[Federal Register Volume 84, Number 244 (Thursday, December 19, 2019)]
[Rules and Regulations]
[Pages 69918-69947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26548]
[[Page 69917]]
Vol. 84
Thursday,
No. 244
December 19, 2019
Part III
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; Reclassifying the
Hawaiian Goose From Endangered to Threatened With a Section 4(d); Final
Rule
Federal Register / Vol. 84 , No. 244 / Thursday, December 19, 2019 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2017-0050; FXES11130900000C6-189-FF09E42000]
RIN 1018-BC10
Endangered and Threatened Wildlife and Plants; Reclassifying the
Hawaiian Goose From Endangered to Threatened With a Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: Under the authority of the Endangered Species Act of 1973, as
amended (Act), we, the U.S. Fish and Wildlife Service (Service),
determine threatened status for the Hawaiian goose (nene) (Branta
sandvicensis). This rule changes the listing status of the nene from an
endangered species to a threatened species on the List of Endangered
and Threatened Wildlife. We call this ``reclassifying'' or
``downlisting'' the species. We are also adopting a rule under the
authority of section 4(d) of the Act (a ``4(d) rule'') to enhance
conservation of the species through range expansion and management
flexibility. This final rule is based on a thorough review of the best
available scientific data, which indicate that the threats to this
species have been reduced to the point that it no longer meets the
definition of endangered under the Act, but that it is likely to become
an endangered species within the foreseeable future. In addition, this
rule corrects the Federal List of Endangered and Threatened Wildlife to
reflect that Nesochen is not currently a scientifically accepted
generic name for this species, and acknowledges the Hawaiian name
``nene'' as an alternative common name.
DATES: This rule is effective January 21, 2020.
ADDRESSES: This final rule is available on http://www.regulations.gov
under Docket No. FWS-R1-ES-2017-0050. Comments and materials received,
as well as supporting documentation used in preparation of this final
rule, are available for public inspection at http://www.regulations.gov, or by appointment at: U.S. Fish and Wildlife
Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana
Boulevard, Room 3-122, Honolulu, HI 96850; telephone 808-792-9400.
FOR FURTHER INFORMATION CONTACT: Katherine Mullett, Acting Field
Supervisor, telephone: 808-792-9400. Direct all questions or requests
for additional information to: U.S. Fish and Wildlife Service, Pacific
Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122,
Honolulu, HI 96850. Persons who use a telecommunications device for the
deaf (TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction). The
reclassification of a listed species can only be completed by issuing a
rule. The endangered designation no longer correctly reflects the
current status of the nene due to a substantial improvement in the
species' status. This rule finalizes the reclassification of the nene
as a threatened species. Furthermore, changes to the take prohibitions
in section 9 of the Act, such as those we enact for this species under
a section 4(d) rule, can only be made by issuing a rule. This rule
finalizes provisions under the authority of section 4(d) of the Act and
is necessary and advisable for the conservation needs of the nene.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any one or a
combination of five factors described in section 4(a)(1) of the Act:
(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. We
have determined that the nene is no longer at risk of extinction and,
therefore, does not meet the definition of endangered, but is still
affected by the following current and ongoing threats to the extent
that the species meets the definition of a threatened species under the
Act:
Habitat destruction and modification due to urbanization,
agricultural activities, nonnative ungulates, and nonnative vegetation;
Predation by nonnative mammals such as mongoose, cats
(feral and domestic), dogs (feral and domestic), rats, and pigs;
Diseases such as toxoplasmosis, avian pox, avian botulism,
avian malaria, omphalitis, West Nile virus, and avian influenza;
Human activities such as motor vehicle collisions,
collisions at wind energy facilities, artificial hazards (e.g., fences,
fishing nets, erosion control material), feeding and habituation, and
recreational activities (e.g., human visitation at parks and refuges);
and
Stochastic events such as drought, hurricanes, and floods.
Environmental effects from climate change are likely to exacerbate
the impacts of drought, hurricanes, and flooding associated with storms
and hurricanes, as well as causing flooding of portions of nene habitat
due to sea-level rise. Impacts associated with climate change may
become a threat in the future. Existing regulatory mechanisms and
conservation efforts do not effectively address the introduction and
spread of nonnative plants and animals and other threats to the nene.
Under section 4(d) of the Act, when a species is listed as a
threatened species, the Secretary of the Interior (Secretary) has
discretion to issue such regulations he or she deems necessary and
advisable to provide for the conservation of the species. For fish or
wildlife listed as threatened, the Secretary may, by regulation,
prohibit any act prohibited under section 9(a)(1) of the Act. For the
nene, the Service has determined that a 4(d) rule is appropriate as a
means to facilitate conservation and expand the species' range by
increasing flexibility in management activities for our State partners
and private landowners. The Service has modified the normal take
prohibitions to allow certain activities to be conducted on lands where
nene occur or where they would occur if we were to reintroduce them to
areas of their historical distribution. Under this 4(d) rule, take of
nene caused by actions resulting in intentional harassment that is not
likely to cause direct injury or mortality, control of introduced
predators, or habitat enhancement beneficial to nene is not prohibited
under Federal law. This 4(d) rule identifies these activities to
provide protective mechanisms to landowners and their agents so that
they may continue with certain activities that are not anticipated to
cause direct injury or mortality to nene and that will facilitate the
conservation and recovery of nene. Federally implemented, funded, or
permitted actions will continue to be subject to the requirements of
section 7 of the Act and eligible for an incidental take exemption
through section 7 of the Act.
Peer review and public comment. We sought comments from independent
specialists to ensure that our determination is based on scientifically
[[Page 69919]]
sound data, assumptions, and analyses. We invited these peer reviewers
to comment on the downlisting proposal. We also invited government
agencies, the scientific community, industry, Native Hawaiian
organizations, and any other interested parties to submit comments or
recommendations concerning any aspect of the proposed rule. We
considered all comments and information we received during the comment
period.
Summary of Changes From Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the peer reviewer and public on the proposed downlisting
of nene with a 4(d) rule. This final rule incorporates the following
substantive changes to our proposed rule, based on the comments we
received:
(1) During the comment period, we received new information
regarding the recent volcanic activity on the island of Hawaii. We have
added an analysis of the effects of volcanic activity to portions of
nene habitat under Factor A. The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range.
(2) During the comment period, we received new information
regarding impacts of floods resulting from storms and hurricanes on
nene eggs and goslings. We have added an analysis of the effects of
flooding resulting from storms and hurricanes to nene eggs and goslings
under Factor E. Other Natural or Manmade Factors Affecting Its
Continued Existence. This threat is anticipated to be exacerbated by
the increasing global surface temperature associated with greenhouse
gases resulting from human activities.
(3) We have incorporated updated information from the Hawaii
Department of Land and Natural Resources (DLNR) on the most recent nene
population counts into the rule (see Species Information below).
(4) We added language under Recovery Planning and Implementation of
Recovery Actions for the Nene to further clarify the status of nene on
Molokai and to more clearly reflect our analysis under Overall Summary
of Factors Affecting Nene.
(5) We added a definition of ``qualified biologist'' to the 4(d)
rule.
(6) We added surveys that further the recovery of nene to the
excepted forms of take in the 4(d) rule.
(7) We modified the 4(d) rule to explicitly identify six categories
of prohibited actions, which resulted in changes to its organizational
structure and narrative justification but no substantive alteration in
either prohibited or excluded actions.
(8) Under 50 CFR 17.41(d)(3)(iii)(A)(3), we've added that the
landowner must arrange follow-up surveys of the property by qualified
biologists to assess the status of birds present to the actions
necessary should a nest be discovered during any intentional harassment
activities excepted in this final 4(d) rule.
Background
Previous Federal Actions
Please refer to the proposed downlisting with a 4(d) rule,
published in the Federal Register on April 2, 2018 (83 FR 13919), for
previous Federal actions for the nene prior to that date. The
publication of the proposed downlisting with a 4(d) rule opened a 60-
day comment period, ending on June 1, 2018. In addition, we published a
public notice of the proposed rule on May 5, 2018, in the Honolulu Star
Advertiser, Hawaii Tribune Herald, The Garden Island, and West Hawaii
Today; on May 9, 2018, in the Molokai Dispatch; and on May 12, 2018, in
The Maui News.
Species Information
Please see the April 2, 2018, proposed rule (83 FR 13919) regarding
the history of the scientific and common names of the nene. This final
rule adopts the currently accepted scientific name, Branta
sandvicensis, and the common Hawaiian name ``nene,'' on the Federal
List of Endangered and Threatened Wildlife (List; 50 CFR 17.11(h)).
Hawaiian goose remains an accepted common name on the List. Please also
see the proposed rule (83 FR 13919; April 2, 2018) for a physical
description of nene and a summary of its current and historical range,
habitat description and use, movement patterns, life history,
demography, and population status.
Here, we provide only new information we received since the
publication of the April 2, 2018, proposed rule. We received the 2017
statewide nene count of individuals from the Hawaii DLNR, which
includes a statewide population of 3,252 individuals comprised of 1,104
individuals on Hawaii, 1,482 individuals on Kauai, 627 individuals on
Maui, 37 individuals on Molokai, and 2 individuals on Oahu. These
estimates include the 646 translocations made from Kauai to Hawaii
(598) and Maui (48), between 2011 and 2016. We have incorporated this
information into this final rule.
Recovery Planning
Section 4(f) of the Act (16 U.S.C. 1531 et seq.) directs us to
develop and implement recovery plans for the conservation and survival
of endangered and threatened species unless we determine that such a
plan will not promote the conservation of the species. Under section
4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable,
include ``objective, measurable criteria which, when met, would result
in a determination, in accordance with the provisions of [section 4 of
the Act], that the species be removed from the list.'' However,
revisions to the Lists of Endangered and Threatened Wildlife and Plants
(adding, removing, or reclassifying a species) must be based on
determinations made in accordance with sections 4(a)(1) and 4(b) of the
Act. Section 4(a)(1) requires that the Secretary determine whether a
species is endangered or threatened (or not) because of one or more of
five threat factors. Section 4(b) of the Act requires that the
determination be made ``solely on the basis of the best scientific and
commercial data available.'' While recovery plans provide important
guidance to the Service, States, and other partners on methods of
enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to measure progress towards
recovery, they are not regulatory documents and cannot substitute for
the determinations and promulgation of regulations required under
section 4(a)(1) of the Act. A decision to revise the status of a
species on, or to remove a species from, the Federal List of Endangered
and Threatened Wildlife (List; 50 CFR 17.11(h)) is ultimately based on
an analysis of the best scientific and commercial data then available
to determine whether a species is no longer an endangered species or a
threatened species, regardless of whether that information differs from
the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and the
species is robust enough to delist. In other cases, recovery
opportunities may be discovered that were not known when the recovery
plan was finalized. These opportunities may be used instead of methods
identified in the recovery plan.
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Likewise, information on the species may be learned that was not known
at the time the recovery plan was finalized. The new information may
change the extent to which existing criteria are appropriate for
recognizing recovery of the species. Recovery of a species is a dynamic
process requiring adaptive management that may, or may not, follow all
of the guidance provided in a recovery plan.
In 1983, the Service published the Nene Recovery Plan and concluded
that the nene population in the wild was declining; however, the exact
causes of the decline were not clearly understood (USFWS 1983, p. 24).
The statewide population was estimated at approximately 600 nene with
390 120 nene on Hawaii and 112 nene on Maui. Based on the
available data, the plan recommended the primary objective to delist
the species was establishing a population of 2,000 nene on Hawaii and
250 nene on Maui, well distributed in secure habitat and maintained
exclusively by natural reproduction (USFWS 1983, p. 24). The plan
focused on maintenance of wild populations through annual releases of
captive-reared birds to prevent further population decline, habitat
management including control of introduced predators, and conducting
research to determine factors preventing nene recovery and appropriate
actions to overcome these factors. The plan also acknowledged that more
research, biological data, and better population models would lead to a
reassessment of recovery efforts and criteria for delisting the
species.
On September 24, 2004, the Service made the Draft Revised Recovery
Plan for Nene (USFWS 2004) available for public review and comment (69
FR 57356). The draft revised recovery plan presented additional
information on the status of the species, factors affecting species
recovery, and an updated framework for species recovery. Although this
plan was not finalized, it has been our guiding document regarding
recovery of the nene for the past decade and a half. At the time the
draft revised recovery plan was written, the statewide population was
estimated at approximately 1,300 nene with populations on Hawaii (350),
Maui (250), Kauai (620), and Molokai (55). The primary factors
affecting the nene recovery in the wild were: (1) Predation by
introduced mammalian predators (Factor C); (2) inadequate nutrition
(Factor E); (3) lack of lowland habitat (Factor A); (4) human-caused
disturbance and mortality (Factor E); (5) behavioral issues (Factor E);
(6) genetic issues (Factor E); and (7) disease (Factor C). The draft
revised recovery plan recommended the following three criteria for
downlisting the nene from endangered to threatened: (1) Self-sustaining
populations exist on Hawaii, Maui Nui (Maui, Molokai, Lanai,
Kahoolawe), and Kauai with a target of at least 2,000 birds distributed
in 7 populations over 15 years; (2) sufficient suitable habitat to
sustain the target population levels on each island is identified,
protected, and managed in perpetuity (USFWS 2004, pp. 50-52); and (3)
consideration for delisting could occur once all of the downlisting
criteria had been met, and population levels on Hawaii, Maui Nui, and
Kauai had all shown a stable or increasing trend (from downlisting
levels) for a minimum of 15 additional years (i.e., for total of 30
years). Self-sustaining was defined as maintaining (or increasing)
established population levels without additional releases of captive-
bred nene, although we recognized that continued management, such as
predator control or pasture management (e.g., mowing or grazing
regime), may need to be continued.
As noted in the April 2, 2018, proposed rule (83 FR 13919), and
throughout this final rule, substantial self-sustaining populations
exist and are well distributed in multiple localities on the islands of
Hawaii, Kauai, and Maui (NRAG 2017; Amidon 2017, entire; DLNR 2018, in
litt.), totaling 3,252 individuals (DLNR 2018, in litt.). Populations
on Maui and Hawaii have been observed to be stable without external
supplementation since about 2011, when active translocations from Kauai
were discontinued; Kauai populations have been stable to increasing for
several decades while also providing stock for translocation. The
species continues to be conservation-reliant (i.e., dependent on long-
term management commitments to active predator control and habitat
management), but with ongoing management we expect populations on these
three islands to continue to be self-sustaining without additional
releases of captive-bred birds. As discussed in the proposed rule and
this final rule, under Factor A, certain habitat stresses continue to
exist, but as nene have proven adaptable to diverse native and human-
modified habitats, it appears that, with active management, the extent
and quality of existing breeding habitat is sufficient to support
robust populations in multiple localities throughout the species'
range. Additional management in seasonally occupied non-breeding
habitat would improve population viability.
The 2004 draft revised recovery plan sets forth the general
recovery strategy for nene (USFWS 2004, p. 47), as follows: In order
for nene populations to survive they should be provided with generally
predator-free breeding areas and sufficient food resources. Human-
caused disturbance and mortality should be minimized, and genetic and
behavioral diversity maximized. The goal of recovery stated in the
draft revised recovery plan is to enable the conservation of nene by
using a mix of natural and human-altered habitats in such a way that
the life-history needs of the species are met and the populations
become self-sustaining. While it is important to restore nene within
its native ecosystem to ensure long-term species survival, nene
currently successfully use a gradient of habitats ranging from highly
altered to completely natural. Additionally, some populations exhibit
behaviors that differ from what it is believed wild birds historically
displayed. Nene are a highly adaptable species, which bodes well for
recovery of the species.
Conservation needs and activities to recover nene vary among
islands due to differences in factors affecting nene populations both
within and among islands. For example, although mongoose occur on
Hawaii, Maui, and Molokai, Kauai does not yet have an established
mongoose population; thus predator control priorities there are
different. In addition, elevations used by nene vary among sites and
among islands, and vegetation available to nene also differs between
sites and by island.
Implementation of Recovery Actions for the Nene
Nene are now more abundant than when they were federally listed as
endangered in 1967, due largely to a captive propagation program that
began in 1949 before the species was listed and continued through 2011,
when it was stopped due to successful breeding in the wild. This
program was implemented collaboratively by the Territory and later the
State of Hawaii, the Peregrine Fund, and the Zoological Society of San
Diego. In addition, a number of zoos and private facilities in the
United States and abroad continue to maintain and breed nene in
captivity (Kear and Berger 1980, pp. 59-77; Marshall 2017, pers.
comm.). The existence of captive nene outside of Hawaii provides
additional insurance against extinction of the species, but due to
concerns about disease introduction, they are not used currently as a
source for supplementation of the wild population and are not
considered a significant
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contributor to conservation of the species. However, they are still
subject to permitting requirements under the Act for interstate
commerce.
In the years between 1960 and 2008, some 2,800 captive-bred nene
were released into areas of their former range at more than 20 sites
throughout the main Hawaiian islands. Most releases of captive birds
used open-top pens to provide protection from predators. The pens
provide protection to the birds as long as they are inside the pens,
and the birds frequently returned to breed in the same pens in
subsequent years.
Many of the earlier releases were accompanied by little or no
management of predators and habitats. Monitoring of released birds
showed high mortality and low nesting success, indicating that food
availability and predators had a significant impact on wild populations
(Banko 1992, pp. 102-104). The highest levels of survival and
reproductive success were documented at Hawaii Volcanoes and Haleakala
National Parks, where more intensive management of threats was
initiated, demonstrating the need and benefits of habitat management
and predator control (Black et al. 1997, p. 1,171). Recent years have
seen an increase in the capacity of conservation agencies and partners
to manage habitat and control predators on larger spatial scales.
Although not all release sites have supported sustained populations
(e.g., Molokai), areas in which predators are low or controlled and
habitat is managed for native food plant species have allowed nene to
fare better (Hawaii Division of Forestry and Wildlife 2012, p. 19).
Nene have re-established traditional movement patterns in two
breeding subpopulations on the island of Hawaii (Hess et al. 2012, pp.
480-482; Leopold and Hess 2014, pp. 67-78). Nene spend the breeding and
molting seasons at lower elevations from September to April, and move
to higher elevation areas during the non-breeding season in May to
August. Hess et al. (2012, pp. 479, 482) contend that this movement
pattern may be beneficial to nene for the following reasons: (1)
Altitudinal migration may allow nene to track availability of food
resources not otherwise seasonally available (Black et al. 1997, pp.
1,170-1,171); (2) migration may enhance survival during the non-
breeding season by avoiding nonnative predators in (lowland) breeding
areas; (3) nene may be able to reduce exposure to human activities by
occupying high-elevation areas during the non-breeding season; and (4)
there may be opportunities for greater genetic exchange if pair bonds
are formed between individuals from separate breeding subpopulations at
non-breeding locations. This movement pattern is believed to have
occurred historically (Banko et al. 1999, pp. 3-4).
Population Viability Analyses and Mortality Rates
A population viability analysis modelled the long-term fate of nene
under three different management scenarios: (1) No further releases or
management, (2) releases mirroring those of the past 30 years, and (3)
increased management without further releases. Only under the third
scenario could all three populations (Hawaii, Maui, and Kauai) survive
for 200 years; thus, reintroduction alone as a management tool may
continue to be effective in delaying extinction on Hawaii, but will not
lead to a self-sustaining population. The study concluded that enhanced
management efforts, which include an appropriate predator control
effort, would enable nene to reach a self-sustaining level (Black and
Banko 1994, entire).
Another population viability analysis was conducted for nene in
Hawaii Volcanoes National Park to examine management options more
specific to that area (Hu 1998). First-year mortality was identified as
the primary limiting factor for nene in Hawaii Volcanoes National Park.
From 1990 to 1996, survival of fledglings averaged 84 percent for
females and 95 percent for males, while survival from laying to
fledging ranged from 7 to 19.5 percent (mean 12 percent; Hu 1998, pp.
84-85). While predator control had reduced egg predation, fledging
success remained low, largely due to inadequate nutrition. The study
found that open-top pens cannot sustain a viable nene population in
Hawaii Volcanoes National Park. The study suggests that while
management techniques such as grassland management, supplemental
feeding, and cultivation of native food plants may sustain nene in
Hawaii Volcanoes National Park, such approaches require considerable
effort and would require increasing resource expenditures. Thus, it was
suggested that nene would be more secure if they were integrated into
habitat management instituted on a larger scale that would involve the
creation of native-dominated, fire-adapted landscapes at low- and mid-
elevations in Hawaii Volcanoes National Park and more efficient,
widespread predator control techniques, allowing reestablishment of
their seasonal movement patterns between various locations (Hu 1998,
pp. 107-114).
Survival data from 1960 through 1990 for released nene on the
island of Hawaii showed that the highest mortality rate was found among
newly released goslings during drought years. Nene at Hawaii Volcanoes
National Park had the lowest annual mortality rates. The three main
factors affecting mortality rates were found to be release method, age
at time of release, and year of release. Releasing pre-fledged goslings
with parents or foster parents from open-top pens during years with
sufficient rainfall was found to be the most successful release method
on the island of Hawaii (Black et al. 1997, entire). On Kauai, where
mongoose are not yet established, protecting the nesting area from
other predators, such as dogs and cats, was found to be extremely
successful (Telfer 1998, pers. comm., as cited in USFWS 2004).
In a preliminary assessment of the short-term population trends in
nene populations on the four main Hawaiian islands where nene currently
occur, count-based and demographic models (Morris and Doak 2002, pp. 8-
9) were developed with readily available information on each population
(Hu 1998; Hu 1999, unpubl. as cited in Banko et al. 1999; USFWS 2004;
Bailey and Tamayose 2016, in litt.; Kendall 2016, in litt.; Uyehara
2016a, in litt.) and projected over a 20-year time period assuming
constant management (Amidon 2017, entire). Count-based models (for
Hawaii Volcanoes National Park, the island of Maui, Haleakala National
Park, the island of Molokai, and the island of Kauai) showed an
increase or leveling off around current population estimates (Amidon
2017, pp. 10-16). Demographic models variously projected level or
slightly declining populations (Hakalau Forest National Wildlife Refuge
(NWR) and Haleakala National Park) or continued increase (Kauai NWR
Complex) (Amidon 2017, pp. 18-21). Available data did not allow
modeling of nene populations on lands outside national parks and
national wildlife refuges, where management and population trends are
likely to differ. In the best case scenario, nene populations were
predicted to remain stable or increase; however, because the model was
based on the assumption that management actions would continue on into
the future, it does not support the nene's viability into the
foreseeable future without continuing management.
Current Status Summary
The implementation of recovery actions for nene has significantly
reduced the risk of extinction for the species. Once on the brink of
extinction, the captive propagation and release program successfully
increased the number of individuals and re-
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established populations throughout the species' range on the islands of
Hawaii, Kauai, Maui, and Molokai. Studies of foraging behavior
identified nene food preferences and nutritional value of food
resources contributing to a greater understanding of habitat
requirements during the breeding and non-breeding seasons. Current
populations are sustained by ongoing management (e.g., predator
control, habitat management for feral ungulates and nonnative plants).
On the island of Hawaii, traditional movements are being restored,
which could be expected to improve survival and breeding, as well as
genetic exchange between subpopulations. Certain key populations are
expected to maintain current levels or increase into the future if the
current level of management is continued.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species, reclassifying
species, or removing species from listed status. ``Species'' is defined
by the Act as including any species or subspecies of fish or wildlife
or plants, and any distinct vertebrate population segment of vertebrate
fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A
species may be determined to be an endangered or threatened species
because of any of one or a combination of the five factors described in
section 4(a)(1) of the Act: (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. We must consider these same five
factors in reclassifying a species from endangered to threatened (i.e.,
downlisting). We may downlist a species if the best available
scientific and commercial data indicate that the species no longer
meets the definition of endangered, but instead meets the definition of
threatened because the species' status has improved to the point that
it is not in danger of extinction throughout all or a significant
portion of its range, but is in danger of extinction in the foreseeable
future.
Determining whether a species has improved to the point that it can
be downlisted requires consideration of whether the species is
endangered or threatened because of the same five categories of threats
specified in section 4(a)(1) of the Act. A species is ``endangered''
for purposes of the Act if it is in danger of extinction throughout all
or a ``significant portion of its range'' and is ``threatened'' if it
is likely to become endangered within the foreseeable future throughout
all or a ``significant portion of its range.''
In considering what factors might constitute threats, we must look
beyond the exposure of the species to a particular factor to evaluate
whether the species may respond to the 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
five-factor analysis, 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 by 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 the potential threat is likely to materialize (i.e.,
future foreseeability) and that it has the capacity (i.e., it should be
of sufficient magnitude and extent) to affect the species' status such
that it meets the definition of endangered or threatened under the Act.
In the following analysis, we evaluated the status of the nene
throughout all of its range as indicated by the five-factor analysis of
threats currently affecting the species, or that are likely to affect
the species within the foreseeable future. As part of our analysis we
also evaluated the foreseeability of threats. As nene is a
conservation-reliant species, some threats are already present and so
already ``foreseeable'' but we also evaluated the foreseeability of the
continued conservation management to address such threats (see
discussion below in Determination section).
Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
The draft revised recovery plan identified the lack of lowland
habitat and inadequate nutrition as two habitat-related stressors
limiting nene recovery (USFWS 2004, pp. 29-30). Nene continue to be
affected by historical and ongoing habitat destruction and modification
caused by urbanization, agricultural activities, drought, feral
ungulates, and nonnative plants. These factors limit suitable breeding
and flocking habitat, constraining the recovery of nene populations.
Historical habitat loss was largely a result of human activities
such as urban development and land conversion for agricultural
activities, particularly in lowland areas. Degradation of lowland
habitats used by nene began with Polynesian colonization (around 1,600
years ago) and has continued since European arrival over the past 200
years (Kirch 1982, pp. 7-10). Impacts to lowland habitat included
clearing of land for settlements and agriculture; increased frequency
of fire; heavy grazing, browsing, and soil disturbance by introduced
deer, cattle, goats, sheep, and pigs; and the spread of nonnative
plants (Cuddihy and Stone 1990, pp. 103-107).
The threat of destruction and modification of habitat, particularly
in lowland areas, by urbanization and land use conversion, including
agriculture, is ongoing and expected to continue to limit the amount of
nene foraging and nesting habitat. Past land use practices have
resulted in great reduction or loss of native vegetation below 2,000
feet (ft) (600 meters (m)) throughout the Hawaiian Islands (TNC 2006).
Hawaii's agricultural industries (e.g., sugar cane, pineapple) have
been declining in importance, and large tracts of former agricultural
lands are being converted into residential areas or left fallow (TNC
2007).
In addition, Hawaii's population increased almost 10 percent
between 2003 and 2013, further increasing demands on limited land and
water resources in the islands (Hawaii Department of Business, Economic
Development and Tourism 2013, in litt.). Hawaii's average annual
population growth rate has since slowed to 0.7 percent per year, and is
anticipated to slow to 0.5 percent by 2025 (Hawaii Department of
Business, Economics, and Tourism (HDEBT) 2018, p. 2); however, existing
demands for competing resources will persist.
While breeding habitat has some level of protection in national
parks, in national wildlife refuges, and on some State lands, there is
little to no protection for habitat that nene use outside the breeding
season. Nene are vulnerable at this time, as well as during the
breeding season, as they are moving around to different areas, thus
being exposed to additional predation in unprotected habitat, poor
availability of suitable foraging habitat, and interactions with humans
and human structures (wind towers, vehicles, etc.). Human activities
associated with the development and urbanization of lowland habitat
will continue to impact
[[Page 69923]]
nene. For example, nene collide with trees, fences, and particularly
motor vehicles (Banko and Elder 1990; Banko et al. 1999). Nene are
attracted to feeding opportunities provided by mowed grass, weeds, and
human handouts. Feeding, in particular, makes nene vulnerable to
collisions along roadsides as they frequently become tame and unafraid
of human activity (Banko et al. 1999). Mortality is high in human-
modified habitats due to increased predation, collisions, and human-
caused accidents (Banko et al. 1999).
Feral ungulates and nonnative plants led to degradation of nene
habitat by negatively impacting forage quality, shelter, and potential
nest sites. Grazing and browsing by introduced cattle, goats, and sheep
converted significant portions of native montane forest and shrubland
between 1,640 and 6,562 ft (500 and 2,000 m) to wild grassland and
managed pastureland dominated by nonnative species (Cuddihy and Stone
1990, pp. 59-63, 63-67). Effects of nonnative ungulates have been
somewhat less severe above 6,562 ft (2,000 m) because nonnative weeds
are less prevalent (Banko et al. 1999, p. 6). Efforts to control feral
ungulate populations (e.g., fencing) have been implemented at some
sites, including localities in Hawaii Volcanoes and Haleakala National
Parks, and have locally reduced ungulate impacts on native vegetation
and likely improved nene foraging and breeding habitat. Nonnative
plants adversely affect native habitat in Hawaii by: (1) Modifying the
availability of light, (2) altering soil-water regimes, (3) modifying
nutrient cycling, and (4) altering fire regimes of native plant
communities (i.e., the ``grass/fire cycle'' that converts native-
dominated plant communities to nonnative plant communities) (Smith
1985, pp. 180-181; Cuddihy and Stone 1990, p. 74; D'Antonio and
Vitousek 1992, p. 73; Vitousek et al. 1997, p. 6). Nonnative ungulates
and plants are expected to require continued management into the
foreseeable future, if not indefinitely, as the main Hawaiian islands
are too large for complete eradication to be feasible with current
technology.
Inadequate nutrition limits nene reproduction and gosling survival,
especially on Hawaii and Maui (USFWS 2004, pp. 29-30). Proper nutrition
is critical for successful reproduction. Breeding females require
carbohydrates and protein to increase fat reserves for egg laying and
incubation; goslings require high-protein foods for growth and
development (Ankney 1984, pp. 364-370; Banko et al. 1999, p. 7). Low
breeding rates (20 to 63 percent) and low nest success (44 percent) at
several sites on Maui and Hawaii from 1979 to 1981 were likely
attributable to poor quality or low availability of foods (Banko 1992,
pp. 103-104). The high rates of gosling mortality (57 to 81 percent) in
Haleakala National Park during the mid-1990s were due to starvation and
dehydration (Baker and Baker 1995, p. 2; 1999, p. 12). Between 1989 and
1999, lack of adequate food or water also appeared to be a factor
limiting nene recruitment in Hawaii Volcanoes National Park (Rave et
al. 2005, p. 14). In many instances of gosling mortality, the actual
cause of death may be exposure because goslings are weakened by
malnutrition (at hatching) and were unable to keep up with parents, and
therefore got chilled or overheated and died (Baker and Baker 1999, p.
13). Emaciation was the most common cause of death diagnosed in 71 out
of 300 adult and gosling mortalities submitted to the National Wildlife
Health Research Center between 1992 and 2013 for which a cause of death
was identified (Work et al. 2015, p. 692). More cases of emaciation
were diagnosed on Hawaii Island (32), and to a lesser extent on Kauai
(21) and Maui (13), perhaps reflecting the rates of hatching and
fledgling success and nutritional quality of habitats on the respective
islands. Habitat also continues to be reduced due to the spread of
unpalatable alien grasses (e.g., guinea grass (Megathyrsus maximus),
sword grass (Miscanthus floridulus)) and other weeds (e.g., koa haole
(Leucaena leucocephala), lantana (Lantana camara)), as this spread
diminishes foraging opportunities (Banko et al. 1999, p. 23).
Therefore, inadequate nutrition due to the lack of suitable foraging
opportunities in and around current breeding areas, particularly at
higher elevations on Maui and Hawaii Island, coupled with the loss of
lowland breeding areas across its range, is expected to continue into
the foreseeable future as a threat to the nene.
Drought contributes to nene mortality by reducing the amount and
quality of available forage, thereby increasing the starvation and
dehydration. For example, nene exhibited higher rates of mortality in
drought years during the prolonged island-wide drought between 1976 and
1983 on Hawaii Island (Black et al. 1997, pp. 1,165-1,169). Drought was
also thought to have contributed to the population decline (10 percent)
at Hawaii Volcanoes National Park in the late 1990s (Rave et al. 2005,
p. 12). Numerous and recurrent droughts have been documented
historically throughout the Hawaiian Islands (Giambelluca et al. 1991,
pp. 3-4; Hawaii Civil Defense 2011, ch. 14, pp. 1-12), with the most
severe events often associated with the El Ni[ntilde]o phenomenon
(Hawaii Civil Defense 2011, p. 14-3). Climate modelling projections
indicate that drought frequency and intensity in the Hawaiian Islands
are expected to increase over time (Loope and Giambelluca 1998, pp.
514-515; U.S. Global Change Research Program (US-GCRP) 2009, pp. 10,
12, 17-18, 32-33; Giambelluca 2013, p. 6). Therefore, we expect drought
to be an ongoing threat to nene and to increase in frequency and
intensity in the foreseeable future.
Many of the areas where nene occur in the wild are afforded some
level of habitat enhancement that focuses on increasing the survival
and reproduction of nene. Habitat enhancement can include predator
control, mowing for conservation management purposes, outplanting, and
supplemental feeding. Hawaii Volcanoes National Park has areas where
many of these types of enhancement occur. For instance, park staff
maintain two predator-resistant, open-topped pens, which are 4 and 5
hectares (10 and 13 acres) in size, as safe-breeding sites with
supplemental feed and occasional mowing. In addition, predator control
is conducted at key brooding sites, and some areas may be closed to
human use during the nene breeding season. The Hawaii Division of
Forestry and Wildlife also provides supplemental food for nene
populations on Hawaii Island. Haleakala National Park has controlled
ungulate populations and horses intermittently grazing in Paliku
pasture. Kauai Department of Fish and Wildlife (DOFAW) also has
predator control programs and may provide supplemental feed during
drought years. Mowing, grazing, and irrigating grass can improve its
attractiveness to geese by increasing the protein content (Sedinger and
Raveling 1984, p. 302; Woog and Black 2001, pp. 324-328). All of these
management actions are considered necessary into the foreseeable future
for the sustained and continued recovery of nene. Predation is expected
to continue indefinitely as a threat to nene, as the main Hawaiian
islands are too large for complete eradication of predators to be
feasible with current technology.
Nene use of highly altered landscapes and nonnative vegetation can
significantly contribute to long-term viability of the population. For
example, nene on Kauai use primarily lowland
[[Page 69924]]
areas in highly altered, human-impacted habitats such as pastures,
agricultural fields, and golf courses (USFWS 2004, pp. 41-42). Nene
have been very successful in these areas, indicating their adaptability
to a variety of habitats. Lowlands, however, are often unsuitable
because of intense human activity or dense predator populations placing
nene at greater risk of predation, and hazardous situations such as
habituation to human feeding, vehicle collisions, and golf ball strikes
(Natural Resources Conservation Service [NRCS] 2007, p. 7). The
recovery of nene is dependent on a variety of habitats ranging from
highly altered, managed habitats to habitats consisting of primarily
native species, and it may not be feasible to restore habitats to
native species in all areas used by nene. Currently, nene are thought
to require availability of a diverse suite of food resources that may
include both nonnative and native vegetation (Baldwin 1947, pp. 108-
120; Black et al. 1994, pp. 103-105; Banko et al. 1999, pp. 6-7).
However, the current amount and distribution of suitable breeding,
foraging, and flocking habitat continue to be limiting factors for the
nene, and we expect this to be the case into the foreseeable future.
Our analyses of Factor A under the Act include consideration of
ongoing and projected changes in climate, and the impacts of global
climate change and increasing temperatures on Hawaii ecosystems, all of
which are the subjects of active research. Analysis of the historical
record indicates surface temperature in Hawaii has been increasing
since the early 1900s, with relatively rapid warming over the past 30
years. The average increase since 1975 has been 0.48 degrees Fahrenheit
([deg]F) (0.27 degrees Celsius ([deg]C)) per decade for annual mean
temperature at elevations above 2,600 ft (800 m) and 0.16 [deg]F (0.09
[deg]C) per decade for elevations below 2,600 ft (800 m) (Giambelluca
et al. 2008, pp. 3-4). Based on models using climate data downscaled
for Hawaii, the ambient temperature is projected to increase by 3.8 to
7.7 [deg]F (2.1 to 4.3 [deg]C) over the 21st century, depending on
elevation and which of the four Representative Concentration Pathway
(RCP) emissions scenarios (RCP 2.6, 4.5, 6, and 8.5) are considered
(Liao et al. 2015, p. 4344; van Vuuren et al. 2011, p.5;
Intergovernmental Panel on Climate Change 2014, p. 8). Environmental
conditions in tropical montane habitats can be strongly influenced by
changes in sea surface temperature and atmospheric dynamics (Loope and
Giambelluca 1998, pp. 504-505; Pounds et al. 1999, pp. 611-612; Still
et al. 1999, p. 610; Benning et al. 2002, pp. 14,246-14,248;
Giambelluca and Luke 2007, pp. 13-15). On the main Hawaiian islands,
predicted changes associated with increases in temperature include a
shift in vegetation zones upslope, a similar shift in animal species'
ranges, changes in mean precipitation with unpredictable effects on
local environments, increased occurrence of drought cycles, and
increases in intensity and numbers of hurricanes (tropical cyclones
with winds of 74 miles per hour or higher) (Loope and Giambelluca 1998,
pp. 514-515; U.S. Global Change Research Program (US-GCRP) 2009, pp.
10, 12, 17-18, 32-33; Giambelluca 2013, p. 6). The effect on nene of
these changes associated with temperature increase is detailed in the
following paragraphs.
Forecast of changes in precipitation are highly uncertain because
they depends, in part, on how the El Ni[ntilde]o-La Ni[ntilde]a weather
cycle (an episodic feature of the ocean-atmosphere system in the
tropical Pacific having important global consequences for weather and
climate) might change (State of Hawaii 1998, pp. 2-10). The historical
record indicates that Hawaii tends to be dry (relative to a running
average) during El Ni[ntilde]o phases and wet during La Ni[ntilde]a
phases (Chu and Chen 2005, pp. 4809-4810). However, over the past
century, the Hawaiian Islands have experienced a decrease in
precipitation of just over 9 percent (U.S. National Science and
Technology Council 2008, p. 61) and a decreasing trend (from the long-
term mean) is evident in recent decades (Chu and Chen 2005, pp. 4802-
4803; Diaz et al. 2005, pp. 1-3). Models of future rainfall downscaled
for Hawaii generally project increasingly wet windward slopes and mild
to extreme drying of leeward areas in particular during the middle and
late 21st century (Timm and Diaz 2009, p. 4262; Elison Timm et al.
2015, pp. 95, 103-105). Altered seasonal moisture regimes can have
negative impacts on plant growth cycles and overall negative impacts on
native ecosystems (US-GCRP 2009, pp. 32-33). Long periods of decline in
annual precipitation result in a reduction of moisture availability; an
increase in drought frequency and intensity; and a self-perpetuating
cycle of nonnative plant invasion, fire, and erosion (US-GCRP 2009, pp.
32-33; Warren 2011, pp. 221-226). Overall, more frequent El Ni[ntilde]o
events are predicted to produce less precipitation for the Hawaiian
Islands. These projected decreases in precipitation are important
stressors for nene because they experience substantially higher
mortality from starvation in drought years (Hess 2011, p. 59). In
addition, the drying trend, especially on leeward sides of islands,
creates suitable conditions for increased invasion by nonnative grasses
and enhances the risk of wildfire.
Tropical cyclone frequency and intensity are projected to change as
a result of increasing temperature and changing circulation associated
with climate change over the next 100 to 200 years (Vecchi and Soden
2007, pp. 1068-1069, Figures 2 and 3; Emanuel et al. 2008, p. 360,
Figure 8; Yu et al. 2010, p. 1371, Figure 14). In the central Pacific,
modeling projects an increase of up to two additional tropical cyclones
per year in the main Hawaiian islands by 2100 (Murakami et al. 2013, p.
2, Figure 1d). In general, tropical cyclones with the intensities of
hurricanes have been an uncommon occurrence in the Hawaiian Islands.
From the 1800s until 1949, hurricanes were reported only rarely.
Between 1950 and 1997, 22 hurricanes passed near or over the Hawaiian
Islands, and 5 of these caused serious damage (Businger 1998, in
litt.). A recent study shows that, with a projected shift in the path
of the subtropical jet stream northward, away from Hawaii, more storms
will be able to approach and reach the Hawaiian Islands from an
easterly direction, with Hurricane Iselle in 2014 being an example
(Murakami et al. 2013, p. 751). At high-elevation nesting sites,
frequent heavy precipitation may affect gosling survival during the
cooler months (Hess et al. 2012, p. 483). More frequent and intense
tropical storms are likely to increase the number of nest failures and
gosling mortalities in mid- and high-elevation habitats on Maui and
Hawaii, where nene are already at risk of exposure and starvation due
to inadequate nutrition (Baker and Baker 1995, p. 13; Misajon 2016,
pers. comm.; Tamayose 2016, pers. comm.). In addition, projected warmer
temperatures and increased storm severity resulting from climate change
are likely to exacerbate other threats to nene, such as enhancing the
spread of nonnative invasive plants into these species' native
ecosystems in Hawaii.
New information received during the comment period revealed that
flooding from increased storm frequency and intensity may negatively
affect nene viability as past heavy rainfall during the nene breeding
season has caused numerous failures of eggs and young goslings at
Hawaii Volcanoes National Park (NPS 2018, in litt.). On Kauai, flooding
has decreased nest success for
[[Page 69925]]
the past 2 years (Webber et al. 2017, in litt.; Uyehara 2018, in
litt.). In 2017 and 2018, Kauai experienced a record number of flooding
events (Uyehara 2018, in litt.). Approximately 10 flash floods impacted
the Hanalei flood plain through the 2017-2018 breeding season, which
hindered breeding activity (Luxner et al. 2018, in litt.; Uyehara 2018,
in litt.). Three nene nests were discovered in October 2017, all of
which were destroyed the following month by the first flood of the
season (Luxner et al. 2018, in litt.). Most of the active, undiscovered
nests established prior to the flood also presumably failed (Luxner et
al. 2018, in litt.). Overall, both the 2016-2017 and 2017-2018 seasons
resulted in over 30 percent nest failure as a result of flooding
(Webber et al. 2017, in litt.; Luxner et al. 2018, in litt.). Many
breeding pairs may have failed after the first attempt to nest, may
have failed after attempting to re-nest, did not re-nest, or may have
moved off the refuge to nest or re-nest (Luxner et al. 2018, in litt.).
Flooding also pushes nene out of their habitat and closer to roads,
placing them at risk of vehicular strikes (Webber et al. 2017, in
litt.). Another impact from flooding is an increased subsequent risk of
an avian botulism outbreak (Uyehara 2018, in litt.).
Finally, sea-level rise resulting from thermal expansion of warming
ocean water; the melting of ice sheets, glaciers, and ice caps; and the
addition of water from terrestrial systems (Climate Institute 2011, in
litt.) has the potential for direct effects on nene habitat. Rise in
global mean sea level (GMSL) is ongoing and expected to continue (Meehl
et al. 2012, p. 576; Golledge et al. 2015, pp. 421, 424; DeConto and
Pollard 2016, pp. 1, 6) due to warming that has already occurred and an
uncertain amount of additional warming caused by future greenhouse gas
emissions (Sweet et al. 2017, p. 1). Six risk-based scenarios
describing potential future conditions through 2100 project lower and
upper bounds of GMSL rise between 0.3 and 2.5 m (1 and 8 ft) (Sweet et
al. 2017, pp. vi-vii, 1-55, and Appendices A-D).
Sea-level rise is not expected to be uniform throughout the world,
due to factors including, but not limited to: (1) Variations in
oceanographic factors such as circulation patterns; (2) changes in
Earth's gravitational field and rotation, and the flexure of the crust
and upper mantle due to melting of land-based ice; and (3) vertical
land movement due to postglacial rebound of topographically depressed
land, sedimentation compaction, groundwater and fossil fuel
withdrawals, and other non-climatic factors (Spada et al. 2013, p. 484;
Sweet et al. 2017, pp. vi-vii, 9, 19). Sea-level rise in the Hawaiian
Islands is expected to be greater than the rise in GMSL (Spada et al.
2013, p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9), due, at
least in part, to gravitational redistribution of meltwater resulting
from terrestrial ice melt occurring in Greenland, Antarctica, and other
places (Spada et al. 2013, p. 484). In Hawaii, long-term sea-level rise
adds to coastal erosion, impacts from seasonal high waves, coastal
inundation due to storm surge and tsunami, and drainage problems due to
the convergence of high tide and rainfall runoff (SOEST 2017, in
litt.). Flooding related to sea-level rise would result in the
additional loss of lowland habitat occupied by nene in low-lying
coastal areas at Huleia NWR on Kauai, Ukumehame on Maui, and Keaau on
Hawaii Island.
Thus, although we cannot predict the timing, extent, or magnitude
of specific events given that RCP scenarios diverge after around 2035,
we expect effects of climate change (changes in tropical cyclone
frequency and intensity, drought frequency, and sea-level rise) to
exacerbate the current threats to this species such as predation,
inadequate nutrition, and habitat loss and degradation.
During the comment period, we received new information that
indicates the recent volcanic activity from Kilauea on the island of
Hawaii destroyed portions of nene habitat in Hawaii Volcanoes National
Park and some nearby areas. Hawaii Volcanoes National Park is home to
approximately one-third of the current statewide nene population. There
have been significant changes to the caldera floor and notable deposits
of ash in the vicinity of the Kilauea summit and to the southwest
(Misajon 2018, in litt.). Areas of nene habitat known to be affected
include nesting, roosting, and molting sites; however, the extent of
affected habitat and the actual impacts to that habitat as a result of
the collapses and the ash are not known at this time (Misajon 2018, in
litt.). The eruption in lower Puna eliminated habitat for a small group
of nene that resides in the area (Mello 2018, in litt.). Severe,
ongoing volcanic eruptions have the potential to destroy much or all of
the habitat in Hawaii Volcanoes National Park and surrounding areas
that support approximately one-third of the statewide nene population.
Fortunately, nene were not nesting or molting during the time period of
the eruption. Nene have evolved alongside volcanic activity on the
island of Hawaii for centuries, and despite past and present activity,
volcanic activity has not been identified as a dominant factor that
threatens the survival of the species. Although we have added volcanic
activity as a threat under Factor A in this rule, we do not identify
volcanic activity as a dominant factor that threatens the survival of
the species as there are additional self-sustaining nene populations on
the islands of Kauai and Maui. Additionally, in mid-August 2018,
Kilauea's activity decreased in some areas and ceased in others.
Although initially the recent eruption temporarily altered nene
behavior by causing them to spend much more time at Wright Road farms,
Volcano Winery, and Volcano Golf and Country Club, by December 2018,
State biologists reported that ``business is as usual'' for nene in the
volcano area (Mello 2018, in litt.). Updates have yet to come in for
the small coastal population of nene in the Kapoho to Pohoiki area;
however, they are assumed to have moved out during the eruption and
moved back into the area afterward (Mello 2018, in litt). Volcanic
activity has greater potential to bring harm to individual nene if it
occurs during breeding or molting seasons, when birds may be
flightless. Direct impacts to individual nene will be difficult to
assess, and any impacts at the population level will not be immediately
apparent (Misajon 2018, in litt.). It is impossible to know if the lull
in volcanic activity will continue or if Kilauea will increase in
activity again in the near future.
Summary of Factor A
Habitat destruction and modification from urbanization,
agricultural activities, drought, feral ungulates, and invasive plant
species remain threats to nene. Volcanic activity recently impacted
nene habitat on the island of Hawaii, but the long-term effects of this
activity have yet to be determined. These factors contribute to an
ongoing lack of suitable breeding and flocking habitat, limiting nene
population expansion. Historical habitat loss was largely a result of
human activities such as urban development and land conversion for
agricultural activities, particularly in lowland areas, contributing to
the extirpation of nene on Kauai and Molokai, and the loss of
seasonally important leeward, lowland breeding areas on islands with
elevations above 5,000 ft (1,524 m) (Hawaii and Maui). Feral ungulates
and invasive plant species led to further degradation of nene habitat
by negatively impacting forage quality, shelter, and potential nest
sites. Nonnative ungulates and plants are ongoing threats that we
expect will continue indefinitely into the future and require continued
management, as the
[[Page 69926]]
main Hawaiian islands are too large for complete eradication to be
feasible.
Recovery efforts initially focused on the establishment of
populations, with the majority of releases of captive-bred nene at
high-elevation sanctuaries (above 5,000 ft (1,524 m)) on the islands of
Maui and Hawaii. Despite supplemental food and water and localized
predator control efforts, nene at these sites experienced high rates of
adult mortality and low rates of gosling survival that were attributed
to inadequate nutrition caused by habitat factors such as poor forage
quality, drought, and exposure. Access to managed grassland habitats
and habitat enhancement during the breeding season improved foraging
opportunities and resulted in increased survival and breeding success.
Control of feral ungulate populations in some localities has reduced
their impacts on native vegetation and likely improved nene foraging
and breeding habitat. Subsequent reintroductions at low- and mid-
elevation sites, first on the islands of Kauai and Hawaii, and more
recently on eastern Molokai and western Maui, demonstrated the ability
of nene to successfully become established in these areas.
Currently, nene are found in a range of habitats from sea level to
subalpine areas on the islands of Kauai, Oahu, Molokai, Maui, and
Hawaii. Populations are centered around release sites and rely on
continued land use protections and habitat management (including
predator control) to sustain successful breeding and population numbers
in these areas.
Overall, the expansion of existing populations is limited by the
lack of suitable breeding and flocking habitat due to continuing
urbanization, agricultural activities, and potential conflicts with
human activities. Periods of drought are expected to continue and are
likely to be exacerbated by the effects of climate change. To minimize
the effects of drought on the food availability and adequate nutrition,
habitat enhancement activities to provide foraging opportunities,
especially during the breeding season, will need to be maintained. The
rise in sea level projected by climate change models (Spada et al.
2013, p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9) may
threaten any low-lying habitats used by nene. Although the effects of
climate change do not constitute a threat to nene at the present, we do
expect them to exacerbate the effects of drought and tropical storms,
and to constitute a threat in the foreseeable future.
Flooding and volcanic activity are threats to nene; however,
neither of these threats is likely to occur across the nene's range in
a single event. Flooding may only occur on one island, or impact only
one subpopulation on an island, leaving intact the remaining self-
sustaining populations on other islands, or other subpopulations on a
single island. Similarly, volcanic activity is not a threat to the
survival of the species because it is restricted to one island (Hawaii)
and self-sustaining nene populations exist on three islands (Hawaii,
Kauai, and Maui).
Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overuse for commercial, recreational, scientific, or educational
purposes is not a threat to the nene. The exploitation of nene for food
by Hawaiians and non-Polynesian settlers is believed to have been
responsible for substantial population declines in lowland areas, and
hunting was a major limiting factor until a hunting ban was passed and
enforced in 1907 (Banko et al. 1999, p. 23). While the historical
effects of overuse were factors that led to the original listing of
nene as federally endangered in 1967, current regulations and
enforcement are in place and have proven effective in protecting nene
from overuse.
Factor C. Disease or Predation
Disease
Numerous parasites and diseases have been documented in captive and
wild nene (van Riper and van Riper 1985, pp. 308, 312, 333; Bailey and
Black 1995, p. 62; Work et al. 2002, p. 1,040). The primary causes of
death to nene from disease have been parasites, bacterial and fungal
infection, and, less commonly, avian pox (virus) and avian botulism
(Work et al. 2015, pp. 690-694). Avian influenza and West Nile virus
(WNV), if established, also have the potential to affect the nene
population.
Toxoplasma gondii is a protozoan parasite transmitted by cats
(Felis catus) that has historically caused mortality in native Hawaiian
birds, and is the most commonly encountered infectious disease in nene,
primarily affecting adult birds (Work et al. 2015, p. 691). As
herbivores, nene are likely exposed by eating transport hosts such as
insects or ingesting oocysts (reproductive phase of the parasite) in
contaminated water, soil, or vegetation (Work et al. 2016, p. 255). For
mortalities attributed to T. gondii, the cause of death is typically
diagnosed as inflammation or lesions on multiple organs. The detection
of T. gondii in over 30 percent of feral cats sampled (n=67) at two
locations on Mauna Kea, Hawaii Island (Danner et al. 2007, p. 316),
suggests that exposure to and infection by T. gondii is likely to
continue and to play a role in mortality of nene. Wild birds infected
by T. gondii may experience a variety of sublethal effects including
weakness, loss of balance, and visual impairment (Dubey 2002, pp. 128-
136). Such nonlethal effects may also make nene more susceptible to
trauma caused by vehicle collisions; in other species the prevalence of
T. gondii infection has been observed to be greater in roadkilled
individuals than in the general population (Work et al. 2016, p. 256).
Widespread exposure to T. gondii was detected in wild birds from Kauai,
Maui, and Molokai (21 to 48 percent of birds examined) (Work et al.
2016, p. 255). However, the parasite is implicated as the cause of
death in a relatively low proportion (4 percent) of the number of nene
mortalities between 1992 and 2013 (Work et al. 2015, pp. 690-694). This
suggests that although exposure to T. gondii is widespread and ongoing,
the threat of disease caused by T. gondii is expected to be low in
magnitude and is thus not likely to have population-level impacts on
nene into the foreseeable future.
Omphalitis, a bacterial infection of the umbilical stump, has been
found to cause mortality in both wild and captive nene goslings (USFWS
2004, p. 34). Diagnosis of omphalitis infection has been documented at
low levels (2 percent) (Work et al. 2015, supplemental material). We
are uncertain as to the impacts on nene into the foreseeable future;
however, due to the low incidence, we do not view this a species-level
threat.
Avian pox is caused by a virus that causes inflammation of the
skin, and in severe cases may result in large scabs that block
circulation and lead to the loss of digits or entire limbs or lead to
blindness, the inability to eat, or death (USGS-NWHC 2017a, in litt.).
Pox-like lesions have been reported in adult birds in captivity (Kear
and Brown 1976, pp. 133-134; Kear and Berger 1980, pp. 42, 86, 138),
and pox scars on many birds in the wild on Hawaii and Maui indicate
that avian pox is common, but generally not fatal to nene (Banko et al.
1999, pp. 20-21). Avian pox was found in an emaciated bird, but was
judged to be a secondary finding (Work et al. 2015, p. 693).
Avian malaria is caused by the microscopic parasitic protozoan,
Plasmodium relictum. Avian malaria was diagnosed as the cause of death
in
[[Page 69927]]
only 1 out of 300 nene mortalities for which the cause of death was
identified (Work et al. 2015, supplemental material). Avian malaria has
also been reported in at least one wild bird on Maui, but it does not
appear that avian malaria is causing significant declines of nene
populations (Banko et al. 1999, pp. 20-21), nor do we expect it to
cause significant declines in the foreseeable future. However, concern
about the potential to transfer unique regional strains of avian
malaria between islands has resulted in quarantine testing of any nene
to be moved inter-island to ensure they are not infected. During the
recent Nene Relocation Project, birds from Kauai in which Plasmodium
was detected were kept on Kauai and not translocated to Maui or Hawaii
Island (Kauai Lagoons 2015, in litt.).
Avian botulism is a paralytic disease caused by the ingestion of a
natural toxin produced by the bacteria Clostridium botulinum. Birds
either ingest the toxin directly or may eat invertebrates (e.g., non-
biting midges, fly larvae) containing the toxin (USGS-NWHC 2017b, in
litt.). Botulism outbreaks may occur year-round with distinct seasonal
patterns based on location (Uyehara 2016b, in litt.).
Avian botulism has been found on Kauai, Oahu, Molokai, Maui, and
Hawaii Island (USGS-NWHC 2017b, in litt.). Avian botulism was diagnosed
as the cause of death in only 4 out of 300 nene mortalities for which
the cause of death was identified (Work et al. 2015, supplemental
material). Also, between 2011 and 2015, only 1 percent of the 866 cases
of avian botulism involved nene in the Kauai NWR Complex (Uyehara
2016b, in litt.). Avian botulism is thought to pose a minor threat to
nene because they tend to forage on grasses rather than aquatic
invertebrates (Work et al. 2015, p. 693). We do not anticipate avian
botulism becoming a threat in the foreseeable future.
The spread of avian influenza and WNV in North America has serious
implications if either arrives in Hawaii. West Nile virus is
transmitted by adults of various species of Culex mosquitoes, some of
which are present in Hawaii (USGS-NWHC 2017c, in litt.). When an
infected mosquito bites an animal, the virus enters the animal and
infects the central nervous system. West Nile virus causes mortality in
domestic geese, with goslings more susceptible than adults (Austin et
al. 2004, p. 117). In experimentally infected young domestic geese, the
New York strain of WNV caused reduced activity, weight loss, abnormal
neck and spine posture, and death with accompanying encephalitis and
myocarditis (Swayne et al. 2001, p. 753). Of the three known cases of
nene infected with WNV on the U.S. mainland, all were adults, and one
died (Jarvi et al. 2008, p. 5,339).
Avian influenza has been reported to cause mortality in naturally
infected Canada geese in Asia and Europe (Ellis et al. 2004, p. 496;
Teifke et al. 2007, p. 138). Immunologically naive, juvenile birds are
particularly susceptible (Pasick et al. 2007, p. 1,827). Migratory
birds have been implicated in the long-range spread of highly
pathogenic avian influenza (HPAI), a virus (H5N1) from Asia to Europe
and Africa. In 2006, the U.S. Departments of the Interior (DOI) and
Agriculture (USDA) conducted surveillance for the presence of highly
pathogenic avian influenza H5N1 in wild birds in the Pacific islands
(American Samoa, Guam, Hawaii, Marshall Islands, Northern Mariana
Islands, and Palau) (USGS-NWHC 2017d, in litt.). Over 4,000 specimens
were collected from waterfowl, shorebirds, and other species from
throughout the Pacific, and no highly pathogenic avian influenza was
detected (Work and Eismueller 2007, p. 2).
We are uncertain whether or not avian influenza or West Nile virus
will be introduced to Hawaii, and current available data does not
include modeling to determine any potential future risk.
The Hawaii Field Station of the USGS-NWHC continues to work with
wildlife managers to monitor the impact of diseases and other mortality
factors on nene and other wildlife populations. Cats are the sole known
lifecycle host for the protozoan that causes toxoplasmosis. Ongoing
conservation measures in nene breeding areas, such as predator control
and predator-proof fences that exclude cats, reduce but do not
eliminate the risk of exposure to toxoplasmosis due to the abundance
and range of feral cat populations.
Predation
Predation by introduced mammals continues to be a major factor
limiting nene breeding success and survival. Predators known to take
nene eggs, goslings, or adults include: Dogs (Canis familiaris), feral
pigs (Sus domesticus), cats, small Indian mongoose (Herpestes
auropunctatus), and black, Norway, and Pacific rats (Rattus rattus, R.
norvegicus, and R. exulans, respectively) (Hoshide et al. 1990, pp.
153-154; Baker and Baker 1995, p. 8; Banko et al. 1999, pp. 11-12;
Hilton 2016, in litt.). In addition, cattle egrets (Bubulcus ibis) and
barn owls (Tyto alba) are suspected to occasionally take goslings. When
flightless and during molt, goslings and adults are extremely
vulnerable to predation by any of these predators (USFWS 2004, p. 21).
Yellow crazy ants (Anoplolepis gracilipes), tropical fire ants
(Solenopsis geminata), and little fire ants (Wasmannia auropunctata)
also have the potential to disturb incubating females and goslings
(Plentovich 2019, in litt.).
The small Indian mongoose was introduced to the Hawaiian
archipelago in 1883, and quickly became widespread on Oahu, Molokai,
Maui, and Hawaii Island, from sea level to elevations as high as 7,000
ft (2,130 m) (Tomich 1986, pp. 93-94). Kauai remained mongoose-free
when a planned introduction was aborted; however, there have been
almost 350 reported sightings since 1968, and in 1976, a road-killed,
lactating female was found on the island near Eleele (KISC 2016a, in
litt.; Phillips and Lucey 2016). In 2012 and 2016, a total of three
mongooses were captured in Lihue, Kauai, at air cargo and harbor
facilities, as well as a resort adjacent to airport property (KISC
2016b, in litt.). The numerous sightings and four confirmed individuals
have led to the perception that mongoose are now established on Kauai.
While the recent arrivals of mongooses are troubling, there remains
scant biological evidence that a breeding population of mongoose occurs
on Kauai.
Mongoose are believed to be the most serious egg predator
responsible for the most nene nest failures on Hawaii and Maui (Hoshide
et al. 1990, p. 154; Banko 1992, pp. 101-102; Black and Banko 1994, p.
400; Baker and Baker 1995, p. 20). Mongoose also prey upon goslings and
adults (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122;
Misajon 2016, pers. comm.). The success of the nene on Kauai
demonstrates that mongoose may constitute the most significant predator
elsewhere (Banko et al. 1999, p. 25). Despite limited data, recent
estimates of nest success on Kauai for private lands (75 percent) and
the Kauai NWR Complex (82 percent) are greater than estimates for both
Haleakala (62 percent) and Hawaii Volcanoes (58 percent) National Parks
(Hu, unpublished as cited in Banko et al. 1999; Bailey and Tamayose
2016, in litt.; Uyehara 2016a, in litt.).
Introduced European pigs hybridized with smaller, domesticated
Polynesian pigs; became feral; and invaded forested areas, especially
mesic and wet forests, from low to high elevations, and are present on
all the main Hawaiian islands except Lanai and Kahoolawe, where they
have been eradicated (Tomich 1986, pp. 120-121; Munro 2007, p. 85).
Pigs may roam over nearly the entire extent of the range of nene.
[[Page 69928]]
Pigs are known to take eggs, goslings, and possibly adults (Kear and
Berger 1980, p. 57; Banko and Elder 1990, p. 122; Baker and Baker 1995,
p. 20; Misajon 2016, pers. comm.). The presence of pigs can also
attract feral dogs that may then prey upon nene (NPS 2016, p. 2).
Three species of introduced rats occur in the Hawaiian Islands.
Studies of Pacific rat DNA suggest they first appeared in the islands
along with emigrants from the Marquesas Islands (French Polynesia) in
about 400 A.D., with a second introduction around 1100 A.D. (Ziegler
2002, p. 315). The black rat and the Norway rat arrived in the islands
more recently as stowaways on ships sometime in the late 19th century
(Atkinson and Atkinson 2000, p. 25). The Pacific rat and the black rat
are found primarily in rural and remote areas of Hawaii in dry to wet
habitats, while the Norway rat typically is found in urban areas or
agricultural fields (Tomich 1986, p. 41). The black rat is distributed
widely throughout the main Hawaiian islands and can be found in a range
of ecosystems and as high as 9,000 ft (2,700 m), but it is most common
at low- to mid-elevations (Tomich 1986, pp. 38-40). Both black and
Pacific rats have been found up to 7,000 ft (2,000 m) on Maui, but the
Norway rat has been found only at lower elevations (Sugihara 1997, p.
194). Rats prey upon nene eggs and goslings (Kear and Berger 1980, p.
57; Hoshide et al. 1990, p. 154; Baker and Baker 1995, p. 20).
Cats were introduced to Hawaii in the early 1800s, and are present
on all the main Hawaiian islands (Tomich 1986, p. 101). Although cats
are more common at lower elevations, populations occur in areas
completely isolated from human presence, including montane forests and
alpine areas of Maui and Hawaii Island (Lindsey et al. 2009, p. 277;
Scott et al. 1986, p. 363). Cats take nene goslings and adults, and
have been observed moving eggs in nests, so they may also prey upon
eggs (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; Baker
and Baker 1995, p. 20; Zaun 2008, in litt.).
Dogs in Hawaii are products of animals brought by Polynesians and
later introductions of mixed or selected breeds from all over the world
(Tomich 1986, p. 52). Nene are particularly vulnerable to dogs because
they have little instinctive fear of them. Along with mongoose, dogs
are a significant predator of adult nene, and may also take goslings
(Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122).
Predation by mongoose, pigs, rats, cats, and dogs is expected to
continue into the foreseeable future, if not indefinitely. Complete
eradication of non-native predators from the main Hawaiian islands is
not feasible with current technology
Cattle egrets and barn owls were both introduced into Hawaii in the
late 1950s, in an attempt to address agricultural pests on farms and
ranches. In Hawaii, cattle egrets are now widespread on all the main
islands, as well as on the islands and atolls of the Northwestern
Hawaiian Islands. Barn owls occur on all of the main Hawaiian islands
in all habitat types, from sea level to upper elevation forests, and in
recent years have been sighted with increasing frequency on offshore
islets. Barn owls and cattle egrets may also take goslings occasionally
(Banko et al. 1999, p. 11; Franklin 2016, pers. comm.).
The yellow crazy ant occurs in low- to mid-elevations (less than
2,000 ft (600 m)) in rocky areas of moderate rainfall (less than 100 in
(250 cm) annually) (Reimer et al. 1990, p. 42). The tropical fire ant
is found in drier areas of all the main Hawaiian islands (Wong and Wong
1988, p. 175). Little fire ants have spread across the island of Hawaii
with isolated locations on Kauai, Maui, and Oahu (Lee et al. 2015, p.
100). Little fire ants have yet to establish on the islands of
Kahoolawe, Lanai, and Molokai (Hawaii Invasive Species Council 2019).
All three ant species are nonnative and are known to cause significant
injuries and developmental problems in adults and chicks of ground-
nesting seabirds, and are expected to have similar effects on nene (S.
Plentovich 2019, in litt.).
Predation by cattle egrets and barn owls, and disturbance by ants,
may result in injury or mortality of nene; however, predation/
disturbance by these species occurs infrequently and is not known to
have population-level impacts.
A variety of predator control programs have been initiated in areas
where nene currently reside. Since 1994, Haleakala National Park has
conducted intensive control of introduced predators using trapping and
toxicants (Bailey and Tamayose 2016, in litt.). Ongoing efforts on the
different islands include predator control programs aimed at mongoose,
feral dogs, feral cats, rodents, and pigs. Some open-top pens used
previously to rear captive nene on National Park Service lands are now
used to provide predator-free nesting and brooding habitat for free-
flying pairs or as temporary holding pens for sick or injured birds
(Hawaii Volcanoes National Park 2016, in litt.).
Nene population numbers at Hawaii Volcanoes National Park increased
during a 10-year period (1989 to 1999), probably in part because of
intensive predator control during that period (Rave et al. 2005, p.
14). Since then, ongoing predator trapping focused in the primary
breeding and brooding areas at Hawaii Volcanoes National Park during
the breeding season has likely contributed to the overall increase in
nene observed. The general increase in population at Haleakala National
Park over the last 25 years is likely a response to increased habitat
management--first, the removal of feral ungulates and control to near
zero populations; later, the additional intensive control of introduced
predators (Bailey and Tamayose 2016, in litt.). At Hawaii Volcanoes
National Park, various fence designs have been used successfully to
exclude mongoose, cats, dogs, and pigs. Predator control programs are
currently conducted in most areas where nene nest, including Hanalei,
Kilauea Point, and Hakalau Forest NWRs; Haleakala and Hawaii Volcanoes
National Parks; and Piiholo Ranch, Haleakala Ranch (Waiopae), and Puu O
Hoku Ranch on Molokai.
While predator control programs have proven effective in localized
areas, recovery of nene is dependent on more aggressive and widespread
control of introduced predators. Despite documentation of the impact of
mongoose, dogs, cats, rodents, and pigs on nene, there are relatively
few predator control programs, and they are not being implemented over
areas large enough to elicit a population response by native prey
species (Scott et al. 2001, p. 11). Known control techniques should be
applied at all habitats needed to recover nene (USFWS 2004, p. 41).
Summary of Factor C
Diseases such as toxoplasmosis, omphalitis, avian pox, avian
malaria, and avian botulism cause low levels of mortality in nene,
although without resulting in population-level effects, and are
expected to continue to do so indefinitely into the future. Avian
influenza and WNV are not currently established in Hawaii, and we have
no reliable estimate of the risk of this occurring, but they could
cause mortality of nene should they become established. Measures to
control feral cat populations would reduce the risk of exposure of nene
to toxoplasmosis. Continued monitoring of the occurrence of disease in
nene populations, as well as early detection of avian botulism
outbreaks or cases of avian influenza or WNV, should minimize the
impacts of these threats.
Predation by introduced mammals is the most serious threat to nene.
[[Page 69929]]
Predation by mongoose, dogs, cats, rats, and feral pigs continues to
affect all life stages of nene (eggs, goslings, and adults), negatively
impacting breeding success and survival. Predator control measures have
improved survival and reproductive success and contributed to
population increases in managed areas. However, these efforts are
localized and overall predator populations are not being reduced;
therefore, predators can readily recolonize an area. In addition, as
nene populations expand into areas in their former historical range,
such as lowland areas, they will likely encounter higher predator
populations in and around human-occupied urban, suburban, and
agricultural areas. Predation by cattle egrets and barn owls, and
disturbance by ants, may result in injury or mortality of nene;
however, predation/disturbance by these species occurs infrequently and
is not known to have population-level impacts. Predation is an ongoing
threat that we expect will continue indefinitely into the future and
require continued management, as the main Hawaiian islands are too
large for complete eradication of nonnative predators to be feasible.
Factor D. The Inadequacy of Existing Regulatory Mechanisms
The following section includes a discussion of Federal, State, and
local laws, regulations, or treaties that apply to nene. It includes
laws and regulations for Federal land management agencies and State and
Federal regulatory authorities affecting land use or other relevant
management.
Federal Laws and Regulations
National Wildlife Refuge System Improvement Act of 1997. The
National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-
57, October 9, 1997) established the protection of biodiversity as the
primary purpose of the NWR System. This has led to various management
actions to benefit federally listed species, including development of
comprehensive conservation plans (CCPs) on NWRs. The CCPs typically set
goals and list needed actions to protect and enhance populations of key
wildlife species on NWR lands. Where nene occur on NWR lands (Hanalei,
Kilauea Point, Hakalau Forest, Kealia Pond, and James Campbell NWRs),
their habitats in these areas are protected from large-scale loss or
degradation due to the Service's mission ``to administer a national
network of lands and waters for the conservation, management, and where
appropriate, restoration of the fish, wildlife, and plant resources and
their habitats within the United States for the benefit of present and
future generations of Americans'' (16 U.S.C. 668dd(a)(2)). National
wildlife refuges must also conduct section 7 consultations under the
Act (discussed below) for any refuge activity that may result in
adverse effects to nene.
Hanalei NWR was established in 1972, to aid in the recovery of the
four endangered Hawaiian waterbirds and nene (Endangered Species
Conservation Act of 1969; 16 U.S.C. 668aa et seq.). Kilauea Point NWR,
established in 1985 to enhance seabird nesting colonies, was later
expanded to include adjacent lands to be managed for the protection and
recovery of endangered waterbirds and nene (The Kilauea Point National
Wildlife Refuge Expansion Act of 2004, Pub. L. 108-481, December 23,
2004; 16 U.S.C. 668dd note). Approximately two-thirds of the Kauai nene
population is supported by the Hanalei and Kilauea NWRs. The Kilauea
Point CCP includes the following goals: (1) Protect, enhance, and
manage the coastal ecosystem to meet the life-history needs of
migratory seabirds and threatened and endangered species; (2) restore
and/or enhance and manage populations of migratory seabirds and
threatened and endangered species; and (3) gather scientific
information (surveys, research, and assessments) to support adaptive
management decisions (USFWS 2016, pp. 2:19-31). Both Hanalei and
Kilauea Point NWRs conduct ongoing predator control and habitat
improvement and enhancement actions.
At Hakalau Forest NWR, a new population was created with the
reintroduction of 33 captive-bred nene between 1996 and 2003. Since
then, Hakalau Forest NWR has supported approximately 20 to 25 percent
of the nene population on Hawaii Island. The Hakalau Forest NWR CCP
includes the following goals: (1) Protect and maintain grassland
habitat to support nene population recovery; and (2) collect scientific
information (inventories, monitoring, research, assessments) necessary
to support adaptive management decisions on both units of the Hakalau
Forest NWR (USFWS 2010, pp. 2:30-37).
Kealia Pond NWR, on the south-central coast of Maui, was
established in 1992, to conserve habitat for the endangered Hawaiian
stilt (Himantopus mexicanus knudseni) and Hawaiian coot (Fulica alai).
Nene are occasionally observed at Kealia Pond NWR (USFWS 2011b, p.
4:14).
James Campbell NWR on the northern shore of Oahu was created in
1976, also for the conservation of endangered Hawaiian waterbirds, and
later expanded in 2005, to include conservation of additional
threatened and endangered species, migratory birds, and their habitats
(USFWS 2011c, p. 1:1). In 2014, a pair of nene arrived on Oahu, nested
at James Campbell NWR, and produced three offspring. Both parents and
one of the offspring have since died, leaving the two remaining
offspring on NWR and adjacent lands.
Hawaii National Park Act of 1916. Congress established Hawaii
National Park (later to become, separately, Hawaii Volcanoes National
Park and Haleakala National Park) on August 1, 1916 (39 Stat. 432),
``for the benefit and enjoyment of the people of the United States''
(16 U.S.C. 391) and to provide for, ``the preservation from injury of
all timber, birds, mineral deposits, and natural curiosities or wonders
within said park, and their retention in their natural condition as
nearly as possible'' (16 U.S.C. 394). Since that time, the enabling
legislation of the park has been modified several times, both to
establish the national parks on the islands of Hawaii and Maui as
separate parks and to expand the boundary of Hawaii Volcanoes National
Park. In 1960, Congress authorized the establishment of the Haleakala
National Park (Pub. L. 86-744, September 13, 1960); the park was
established the following year. Haleakala National Park, on the eastern
side of Maui, encompasses 33,222 acres (ac) (13,444 hectares (ha)), of
which 24,719 ac (10,003 ha) are designated wilderness (74 percent of
the park) (NPS 2018, in litt.). Hawaii Volcanoes National Park protects
330,086 ac (133,581 ha) of public land on Mauna Loa and Kilauea
volcanoes on the southeastern side of Hawaii Island (NPS 2017, p. 3).
Haleakala National Park (supporting half of the Maui population) and
Hawaii Volcanoes National Park (supporting one-third of the statewide
population) have conducted nene recovery actions since the 1960s and
1970s, respectively. Past and ongoing actions include releases of
captive-bred nene, habitat management (e.g., predator control, feral
ungulate control, nonnative plant species control), provision of
supplemental food and water, monitoring, and outreach and education.
Migratory Bird Treaty Act (MBTA). Nene are a protected species
under the MBTA (16 U.S.C. 703-712, 50 CFR 10.13), a domestic law that
implements the U.S. commitment to four international conventions (with
Canada, Japan, Mexico, and Russia) for the protection of shared
migratory bird resources. The MBTA regulates most aspects of take,
possession, transport,
[[Page 69930]]
sale, purchase, barter, export, and import of migratory birds and
prohibits the killing, capturing, and collecting of individuals, eggs,
and nests, unless such action is authorized by permit. While the MBTA
prohibits actions that directly kill a covered species, unlike the
Endangered Species Act (Act), it does not prohibit habitat modification
that indirectly kills or injures a covered species, affords no habitat
protection when the birds are not present, and provides only very
limited mechanisms for addressing chronic threats to covered species,
such as nonnative predators.
State Laws and Regulations
The Hawaii Endangered Species law (Hawaii Revised Statutes (HRS)
195D) prohibits take, possession, sale, transport, or commerce in
designated species. This State law also recognizes as endangered or
threatened those species determined to be endangered or threatened
pursuant to the Federal Endangered Species Act. This Hawaii law states
that a threatened species (under the Act) or an indigenous species may
be determined to be an endangered species under State law. Protection
of these species is under the authority of Hawaii's DLNR, and under
administrative rule (Hawaii Administrative Rules (HAR) 13-124-11).
Incidental take of threatened and endangered species may be authorized
through the issuance of a temporary license as part of a safe harbor
agreement (SHA) or habitat conservation plan (HCP) (Hawaii Revised
Statutes (HRS) 195D-21, HCPs; 195D-22, SHAs). Although this State law
can address threats such as habitat modification, collisions, and other
human-caused mortality through HCPs that address the effects of
individual projects or programs on nene, it does not address the
pervasive threats to the nene posed by introduced mammalian predators.
DLNR also maintains HAR 13-124-3, which protects indigenous and
introduced wildlife, including nene, from take and export out of
Hawaii. The importation of nondomestic animals (including
microorganisms) is regulated by a permit system (HAR 4-71) managed
through the Hawaii Department of Agriculture (HDOA), reducing the
likelihood of introducing new predators or new diseases that may
adversely impact nene. The HDOA's Board of Agriculture maintains lists
of nondomestic animals that are prohibited from entry, animals without
entry restrictions, or those that require a permit for import and
possession. The HDOA requires a permit to import animals, and
conditionally approves entry for individual possession, businesses
(e.g., pets and resale trade, retail sales, and food consumption), or
institutions.
Under statutory authorities provided by HRS title 12, subtitle 4,
chapter 183D Wildlife, the DLNR maintains HAR title 13, chapter 124
(2014), which defines, at section 13-124-2, ``injurious wildlife'' as
``any species or subspecies of animal which is known to be harmful to
agriculture, aquaculture, indigenous wildlife or plants, or constitute
a nuisance or health hazard and is listed in the exhibit entitled
``Exhibit 5, Chapter 13-124, List of Species of Injurious Wildlife in
Hawaii.'' Under HAR section 13-124-3(c), ``no person shall, or attempt
to: (1) Release injurious wildlife into the wild; (2) transport live
injurious wildlife to islands or locations within the State where they
are not already established and living in a wild state; or (3) export
any such species, or the dead body or parts thereof, from the State.''
Permits for these actions may be considered on a case-by-case basis.
The small Indian mongoose, a serious predator of nene, is included in
Exhibit 5, chapter 13-124, List of Species of Injurious Wildlife in
Hawaii. While this HAR may address intentional attempts to transport or
release mongoose, there is evidence that inspection and biosecurity
measures at inter-island ports may not adequately address their
unintentional introduction (e.g., as stowaways in cargo) to islands
such as Kauai and Lanai that are thought to be mongoose-free.
Currently, there is no biosecurity at Honolulu ports focused on
mongoose. Similarly, there is no interdiction being conducted on Lanai
for mongoose. At Nawiliwili Harbor (Kauai), the Department of Health is
actively implementing a mongoose detection program and has been for the
past 2 years (Cecconi, 2019, pers. comm.). In 2016, Governor Ige
finalized the Hawaii Interagency Biosecurity Plan 2017-2027. This plan
outlines the myriad biosecurity threats (e.g., mongoose and other
harmful nonnative animals, diseases, and nonnative plants) in Hawaii
and provides broad-scale solutions, including inspections at all air
and sea ports to prevent inter-island, interstate, and international
spread of invasive species. As of December 2018, all inspector
positions were staffed; however, even with full staffing, only 1 to 5
percent of containers can be inspected (Ige 2018, in litt.).
Predation by mongoose is a serious threat to nene (see Factor C
discussion, above). Currently, the nene population on Kauai represents
approximately 43 percent of the total statewide population.
Establishment of a breeding population of mongoose on Kauai would
significantly reduce the survival and reproduction of nene on Kauai,
and as a result, significantly increase the risk of extinction of nene.
Although, based on limited data, nene nesting success estimates on
unmanaged lands on Kauai (i.e., no predator control) are higher than on
managed lands on Maui and Hawaii, this difference may indicate the
additional impact of nest predation by mongoose on other islands, which
are not found on Kauai (Amidon 2017).
Critical biosecurity gaps that reduce the effectiveness of animal
introduction controls include inadequate staffing, facilities, and
equipment for Federal and State inspectors devoted to invasive species
interdiction (Hawaii Legislative Reference Bureau 2002; USDA-APHIS-PPQ
2010; Coordinating Group on Alien Pest Species (CGAPS) 2009). In
recognition of these gaps, a State law has been passed that allows the
HDOA to collect fees for quarantine inspection of freight entering
Hawaii (Act 36 (2011) HRS 150A-5.3). Hawaii legislation enacted in 2011
(House Bill 1568) requires commercial harbors and airports to provide
biosecurity and inspection facilities to facilitate the movement of
cargo through ports. This bill is a significant step toward optimizing
biosecurity capacity in the State, but its effectiveness into the
future will be dependent on adequate funding. In response to House Bill
1568, and other pressures resulting from the unintentional introduction
of invasive nonnative species, the State presented the Hawaii
Interagency Biosecurity Plan (2017) is a 10-year strategy that
addresses Hawaii's most critical biosecurity gaps and provides a
coordinated interagency path that includes policies and implementation
tasks in four main areas: (1) Pre-border; (2) border; (3) post-border;
and (4) education and awareness. Overall, there is an ongoing need for
all civilian and military port and airport operations and construction
to implement biosecurity measures in order to prevent the introduction
or inter-island transportation of additional predators and diseases
that could impact nene.
Feral pigs pose the threat of predation to nene (see Factor C
discussion, above). The State provides opportunities to the public to
hunt game mammals (ungulates, including feral pigs) on 91 State-
designated public hunting areas (within 45 units) on all the main
Hawaiian islands except Kahoolawe and Niihau (HAR-DLNR 2010; see HAR
title 13, chapter 123; DLNR 2009, pp. 28-29). The State's management
objectives for game mammals range from maximizing public hunting
opportunities (i.e.,
[[Page 69931]]
``sustained yield'') in some areas to removal by State staff or their
designees from other areas (HAR-DLNR 2010; see HAR title 13, chapter
123; DLNR 2009, pp. 28-29). Nene populations exist in areas where
habitat is used for game enhancement and game populations are
maintained at levels for public hunting (HAR-DLNR 2010; see HAR title
13, chapter 123; see Nene Use Area Maps in USFWS 2017). Public hunting
areas are defined, but not fenced, and game mammals have unrestricted
access to most areas across the landscape, regardless of underlying
land-use designation. While fences are sometimes built to protect
certain areas from impacts of game mammals, the current number and
locations of fences are not adequate to address the threat of habitat
degradation and predation on the nene in unfenced areas throughout its
range. There are no other State regulations than those described above
that address protection of nene and their habitat from feral pigs.
Local Mechanisms
Local groups are working to implement actions urgently needed to
address the importation of nonnative, invasive species. We discuss the
primary groups below.
The Coordinating Group on Alien Pest Species (CGAPS), a partnership
of managers from Federal, State, County, and private agencies and
organizations involved in invasive species work in Hawaii, was formed
in 1995, in an effort to coordinate policy and funding decisions,
improve communication, increase collaboration, and promote public
awareness (CGAPS 2009). This group facilitated the formation of the
Hawaii Invasive Species Council (HISC), which was created by
gubernatorial executive order in 2002, to coordinate local initiatives
for the prevention of introduction, and for control, of invasive
species by providing policy-level direction and planning for the State
departments responsible for invasive species issues (CGAPS 2009). In
2003, the Governor signed into law Act 85, which conveys statutory
authority to the HISC to continue to coordinate approaches among the
various State and Federal agencies, and international and local
initiatives, for the prevention and control of invasive species (DLNR
2003, p. 3-15; HISC 2009, in litt.; HRS 194-2). Reduced funding
beginning in 2009 restricted State funding support of HISC, resulting
in a serious setback of conservation efforts (HISC 2009, in litt.;
2015, in litt.) and increasing the likelihood of new invasive plants
and animals becoming established in nene habitat.
The Hawaii Association of Watershed Partnerships (HAWP) comprises
11 separate partnerships on six Hawaiian Islands. These partnerships
are voluntary alliances of public and private landowners, ``committed
to the common value of protecting forested watersheds for water
recharge, conservation, and other ecosystem services through
collaborative management'' (HAWP 2019, entire). Funding for the
partnerships is provided through a variety of State and Federal
sources, public and private grants, and in-kind services provided by
the partners and volunteers. However, since 2009, decreases in
contributed funding have limited the positive contributions of these
groups to implementing the laws and rules that can protect and control
threats to nene.
These three partnerships, CGAPS, HISC, and HAWP, are collaborative
measures that attempt to address issues that are not resolved by
individual State and Federal agencies. The capacity of State and
Federal agencies and their nongovernmental partners in Hawaii to
provide sufficient inspection services, enforce regulations, and
mitigate or monitor the effects of nonnative species is limited due to
the large number of taxa currently causing damage (CGAPS 2009). Many
invasive, nonnative species established in Hawaii currently have
limited but expanding ranges, and they cause considerable concern.
Resources available to reduce the spread of these species and counter
their negative effects are limited. Control efforts are focused on a
few invasive species that cause significant economic or environmental
damage to commercial crops and public and private lands. Comprehensive
control of an array of nonnative species and management to reduce
disturbance regimes that favor them remain limited in scope. If current
levels of funding and regulatory support for control of nonnative
species are maintained, the Service expects existing programs to
continue to exclude, or, on a very limited basis, control these species
in only in the highest priority areas. Threats from established
nonnative species to nene are ongoing and are expected to continue into
the future.
Summary of Factor D
Based on our analysis of existing regulatory mechanisms, there is a
diverse network of laws and regulations that provide some protections
to the nene and its habitat. Nene habitat that occurs on NWRs is
protected under the National Wildlife Refuge System Improvement Act of
1997 and section 7 of the Endangered Species Act. Nene habitat is
similarly protected on lands owned by the National Park Service.
Additionally, nene receive protection under State law in Hawaii.
As a conservation-reliant species, nene are expected to require
ongoing management to address the ongoing threat of predation by
introduced mammals such as mongoose, dogs, cats, rats, and pigs (Factor
C). Although State and Federal regulatory mechanisms have not prevented
the introduction into Hawaii of nonnative predators or their spread
between islands, with sustained management commitments, these
mechanisms could be an important tool to ameliorate this threat.
On the basis of the information provided above, existing State and
Federal regulatory mechanisms are not preventing the introduction of
nonnative species and pathogens into Hawaii via interstate and
international pathways, or via intrastate movement of nonnative species
between islands and watersheds. These mechanisms also do not adequately
address the current threats posed to the nene by established nonnative
species. However, with sustained management commitment, these
mechanisms could be tools to ameliorate these threats.
Factor E. Other Natural or Manmade Factors Affecting Its Continued
Existence
Low Genetic Variation
Nene went through a prehistoric population bottleneck and have very
low genetic diversity (Paxinos et al. 2002, p. 1,827; Rave et al. 1999,
p. 40; Veillet et al. 2008, pp. 1,158-1,160). Low levels of genetic
diversity have been found in wild and captive nene populations, and
there is some evidence that fertility and gosling survival have
declined in captivity as inbreeding has increased (Rave et al. 1994, p.
747; Rave 1995, p. 87, Rave et al. 1999, p. 40). A condition known as
``hairy-down'' caused by a recessive gene, which creates a cottony
appearance and impairs cold resistance in goslings, has been observed
in captive and wild nene (USFWS 2004, pp. 33-34); such goslings
observed in the wild at Hawaii Volcanoes National Park have not
survived (Misajon 2017, pers. comm.).
Nene on Kauai have less genetic variation than birds sampled from
six wild populations on Hawaii, Maui, and Kauai (Rave 1995, p. 87).
Despite low genetic diversity and high levels of inbreeding, nene
numbers have increased dramatically on Kauai. Thus, low genetic
variation may not be a factor limiting reproductive success of the nene
on Kauai (Rave 1995, p. 88).
[[Page 69932]]
Wind Energy Facilities
A significant number of nene mortalities have been reported at wind
energy facilities. Nene collide with the towers or blades of wind
turbine generators (WTGs). The diameter of rotor blades (approximately
330 ft (100 m)) and combined height of WTGs (up to 428 ft (131 m))
create large obstacles for nene during flight. On Maui, three
facilities with a total of 40 WTGs are in operation, Kaheawa Wind Power
I (20 WTGs) and Kaheawa Wind Power II (12 WTGs) in western Maui, and
Auwahi Wind (8 WTGs) in southeastern Maui. From 2006 to 2016, a total
of 26 nene fatalities and an adjusted take of 50 nene have been
reported at the three Maui wind energy facilities (DOFAW 2016, in
litt.). Take is adjusted by adding estimates of take undetected by
search efforts, indirect take (e.g., eggs or goslings taken by parental
deaths in the current year), and lost productivity in future years. All
three Maui facilities have approved habitat conservation plans (HCPs)
and have received Federal incidental take permits and State incidental
take licenses authorizing the total combined take of 95 nene during the
20-year period of operation for each project. The HCPs include the
following conservation measures to offset the amount of authorized
take: (1) Establish an additional population of 75 nene at an off-site
location (Haleakala Ranch); (2) conduct predator control and habitat
enhancement at the additional population site; (3) conduct on-site
habitat restoration; (4) conduct on-site monitoring of nene; and (5)
fund nene conservation actions at Haleakala National Park (DOFAW 2016,
in litt.).
On Hawaii Island, three facilities with a total of 35 WTGs are in
operation at Hawi (16 WTGs), South Point (14 WTGs), and Lalamilo Wind
Farm (5 WTGs); however, there are no reports of nene being killed at
these facilities (Sether 2019, pers. comm.). Based on the proximity of
these facilities to areas used by nene, there is the potential for
collisions. On Oahu, a total of 42 WTGs are in operation at Kawailoa
Wind Power (30 WTGs) and Kahuku Wind Power (12 WTGs), and an additional
9 to 10 WTGs are proposed at the Na Pua Makani project in the Kahuku
area. Na Pua Makani has submitted a draft HCP and requested incidental
take for nene due to the proximity of the proposed wind energy project
to James Campbell NWR, where nene have been observed frequently. Based
on the recent occurrence of only two individuals, which failed to breed
successfully in 2016, wind energy facilities on Oahu are not a current
threat, but represent a potential future threat should a breeding
population of nene become established. We are uncertain regarding any
future impacts to nene's viability from wind turbines; however, we and
the State will be monitoring and regulating wind farm activity through
HCPs.
Human Activities
Nene are attracted to feeding opportunities provided by mowed grass
and human handouts, and can become tame and unafraid of human activity,
making them vulnerable to the impacts of various human activities.
These activities include direct harm, such as that caused by vehicles
and golf ball strikes, as well as possible disturbance by hikers,
hunters, and other outdoor recreationists (Banko et al. 1999, pp. 23-
24; Rave et al. 2005, p. 12; USFWS 2011a, p. 11; Hawaii Volcanoes
National Park 2015, in litt.; Mello 2017, in litt.). Nene may also be
impacted by human activities through the application of pesticides and
other contaminants, ingestion of plastics and lead, collisions with
stationary or moving structures or objects, entanglement in artificial
hazards (e.g., fences, fishing nets, erosion control material),
disturbance at nest and roost sites, and mortality or disruption of
family groups through direct and indirect human activities (Banko et
al. 1999, pp. 23-24; USFWS 2004, pp. 30-31; Work et al. 2015, pp. 692-
693). We anticipate impacts from human activities to continue into the
foreseeable future.
Vehicle Collisions
Vehicle collisions are an ongoing cause of nene mortality (Hoshide
et al. 1990, p. 153; Rave et al. 2005, p. 15; Work et al. 2015, pp.
692-693). In many areas, nene habitat is bisected by roads, with
nesting and roosting on one side, and foraging on the other side. This
poses a serious threat, particularly during the breeding season, when
adults walk goslings across roads. The greatest number of vehicle
collisions occurs between December and April, during peak breeding and
molting season. During this time of year, both adults and goslings are
flightless for a period of time and are especially vulnerable. The
problem is worse in areas where birds are attracted to handouts by
visitors and the young shoots of recently manicured or irrigated lawns
of roadsides and golf courses. Nene are often seen foraging along the
edges of highways and ditches as a result of regular mowing and runoff
from the pavement creating especially desirable grass in these areas.
The impact is further exacerbated when, after a nene is killed on a
road, the remaining family members are often unwilling to leave the
body, resulting in multiple birds being killed over a short period of
time (DLNR 2016, in litt.) and potential loss of future reproductive
output from breeding pairs.
In the past, a number of mortalities caused by vehicle collisions
were reported in Hawaii Volcanoes (41) and Haleakala (14) National
Parks (USFWS 2004, pp. 30-31; Rave et al. 2005, p. 12). More recent
data indicate this is an ongoing issue both inside and outside park
boundaries on Maui and Hawaii Island; the average annual number of nene
killed by cars at Haleakala National Park was 1.2 1.2
(from 1988 to 2011), and occurred at an average annual rate of 3 2.39 at Hawaii Volcanoes National Park and an adjacent State
highway (from 2009 to 2016) (Bailey and Tamayose 2016, in litt.;
Misajon 2017, in litt.). Mortality of nene due to vehicle collisions
has also been a continual problem on Kauai (Uyehara 2016c, in litt.).
Over 50 nene were struck and killed by cars across the roadways of
Kauai in 2 years (Kauai DOFAW 2016, in litt.). On Kauai, typically the
majority of vehicle strikes occur in Hanalei and Kilauea, where the
largest proportion of the Kauai population occurs; however, the most
recent strikes are occurring on the western side of the island.
The National Park Service (NPS) is actively implementing aggressive
traffic-calming measures (Haleakala National Park 2014, in litt.; USFWS
2016, in litt.). A press release is sent out at the beginning of the
nesting season, asking park visitors to drive carefully. Posters are
displayed at car rental agencies asking visitors to drive carefully
when visiting the park. ``Nene Crossing'' postcards with ``Slow Down''
messages in different languages are handed out to vehicles entering the
park. Cones, signs, and a radar trailer are placed along roadsides
where nene are frequently seen. Permanent ``Nene Crossing'' signs alert
drivers to the potential for birds in the primary area(s) of concern,
and temporary crossing signs are deployed when birds are observed
frequenting specific road side sites. The NPS conducts regular outreach
and education to raise visitor awareness of nene near roads. The Kauai
DOFAW conducts educational outreach and has signs placed to encourage
driving at reduced speeds. The conservation measures reduce but do not
eliminate the threat of vehicle collisions.
Natural and Artificial Hazards
Nene can become entangled or trapped in artificial hazards (e.g.,
old grass-covered fence wire; fishing line, predator traps; spilled
tar) and some
[[Page 69933]]
natural hazards (lava tube openings or deep depressions in ash
deposits) (Banko et al. 1999, p. 24). Goslings occasionally drown in
stock ponds, water troughs, and other water sources where exit to land
is difficult (Banko et al. 1999, p. 24). Predator traps outfitted with
protective guards have been effective at reducing the incidence of
injury to goslings (NRCS 2007, p. 6).
The use of certain fencing and erosion control materials has
resulted in entanglement of nene with the potential to cause impaired
movement, injury, and in some cases mortality. Over 2 years, a total of
44 nene (27 adults and 17 hatch-year birds) in the Poipu/Koloa
population on Kauai have been observed with woven threads from erosion
control slope matting wrapped around their legs at a single
construction site (Kauai DOFAW 2016, in litt.). Once the material is
wrapped around their legs, nene have an increased risk of becoming
entangled with other objects, experiencing skin lacerations, and having
the circulation cut from their legs leading to infection and the death
of the limb (Kauai DOFAW 2015, in litt.). Not all instances of
entanglement result in harm to nene, as birds may free themselves from
threads. Nine of the 44 entangled nene have been observed with
constriction or swelling on their legs; 3 have received rehabilitation
and been released; and 1 was euthanized due to injuries sustained from
the material. Kauai DOFAW is working with the landowners to minimize
impacts and has recommended that the use of this type of erosion
control matting be discontinued.
Summary of Factor E
As nene populations continue to recover and increase in number and
range, they will be subject to increased human interactions in and
around urban, suburban, agricultural, and recreational areas. Vehicle
collisions are an ongoing cause of nene injury and mortality; however,
we do not have evidence that this factor is limiting population sizes.
We acknowledge that increasing nene population sizes could result in
increased mortality rates in the future, especially for those
populations near areas with human presence. While vehicle collisions
could potentially impact certain populations, they do not constitute a
threat to the entire species now, and we do not expect them to be a
threat in the foreseeable future. Artificial hazards that result in
entanglement or drowning occur at low frequency and thus are not
expected to result in population-level impacts. Collisions at wind
energy facilities will result in take of nene now and in the
foreseeable future; however, conservation measures in approved and
permitted HCPs are expected to offset any population-level impacts to
the species. While nene exhibit low levels of genetic variation, this
does not appear to be a factor limiting reproductive success.
Overall Summary of Factors Affecting Nene
The current statewide nene population estimate is 3,252 birds (in
comparison to an estimated 2,855 birds in 2015, as reported in the
proposed rule (NRAG 2017; DLNR 2018, in litt.), and fewer than 300
birds at the time of listing in 1967 (USFWS 2004, pp. 110-112). The
population on Kauai, most recently estimated at 1,482 birds, is stable
and increasing, sustained by ongoing predator control and habitat
management (NRAG 2017; DLNR 2018, in litt.). Nene on Kauai exhibit
successful breeding, likely due to abundant food in managed grasslands
and the absence of mongoose, which are a significant nest predator on
other islands. Between 2011 and 2016, 646 nene were relocated from
Kauai to Maui (48) and the island of Hawaii (598). Our current
population estimate of nene on Kauai does not include birds that have
been translocated from Kauai to other islands. The Kauai population is
expected to continue to exhibit an increasing trend provided no
significant nest predators are introduced to the island.
On Maui, the current population estimate is 627 (including
translocated birds), with approximately half of the population in
Haleakala National Park, and the remainder distributed across areas of
western Maui, southern Maui, and the northwestern slopes of Haleakala.
The population at Haleakala National Park shows a general increasing
trend with numbers consistently above 200 birds since intensive habitat
management (feral ungulate and predator control) measures were
initiated in the 1990s.
On the island of Hawaii, the current population estimate is 1,091,
which includes 598 birds relocated from Kauai (NRAG 2017; DLNR 2018, in
litt.). Prior to the addition of nene from Kauai, population estimates
on the island of Hawaii ranged between 331 and 611, and in general show
an increasing trend during the 10-year period since the last major
release of 53 birds in 2001. For many years, the largest population of
nene on the island of Hawaii has occurred in Hawaii Volcanoes National
Park. Over the last 10 years, population estimates at Hawaii Volcanoes
National Park have remained relatively constant (ranging between 200
and 250 birds), sustained by ongoing predator control and habitat
management. The second subpopulation on the island of Hawaii is found
at Puu Oo (NPS 2018, in litt.).
On Molokai, the current population estimate of 37 (NRAG 2017; DLNR
2018, in litt.) is down from an estimate of 78 in 2015, likely due to
predation (Franklin 2017, in litt.). While nene on Molokai have bred
successfully, periodically low fledging success has been reported due
to the high mortality of nestlings, possibly due to overcrowding at the
release site. Estimates of the population on Molokai have fluctuated
widely since the reintroduction of 74 birds was completed in 2004.
Nene are considered a conservation-reliant species, especially on
the islands of Maui and Hawaii, where populations are spread across a
large area and exposed to ongoing threats of predation and habitat loss
(development, feral ungulates, nonnative plants) (Reed et al. 2012, p.
888). At a minimum, current management levels must be continued to
sustain current population trends.
Threats to nene from habitat destruction or modification (Factor A)
remain and will likely continue into the foreseeable future in the form
of urbanization, agricultural activities, habitat alteration by feral
ungulates and nonnative plants, drought, floods, and volcanic activity.
These factors contribute to a lack of suitable breeding and flocking
habitat and, in combination with predation (Factor C) and other human
activities that cause mortality (Factor E), continue to threaten nene
and limit expansion of nene populations. Some habitats are expected to
be affected by habitat changes resulting from the effects of climate
change (Factor A). Overutilization (Factor B) is no longer a threat.
Diseases (Factor C) such as toxoplasmosis, avian malaria, omphalitis,
and avian botulism are not currently known to contribute significantly
to mortality in nene. Thus, we do not consider disease to be a current
threat, although novel diseases such as West Nile virus could become a
threat if introduced to Hawaii in the future. Predation (Factor C) by
introduced mammals, including mongoose, dogs, cats, rats, and pigs, is
a significant limiting factor for nene populations now and into the
foreseeable future. Therefore, we consider predation to be a threat.
Existing regulatory mechanisms, including those to prevent predation,
will be an important component of ongoing management of nene as a
[[Page 69934]]
conservation-reliant species, but do not currently adequately
ameliorate threats and will require a continuing commitment to
implementation (Factor D). Human activities such as vehicle collisions,
artificial hazards, and other human interactions (Factor E) continue to
result in injury and mortality; while the individual impacts of these
hazards do not constitute threats with population-level impacts to
nene, they collectively and in combination with other factors (Factors
A, C, and D) constitute an ongoing threat. Similarly, loss of
individuals from flooding and volcanic activity (Factor E) do not
independently constitute a threat with species-level impacts. However,
if they occur in combination with other factors, the cumulative impacts
constitute an ongoing threat.
Summary of Comments and Recommendations
In the proposed rule that published on April 2, 2018 (83 FR 13919),
we requested that all interested parties submit written comments on the
proposal by June 1, 2018. We also contacted appropriate Federal and
State agencies, scientific experts, Native Hawaiian organizations, and
other interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comments were published in
the Honolulu Star Advertiser, West Hawaii Today, Hawaii Tribune Herald,
The Garden Isle, The Maui News, and The Molokai Dispatch newspapers. We
did not receive any requests for a public hearing.
We received a total of 36 comment letters on the proposed nene
downlisting and associated 4(d) rule. Two of these comment letters were
from a peer reviewer, 7 from Federal agencies, 6 from State agencies,
and 21 from the general public. All new substantive information has
either been incorporated directly into this final rule or is addressed
below. All public and peer review comments are available at http://www.regulations.gov (Docket No. FWS-R1-ES-2017-0050) and from our
Pacific Islands Fish and Wildlife Office by request (see FOR FURTHER
INFORMATION CONTACT).
Peer Review
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,''
published on July 1, 1994 (59 FR 34270), we solicited expert opinion
from nine knowledgeable individuals with scientific expertise that
included familiarity with nene and their habitat, biological needs, and
threats. We received a response from one peer reviewer.
Peer Review Comments
(1) Comment: While low genetic variation in nene on Kauai does not
appear to affect their fitness, this should not be assumed to be true
for the species as a whole. Further, fitness on Kauai might be even
higher if there was more genetic variation. It is hard to predict the
consequences of bottlenecks, low genetic variation, and inbreeding. One
consequence of a loss of overall genetic variation is often a loss of
variation in important immune system genes, which makes low variation
and inbred populations more susceptible to invasive disease (including
epidemics and massive die-offs). Although the peer reviewer believes
that the low genetic variation and inbreeding are not likely the
dominating factors threatening nene population numbers (compared to for
example, mongoose and other introduced predators), the peer reviewer
thinks this section oversimplifies the potential threats of these
factors to nene.
Our Response: We agree that it is important to track genetic
diversity and implement conservation efforts that enable nene
populations across the species' range to maximize genetic diversity. We
also concur that low genetic variation and inbreeding, although
threats, are not the dominating factors limiting nene population
numbers. As we stated in the April 2, 2018, proposed rule, nene went
through a prehistoric population bottleneck and have since had very low
genetic diversity (Paxinos et al. 2002, p. 1,827; Rave et al. 1999, p.
40; Veillet et al. 2008, pp. 1,158-1,160). We recognize that
populations with low genetic variability have increased susceptibility
to disease (e.g., West Nile virus, avian influenza). However, despite
Kauai having the lowest level of genetic diversity and high levels of
inbreeding, nene numbers have increased dramatically on Kauai.
Additionally, we believe that having breeding populations on three
separate islands provides a potential buffer should a lethal disease
such as West Nile virus be introduced. Our analysis also considers that
there may be an opportunity for nene to increase genetic diversity: The
establishment of traditional movement patterns on Hawaii Island may
provide opportunities for greater genetic exchange if pair bonds are
formed between individuals from separate breeding subpopulations at
non-breeding locations (Hess et al. 2012, pp. 479, 482 and Leopold and
Hess 2014, pp. 73-74). Although we do not have specific data to support
this hypothesis, we find it a reasonable assumption based on recent
population genetics research. For example, genetic variation can occur
over time when closely associated subpopulations occupy habitats with
varying physical and biological elements within the same geographic
area (Kristensen et al. 2018, pp. 1346-1347).
(2) Comment: Downlisting the nene, which is a uniquely adapted
Hawaiian goose (and the only remnant species of a small Branta
radiation in the islands), would reduce their standing for conservation
mitigation and increase the likelihood of take. Therefore, if the
downlisting proceeds, it should be accompanied by stringent adherence
to regulations protecting the species.
Our Response: We are aware of the perception that conservation
benefits afforded to nene would be reduced as a result of this
reclassification and associated 4(d) rule. However, the combined
purpose of these rules is to provide nene continued protection while
facilitating conservation of nene and expansion of their range by
increasing flexibility in management activities. As nene increase in
number and range, they face increased interaction and potential
conflict with the human environment. The exceptions from section 9 of
the Act that are outlined in this final 4(d) rule are intended to
decrease human-wildlife conflict while ensuring nene have the
protections they need in order to continue their path toward recovery.
Upon the effective date of this reclassification and associated
4(d) rule (see DATES, above), nene will still be afforded protections
under the Act. With the exception of the explicitly limited actions
that are covered under the 4(d) rule, anyone taking, attempting to
take, or otherwise possessing a nene, or parts thereof, in violation of
section 9 of the Act will still be subject to a penalty under Federal
law (see section 11 of the Act). This final rule does not alter the
requirements of section 7 of the Act or the interagency regulations
implementing section 7 that are found at 50 CFR part 402. Under section
7 of the Act, Federal agencies must still continue to ensure that any
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of nene. Under 50 CFR 402.14, a Federal agency
still needs to consult with the Service if the proposed action may
affect nene, unless the agency determines with written concurrence from
the Service that the proposed action is not likely to adversely affect
the nene.
[[Page 69935]]
Although the 4(d) rule allows for select exceptions of take from
the section 9 prohibitions of the Act, as outlined under the 4(d) Rule,
below, this rule only addresses Federal Endangered Species Act
requirements, and does not change the Hawaii Endangered Species Law.
Current State of Hawaii (HRS section 195D-4) law does not include the
authority to issue regulations, equivalent to those under section 4(d)
of the Act, to except take prohibitions for endangered and threatened
species. Instead, State law requires the issuance of a temporary
license for the take of endangered and threatened animal species, if
the activity otherwise prohibited is for scientific or conservation
purposes or incidental to an otherwise lawful activity. Please see the
4(d) Rule, below, for more details on State law and associated
requirements (e.g., license, permit, safe harbor agreement, habitat
conservation plan). Please also see our responses to related comments
(5), (6), (15), and (24).
Federal Agency Comments
(3) Comment: The U.S. Department of Agriculture, National Resources
Conservation Service (NRCS) commented that the participation of private
landowners is considered essential to the recovery of nene, especially
on Kauai, where there is limited habitat on Federal land. Privately
held ranches on islands of Molokai, Maui, and Hawaii have stepped
forward to support recovery of nene, and this should be recognized and
supported. These private landowners are being affected by the expansion
and dispersal of the nene populations and improving communication and
developing partnerships with private landowners are proven means to
maximize opportunities for success.
Our Response: We agree that developing and maintaining
partnerships, especially with private landowners, is essential to the
successful recovery of nene. We greatly appreciate the efforts made by
privately held ranches on Hawaii, Maui, and Molokai. We plan to
continue to work with these conservation champions and look forward to
strengthening these partnerships to maximize conservation success.
(4) Comment: The NRCS commented that the recent gains in the
statewide nene population as a whole appear strongly tied to the
productivity of the Kauai population. The lack of mongoose on Kauai is
a major factor in this population's success. They encourage a
coordinated and sustained effort to increase both island biosecurity
and eradication response to ensure mongoose do not become established
on Kauai.
Our Response: We agree that the success of nene on Kauai is a major
factor in the species overall trajectory toward recovery and that the
potential establishment of mongoose on Kauai poses a serious threat to
the island's nene population. We are involved in ongoing, coordinated
efforts to increase biosecurity on Kauai as well as improve eradication
efforts, and we welcome partnerships that will further these efforts.
In 2016, the Service released the Kauai Mongoose Standard Operating
Procedures to Conduct an Island-wide Status Assessment and Early
Detection Rapid Response (Phillips and Lucey 2016, pp. 1-12, Appendices
A and B).
(5) Comment: The NRCS commented that the 4(d) rule is an important
mechanism for providing the regulatory assurance needed to successfully
implement the voluntary Working Lands for Fish and Wildlife (WLFW)
program in Hawaii, as it may provide provisions to ensure that private
landowners and citizens are not disproportionately burdened by
regulations that do not further the conservation of the species and are
excepted from the ``take'' prohibitions. The WLFW is a collaborative
effort between NRCS, the Service, and other conservation partners to
provide technical and financial support to help private landowners make
habitat improvements on their lands, while providing regulatory
predictability under the Act. They encourage the Service to consider
adding language that specifically includes the NRCS conservation plans
related to WLFW in the 4(d) rule. They anticipate the Service being
actively engaged in the development of this program and expect that any
routine activities, such as prescribed grazing, predator control, and
other habitat improvements, would be thoroughly vetted in advance by
the Service.
Our Response: The Service considers all activities in a NRCS
conservation plan that benefit nene habitat as being within the scope
of the 4(d) rule exception for nene habitat management activities. The
exceptions from the prohibitions of section 9 of the Act specified in
this final 4(d) rule target activities to facilitate conservation and
management of nene where they currently occur and may occur in the
future through increased flexibility by eliminating the Federal take
prohibition under certain conditions. These activities are intended to
encourage support for the occurrence of nene in areas with land use
practices compatible with the conservation of nene, and to redirect
nene away from areas that do not support the conservation of the
species.
(6) Comment: The Department of the Navy requested that the Service
amend the proposed 4(d) rule to allow the safe hazing of nene families
and goslings away from dangerous areas such as roadways, airfields, and
construction areas.
Our Response: The 4(d) rule that we proposed and are finalizing in
this rule allows for the safe hazing of nene from dangerous areas.
Thus, the Navy's request has been addressed. This final 4(d) rule
allows for specific exceptions of nene take under Federal law (i.e.,
section 9 of the Act), including, but not limited to, hazing that is
not likely to involve lethal or direct injurious take. Intentional
harassment activities not likely to cause direct injury or mortality
that are addressed in this final 4(d) rule are recommended to be
implemented prior to the nene breeding season (September through April)
wherever feasible. If, during the breeding season, a landowner desires
to conduct an action that would intentionally harass nene to address
nene loafing or foraging in a given area, a qualified biologist (i.e.,
an individual with a combination of academic training in the area of
wildlife biology or related discipline and demonstrated field
experience in the identification and life history of nene) familiar
with the nesting behavior of nene must survey in and around the area to
determine whether a nest or goslings are present. The 4(d) rule does
not apply to scenarios involving lethal or directly injurious take.
Further, any take of nene is still prohibited under State law, and any
action likely to adversely affect the nene continues to require
consultation with the State. For more details, please see Intentional
Harassment Not Likely to Cause Mortality or Direct Injury and
Justification under 4(d) Rule, below, and our responses to comments (2)
and (5).
(7) Comment: The Department of the Navy commented that the proposed
rule does not list potential take from surveys. Installation biologists
routinely conduct surveys to collect data on nene on installation
property and in particular surveys for nests during the breeding
season. The Navy requests that any unintentional take, specifically
harassment, resulting from survey work be included in the 4(d) rule as
allowable.
Our Response: We have added unintentional take, specifically
harassment, resulting from survey work that benefits and furthers the
recovery of nene to the excepted forms of take under Intentional
Harassment Not
[[Page 69936]]
Likely to Cause Mortality or Direct Injury, below. Please see 4(d)
Rule, below, and Summary of Changes from Proposed Rule, above.
(8) Comment: The Department of the Navy commented that consistent
with the 2014 Formal Consultation for Pacific Missile Range Facility
Base-wide Infrastructure, Operations, and Maintenance, Kauai, hazing is
conducted, and signs are placed to alert drivers; however, collisions
still occasionally occur. The Navy requests that vehicular collisions
in general (not just during habitat management) be included in the 4(d)
rule as allowable take (with the condition that other best management
practices are in place to reduce risk of collisions).
Our Response: Vehicle strikes at Haleakala National Park, and
across the species' range, are a threat to nene, particularly during
breeding season, as discussed in the April 2, 2018, proposed rule and
this final rule under Factor E. Other Natural or Manmade Factors
Affecting Its Continued Existence. As stated in our responses to
comments (6) and (7), the purpose of this reclassification and
associated 4(d) rule is to further the conservation of the nene.
Vehicle collisions do not achieve this goal; therefore, we did not
except them from take prohibitions in the 4(d) rule.
(9) Comment: The Department of the Navy noted that the 4(d) rule
allows take by law enforcement officers for the aiding or euthanizing
of sick, injured, or orphaned nene; disposing of a dead specimen; and
salvaging a dead specimen that may be used for scientific study. The
Navy requested that the rule allow Federal employees, specifically
installation natural resource managers, or any biologists that support
the implementation of integrated natural resources management plans
(INRMPs) to perform these actions under the 4(d) rule.
Our Response: Under the 4(d) rule, law enforcement officers are
allowed to aid or euthanize sick, injured, or orphaned nene; dispose of
dead specimens; and salvage dead specimen that may be used for
scientific study. In response to the Navy's comment, we noted that the
September 2014 section 7 Biological Opinion for their Pacific Missile
Range Facility on Kauai covers the incidental take of nene resulting
from hazing activities. The Terms and Conditions in the Biological
Opinion's Incidental Take Statement address disposition of injured or
dead nene as well as who must be contacted. Naval personnel are not
authorized to euthanize injured nene; however, they can recover and
dispose of a dead specimen in accordance with the Terms and Conditions
in the Incidental Take Statement. Injured nene can be collected and
delivered to a previously specified care facility to determine if the
specimen can be recuperated and returned to the wild. If it cannot be
recuperated, the care facility has the authority to euthanize the bird.
We do not believe the Navy's natural resource managers possess the
expertise to make such a decision and therefore recommend the 4(d) rule
not be revised to allow them to euthanize injured individuals. We also
do not find it necessary to revise the 4(d) rule to provide the
authority for incidental take that is already covered by the biological
opinion.
State Comments
(10) Comment: The Hawaii State Department of Agriculture (HDOA)
made two suggested edits to the proposed rule: (a) That the lease and
special permits within the Hanalei NWR be amended to allow agricultural
lessees the ability to exercise the same permitted practices identified
in the 4(d) rule; and (b) assuming the rule is finalized, they
encourage ongoing review of the nene's status on Kauai.
Our Response: Leases and special permits associated with the
Hanalei NWR may be able to be revised to accommodate the Federal
exceptions outlined in this final 4(d) rule. As discussed under 4(d)
rule, below, the example is take by landowners or their agents
conducting intentional harassment in the form of hazing or other
deterrent measures not likely to cause direct injury or mortality. We
recommend that such hazing not occur during the breeding season.
Additionally, any form of hazing is still prohibited under State law,
and any proposed action that may affect nene requires consultation with
the State. Please also see our response to comment (2). In regard to
reviewing the status of nene on Kauai, the Act requires the Service to
conduct status reviews for all listed species at least once every 5
years; this analysis will include an analysis of the status of the nene
on Kauai.
(11) Comment: The HDOA notes that the proposed rule indicates a
substantial increase in the nene population on Kauai. In 2004, the
Kauai population was estimated at 564 (83 FR 13923; April 2, 2018) and
the 2017 population was estimated at 1,107 birds. The HDOA assumes the
2017 count did not include the 640 nene that were relocated from Kauai
to Maui and Hawaii from 2011 to 2016 (83 FR 13935; April 2, 2018).
Our Response: As discussed below under comment (12), the Hawaii
State Department of Land and Natural Resources (HDLNR) provided us an
updated (2017) statewide nene population estimate of 3,252 birds,
including 1,482 birds on Kauai, 1,104 birds on Hawaii, and 627 birds on
Maui. We have added this estimate to this final rule under Species
Information. The HDLNR noted that their 2017 count includes the most
recent translocation efforts to Kauai and Maui. The April 2, 2018,
proposed rule included nene population estimates from 2015, including
any translocations through 2015.
(12) Comment: The HDLNR commented that a divide exists between the
downlisting criteria outlined in the nene recovery plan and the
definitions of ``endangered'' and ``threatened'' species under the Act.
They stated that nene populations clearly do not meet the downlisting
criteria as established in the recovery plan, but could qualify for
downlisting under the Act's definition of endangered. The HDLNR
provided updated nene population estimates. The HDLNR noted that their
2017 count includes the most recent translocation efforts. Between 2011
and 2016, 646 nene were translocated from Kauai to Hawaii (598 birds)
and Maui (48 birds) to reduce aviation safety concerns at Lihue airport
on Kauai. They also stated that if the recent translocations had not
taken place, there would not be a population of 500 birds on the island
of Hawaii; therefore, the nene's status would not meet the downlisting
criteria of a minimum of seven populations, of which two consist of 500
or more breeding adults each on two of the islands of Hawaii, Kauai,
and east Maui; and one population of 300 breeding adults. Additionally,
they stated there are no populations of 100 breeding adults on ``two of
the following: East Maui, Molokai, Kahoolawe, or Lanai,'' and that
there are no nene on Kahoolawe or Lanai, and the population on Molokai
has declined from 78 captive-bred birds to an estimated 37 birds after
more than 10 years. They acknowledged that there are two or more
populations of 250 to 300 breeding birds, depending on how they are
divided, and more than two populations between 100 and 250 birds.
Our Response: We appreciate the updated population-wide estimate
for nene and the island-specific estimates. We also appreciate the
information on nene translocation efforts between 2011 and 2016.
According to the values provided, 493 nene were on Hawaii prior to the
recent translocations. State data are consistent with our assessment
that there are self-sustaining populations on Hawaii (493, plus the
[[Page 69937]]
598 translocated birds, totaling 1,091), Kauai (1,482 birds), and Maui
(579, plus the 48 translocated birds, totaling 627). We updated our
Species Information discussion to include the new and most recent
statewide population estimates and translocation efforts. Although the
translocations were beneficial, the Hawaii and Maui populations would
likely have been self-sustaining over time without the translocated
birds. Further, as discussed under Implementation of Recovery Actions
for the Nene in the April 2, 2018, proposed rule (83 FR 13923-13924),
two breeding subpopulations of nene on the island of Hawaii have re-
established traditional movement patterns, and recent data suggest that
certain key populations are expected to maintain current numbers or
increase in the future if the current level of management is continued.
Regarding the perceived divide between the recovery criteria and
the Act's definition of ``endangered,'': We addressed this in the April
2, 2018, proposed rule under Recovery Planning (83 FR 13922-13923),
where we discuss that a decision to revise the status of a species on,
or to remove a species from, the Federal List of Endangered and
Threatened Wildlife (50 CFR 17.11(h)) is ultimately based on an
analysis of the best scientific and commercial data then available to
determine whether a species is no longer an endangered species or a
threatened species, regardless of whether that information differs from
the recovery plan. Recovery may be achieved without all of the criteria
in a recovery plan being fully met. For example, one or more criteria
may be exceeded while other criteria may not yet be accomplished. For
further information, please refer to the April 2, 2018, proposed rule
(83 FR 13919), as well as the Recovery Planning section of this final
rule. We have determined that the nene no longer meets the Act's
definition of an endangered species, but does meet the definition of a
threatened species; therefore, downlisting is appropriate regardless of
how or whether the recovery criteria have been met.
(13) Comment: The HDLNR commented that the range of nene has
contracted and that the species remains vulnerable to extinction on all
islands, apart from Kauai (which makes up 9 percent of the nene's
historical range) on which mongoose are currently not established but
the potential for establishment is high. Mongoose are a significant
predator and would dramatically threaten Kauai's nene population.
Our Response: We concur that the range of nene has contracted;
however, due to captive-rearing and release efforts, nene are now self-
sustaining on the islands of Hawaii, Kauai, and Maui. We acknowledge
that nene is a conservation-reliant species, and we anticipate current
conservation actions will continue into the foreseeable future. We also
recognize that predation by mongoose is a serious threat to nene. As
stated in the April 2, 2018, proposed rule and in this final rule, the
establishment of a breeding population of mongoose on Kauai would
significantly reduce the survival and reproduction of nene on Kauai
and, as a result, would significantly increase the risk of extinction
of nene. Please also see our response to comment (4).
(14) Comment: The HDLNR commented that over half of the island of
Hawaii's nene are in two subpopulations at Puu Oo and Hawaii Volcanoes
National Park, which are both currently under direct and indirect
threats from the Kilauea's volcanic eruption.
Our Response: At the time of Kilauea's most recent activity (May 4,
2018), the April 2, 2018, proposed rule was in the comment period
stage; therefore, volcanic activity was not addressed in the proposed
rule. We have added an analysis of the effects of volcanic activity to
the nene under Factor A. The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range in this final
rule.
(15) Comment: The HDLNR commented that some Division of Forestry
and Wildlife (DOFAW) employees are concerned that downlisting nene and
the establishment of a 4(d) rule, and associated provisions under State
law, could result in inadequate regulatory mechanisms for the nene and
other endangered species in Hawaii. On the other hand, DOFAW
appreciates that a more flexible regulatory mechanism to authorize
nonlethal take permits is needed in some circumstances (e.g., hazing),
and that the 4(d) rule may be effective in implementing a more
intuitive approach to managing the bird in specific situations.
Revisions to Hawaii Revised Statutes would be required to bring the
State law into alignment, and that may take years due to opposition and
associated litigation.
Our Response: This reclassification and associated 4(d) rule is
designed to give more nene management authority to the State. Upon
finalization of this rule, the State will be the main authority
regarding how and whether any of the excepted forms of take outlined in
this rule will be permitted. Any proposed action that may cause take of
nene on Federal lands will still require consultation with the Service.
Please also see our response to comments (2), (5), and (24).
Public Comments
(16) Comment: Two commenters stated that reclassification of nene
will decrease funding for predator control (i.e., mongoose).
Our Response: We are unaware of any reason why the reclassification
of nene from endangered to threatened will result in a decrease in
funding for predator control. Upon the effective date of this final
rule (see DATES, above), nene will still be afforded protections under
the Federal Endangered Species Act and the Hawaii Endangered Species
Law. Efforts to protect nene, including predator control, are
anticipated to continue into the foreseeable future. Although nene have
made progress toward recovery, they are not considered to be recovered.
Additionally, we recognize that the nene is considered a conservation-
reliant species by scientists and thus will require management,
including predator control, into the foreseeable future in order to
achieve and sustain recovery. Please also see our responses to related
comments (2), (4), (5), and (15).
(17) Comment: One commenter stated that the only reason nene are
doing well on Kauai is because there are no mongoose.
Our Response: We agree that the success of the nene on Kauai is
largely due to the lack of mongoose on the island. In addition to the
lack of an established mongoose population, the greater availability of
lowland habitat on Kauai is considered an important factor.
Historically, nene are believed to have bred mainly in lowland habitat,
and research has shown that reproductive success is higher in lowland
habitats than in upland habitats. We also attribute the success of the
nene on Kauai to all of our partners on the island who continue to work
collaboratively toward the recovery of nene. Along with our partners,
we will continue to implement current biosecurity efforts as well as
seek innovative ways to continually improve such efforts to decrease
the risk of mongoose establishing on Kauai. Please also see our
response to comment (4).
(18) Comment: Three commenters expressed that inbreeding is a
concern, especially on islands other than Kauai. They stated that
genetic testing would be best to determine the threat of inbreeding.
One commented that nene are recognized as the most genetically
bottlenecked listed species given their
[[Page 69938]]
near extinction in the 1940s, and that genetic fecundity of nene is
unknown and needs to be adequately assessed and demonstrated as
independently viable on all islands on which it occurs before
downlisting is biologically supportable.
Our Response: Please see our response to comment (1).
(19) Comment: Three commenters stated that the nene should have the
highest level of protection because nene is a cultural symbol and the
State bird.
Our Response: All listing decisions made under the Federal
Endangered Species Act are based on a biological analysis of whether a
species is an endangered species or a threatened species because of any
of the five factors specified under section 4 of the Act. Please see
Summary of Factors Affecting the Species, above, for our five-factor
analysis on the nene, including new information we received since the
publication of the April 2, 2018, proposed rule (83 FR 13919).
(20) Comment: Four commenters stated that predatory invasive
species such as rats, mongoose, dogs, pigs, and cats are a threat to
nene because nene are ground nesters, adults are incapable of flying
during molting, and goslings do not fledge until after 10 weeks. Also,
with the increase in human population, there is a subsequent increase
in dogs, and nene are not instinctively afraid of dogs because they are
not a natural predator, which together increases the threat of
depredation by dogs. Further, nonnative species may also outcompete
nene for food resources.
Our Response: We agree that predatory invasive species such as
rats, mongoose, dogs, pigs, and cats are a threat to nene as discussed
above under Summary of Factors Affecting the Species. Please also see
our responses to comments (4), (13), (16) and (28).
(21) Comment: Six commenters stated that the nene is a rare species
with low number of individuals (especially on Oahu) and endangered
throughout a significant portion of its range. One of these commenters
added that the nene is considered the sixth rarest waterfowl in world.
Nene might be stable, but stable with a low number of individuals. One
commented that breeding success is low on all islands except Kauai.
Some of these commenters suggested that nene should be established on
all islands on which it once occurred before downlisting is initiated,
and that approximately 3,000 individuals is not enough to downlist or
consider recovered.
Our Response: We agree that the nene is a relatively rare species,
particularly in comparison to other waterfowl, and has a restricted
distribution. However, rarity alone does not warrant listing a species
as endangered or threatened under the Act. Because nene experience many
threats that put them in danger of extinction, nene have been listed
under the Act since 1967. The Act's definition of an ``endangered
species'' is any species which is in danger of extinction throughout
all or a significant portion of its range (16 U.S.C. 1532(6)). The
Act's definition of a ``threatened species'' is any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range (16 U.S.C.
1532(20)). At the time of its listing in 1967, the nene was at risk of
extinction as defined by the Act. Since then, conservation efforts have
slowly yet steadily made progress toward the recovery of the nene;
today, nene have increased from 30 individuals to over 3,000
individuals with self-sustaining populations on Hawaii, Kauai, and
Maui. These three islands make up over 80 percent of nene's historical
range. Nene have not been recorded, nor are they known historically, on
Oahu. Although nene have yet to become established (successfully
breeding) on Molokai, a small portion of their historical range, our
evaluation of the current range of nene indicates they do not meet the
definition of an endangered species (i.e., nene are not currently at
risk of extinction throughout all or a significant portion of their
range). Breeding success could be improved on Hawaii and Maui, and
continued management is necessary for predator control and other
biological and conservation factors that influence nene population
numbers and survivorship. Reclassification of nene to threatened status
does not mean we consider nene to be recovered. This reclassification
rule recognizes the progress of conservation measures since listing.
(22) Comment: Seven commenters stated that habitat loss and
modification (i.e., human development, sea-level rise and associated
erosion of coastal areas) are a threat to nene. One of these commenters
provided an example of an upcoming development on the south shore of
Kauai, the ``New City'' which will encompass 480 acres of planned
development.
Our Response: We agree that habitat loss and modification are a
threat to nene as outlined in the April 2, 2018, proposed rule and this
final rule under Factor A. The Present or Threatened Destruction,
Modification, or Curtailment of Its Habitat or Range. Sea-level rise
and associated erosion caused by the effects of climate change are not
anticipated to bring extensive alterations to nene habitat, as nene are
not dependent on coastal areas. Increases in frequency and intensity of
both drought and hurricanes are anticipated to bring direct and
indirect impacts to nene; however, to what extent and when such impacts
may occur is unknown. Please also see our response to comment (28).
Regarding the ``New City'' plans on Kauai, this proposed development
occurs in an area on Kauai that is currently at least partially
developed, and nene are not known to occupy the project area nor
adjacent areas.
(23) Comment: Two commenters stated that before downlisting is
warranted, more research is needed to determine the impacts of climate
change (i.e., drought, hurricanes, and sea-level rise), the amount (if
any) of genetic variability, the impacts from wind energy and wind
turbines, and toxoplasmosis. Sea-level rise is not a future threat; it
is happening now. Hawaii has already lost approximately 13 miles of
beaches and shorelines (Hawaii Climate Change Mitigation and Adaptation
Commission, in litt. 2015). Further, more intense hurricanes will
increase flooding events and thus increase the loss of nene nests due
to flooding.
Our Response: We agree that Toxoplasma gondii poses both direct and
indirect threats to nene as discussed in the April 2, 2018, proposed
rule and this final rule under Factor C. Disease or Predation. Please
see our responses to comment (1) regarding low genetic variation;
comments (2) and (24) regarding downlisting and the 4(d) rule; comments
(22) and (28) regarding climate change; and comment (25) regarding wind
farms.
(24) Comment: Six commenters suggested that reclassification from
endangered to threatened status will significantly increase harassment
and human wildlife conflict. Human-wildlife conflict still exists. With
the observed increase in human population, there is subsequent increase
in nene take (e.g., more people equals more dogs). Also, more people
will likely lead to an increase in hazardous situations, especially if
take is allowed during nene breeding season because nene are ground-
nesting birds. One of these commenters suggested only allowing hazing
outside of nene breeding season, and then stated that hazing may be an
advantage but is a narrow perspective to the conservation of the
species. Further, the human dimensions side of nene acceptance deserves
immediate Service emphasis (i.e., outreach) to help broaden support for
nene. One of these commenters suggested that downlisting
[[Page 69939]]
nene to threatened status may increase human hunting of nene.
Our Response: Please see our responses to comments (2), (5), (6),
and (15), which address similar comments pertaining to downlisting nene
and the promulgation of this 4(d) rule. Please also see our response to
comment (31) regarding outreach. Regarding hunting, whether nene are
listed as endangered or threatened under the Act, hunting nene is still
prohibited under current law, and subject to civil and criminal
penalties under both Federal and State law.
(25) Comment: One commenter stated that wind energy was harmful to
nene and that there was a large increase in wind energy production
between 2009 and 2015, with new prospects underway.
Our Response: We agree that wind energy production has increased
over the past 10 years and that new prospects are underway. We also
agree that wind turbines have the potential to harm nene. Nine wind
energy facilities are either built or under construction on the islands
of Oahu (3), Maui (3), and Hawaii (3). Four of these have active
incidental take permits and associated HCPs, one is in the process of
finalizing a HCP to receive an incidental take permit for take of nene,
three are not permitted for take of nene (because take is unlikely to
result from operations on Oahu), and one of the three not currently
permitted for take of nene is just beginning the process to seek
coverage for nene. Rigorous and standardized fatality monitoring is
conducted on a 4- to 7-day interval year-round for all wind energy
facilities that have incidental take permits. These wind energy
facilities are required to fully offset their requested take through
mitigation that includes predator control, improving foraging (e.g.,
outplanting favored nene food plants), pen maintenance and
construction, and other management actions that benefit the nene. The
mitigation actions are carried out on the island where the incidental
take occurs. The mitigation actions include specific monitoring
components that ensure the mitigation actions are indeed offsetting the
requested take above the baseline that exists without the additive
mitigation actions. In other words, the mitigation actions must produce
nene that, but for the mitigation, would not have been produced. Prior
to the Service issuing an incidental take permit, the cumulative
impacts of all projects existing and in the foreseeable future that may
impact a species are analyzed to ensure the action does not
significantly impact the survival and recovery of the species.
(26) Comment: One commenter stated that there are inadequate
regulatory mechanisms in place to protect nene.
Our Response: We addressed regulatory mechanisms in the April 2,
2018, proposed rule and this final rule under Factor D. The Inadequacy
of Existing Regulatory Mechanisms. Based on our analysis of existing
regulatory mechanisms, a diverse network of laws and regulations
provide some protections to the nene and its habitat. Nene habitat that
occurs on NWRs is protected under the National Wildlife Refuge System
Improvement Act of 1997 and section 7 of the Endangered Species Act.
Nene habitat is similarly protected on lands owned by the National Park
Service. Additionally, nene receive protection under State law in
Hawaii. Although we conclude State and Federal regulatory mechanisms do
not adequately address the threats to nene and their habitats from
potential new introductions of nonnative species or continued expansion
of existing nonnative species populations on and between islands and
watersheds, we believe that with sustained management commitment, these
mechanisms could be important tools to ameliorate these threats.
(27) Comment: Four commenters expressed conditional support for the
proposed downlisting rule if the Service would withdraw or limit the
4(d) proposal. These commenters stated that nene do not eat taro or
harm taro production, and the commenters do not want the Service to
permit hazing on taro farms on Kauai. To allow this would impermissibly
disrupt nene populations in an area where they are highly concentrated.
These commenters support efforts to decrease motor vehicle strikes, as
a lot occur in Hanalei Valley. They support the 4(d) rule as long as
the purpose is to open up and increase positive management for nene.
Our Response: We agree that taro farms on Kauai support large
numbers of nene and that taro farms are important, although not ideal,
habitat. As outlined in the April 2, 2018, proposed rule and this final
rule, the purpose of the 4(d) rule is to facilitate the expansion of
nene into additional areas with land use practices compatible with the
conservation of nene, and reduce the occurrence of nene in areas that
do not support the conservation of nene across the landscape. The final
4(d) rule provides incentives to landowners to support the occurrence
of nene on their properties, as well as neighboring properties, by
alleviating concerns about unauthorized take of nene. Nonlethal take on
any farms, taro or otherwise, is allowed consistent with the 4(d) rule
if permitted by the State and in the case of the NWRs, if permitted by
their lease language. Harm or harassment that is likely to cause
mortality or injury will continue to be prohibited under the 4(d) rule
here because allowing these forms of take would be incompatible with
restoring robust populations of nene and restoring and maintaining
their habitat. Please also see our response to comment (2); 4(d) Rule,
below; and Factor D. The Inadequacy of Existing Regulatory Mechanisms,
above, for more information. Regarding vehicle strikes, we agree
vehicle strikes are a threat to nene, as outlined in the April 2, 2018,
proposed rule and this final rule under Factor E. Other Natural or
Manmade Factors Affecting Its Continued Existence, and we will continue
to work with partners to reduce the impacts from vehicle strikes on
Kauai and throughout the nene's range.
(28) Comment: Five commenters stated that continued conservation
actions are essential for this rule to work, and that a stronger
management plan is needed if reclassification is finalized with the
4(d) rule, as well as to address impacts from climate change. An
increase in protection for crucial nene nesting areas is needed,
perhaps a large predator-free preserve. The Service also needs to
include climate change as part of the larger regulatory discussion, as
well as focus on ecosystem stabilization. Federal management is
essential for nene.
Our Response: We agree that continued conservation actions are
essential to the full recovery of nene. This is true with or without
this final reclassification and 4(d) rule as the nene is considered a
conservation-reliant species, as discussed in the April 2, 2018,
proposed rule under Recovery Planning (83 FR 13922-13923). Although
classified as threatened upon the effective date of this final rule
(see DATES, above), nene are still protected under both the Act and
Hawaii Endangered Species Law. Please also see our response to comment
(2). We also agree that current and future anticipated impacts from
climate change should be part of both regulatory and management
discussions at all levels, as well as ecosystem stabilization. However,
impacts to nene and nene habitat from the effects of climate change are
not fully known. We expect there will be both anticipated (e.g.,
increased intensity and frequency of drought and hurricane) and
unanticipated impacts, although we do not know when such impacts will
[[Page 69940]]
manifest. Please also see our response to related comment (22). Federal
management of nene is expected to continue into the foreseeable future.
We also anticipate continued collaboration with State and private
partners. The nene recovery plan is rooted in adaptive management, and
as the species needs become evident in light of climate change, we will
adapt accordingly. We are aware that data indicate an increase in
frequency and intensity of both drought and hurricanes, and indicate
species range shifts due to a warming ambient global temperature, and
we will work with partners to do our best to minimize such impacts to
nene and nene habitat.
(29) Comment: Two commenters stated that there is an alarming
increase in motor vehicle collisions, either because there are more
nene or more people, or both.
Our Response: We agree that vehicle strikes at Haleakala National
Park, and across the species' range, are a threat to nene, particularly
during breeding season, as discussed in the April 2, 2018, proposed
rule and this final rule under Factor E. Other Natural or Manmade
Factors Affecting Its Continued Existence. The Service uses the best
available scientific and commercially data during the compilation of
both proposed and final rules. Any pertinent new information we
received during the comment period has been included in this final
rule.
(30) Comment: One commenter shared that there is an investigation
underway in Koloa on Kauai regarding a homeowner that allegedly killed
four nene with a BB gun.
Our Response: We are unable to comment on alleged or actual
investigations. Shooting nene is prohibited under Federal and State
law, and subject to both civil and criminal penalties.
(31) Comment: Two commenters asked the Service to conduct more
outreach for nene and associated current issues, and stated that it
would have been better to provide more public information rather than
simply referring to readers to http://www.regulations.gov. It would be
advantageous to broadly communicate the nene as a success for the
recovery progress that has been made, and use that to educate the
public about endorsing biodiversity.
Our Response: We agree that additional outreach regarding the
status of nene and associated current issues would further advance the
conservation of nene. We are always seeking more effective ways to best
reach the public and create awareness about endangered species and
surrounding issues, including nene. Our current methods of outreach
include releases to media (local television and newspaper stations),
multiple social media stories and website postings, and outreach to the
community. We also welcome the public to contact our office if they
have questions about nene (please see FOR FURTHER INFORMATION CONTACT,
above). The nene's trajectory toward recovery is the culmination of
years of collaborative efforts between Federal, State, and private
partners. Working with partners, we will continue to use a variety of
tools to provide information to the public regarding nene, including,
but not limited to, social media, websites, news releases,
environmental education, and outreach and interpretation.
(32) Comment: One commenter questioned the success of nene outlined
in the April 2, 2018, proposed rule by citing the release of 2,400
birds between 1960 and 2006, yet the statewide population is currently
only 3,000.
Our Response: As discussed in the April 2, 2018, proposed rule
under Species Information (83 FR 13921-13922), approximately 2,800
captive-bred nene were released between 1960 and 2008. The population
estimate provided in the proposed rule (2,855 individuals) was the
result of a combination of captive-bred and wild (naturally produced
offspring from released birds) nene. We received a more recent
statewide population estimate of 3,252 birds from the State. Estimated
mortality rates retrieved from capture-recapture analysis on over 2,000
captive-bred nene that were released to the wild ranged from 0 to 87
percent (Black et al. 1997, p. 1161; Banko et al. 1999, p. 20).
Variability was attributed to year of release, age class, and method of
release (Black et al. 1997, pp. 1167-1168, 1171, 1173). Survival for
nene released before the drought years of 1976 to 1983 ranged from 84
to 95 percent; however, during the drought period, nearly 1,200
captive-bred nene perished (Banko et al. 1999, p. 20). The cumulative
data (including values for captive-bred release, translocated birds,
mortality rates, fledging success, life span (up to 28 years for one
captive-bred released nene at Haleakala National Park), and other
factors discussed in the April 2, 2018, proposed rule) indicate that
although nene are conservation-reliant, they are on a path toward
recovery. There are self-sustaining nene populations on Hawaii, Kauai,
and Maui, and the most recent population estimate we received from the
State shows an increase in number of individuals from the 2015 value
cited in the April 2, 2018, proposed rule.
(33) Comment: Two commenters stated that nene are conservation
reliant, especially outside of Kauai.
Our Response: We agree, as stated in the April 2, 2018, proposed
rule and this final rule. We anticipate that current conservation
actions will continue or increase in the foreseeable future. Please
also see our response to comment (28).
(34) Comment: One commenter stated the need for an increase in
biosecurity efforts. This is most important on Kauai because mongoose
are not established there. It is only a matter of time before mongoose
establish on Kauai; therefore, nene should remain classified as
endangered.
Our Response: We agree that there is a need for increased
biosecurity efforts across the island, both for interisland crafts and
those from overseas, to address introduction and movement of all
invasive species. Currently, the Department of Health is actively
implementing a mongoose detection program at Nawiliwili harbor (the
location of the 2012 live mongoose capture), and has been for the past
two years (Cecconi 2019, pers. comm.; KISC 2019). Additionally, Kauai
has adopted the Kauai Mongoose Standard Operating Procedure to conduct
island-wide State assessment and early detection rapid response
(Phillips and Lucey 2016, entire). Please also see our response to
comment (4).
(35) Comment: One commenter stated that nene regulations are costly
for businesses, due to bird droppings in restaurants and pools and nene
eating of farm crops. As nene rebound, businesses are burdened. The
4(d) rule will decrease this burden. Additionally, it is still against
both Federal and State law to harm, abuse, or kill a nene.
Our Response: Although this 4(d) rule provides select exceptions
from section 9 of the Federal Endangered Species Act, any type of nene
take is still prohibited by the Hawaii Endangered Species Law. Please
also see our responses to comments (2) and (5).
(36) Comment: One commenter stated that nene are a risk to aircraft
and the ability to haze nene at the airport will reduce this risk.
Our Response: We agree that nene, and other birds, are a risk to
aircraft and aircraft passengers. The effect of this final rule is the
exception of certain specific actions from the Act's section 9
prohibitions on take. However, under 50 CFR 402.14, a Federal agency
would still need to consult with the Service if the proposed action may
affect nene, unless the agency determines with written concurrence from
the Service that the proposed action is not likely to
[[Page 69941]]
adversely affect the nene. Additionally, under State law, a permit is
required to haze a federally or State-listed species at airports or
elsewhere. Furthermore, State issuance of an incidental take license
requires the development of an HCP (HRS 195D-21) or a safe harbor
agreement (HRS 195D-22), and consultation with the State's Endangered
Species Recovery Committee.
Determination of Nene Status
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following 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.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
carefully examined the best scientific and commercial information
available regarding the past, present, and future threats faced by
nene. We reviewed the information available in our files and other
available published and unpublished information, and we consulted with
recognized experts and State agencies. The current statewide nene
population estimate is 3,252 individuals, with the wild populations on
the islands of Hawaii, Kauai, Maui, Molokai, and Oahu estimated to have
1,104, 1,482, 627, 37, and 2 individuals, respectively. Populations on
Kauai, Maui, and Hawaii are exhibiting a stable or increasing trend,
while the nene population on Molokai is experiencing a fluctuation in
population numbers. Continuation of current population trends into the
future is dependent on, at a minimum, maintaining current levels of
management (e.g., predator control and habitat enhancement). Nene are
still affected by predation (Factor C), loss and degradation of habitat
(Factor A), and effects of human activities (Factor E). Some
subpopulations may potentially be affected in the future by habitat
changes resulting from the effects of climate change such as increases
in drought, hurricanes, or sea-level rise (Factor A), and nene may
potentially be affected in the future by introduction of diseases such
as West Nile virus (Factor C). Regulatory mechanisms do not adequately
address these threats. While threat intensity and management needs vary
somewhat across the range of the species (for example, the current lack
of an established mongoose population on Kauai influences predator
control strategies there), nene populations on islands throughout the
range of the species continue to be reliant on active conservation
management and require adequate implementation of regulatory
mechanisms, and all remain vulnerable to threats that could cause
substantial population declines in the foreseeable future. Despite the
existing regulatory mechanisms and conservation efforts (Factor D), the
factors identified above continue to affect the nene such that it is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. Thus, after assessing the best available
information, we conclude that the nene is not currently in danger of
extinction, but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. Because we have determined that the nene is likely to become
an endangered species within the foreseeable future throughout all of
its range, we find it unnecessary to proceed to an evaluation of
potentially significant portions of the range. Where the best available
information allows the Services to determine a status for the species
rangewide, that determination should be given conclusive weight because
a rangewide determination of status more accurately reflects the
species' degree of imperilment and better promotes the purposes of the
Act. Under this reading, we should first consider whether the species
warrants listing ``throughout all'' of its range and proceed to conduct
a ``significant portion of its range'' analysis if, and only if, a
species does not qualify for listing as either an endangered or a
threatened species according to the ``throughout all'' language. We
note that the court in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not
address this issue, and our conclusion is therefore consistent with the
opinion in that case.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the nene meets the definition of a
threatened species. Therefore, we are listing the nene as a threatened
species in accordance with sections 3(20) and 4(a)(1) of the Act.
The Act does not define the term ``foreseeable future.'' For the
purposes of this rule, we define the ``foreseeable future'' to be the
extent to which we can reasonably rely on predictions about the future
in making determinations about the future conservation status of nene.
The degree of foreseeability varies with respect to the different
various threats to nene. While nene are adversely affected by many
types of direct and indirect threats, as outlined under Summary of
Factors Affecting the Species, most of these threats are ongoing (e.g.,
predation by already established nonnative animals) and only abated by
continued management, such that future threat impacts on nene
populations are likely to be dependent on the availability of resources
for management. For some potential threats (e.g., introduction of West
Nile virus, establishment of mongoose on Kauai), we cannot predict
whether or when they will manifest.
The threats with the greatest potential to cause significant nene
population declines relate to predation and loss and degradation of
habitat (primarily due to ungulates and invasive plants). Both
management (e.g., control of predators, ungulates, and invasive plant
control) and biosecurity (e.g., predator and disease control at some
ports) have improved the status of nene. However, continuing these
efforts into the future is necessary to prevent substantial reductions
in the species' viability since nene populations are expected to
continue to be conservation-reliant. Thus, the foreseeable future in
relation to management and biosecurity is largely dependent on the
reliability of management commitments and funding for these purposes in
coming decades.
Most nene populations currently exist on lands managed by agencies
that function under conservation mandates and have management plans in
place (i.e., National Parks, National Wildlife Refuges, and some State
lands).
[[Page 69942]]
Availability of funding for conservation of natural resources,
including threatened and endangered species, is increasingly difficult
to predict into the more distant future. However, management plans
currently in effect are likely to continue for a decade or more (e.g.,
comprehensive conservation plans for National Wildlife Refuges and
general management plans for National Parks function on a roughly 15-
year planning cycle [see Service Manual 602 FW 3; National Park
Management Policies 2.3.1.12]), and given funding availability,
predator management actions are likely to continue as a significant
priority in future iterations based on established conservation
mandates. Thus, we conclude that there is a reasonable likelihood of
continued management for the benefit of nene on these lands over the
next 15 to 30 years. Similar constraints apply to the level of
foreseeability of governmental commitments to implementation of
biosecurity measures (see Hawaii Interagency Biosecurity Plan).
Over this time frame, we anticipate that threats to nene associated
with climate change (e.g., increased duration and intensity of drought,
increased frequency and intensity of hurricanes, and flooding
associated with hurricanes and sea-level rise) to continue to increase,
although we expect the primary issues driving nene population viability
will continue to be predation and habitat degradation.
Because the species is likely to become in danger of extinction in
the foreseeable future throughout all of its range, the species meets
the definition of a threatened species. This rule finalizes the
reclassification of the nene from an endangered species to a threatened
species.
This final rule revises 50 CFR 17.11(h) to reclassify nene from
endangered to threatened on the List of Endangered and Threatened
Wildlife. Reclassification of nene from endangered to threatened is due
to the substantial efforts made by Federal, State, and local government
agencies and private landowners to recover the species. This rule
formally recognizes that this species is no longer in danger of
extinction throughout all or a significant portion of its range and,
therefore, does not meet the definition of endangered, but is still
impacted by predation, habitat loss and degradation, and inadequacy of
regulatory mechanisms to the extent that the species meets the
definition of a threatened species under the Act. However, this
reclassification does not significantly change the protection afforded
this species under the Act. Other than the ``take'' that will be
allowed for the specific activities outlined in the accompanying 4(d)
rule, the regulatory protections of the Act will remain in place.
Anyone taking, attempting to take, or otherwise possessing a nene, or
parts thereof, in violation of section 9 of the Act will still be
subject to penalties under section 11 of the Act, except for the
actions covered under the 4(d) rule.
4(d) Rule
Section 4(d) of the Act states that the ``Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation'' of species listed as threatened. The U.S. Supreme Court
has noted that very similar statutory language demonstrates a large
degree of deference to the agency. See Webster v. Doe, 486 U.S. 592
(1988). Conservation is defined in the Act to mean ``the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to [the Act] are no longer necessary.'' Additionally,
section 4(d) of the Act states that the Secretary ``may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1). . . . or 9(a)(2).'' Thus, regulations
promulgated under section 4(d) of the Act provide the Secretary with
wide latitude of discretion to select appropriate provisions tailored
to the specific conservation needs of the threatened species. The
statute grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have approved rules
developed under section 4(d) that include a taking prohibition for
threatened wildlife, or include a limited taking prohibition. See Alsea
Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or.
2007); Washington Environmental Council v. National Marine Fisheries
Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). Courts have also
approved 4(d) rules that do not address all of the threats a species
faces. See State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988).
As noted in the legislative history when the Act was initially enacted,
``once an animal is on the threatened list, the Secretary has an almost
infinite number of options available to him with regard to the
permitted activities for those species. He may, for example, permit
taking, but not importation of such species,'' or he may choose to
forbid both taking and importation but allow the transportation of such
species, as long as the prohibitions, and exceptions to those
prohibitions, will ``serve to conserve, protect, or restore the species
concerned in accordance with the purposes of the Act'' (H.R. Rep. No.
412, 93rd Cong., 1st Sess. 1973).
The Service has developed a species-specific 4(d) rule that is
designed to address the nene's specific threats and conservation needs.
Although the statute does not require the Service to make a ``necessary
and advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this regulation is necessary
and advisable to provide for the conservation of the nene. As discussed
above in the Summary of Factors Affecting the Species, the Service has
concluded that the nene is at risk of extinction within the foreseeable
future primarily due to predation (Factor C), loss and degradation of
habitat (Factor A), and effects of human activities (Factor E) . Some
subpopulations may potentially be affected in the future by habitat
changes resulting from the effects of climate change such as increases
in drought, hurricanes, or sea-level rise (Factor A) and nene may
potentially be affected in the future by introduction of diseases such
as West Nile virus (Factor C). This 4(d) rule targets activities to
facilitate conservation and management of nene where they currently
occur and may occur in the future by excepting the Federal take
prohibition under certain conditions. This change is intended to
encourage support for the occurrence of nene in areas with land use
practices compatible with the conservation of nene, and to redirect
nene use away from areas that do not support the conservation of nene.
The provisions of this 4(d) rule will promote conservation of nene and
expansion of their range by increasing flexibility in management
activities for our State and private landowners. The provisions of this
rule are one of many tools that the Service will use to promote the
conservation of the nene.
Provisions of the 4(d) Rule
This 4(d) rule will provide for the conservation of the nene by
specifically prohibiting the following actions that can affect nene,
except as otherwise authorized or permitted: Import or export; take;
possess and other acts with unlawfully taken specimens; deliver,
receive, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce.
[[Page 69943]]
These prohibitions will result in regulating a range of human
activities that have the potential to affect nene, including
agricultural or urban development; energy development; recreational and
commercial activities; introduction of predators; and direct capture,
injury, or killing of nene. Regulating these activities will help
preserve the species' remaining populations.
Prohibition of Import, Export, and Interstate and Foreign Commerce
We have included the prohibition of import, export, interstate and
foreign commerce, and sale or offering for sale in such commerce due in
part to the increased risk of exposing nene to diseases such as West
Nile virus. While there are currently no diseases present in Hawaii
that jeopardize the viability of nene, unrestricted transport of
captive nene in and out of the Hawaiian Islands would have the
potential to result in introduction of new avian diseases to the wild
population in the foreseeable future. As discussed under Factor C, the
introduction of diseases such as West Nile virus could significantly
impair the viability of nene in Hawaii. Additionally, although the nene
population is currently stable, it is considered a conservation-reliant
species and requires active management to maintain this stability. The
nene is not thriving to the degree that its population is considered
capable of sustaining unrestricted trade, and the resulting increased
incentive for capture of nene from the wild, without the likelihood of
negative impacts to the long-term viability of the species.
Prohibition of Possession and Other Acts With Unlawfully Taken
Specimens
Although the nene population is currently stable, it is considered
a conservation-reliant species and requires active management to
maintain this stability. The nene is not thriving to the degree that
its population is considered capable of sustaining unrestricted capture
or collection from the wild without the likelihood of negative impacts
to the long-term viability of the species. Because capture and
collection of nene remains prohibited as discussed below, maintaining
the complementary prohibition on possession and other acts with
illegally taken nene will further discourage such illegal take. Thus,
the possession, sale, delivery, carrying, transporting, or shipping of
illegally taken nene should continue to be prohibited in order to
maintain the viability of the nene population.
Prohibition of Take
``Take'' means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.
Some of these provisions have been further defined in regulation at 50
CFR 17.3. Take can result knowingly or otherwise, by direct and
indirect impacts, intentionally or incidentally. Regulating incidental
and intentional take will help preserve the nene's remaining
populations.
Although the statewide number of individual nene is stable, if not
increasing, species experts consider the nene a conservation-reliant
species. The nene is not thriving to the degree that its population is
considered able to withstand unregulated take, either intentional or
unintentional, without the likelihood of negative impacts to the long-
term viability of the species. There are a few circumstances in which
allowing either intentional or unintentional take may benefit the nene
as a species and further its recovery. We have outlined such
circumstances below as exceptions to the prohibitions of take. By
allowing take under specified circumstances, the rule will provide
needed protection to the species while allowing management flexibility
to benefit the species' long-term conservation. Harm or harassment that
is likely to cause mortality or injury continues to be prohibited
because allowing these forms of take is incompatible with restoring
robust populations of nene and restoring and maintaining their habitat.
Anyone taking, attempting to take, or otherwise possessing a nene, or
parts thereof, in violation of section 9 of the Act will still be
subject to a penalty under section 11 of the Act, except for the
actions that are specifically excepted under the 4(d) rule.
Take Exceptions
Under this 4(d) rule, take will generally continue to be
prohibited, but the following specific take will be excepted under the
Act, provided the additional measures described in the rule are adhered
to:
Take by landowners or their agents conducting intentional
harassment in the form of hazing or other deterrent measures not likely
to cause direct injury or mortality, or nene surveys;
Take that is incidental to conducting lawful control of
introduced predators or habitat management activities for nene; and
Take by authorized law enforcement officers for the
purposes of aiding or euthanizing sick, injured, or orphaned nene;
disposing of dead specimens; and salvaging a dead specimen that may be
used for scientific study.
Intentional Harassment Not Likely To Cause Mortality or Direct Injury
The increased interaction of nene with the human environment
increases the potential for nene to cause conflicts for business,
agricultural, residential, and recreational activities, as well as the
potential for nene to become habituated to hazardous areas (e.g., golf
courses, roadways, parks, and farms). One of the limiting factors in
the recovery of nene has been the concern of landowners regarding nene
on their property due to the potential damage to agricultural crops and
potential conflicts with normal business, recreational, and residential
activities. Landowners express concern over their inability to prevent
or address the damage or conflicts caused by nene because of the threat
of penalties under the Act. Furthermore, State and Federal wildlife
agencies expend resources addressing landowner complaints regarding
potential nene damage to agricultural crops and conflicts during normal
business, recreational, and residential activities. By providing more
flexibility to the landowners regarding management of nene, we expect
enhanced support for the conservation of the species, by providing a
tool to reduce potential human-wildlife conflicts in areas incompatible
with the conservation of nene, as well as to promote expansion of the
species' range into additional areas compatible with conservation of
nene across the State.
Hazing and other persistent deterrence actions are management
strategies that may be used to address wildlife conflict issues. As
nene populations increase, particularly in heavily human-populated
lowland areas, they may often come into conflict with human activities.
For example, nene are known to use a variety of human-modified areas
including wind farms, airports, resorts, golf courses, agricultural
operations, residential areas, parks, public recreation areas, and
transportation routes. Nene using these areas may present a conflict
with normal business activities or cause crop depredation or safety
hazards to humans. Humans may also inadvertently harm nene by feeding
them, which could result in nene showing aggressive behaviors towards
humans, being injured or killed by vehicles or humans, or being placed
at increased risk from predators. Methods such as hazing are necessary
to prevent and address these potential human-nene
[[Page 69944]]
conflicts, allowing nene to coexist with areas of established human
activity and providing for continued public support of nene recovery
actions.
Any deterrence activity that does not create a likelihood of injury
by significantly disrupting normal nene behavioral patterns such as
breeding, feeding, or sheltering is not take and is not prohibited
under the Act.
If an activity creates the likelihood of injury to wildlife by
annoying it to such an extent as to significantly disrupt normal
behavioral patterns such as breeding, feeding, and sheltering, then the
activity has the potential to cause take in the form of harassment.
Hazing of nene is considered intentional harassment, which creates the
likelihood of injury and has been prohibited take. Under this 4(d)
rule, hazing and other deterrence activities that may cause indirect
injury to nene by disrupting normal behavioral patterns, but are not
likely to be lethal or cause direct injury (including the need for
veterinary care or rehabilitation), are classified as intentional
harassment not likely to cause direct injury or mortality, and are
allowed under Federal law. Such activities may include the use of
predator effigies (including raptor kites, predator replicas, etc.),
commercial chemical bird repellents, ultrasonic repellers, audio
deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with
trained or tethered dogs, or access control (including netting,
fencing, etc.). Harassment of nene in the course of surveys that
benefit and further the recovery of nene is also considered to be
within the scope of this 4(d) rule. This 4(d) rule does not apply to
activities involving lethal or directly injurious take. For example,
laser irradiation used for hazing may cause ocular damage resulting in
temporary or permanent loss of visual acuity or blindness (Oregon State
University 2017, in litt.), impairing the ability of nene to feed or
avoid predators or other hazards (e.g., vehicle collisions). Feral dogs
or unrestrained pets are known to take nene adults and goslings, and
nene are particularly vulnerable to dogs because they have little
instinctive fear of them (NRCS 2007, p. 6). Therefore, this 4(d) rule
does not cover hazing methods such as lasers or untrained dogs.
Intentional harassment activities not likely to cause direct injury
or mortality that are addressed in this 4(d) rule are recommended to be
implemented prior to the nene breeding season (September through April)
wherever feasible. If, during the breeding season, a landowner desires
to conduct an action that would intentionally harass nene to address
nene loafing or foraging in a given area, a qualified biologist
familiar with the nesting behavior of nene must survey in and around
the area to determine whether a nest or goslings are present. If a nest
or families with goslings is discovered, a qualified biologist must be
notified and the following measures implemented to avoid disturbance of
nests and broods: (1) No disruptive activities may occur within a 100-
foot (30-meter) buffer around all active nests and broods until the
goslings have fledged; and (2) brooding adults (i.e., adults with an
active nest or goslings) or adults in molt may not be subject to
intentional harassment at any time. Any observation of nene nest(s) or
gosling(s) should be reported to the Service and authorized State
wildlife officials within 72 hours. Additionally, follow-up surveys of
the property by qualified biologists should be arranged by the
landowner to assess the status of birds present.
This 4(d) rule addresses intentional harassment of nene by
landowners and their agents that is not likely to result in mortality
or direct injury, predator control, and habitat management. Excepting
targeted activities that may normally result in take under the
prohibitions of the Act will increase the incentive for all landowners
to support nene recovery and provide enhanced options for wildlife
managers with respect to nene management, thereby encouraging their
participation in recovery actions for nene.
We expect that the actions and activities that are allowed under
this 4(d) rule, while they may cause some minimal level of harm or
disturbance to individual nene, will not cause mortality or direct
injury, will not adversely affect efforts to conserve and recover nene,
and in fact should facilitate these efforts because they will make it
easier to implement recovery actions and redirect nene activity toward
lands that are managed for conservation.
Predator Control and Habitat Management
Control of introduced predators and habitat management are
identified as two primary recovery actions for nene (USFWS 2004, p.
52). Control of predators (e.g., mongoose, dogs (feral and domestic),
feral pigs, cats (feral and domestic), rats, cattle egrets, and barn
owls) may be conducted to eliminate or reduce predation on nene during
all life stages. These predators are managed using a variety of
methods, including fencing, trapping, shooting, and toxicants. All
methods must be used in compliance with State and Federal regulations.
In addition to the application of the above tools, predator control as
defined here includes activities related to predator control, such as
performing efficacy surveys, trap checks, and maintenance duties.
Predator control may occur year-round or during prescribed periods.
During approved predator control activities, incidental take of nene
may occur in the following manner: (1) Injury or death to goslings,
juveniles, or adults from accidental trapping; (2) injury or death due
to fence strikes caused by introduction of equipment or materials in a
managed area; and (3) injury or death due to ingestion of chemicals
approved for use in predator control. Under this 4(d) rule, take
resulting from actions implementing predator control activities to
benefit nene are not prohibited as long as reasonable care is practiced
to minimize the effects of such taking. Reasonable care may include,
but is not limited to: (1) Procuring and implementing technical
assistance from a qualified biologist(s) on predator control methods
and protocols prior to application of methods; (2) compliance with all
applicable regulations and following principles of integrated pest
management; and (3) judicious use of methods and tool adaptations to
reduce the likelihood that nene would ingest bait, interact with
mechanical devices, or be injured or die from an interaction with
mechanical devices.
Nene productivity and survival are currently limited by
insufficient nutritional resources due to habitat degradation and the
limited availability of suitable habitat due to habitat loss and
fragmentation, especially in lowland areas (USFWS 2004, pp. 29-30).
Active habitat management is necessary for populations of nene to be
sustained or expanded without the continued release of captive-bred
birds. Active habitat management in protected nesting and brooding
areas should improve productivity and survival, as well as attract
birds to areas that can be protected during sensitive life stages.
Habitat management actions may include: (1) Mowing, weeding,
fertilizing, herbicide application, and irrigating existing pasture
areas for nene conservation purposes; (2) planting native food
resources; (3) providing watering areas, such as water units or ponds
or catchments, designed to be safe for goslings and flightless/molting
adults; (4) providing temporary supplemental feeding and watering
stations when appropriate, such as under poor quality forage or extreme
conditions (e.g., drought or fire); (5) if mechanical mowing of
pastures for
[[Page 69945]]
conservation management purposes is not feasible, alternative methods
of keeping grass short, such as grazing; or (6) large-scale restoration
of native habitat (e.g., feral ungulate control, fencing).
In the course of habitat management activities, incidental take of
nene may occur in the following manner: (1) Accidental crushing of non-
flighted juveniles, goslings, or nests with eggs; (2) injury or death
due to collisions with vehicles and equipment; (3) injury or death due
to ingestion of plants sprayed with herbicides for conservation
purposes or ingestion of fertilizers; (4) injury or death due to
entanglement with landscaping materials or choking on foreign
materials; and (5) injury or death of goslings if goslings are
separated from parents because of disturbance by restoration activities
(e.g., use of heavy equipment or mechanized tools). Under this 4(d)
rule, take resulting from habitat management activities is not
prohibited as long as reasonable care is practiced to minimize the
effects of such taking. Reasonable care may include, but is not limited
to: (1) Procuring and implementing technical assistance from a
qualified biologist on habitat management activities prior to
implementation; and (2) best efforts to minimize nene exposure to
hazards (e.g., predation, habituation to feeding, entanglement, and
vehicle collisions).
Additional Authorizations for Law Enforcement Officers
The increased interaction of nene with the human environment also
increases the likelihood of encounters with injured, sick, or dead
nene. This 4(d) rule excepts take of nene by law enforcement officers
in consultation with State wildlife biologists to provide aid to
injured or sick nene, or disposal or salvage of dead nene. Law
enforcement officers are allowed take of nene for the following
purposes: Aiding or euthanizing sick, injured, or orphaned nene;
disposing of a dead specimen; and salvaging a dead specimen that may be
used for scientific study.
Under certain circumstances we may issue permits to carry out
otherwise prohibited activities, including those described above,
involving threatened wildlife. Regulations governing permits are
codified at 50 CFR 17.32. With regard to threatened wildlife, a permit
may be issued for the following purposes: Scientific purposes, to
enhance propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. There are
also certain statutory exemptions from the prohibitions, which are
found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
state natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State Conservation Agency which is a party to a
Cooperative Agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve nene that may
result in otherwise prohibited take without additional authorization.
Nothing in this 4(d) rule will change in any way the recovery
planning provisions of section 4(f) of the Act, the ability of the
Service to enter into partnerships for the management and protection of
the nene, or the consultation requirements under section 7 of the Act.
Under section 7 of the Act, Federal agencies must ensure that any
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of nene; this 4(d) rule does not alter the
section 7 requirements, and Federal actions covered by this rule are
still subject to those requirements. The effect of this rule is to
exclude certain specific actions from the prohibitions on take so that
such actions may not require an exemption through section 7(o) of the
Act. However, under 50 CFR 402.14, the Federal agency will still need
to consult with the Service if the proposed action may affect nene,
unless the agency determines with written concurrence from the Service
that the proposed action is not likely to adversely affect the nene.
Interagency cooperation may be further streamlined through planned
programmatic consultations for the species between Federal agencies and
the Service.
This 4(d) rule addresses only Federal Endangered Species Act
requirements, and does not change State law. It is our understanding
that current State of Hawaii (HRS section 195D-4) law does not include
the authority to issue regulations, equivalent to those under section
4(d) of the Act, to except take prohibitions for endangered and
threatened species. Instead, State law requires the issuance of a
temporary license for the take of endangered and threatened animal
species, if the activity otherwise prohibited is: (1) For scientific
purposes or to enhance the propagation or survival of the affected
species (HRS 195D-4(f)); or (2) incidental to an otherwise lawful
activity (HRS 195D-4(g)). Incidental take licenses require the
development of an HCP (HRS 195D-21) or a safe harbor agreement (HRS
195D-22), and consultation with the State's Endangered Species Recovery
Committee. Therefore, persons may need to obtain a State permit for
some of the actions described in this 4(d) rule. In addition, it is our
understanding that current State regulations for endangered and
threatened wildlife (HAR 13-124, subchapter 3) do not allow permits for
the intentional harassment or hazing of endangered or threatened
species; thus, changes to these State regulations may be necessary to
allow the State to issue such permits.
Required Determinations
National Environmental Policy Act
We have determined that an environmental assessment or an
environmental impact statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations such as this. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited in this final rule is
available at http://www.regulations.gov at Docket No. FWS-R1-ES-2017-
0050, or upon request from the Pacific Islands Fish and Wildlife Office
(see ADDRESSES).
Authors
The primary authors of this document are staff members of the
Pacific Islands Fish and Wildlife Office in Honolulu, Hawaii (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
[[Page 69946]]
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by removing the entry for ``Goose, Hawaiian''
and adding an entry for ``Goose, Hawaiian (Nene)'' in its place under
BIRDS in the List of Endangered and Threatened Wildlife to read as
follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Birds
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Goose, Hawaiian (Nene)........ Branta Wherever found... T................. 32 FR 4001, 3/11/1967;
sandvicensis. 84 FR [insert Federal
Register page where
the document begins],
12/19/2019; 50 CFR
17.41(d) \4d\.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.41 by adding paragraph (d) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(d) Hawaiian goose (Branta sandvicensis) (nene). (1) Definitions.
For the purposes of this paragraph (d):
(i) Nene means the Hawaiian goose (Branta sandvicensis).
(ii) Intentional harassment means an intentional act that creates
the likelihood of injury to wildlife by annoying it to such an extent
as to significantly disrupt normal behavior patterns, which include,
but are not limited to, breeding, feeding, or sheltering. Intentional
harassment may include prior purposeful actions to attract, track, wait
for, or search out nene, or purposeful actions to deter nene.
(iii) Person means a person as defined by section 3(13) of the Act.
(iv) Qualified biologist means an individual with a combination of
academic training in the area of wildlife biology or related discipline
and demonstrated field experience in the identification and life
history of nene.
(2) Prohibitions. The following prohibitions apply to the nene
except as provided under paragraph (d)(3) of this section and
Sec. Sec. 17.4 through 17.6:
(i) Import or export as provided in Sec. 17.21(b).
(ii) Take as provided in Sec. 17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens as
provided in Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity as provided in Sec. 17.21(e).
(v) Sale or offer for sale as provided in Sec. 17.21(f).
(vi) Attempt to commit, solicit another to commit, or to cause to
be committed, any of the acts described in paragraphs (d)(2)(i) through
(v) of this section.
(3) Exceptions from prohibitions. The following exceptions from
prohibitions apply to the nene:
(i) Authorization provided under Sec. 17.32.
(ii) Take as provided in Sec. 17.21(c)(2) through (7). However,
Sec. 17.21(c)(5)(i) through (iv) does not apply.
(iii) Take incidental to an otherwise lawful activity caused by:
(A) Intentional harassment of nene that is not likely to cause
direct injury or mortality. A person may harass nene on lands they own,
rent, or lease, if the action is not likely to cause direct injury or
mortality of nene. Techniques for such harassment may include the use
of predator effigies (including raptor kites, predator replicas, etc.),
commercial chemical bird repellents, ultrasonic repellers, audio
deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with
trained or tethered dogs, or access control (including netting,
fencing, etc.). Nene may also be harassed in the course of surveys that
benefit and further the recovery of nene. Such harassment techniques
must avoid causing direct injury or mortality to nene. Before
implementation of any such intentional harassment activities during the
nene breeding season (September through April), a qualified biologist
knowledgeable about the nesting behavior of nene must survey in and
around the area to determine whether a nest or goslings are present. If
a nest is discovered, the Service and authorized State wildlife
officials must be notified within 72 hours (see paragraph (d)(4) of
this section for contact information) and the following measures
implemented to avoid disturbance of nests and broods:
(1) No disruptive activities may occur within a 100-foot (30-meter)
buffer around all active nests and broods until the goslings have
fledged;
(2) Brooding adults (i.e., adults with an active nest or goslings)
or adults in molt may not be subject to intentional harassment at any
time; and
(3) The landowner must arrange follow-up surveys of the property by
qualified biologists to assess the status of birds present.
(B) Nonnative predator control or habitat management activities. A
person may incidentally take nene in the course of carrying out
nonnative predator control or habitat management activities for nene
conservation purposes if reasonable care is practiced to minimize
effects to the nene.
(1) Nonnative predator control activities for the conservation of
nene include use of fencing, trapping, shooting, and toxicants to
control predators, and related activities such as performing efficacy
surveys, trap checks, and maintenance duties. Reasonable care for
predator control activities may include, but is not limited to,
procuring and implementing technical assistance from a qualified
biologist on predator control methods and protocols prior to
application of methods; compliance with all State and
[[Page 69947]]
Federal regulations and guidelines for application of predator control
methods; and judicious use of methods and tool adaptations to reduce
the likelihood of nene ingesting bait, interacting with mechanical
devices, or being injured or dying from interaction with mechanical
devices.
(2) Habitat management activities for the conservation of nene
include: Mowing, weeding, fertilizing, herbicide application, and
irrigating existing pasture areas for conservation purposes; planting
native food resources; providing watering areas, such as water units or
ponds or catchments, designed to be safe for goslings and flightless/
molting adults; providing temporary supplemental feeding and watering
stations when appropriate, such as under poor quality forage or extreme
conditions (e.g., drought or fire); if mechanical mowing of pastures
for conservation management purposes is not feasible, alternate methods
of keeping grass short, such as grazing; and large-scale restoration of
native habitat (e.g., feral ungulate control, fencing). Reasonable care
for habitat management may include, but is not limited to, procuring
and implementing technical assistance from a qualified biologist on
habitat management activities, and best efforts to minimize nene
exposure to hazards (e.g., predation, habituation to feeding,
entanglement, and vehicle collisions).
(C) Actions carried out by law enforcement officers in the course
of official law enforcement duties. When acting in the course of their
official duties, State and local government law enforcement officers,
working in conjunction with authorized wildlife biologists and wildlife
rehabilitators in the State of Hawaii, may take nene for the following
purposes:
(1) Aiding or euthanizing sick, injured, or orphaned nene;
(2) Disposing of a dead specimen; or
(3) Salvaging a dead specimen that may be used for scientific
study; or
(4) Possession and other acts with unlawfully taken specimens as
provided in Sec. 17.21(d)(2) through (4)).
(4) Reporting and disposal requirements. Any injury or mortality of
nene associated with the actions excepted under paragraphs
(d)(3)(iii)(A) through (C) of this section must be reported to the
Service and authorized State wildlife officials within 72 hours, and
specimens may be disposed of only in accordance with directions from
the Service. Reports should be made to the Service's Office of Law
Enforcement at (808) 861-8525, or the Service's Pacific Islands Fish
and Wildlife Office at (808) 792-9400. The State of Hawaii Department
of Land and Natural Resources, Division of Forestry and Wildlife may be
contacted at (808) 587-0166. The Service may allow additional
reasonable time for reporting if access to these offices is limited due
to closure.
* * * * *
Dated: November 27, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-26548 Filed 12-18-19; 8:45 am]
BILLING CODE 4333-15-P