field Office.

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: July 19, 2011.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2011-18856 Filed 7-26-11; 8:45 am]
BILLING CODE 4310-55-P